final Judgment STEPHANO EVOD MBOYA Tanzlii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MOSHI

AT MOSHI CRIMINAL APPEAL NO. 62 OF 2023 (Appeal from the Judgment of the District Court of Moshi at Moshi dated 4th August 2023 in Criminal Case No. 137 of 2022) STEPHANO EVOD MBOYA……………………………….….………..APPELLANT

VERSUS REPUBLIC….………..……..…………………………….…………..RESPONDENT

JUDGMENT 27th August & 24th Sept. 2024 A.P.KILIMI, J. At the District Court of Moshi at Moshi “the trial Court”, the appellant hereinabove Stephano Evod Mboya was arraigned with one count of unnatural offence contrary to section 154(1)(a)(2) of the Penal Code [Cap 16 R.E 2022]. Upon a full trial, he was convicted and sentenced to serve life imprisonment and to compensate the victim the amount of Tshs. One Million five thousand hundred (Tshs 1,500,000/=) for the injuries the victim sustained. 1 Being undeterred with the above trial court decision, the appellant is in this court praying for this Court to quash the conviction, set aside the sentence and set him at liberty with the following grounds of appeal; 1. That the learned trial Magistrate grossly erred in law and fact in relying upon the evidence of the victim of the alleged offence (PW2) to convict the appellant despite the alleged evidence being taken in total contravention of section 127(2) of the Evidence Act, Cap 6 R.E 2022 2. That, the learned trial Magistrate grossly erred in both law and fact when he inquired the PW1 and PW2 on what he termed as a ‘Voire dire test’ basing on a wrong provision of law i.e section 127 (4) of the Evidence Act.

3. That the learned trial Magistrate grossly erred both in law and fact in convicting and sentencing the appellant basing on a weak, tenuous, contradictory, incredible and wholly unreliable prosecution evidence from prosecution witnesses.

4. That, the learned trial Magistrate grossly erred both in finding and holding that the evidence of PW1 corroborated that of PW2(the victim) but failed to note that, the said PW1’s evidence totally contravened section 127(2) of the Evidence Act.

5. That the learned trial Magistrate grossly erred both in law and fact in finding and holding that the PW1 saw/witnessed/ recognized the appellant ravishing PW2 despite the conditions and circumstances at the scene of the alleged crime being not conducive for proper and correct identification/recognition.

6. That the learned trial magistrate grossly erred in law and fact in failing to comply with section 240(3) of the C.P.A, Cap 20 R.E 2022 in admitting the PF3 (Exh.P1).

7. That, the learned trial Magistrate grossly erred both in law and fact in failing to note that the PW1, PW2 and PW3 gave a very highly improbable and suspicious evidence which was supposed to be approached with great caution as it demonstrated a manifest intention or desire to lie in order to achieve or attain a certain end. 2 8. That, the learned trial magistrate grossly erred both in law and fact in convicting and sentencing the appellant despite the charge being not proved beyond reasonable doubt against the appellant and the required standard by the law. Before embarking into the merit of this appeal, I deem obliged to narrate, albeit briefly, the background of the facts led to the appellant’s conviction discerned from the trial court record. It started with the charge sheet whereon the prosecution alleges that on diverse dates between January and March 2023 at Kirua Vunjo area within the District of Moshi in Kilimanjaro region, appellant had carnal knowledge to one ‘girl CZ’ (in pseudonym to hide her identity) aged 12 years old against the order of nature. The appellant thereat pleaded not guilty to the charge. To prove the case at the trial court, the prosecution paraded total of four witnesses, the victim’s brother (PW1) Robert Stephano Mboya, the victim girl CZ (PW2), the victim’s mother Swidefrida Stephano (PW3) and investigator E 9631 D/SGT Shabani (PW4). The

