CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA ( CORAM: MWARI3A, 3.A., MASHAKA. 3,A.. And FELESHI. 3.A.V CRIMINAL APPEAL NO. 342 OF 2022 MWARABU SUGWE3A @ KIHENA ...... ........................ APPELLANT VERSUS THE REPUBLIC ...... .... .............. ........ .......RESPONDENT (Appeal from the Judgment of the High Court of Tanzania atSumbawanga) fNkwabi, 3.-) dated the 13th day of June, 2022 in RM Criminal Appeal No. 75 of 2021 JUDGMENT OF THE COURT 17lh & 27th March, 2025 MASHAKA. J.A.; Before the Court of Resident Magistrate of Katavi at Mpanda, in Criminal Case No. 61 of 2020, Mwarabu Sugweja @ Kihena, the appellant was charged with unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code [Cap 16 R.E. 2019] (the Penal Code). The prosecution alleged that, on the 14th October, 2020 at Ikaka Village within Tanganyika District in the Region of Katavi, the appellant had carnal knowledge of a girl (name withheld) aged five years against the order of nature. We, hereinafter shall refer to the girl as the victim or PWl to protect her modesty. The prosecution called nine (9) witnesses and tendered three documentary exhibits, while the appellant fended for himself. The trial court was satisfied with the prosecution evidence and convicted the appellant. He was sentenced to life imprisonment. His first appeal to the High Court was barren of fruit, hence this second appeal. The account by the prosecution is that on the fateful date, the victim (PW1) accompanied by her brother, Wijle William (PW2) were heading to meet Flora Kabaji (PW3) their mother who had a small business at Ikaka center. While on the way, PW1 stated that though it was night time it was not dark, they met the appellant, whom they knew by his name as Mwarabu. PW1 stated that the appellant pulled her hand and led her to the bush. Seeing that, PW2 ran to the center to inform PW3 who reported to Mathias Peleka (PW5) the Hamlet Secretary of Ikaka Village that PW1 was abducted. Then PW2, PW3 and PW5 went to search for PW1. While in the bush, the appellant who was wearing a shirt and shorts, took off his short and ordered PW1 to remove her underwear. The appellant ordered her to bend and he inserted his penis in her anus. When he finished, he told PW1 to go home and she left crying. On her way home, she met PW2, PW3 and PW5 and narrated the whole incident. She named the perpetrator was Mwarabu and that he went to Mama Kulwa's house. Mama Kulwa ia also known as Merisiana Petro who testified as PW4. PWl, PW2, PW3 and PW5 went to the house of PW4 and met three men sitting outside her house. PWl and PW2 did not identify any of them to be the perpetrator, PW4 called the appellant, her tenant who was inside the house and when he appeared PWl and PW2 identified him as the one they met on their way and pulled PWl to the bush and sodomized her. After the identification, PW3, PW4 and PW5 examined PWl and saw bruises in her anus. PW5 informed Yassin Mohamed, the Village Executive Officer of Itenka Village (PW7) about the incident and was ordered by PW7 to arrest the appellant and later took him to Tanganyika Police station. At the police station, PWl was issued with a PF3 and she was examined by Dr. Hassan Said (PW8) who revealed that there were bruises and lacerations in the anus of PWl which were caused by penetration of a blunt object. He also filled the PF3 which was admitted in evidence as exhibit P2. H609 DC Melikidadi (PW9) interrogated the appellant who confessed to have sodomized PWl. He recorded the appellant's cautioned statement. In his defence, the appellant disassociated himself with' the commission of the offence. He narrated the manner he was arrested and denied to be caught in flagrante delicto. The evidence of PW1 was corroborated by PW8 on the penetration and the bruises and lacerations in her anus. Also, PW3, PW4 and PW5 who inspected PW1 saw the bruises in her anus. Likewise, the evidence of PW6 proved the age of the victim that she was born on 4th October 2015. The trial court considered the evidence of the appellant who had testified that the prosecution evidence of the victim and PW2 was weak and therefore not reliable. He further asserted that he was not caught in flagrante delicto, that he was not examined in hospital and no sperms were found in the victim's anus. The trial court was convinced that the evidence of PWl and PW2 was credible and reliable. Further it was its finding that PW2, PW3, PW4, and PW5 corroborated the victim's evidence, hence the prosecution proved the charge to the hilt. Thus, the appellant was convicted and sentenced as alluded to earlier. Undaunted, the appellant preferred this second appeal on five (5) grounds lodged on 22/8/2022, rephrased: - 1. That, the first appellate Judge erred in law and fact to dismiss the appellant's appeal while the case against the appellant was not proved beyond reasonable doubt as required by law. 2. That, the first appellate Judge erred in law and fact by dismissing the appellant's appeal without considering that the appellant was con victed withoutproper identification. 3. That the learned Hon. Judge erred in law and fact to dismiss the appellants appeal while voire dire examination o f the victim o f tender age was not conducted at the trial court. 4. That the first appellate Judge misdirected himself by dismissing the appellants appeal while he failed to note that no birth certificate was tendered before the trial court to pro ve the age o f the victim. 5. That the first appellate Judge erred in law and fact to dismiss the appellants appeal relying on cautioned statement tendered by PW9 at the trial court while there was no extra judicial statement tendered to prove if the cautioned statement o f the appellant was recorded voluntarily. The appellant on 26th August, 2024 lodged additional grounds of appeal rephrased that: 1. The first appellate court erred in law to uphold conviction o f the appellant basing on uncorroborated evidence ofPW l and PW2 who stated that at the scene there was some electricity fight from the neighbours but PW1 (victim) did not support this piece o f evidence, 2. The trial court erred in law to convict him and the first appellate court erred the same basing on night doubtful visual identification evidence o f PW1 who stated it was night and the victim did not explain which source o f light aided her to identify her rapist 3. The first appellate court erred in law to uphold conviction o f the appellant basing on inadmissible evidence o f PW1 and PW2 while there was no sketch map to show the distance between the bush and the peoples' residence. See - Mapinduzi Mga/a vs. Republic, Criminal Appeal No. 406 Of2020. At the hearing of the appeal before us on 1.7th March 2025, the appellant entered appearance, unrepresented, while Ms. Flavia Shiyo, learned Senior State Attorney, assisted by Mr. Joseph Mwakasege, learned State Attorney, represented the respondent, Republic. The appellant was called on to argue his appeal and wished to adopt the five (5) grounds of complaint in the memorandum of appeal and the additional three (3) grounds. He opted to hear the respondent's reply to his grievances and reserved his right to rejoin. Mr Mwakasege argued the appeal for the respondent Republic and at the outset, he prefaced his submissions by opposing the appeal that the prosecution proved the charge to the hilt against the appellant. Commencing with ground 5 of complaint that first and foremost, this ground was not raised before the first appellate court and the Court has no jurisdiction to entertain it. In support of his argument, he referred us to the case of Felick Kilipasi v. Republic (Criminal Appeal No. 260 of 2021) [2023] TZCA 17941 (13 December 2023), that the Court was not in a position to entertain the grounds in the petition of appeal which the first appellate court vyas not invited to determine. Hence, they were constrained to refrain from entertaining them. He prayed to the Court to do the same. The complaint in ground 4 of appeal is that the age of the victim was not proved as no birth certificate was tendered in evidence. Mr. Mwakasege argued that the age of a victim in such a sexual offence can be proved by other means like the evidence of parents, relatives or a clinic card. However, he was mindful to underscore that age is not one of the ingredients to prove an unnatural offence. Further he added, it only becomes relevant for consideration during sentencing and that the evidence of PW6, a relative of the victim established that she was born on 14/10/2015, therefore aged 5 years. To bolster his stance, he referred us to the case of Halfan Rajabu Mohamed v. Republic (Criminal Appeal No. 281 of 2020) [2023] TZCA 178 (6 April 2023). He prayed to the Court to dismiss ground 4 for lack of merit. In ground 3 of the memorandum of appeal, the appellant's complaint is that the voire dire test was not conducted during trial. Mr. Mwakasege contended that the said test was not relevant now because section 127 (2) of the Evidence Act Cap 6 R.E. 2022 brought a new position in which a victim of tender age who does not understand the meaning of an oath, can