defence side had one witness (DW1), the appellant hereinabove who fended for himself. The victim testimony at the trial court was that, on 20/01/2023 and in February about 20:00 hours, appellant who is her father came back 3 home pretending to be drunk. As they were asleep in one room with her brother (PW1), which they used to sleep together with their father in that one room, the appellant then chased PW1 away and remained with the victim. He undressed her clothes, skirt, tight and underwear and undressed his clothes and took his penis and inserted into her anus. In the following morning, she went to her grandmother where she met with PW1 who asked her what they were doing on bed with her father, the victim failed to reply as she could not answer him. It was the next day her brother (PW1) complained about the incidence to their grandmother. Later PW1 disclosed the incident to the congregation leader (Jumuiya) on what the father did to her sister. She was then called and interrogated where she accepted to have been sodomized by her father. The victim’s brother (PW1) aged 13 years old, his testimony at the trial court was that after returning back from school on February 2023, his father was angry at him and chased him away. He headed to his grandmother’s house, however on the way he decided to return back home. Upon entering the house on veranda just at the door step, he

saw his sister/the victim and his father naked and doing sexual intercourse on the bed where his father was inserting his penis onto his sister’s buttocks. 4 He also said he had a chance to see them through a door which was eaten by ants and there was enough light of solar energy. He disclosed the incident to the street congressional leader and to the head teacher, later the victim was interrogated by police and denied to have been sodomized by her father. PW1 also told the trial court, the victim PW2 was then taken to hospital. PW1 testified further that he witnessed the incident twice where on the second day it was on Thursday while cultivating the farm, his father (DW1) again chased him away. When he returned home it was night, through veranda and with the help of solar energy, he was able to see his father inserting his penis into the victims’ buttocks. The victim’s mother testimony at the trial court was to the effect that, she was not residing with her children including the victim as she lived at Moshi town as she had quarrels with her husband who was always drunk and beats her and threatens to kill her. She was informed that her child ‘the victim’ was sodomized by her father, she also mentioned the age of the victim to be 12 years old. The police officer (PW4) testimony was upon investigation of the case, the accused was arrested and the victim was taken to hospital

where upon examination she was found to have been 5 penetrated onto her anus by a blunt object. He tendered a PF3 which was admitted as exhibit P1. In his defence, the appellant had no verbosity rather briefly stated that he knows nothing about the case against him. Henceforth in sum up the trial court relied on the victim's testimony that it was corroborated with his brother PW1. It further reasoned that there was no mistaken identification as the accused was the victim’s father and that he was identified by PW1 through solar bulb light. The trial court also expunged exhibit P1 (PF3) since it had nothing in proving the fact in issue. Thereafter found the charge was proved to the required standard and convicted the appellant as alluded above. At the hearing of this appeal, the appellant was unrepresented while the respondent was represented by Mr. Innocent E. Ng’assi learned state attorney. Arguing this appeal by way of written submission, the appellant submitted that the trial court failed to properly conduct the test of voire dire as per the requirement of the law. He submitted that in testing whether the child had sufficient intelligence, the trial court ought to ask questions to a child so as to ascertain whether the child possessed intelligence. The appellant added that PW1 and PW2 were children and the 6 trial court did not test their competences to test if they knew the

meaning and nature of oath. To cement, the appellant referred to section 127(2) of the Evidence Act Cap 6 R.E 2022 and the decisions of Geofrey Wilson vs. Republic, Criminal Appeal No. 168 of 2018, and Jafari Majani vs. Republic, Criminal Appeal No. 402 of 2019 (both unreported). He further submitted that the particulars of the charge sheet differed to what prosecution witnesses reported the incident to have been occurred. He submitted that the charge alleged the offence to have been occurred on diverse dates between January and March 2023, but it differed with the testimony of PW1 who stated that the incident happened on February 2023 while PW2 stated the incident to have occurred on 20.1.2023 and in February. The appellant submitted that since the charge were never prayed to be amended, the prosecution failed to prove its case as it had clouds of doubts. To support his stance, he referred to the decision of Abel Masikiti vs. Republic, Criminal Appeal No 24 of 2015. The appellant went on challenging the admissibility of an exhibit P1 a PF3 that it was tendered by a wrong person who was not a medical officer rather a police officer (PW4) and that the appellant were never asked if he wished the medical doctor to be summoned so he can cross examine him 7 as per section 240(3) of the Criminal Procedure Act Cap 20 R.E 2022 “the criminal procedure act”. He prayed for exhibit P1 be