give evidence as long as the said witness promises to tell the truth and not lies. He asserted that the victim promised to tell the truth as gleaned from the record of appeal, hence this ground 3 of appeal is baseless. Arguing ground 3 of the additional grounds of appeal, Mr. Mwakasege outright dismissed the complaint that a sketch map to show distance between the bush where the appellant had pulled PW1 to the bush and the peoples' residence is not an essential ingredient to be proved in this offence. He further argued that the credible and reliable evidence of PW1 and PW2 gave a consistent explanation on what happened when they met him, a person they knew, on their way to the center. He prayed to the Court to dismiss this ground for lack of merit. On ground 2 of the memorandum of appeal and grounds 1 and 2 of the additional grounds, is a complaint that there was no proper identification of the appellant because PW1 stated that it was night time and did not state the source of light which enabled her to identify him. Further, the appellant's complaint is that while PW2 stated that there was electricity light from neighbours that it was not supported by PW1. Mr. Mwakasege contended that the identification by PW1 and PW2 was by recognition and knew where he resided. He argued that PW2 informed PW3 that it was the appellant who took PW1 in the bush. Further after PW1 was released by the appellant, as she was heading home crying, met PW2, PW3 and PW5 and told them that the appellant had carnally known her against the order of nature. Mr. Mwakasege further stated that they went to Mama KuIwa's house and there PW1 and PW2 identified him. He referred the cases of Nebson Tete v. Republic (Criminal Appeal No. 419 of 2013) [2015] T7CA 518 (27 August 2015) and Shida Siame v. Republic (Criminal Appeal No. 610 of 2021) [2025] TZCA 75 (25 February 2025) to bolster his argument. The identification led to the arrest of the appellant that night and Mr. Mwakasege referred us to the -case of Marwa Wangiti Mwita and Another v. Republic (Criminal Appeal No. 6 of 1995) [2000] TZCA 37 (12 June 2000) to support his contention. He argued ground 1 of the memorandum of appeal that the charge was proved to the hilt by the prosecution and the lower courts properly convicted the appellant. In summarization of what he had submitted, Mr. Mwakasege stated that the lower courts convicted the appellant based on the evidence of the victim being the best evidence as held in the case of Seleman Makumba v, Republic [2006] T.L.R. 379. Penetration was proved by the evidence of PW 8 and corroborated by PW3, PW4 and PW5. He bolstered his argument by the cases of Halfan Rajabu Mohamed v. Republic (supra) and Joel s/o Ngailo v. Republic (Criminal Appeal No. 344 of 2017) [2019] TZCA 314 (29 August 2019). Mr. Mwakasege concluded that when taken as a whole, ail these pieces of evidence is to the effect that the prosecution had proved its case beyond reasonable doubt and therefore, the appeal is unmerited. Rejoining, the appellant reiterated his innocence and implored the Court to consider his appeal, allow it and set him free. Having perused the record of appeal, considered the eight grounds of appeal and the submissions in opposition of the appeal, we shall commence to determine ground 5 of appeal. Having revisited the record of appeal, the petition of appeal gleaned at pages 74 and 75 of the record which was lodged before the High Court, we are in agreement with Mr, Mwakasege that ground 5 was not among the three grounds which were raised. In other words, the issue of relying on a cautioned statement of the appellant which was not corroborated by an extrajudicial statement was not canvassed by the first appellate court. This Court has pronounced in a number of its decisions that it is not vested with jurisdiction to determine new grounds of appeal on the second appeal, unless they are based on points of law. See for instance, Julius Josephat v. Republic (Criminal Appeal No. 3 of 2017) [2020] TZCA 1729 (18 August 2020) and Godfrey Wilson v. Republic (Criminal Appeal 168 of 2018) [2019] TZCA 109 (6 May 2019). In Julius Josephat v. Republic (supra), the Court had this to say: "... those three grounds are new. As often stated, where such is the case, unless the new ground is based on a point o f law, the Court will not determine such ground for lack o fjurisdiction." In the circumstances, we are constrained to disregard ground 5 of appeal. We now move to the complaint in ground 2 in the memorandum of appeal and the additional grounds 1 and 2 on whether the appellant was properly identified as the perpetrator. PW1 and PW2 met the appellant on their way to the center and they knew him. PW1 also knew that the appellant lived at the house of PW4. They had seen him before at the Ikaka center and knew his name was Mwarabu, hence it was not their first time to see him. When he grabbed the hand of PW1 and pulled her into the bush PW2 witnessed the act. In her evidence at page 15 of the record of appeal, PW1 stated: "On 14/10/2020 I was going to center accompanied with Wiie, we met Mwarabu, I know Mwarabu. I used to see him at Ikaka center, it was night but not dark, he puiied my hand and fed me to the bush..,.... " Thus, the appellant was not a stranger to PW1 and PW2. It is the position of the law that identification by recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the court should always be aware that mistakes in recognition of close relatives and friends are sometimes made. See for instance, Emmanuel Chigoji v. Republic (Criminal Appeal No. 355 of 2018) [2019] TZCA 327 (25 September 2019). In this instant appeal, the appellant pulled PWl to the bush while PW2 saw the incident. They both stated that it was night time but was not that dark. PW2 stated that there was electricity light from the neighbors at the center. The evidence adduced by PW1 and PW2 does not suggest any mistaken identity or inconsistency about the source of light. As we look into the unfolding evidence, PWl and PW2 remained unswerving on immediately naming the appellant. Record shows that when PW2 went to call PW3 he mentioned the appellant was the one who grabbed PW l and took her to the bush and as soon as PVV1 met PW2, PW3 and PW5, she mentioned the appellant. Further, when PWl, PW2, PW3 and PW5 arrived at the house of PW4, saw three men sitting outside PW4,s house, though PW1 and PW2 did not identify any of them as the culprit, the moment the appellant appeared they both pointed at him. Both PWl and PW2 testified to have identified the appellant by recognition as he lived in the same Village ofIkaka Kona where PWl and PW2 were also residents. This piece of evidence was not challenged by the appellant. The lower courts below were impressed and believed the evidence of recognition by PWl and PW2 as nothing but the whole truth. This chain of events conclusively established that the appellant was positively identified by PWl and corroborated by PW2. Hence, the circumstances of this appeal did not accommodate possibility of any mistaken identification even though the source of light and intensity of light was unknown. Furthermore, the ability of PW1 and PW2 to mention the appellant assures their reliability and credibility. In Marwa Wangiti Mwita and Another v. Republic, (supra), the Court emphasized the ability of a witness to name the suspect at the earlier opportunity is an important assurance of his reliability. After an objective evaluation of the evidence carried out by the trial court, we are satisfied that the lower courts rightly relied on the evidence of identification by the recognition by PW1 and PW2. The fact that PW1 and PW2 immediately reported the incident and named the appellant immediately to PW3, PW4, and PW5 facilitated the arrest of the appellant that same night at Mama Kulwa's house. These grounds lack, merit. The complaint advanced in ground 3, is whether the trial court was required to conduct the voire dire test The requirement of voire dire was substituted with the requirement of a child of tender age who does not understand the meaning of an oath to make a promise to the court to speak the truth and not lies. This is in compliance to section 127 (2) of the Tanzania Evidence Act Cap 6 R.E. 2022 (the TEA). PW1 and PW2 were witnesses of tender age and as gathered at pages 12 and 16 of the record of appeal, they promised to speak the truth. It is clear that making a promise, to tell the truth and not lies is a condition precedent before recording the evidence of a chiid of tender age. A child of tender age may testify without oath or affirmation provided that he or she promises to tell the truth and not lies. See for instance, Godfrey Wilson v. Republic (Criminal Appeal No. 168 of 2018) [2019] 77CA 109 (16 May 2019) and Issa Salum Nambaluka v. Republic (Criminal Appeal No. 272 of 2018) [2020] TZCA 10 (21 February 2020). This ground is baseless. Now, we move to determine jointly grounds 1 and 4 in the memorandum of appeal and ground 3 in the additional grounds, on whether the charge was proved beyond reasonable: doubt. In cases of this nature, penetration, however