expunged. The appellant submitted further that some of the material witnesses were never called to testify like the head teacher and those who were at congregation. Thus, failure to call those witnesses diminished the credibility of prosecution witnesses. He prayed his appeal be allowed as the prosecution had discrepancies, omissions, irregularities and deficiencies entitling him to benefit from those doubts. In reply to appellant’s submission, Mr. Ng’assi consolidated the 1st,2nd and 4th grounds in his argument. He submitted that in regard to noncompliance of section 127(2)(4) of the Evidence Act(supra) by the trial court, he argued that the appellant was misconceived as the trial court did observe that PW1 and PW2 were children of tender age as per trial court proceedings at page 5,7, 10 and 12. He argued that section 127 (2) was complied with by the trial court. He further replied that section 127 of the Evidence Act was already amended by section 32 of the Legal Sector Laws (Miscellaneous Amendment) Act 2023 as it was also stated in the decision of Abdul Akwilina Mramba &Another vs. Republic (Criminal Appeal No. 342 of 2021 TZCA 704 (TANZLII). 8 Responding to ground number six, Mr. Ng’assi conceded with the appellant prayer in expunging exhibit P1 a PF3 as the records showed that the appellant was not accorded right to call the author who was a medical doctor thus contrary

to section 240(3) of the Criminal Procedure Act. The learned state attorney prayed for the court to still uphold the trial court decision by finding the appellant liable for the offence he committed. He supported his point by referring to the decision of Mohamed Said vs. Republic (Criminal Appeal No. 145 of 2017 TZCA 252 (TANZLII). In respect to ground number 5, Mr. Ng’assi contended that the appellant was properly identified by the victim PW2 and PW1 as per pages 7,8 and 11 of the trial court proceedings. He added that, these witnesses stated that the room had enough bulb light to identify their father. The learned state attorney added that the circumstance of the case at hand were almost similar with the case of Daniel Charles Colner @ Bahati vs. Republic, Criminal Appeal No 348 of 2021 TZCA 801 (TANZLII) and argued this court to consider the same. Arguing the ground whether the prosecution proved the case beyond reasonable doubt, he argued that the case against the appellant were proved beyond reasonable doubts, because the prosecution proved all 9 elements in proving the offence of unnatural offence as per section 154(1)(a) of the Penal Code(supra). He added that the elements were also discussed in the decision of Joel s/o Ngailo vs. Republic Criminal Appeal No 344 of 2017 TZCA 314 (TANZLII). He argued that the prosecution brought witnesses as PW1 was an eye witness and PW2

the victim herself. He added that even though the PF3 was to be expunged, still the comments of the doctor proved the victim was penetrated. He added that as per page 12 of the impugned decision, the trial court was correct in referring to the decision of Seleman Makumba vs. Republic (2006) T.L.R 379 where the prosecution did lead the victim to narrate what happened to her as shown at page 11 of the trial court proceedings. On the variance of charge and number of witnesses to be called, the learned state attorney stated that there were no variance of charge and evidence tendered He further added that some of the witnesses were not called to testify because no particular numbers of witnesses were required to prove a certain fact as per section 127 of the Evidence Act. He also said that what was required was the quality of evidence and credibility of witnesses as it was discussed in Christopher Marwa Mturu vs. 10 Republic, criminal Appeal No. 561 of 2019 CAT siting at Shinyanga at page 10(TANZLII). Having considered the rival arguments from both of the parties, my only task is to determine whether the appeal before me has merits or otherwise. I am mindful this court being first appellate court, has power to re- evaluate the evidence on record and come up with its own finding. (See the case of Kaimu Said v. Republic, Criminal Appeal No. 391 of 2019 which cited with approval the

case of Siza Patrice v. Republic, Criminal Appeal No. 19 of 2010 (unreported). I wish to start with the first, second and fourth grounds of appeal as grouped by the learned state attorney as I also see they are interrelated. In these, the appellant is faulting the trial court decision in relying with the evidence of the victim (PW2) which were taken contrary to section 127(2) of the Evidence Act. In ground number two, he argued that that the trial court based on the wrong provision of section 127(4) of the Evidence Act [Cap 6 R.E 2022] to conduct a voire dire test. 11 I have revisited the said sections 127(2) and section 127(4) of the Evidence Act(supra) and for purpose of clarity the same provide that; “127(2) a child of tender age m ay give evidence w ithout taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell any lies” [Emphasis added] Section 127(4) of Evidence Act (supra) further provides that; “For the purposes of subsections (2) and (3), the expression “child of tender age” m eans a child w hose apparent age is not m ore than fourteen years” [Emphasis added] As per the above cited provisions, first it defines a child of tender age to mean a child whose apparent age is not more than fourteen years old or the child whose age is not more than fourteen years of age, second it provides that a child

of tender age may give evidence with or without taking an oath. Perusing the trial court records proceedings particularly at 12 page 5 and 9, it is crystal clear that the victim PW2 was of the age below fourteen years as she was twelve (12) years old and her brother PW1 was thirteen (13) years old. Further, upon the trial Court to note that the victim and PW1 were children of tender age, at page 9 and 10 of the trial proceeding it made an inquiry to determine whether they possessed sufficient intelligence to speak the truth and answer the questions put to her. For ease reference on what transpires, I hereby quote the trial court proceedings conducting the inquiry to the victim (PW2). “I NQUI R Y Question: Whom do you reside with? Answer: I reside with my mother, brother and 2 other relatives Question: What is the name of your mother? Answer: My mother is Swidefrida Christian Mosha Question: What are the names of your relatives? Answer: Robert Stephano Mboya, Raymond Stephano Mboya, Joshua Stephano Mboya, Question: Mention four Teachers your school at Answer: Leons Paskali Massawe (Mathematics teacher), Noel Frank (Civics teacher), Mather (Science teacher) and Theresia (working environment) Question: do you go to church? Answer: I do go to church to preach Question: What do you learn to church? Answer: I do learn how to pray, not lie, not to steal as are for bidden by

God Question: Do you speak lies? Answer: I don’t speak lies but I speak the truth Question: why don’t you speak lies? 13 Answer: God for bidden (sic) to speak lies, speaking lies will be punished by God. Question: What is punishment for son(sic) Answer: The punishment is to be burnt by fire.” The same process above was done to PW1 the victim’s brother as evidenced at page 5 and 6 of the trial court proceedings. In the reproduced excerpt above, the trial Court thereafter made a finding regarding whether or not PW1 and PW2 understood the meaning of an oath or affirmation where it ruled that they had a sufficient intelligence to speak the truth and answer questions put to them. The trial court proceeded to take their testimony under oath. In my view, the trial court complied with the above requirement of the law. Despite the facts the law was amended to bring in promise to tell the truth and not lies, still the earlier procedure of swearing or affirming children of tender years is left at the discretion of the trial court in according to section 127(2) quoted above. Therefore, it was necessary for the trial court to conduct the above inquiry in order to satisfy whether they possessed sufficient understanding on the meaning and nature of an oath. In the case of John Mkorongo James vs Republic, Criminal Appeal No. 498 of 2020 (unreported), the Court held: 14 "The omission to conduct

a brief examination on a child witness of a tender ages to test his competence and whether he/she understands the meaning and nature of an oath before his/her evidence is taken on the promise to the court to tell the truth and not tell lies, is fatal and renders the evidence valueless" In this matter, at page 7 and 10 of trial court proceeding, after the said inquiry was satisfied that the above witnesses though were of tender years understand the nature of oath and proceeded to take their evidence under oath. The trial court ruled under the same tune for both PW1 and PW2 as follows; “Court: Upon inquiry, this court is satisfied that the child witness not only possessed sufficient intelligence to speak the truth and answer the questions put to her, but also understand the nature and obligation of oath. The child, w itness therefore, w ill testify upon oath” [ Emphasis added] Therefore, for the foregoing, it is my considered opinion that it was the trial court finding that through those rational answers from the said witnesses, ruled that they can testify under oath which means they were 15 competent witnesses as any other witness capable to testify under oath. This is what is envisaged in the provision of section 127 (1) of the evidence act, which provides; “127 (1) Every person shall be competent to testify unless the court considers that he is incapable of understanding