slight into the anus, with or without consent; is an essential ingredient of unnatural offence under section 154 (1) (a) of the Penal Code. Proof of penetration is the main ingredient that makes this offence complete. See for instance, Joel s/o Ngailo v. Republic (supra). The evidence of the victim is of outmost importance to prove penetration and naming the culprit, while other witnesses provide corroborative evidence. In Selemart Makumba v. Republic (supra), the Court held: as "Penetration, howeverslight into the anus, with or without consent; is an essential ingredient o f unnatural offence under section 154 (1) (a) o f the Pena! Code. Proof of penetration is the main ingredient that makes this offence complete." The direct evidence of a victim is final. In this appeal, the record of appeal at page 15, PW.l stated: "... he pulled my hand and led me into a bush, he told me to undress my underwear I did Mwarabu also undressed his shirt, he was wearing a short and a shirt, he undressed his short and inserted his penis (pointing accused private parts) into my buttock then he finished, he told me to go home I cried while doing the act, I met my mother I informed her I know Mwarabu, he is living to (sic) Mama Kulwa...." Based on the evidence adduced by PW1 whose credibility was solid throughout the prosecution case was corroborated with the evidence of PW3, PW4, PW5, PW6 and exhibit PI, Penetration was established by PWI, PW8 and exhibit P2. Regarding the age of the victim, it is settled that the age of the victim is of great importance in proving the offence of statutory rape under section 130 (2) (e) of the Penal Code. The age of the victim may be proved by the evidence of relative, parent, medical practitioner or by reproduction of birth certificate or clinic card as the Court held in Zssaya Renatus v. Republic (Criminal Appeal No. 542 of 2015) [2016] TZCA 218 (29 April 2016): "We are keenly conscious o f the fact that age Is o f great essence in establishing the offence of statutory rape under section 130 (1) (2) (e l the more so, under the provision, it is a requirement that the victim mustbe under the age o f eighteen. That being so, it is most desirable that the evidence as to the proof o f age be given by the victim, relative, parent, medical practitioner or, where available, by the production o f a birth Certificate.if" The above excerpt concerns the offence of statutory rape while in the instant appeal, the offence under section 154 of the Penal Code, does not require proof of age to prove the offence. Section 154 (1) (a) and (2) of the Penal Code stipulates that:- "(1) Any person who- (a) has carnal knowledge o f any person against the order o f nature; or (b) NA or (c)NA, commits an offence, and is liable to imprisonment for life and in any case to imprisonment for a term o f not less than thirty years. (2) Where the offence under subsection (1) is committed to a child under the age of eighteen years the offender shall be sentenced to life imprisonment." [Our Emphasis] It becomes relevant in accordance to section 154 (2) of the Penal Code. It is on record that apart from the victim's evidence that she was 5 years old, PW6 also testified as the uncle of PW1 and tendered affidavit which was admitted in evidence as exhibit P i to prove the age of the victim. Thus, the age of the victim was sufficiently proved to confirm the sentence inflicted on the appellant upon his conviction of the offence under section 154 (1) (a) of the Penal Code by the two lower courts. We hold that the learned State Attorney was right in submitting that the evidence of PWl, even on its own merit, sustains the completeness of the unnatural offence for which the appellant was tried and convicted. We also agree that PW l’s evidence is credible. The record of appeal also bears out the learned State Attorney's assertion that although both PWl testified as child of tender age; her evidence were recorded by the trial Magistrate to be truthful as required by section 127 (2) of the Evidence Act as amended by Act No. 4 of 2016. Furthermore, having believed the truthfulness of PW1, her evidence can stand on its own merit to sustain conviction. In light of the foregoing reasons, this second appeal lacks merit and is dismissed in its entirety. DATED at SUMBAWANGA this 26th day of March, 2025. A. G. MWARIJA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 27th day of March, 2025 in presence of appellant in person - unrepresented and Mr. David Mwakibolwa, learned State Attorney for the Respondent/Republic is hereby certified as a true