the questions put to him or of giving rational answ ers to those questions by reason of tender age, extreme old age, disease (whether of body or mind) or any other similar cause.” [ Emphasis added] Having considered the above endeavors, I am settled that no faults to the inquiry conducted by the trial court and its ruling to proceed to take their evidence on oath was proper and did not vitiate justice on part of the appellant. Therefore, it was proper for the evidence of PW1 to be used, which in my view suffice to corroborate the testimony of PW2 since he saw the appellant knowing the victim PW2 against the order of the nature as his evidence depicted above. In view thereof, I therefore find the alleged grounds, number one, two and four devoid of merits and are hereby dismissed forthwith. 16 In respect to ground number five, basically the appellant is faulting that the trial court that erred to hold that PW1 identified and saw the appellant ravishing the victim (PW2). It is trite law that, for an effective and proper visual identification to stand, all possibilities of mistaken identity have to be eliminated. The guiding requisites of identification has been discussed in number of authorities including Waziri Amani vs. Republic [1980] TLR.

250. In the case of Anthony Kigodi Vs Republic Criminal Appeal No. 94 of 2005, the Court of Appeal of Tanzania reemphasized the same when the following was observed: “We are aware of the cardinal principle laid down by the erstwhile Court of Appeal of East Africa in Abdala bin W endo and Another Vs R ex (1953) EACA 116 and followed by this Court in the celebrated case of W aziri Am ani Vs R epublic [1980] T.L.R. 250 regarding evidence of visual identification. The principle laid down in these cases is that in a case involving evidence of visual identification, no court should act on such evidence unless all the possibilities of mistaken identity are eliminated and that the Court is satisfied that the evidence before it is absolutely watertight.” 17 Having scanned the trial court records, and being guided by the above-mentioned authorities, first I have noted that the victim PW2 and her brother PW1 are biological children of the appellant herein. Thus, as submitted by Mr. Ng’assi, looking at pages 7,8, and 11 of the trial court proceedings both PW1 and PW2 testified to have seen their father/appellant herein to have sodomized the victim (PW2). On how he was able to know that it was the appellant who was sodomizing the victim, PW1 testimony was that he saw his father through a part of the door which was eaten by ants and he was able to identify him as the room had bulb light of

solar energy. Furthermore, the victim herself as per trial court records she stated that the room had bulb light. In my view of the above evidence, the evidence of identification by the two witnesses above based on recognition. It is a trite law that such evidence is considered to be more reliable than identification of a stranger. (See the case of Nicholaus Jame Urio vs The Republic, Criminal Appeal No. 244 of 2010 (unreported). However, I am mindful despite of this kind of evidence is reliable still clear evidence on source of light and its intensity is of paramount importance. This is because, as occasionally held, even 18 when the witness is purporting to recognize someone whom he knows, but mistakes in recognition of close relatives and friends are often made. (See Issa Mgara vs Republic; Criminal Appeal No. 37 of 2005 (unreported). As alluded above, both PW1 and PW2 said on the source of light enabled them to recognize their father who is the appellant herein. Moreover, I have considered the testimony of PW2, I am satisfied she was credible. I am saying this although this is first appellate court and not the trial court which had the said monopoly due to the consistence of PW2 evidence compared to other evidence. I have reached this after being led by principle in the case of Shabani Daudi v. Republic, Criminal Appeal No. 28 of 2001 (unreported) when the Court stated

that: "...The credibility of the witness can also be determined in two other ways. One, when assessing the coherence of the testimony of that witness and two, when the testimony of that witnesses is considered in relation to the evidence of other witness including that of the accused person. In those two occasions, the credibility of a witness can be determined even by a second appellate court when examining the findings of the first appellate court" 19 For instance, at page 11 of the trial court typed proceeding, victim testified coherently and for purpose of reference I reproduce part of her testimony hereunder; “On that day while sleeping my father chased Robert. Then we(sic) came to me. He undressed my clothes (skirt, tight and underwear). he also undressed all his clothes. Then my father took his "mbolo" and inserted into my anus. It was at about 20:00 hours. I saw him as there was bulb with enough light. He does so while we were on bed in a room.” Whereas the evidence of PW1 who is victim’s brother testified at page 7 of the trial court typed proceeding said that, he was chased by his father, later he returned at home and by the help of enough light of solar energy, he saw his father on top of the victim both naked and they were doing bad thing, as the father was inserting his ‘chululu’ to the buttocks of the victim. In fact, the appellant saw his father (appellant) in

flagrante delicto with the victim. The Court has always considered the evidence of finding somebody red handed committing an offence to be conclusive. For 20 instance, in Abdallah Ramadhani v. Republic, Criminal Appeal No. 141 of 2013 [2013] TZCA 501, when faced with an akin situation, the Court observed that: "When he responded to the call and went to the scene of crime, he found the appellant in ’fragrante delicto' raping the complainant The evidence to prove the offence of rape was therefore more than sufficient." In view of the above, first I am settled the victim was coherence in her testimony as alluded above, second, in considering her evidence compared to that of PW1 causes me to believe the testimony of the victim was extreme credible. Therefore, basing on the analysis above, I am satisfied that all possibilities of mistaken identity were eliminated and identification of the appellant by the victim was water tight. Thus, I find this ground with no merit and I proceed to dismiss in its entirety. Another complain by the appellant was on ground no. 6 when he faulted the trial court not to comply with section 240(3) of the Criminal Procedure Act in admitting victim’s PF3. In my view it is true the requirement envisaged on said provision was not abided by the trial court, 21 however the same cannot detain me too much, since the same seems to be recognized by the trial court

magistrate in his judgment, where at page 17 the learned trial Senior Resident Magistrate said ‘the PF3 therefore, though was not described by medical doctor as required by section 240(3) of Criminal Procedure Act, has nothing in proving the offence as against accused.’ Consequently, it proceeded to disregard the contents of the said PF3. Therefore, the sixth ground succeeds to that extent with no help to the appellant since the alleged PF3 was not based on his conviction. Coming to grounds number three, seven and eight which upon scanning them, I am of the view they all falls on one category of ground that is whether the prosecution proved its case beyond reasonable doubts. Therefore, I have preferred to dispose them together. The ingredient which proves the charge against the appellant is provided for under Section 154(1)(a)(2) of the Penal Code Cap 16 R.E 2022 which provides; “154(1)(a) Any person who has carnal knowledge of any person against the order of nature commits an offence, (2) Where the offence under subsection (1) is committed to a child under the age of eighteen years the 22 offender shall be sentenced to life imprisonment.” Looking the testimony at the trial court, first, the evidence of PW2 and that of the victim were not contradictory as alleged by appellant on ground number three, the appellant had submitted that what the victim and PW1 testified differed as

they both referred the incidence to have occurred on different dates. He recalled in the events on when it occurred. I think is a misconception by the appellant as such difference do not go to the root of the case. This is because if the crime occurred in February or March 2023 does not erase that the victim was sodomized as the evidence above was watertight. Nevertheless, according to the charge levied to the appellant said the appellant committed the offence on diverse dates between January and March 2023. Therefore, according to the date mentioned by PW1 and PW2 as said above when I was narrating the facts of this matter, their evidence mentioned the dates within that range as per charge sheet. Therefore, by so doing the appellant understood when the commission of the offence levied against him was committed, thus he cannot claim that he was prejudiced since no variance between the charge and evidence occurred. I 23 am fortified by the case of Vumi Liapenda Mushi vs Republic Criminal Appeal No. 327 of 2016 (unreported) when the court observed that; “Where an offence is alleged to have been committed on a wide range of dates, it is incumbent upon the prosecution to prove that indeed the offence was committed within that range.” (See also John Leon Kimario v. Republic, Criminal Appeal No. 105 of 2021 [2024] TZCA 404 (TANZLII). Therefore, in view of the above endeavors, by not

mentioning the same dates which might be caused by frailty of human memory cannot affect the testimonies of PW1 and PW2 under the above particulars of the charge and circumstance as already depicted above the credibility of the victim. Therefore, I am settled the said contradictions are too minor to go to the root of this matter. (See Athumani James vs Republic, Criminal Appeal No. 69 of 2017; Said Ally Ismail vs Republic, Criminal Appeal No. 249 of 2008; Maramo Slaa Hofu & 3 Others vs Republic, Criminal Appeal No. 246 of 2011, Slahi Maulid Jumanne vs Republic, Criminal Appeal No. 292 of 2016 and Rajabu Ponda vs Republic, Criminal Appeal 24 No. 342 of 2017 and John Gilikola vs Republic, Criminal Appeal No. 31 of 1999 (all unreported), to mention but a few. Another claim by the appellant by the appellant in his submission is that some of the material witnesses were never called to testify by the prosecution like the head teacher and those who were at congregation. Before I proceed with this claim, I am aware, it is settled law that, the prosecution is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are in a position to testify on material facts. If such witnesses are within reach but are not called without sufficient reason stated, the court may draw an adverse inference to the prosecution's case. See; Azizi Abdalla

v. Republic, [1991] T.L.R. 71, Wambura Marwa Wambura vs Republic, Criminal Appeal No. 115 of 2019 and Priva Constantine @ Shirima vs Republic, Criminal Appeal No. 437 of 2020 (unreported) and George Jonas Lesilwa vs Republic (Criminal Appeal No. 374 of 2020) [2024] TZCA 269 (TANZLII) to mention the few. In George Jonas Lesilwa v. Republic (supra) the court defined who is material witness and described as follows: “a witness who can testify about matters having some logical connection with the 25 consequential facts especially if few others, if any, know about these matters, (See Black's Law Dictionary 8th Ed. page 1634). Generally, the information the material witness possesses has a strong probative value and, very few, if any witness, possess the same information. It should be needless to say, at this juncture that, probative value is the probability of evidence to reach its proof purpose of the fact in issue." (See also the case of Wachawaseme John vs Republic, Criminal Appeal No, 468 of 2022, (unreported). I have considered the evidence proving the charge against appellant, eye witnesses are only two, these are the ones who can prove the charge. Those witnesses alleged by the appellant were not called, it is true the said incident was reported to them. In my view since they were not eye witnesses, the facts that PW1 reported the matter to them and were not called, does not

diminish his direct evidence and that of PW2, I think by principle in adversarial dispute settlement one witness is a witness suffice if the witness is credible as alluded above. Therefore, according to the nature of the offence committed even if they could have been brought to testify, could have testified hearsay evidence which under circumstances of this 26 matter cannot have value as the direct testimonies of PW1 and PW2. Thus, I hold this allegation has no merit. Another witness of value was PW3 the mother of the victim, she testified on the age of the victim to be 12 years which correlate the testimony of the victim who testified that she was 12 years of age and that she was a pupil of standard seven at Msufini Primary Court. In my view this witness was of value because it proved an essential ingredient of the offence charged which is the age of the victim which determines the sentence to be imposed when the offence is proved. Thus, the same as testified proves that the victim was of that age during the commission of the offence. Further to that, I am aware of the general rule that in sexual offences, the best evidence is that of the victim as per Selemani Makumba vs Republic [2006] T.L.R, 379, That position has however over been qualified by the court in the case of Method Leodiga Komba @ Todi & Another vs Republic, Criminal Appeal No. 150 of 2021 (unreported), where it

stated that the evidence of a victim in sexual related cases should not be taken as Scriptural truth, the evidence must be credible. 27 As stated above on the ground raised of identification by the appellant, I analyzed how the victim was credible to identify the appellant and I quoted her testimony in respect to the acts of the appellant on how he prepared to do the act and commission of the overt act, as the evidence of the victim herself was direct as she stated that her father after undressing her skirt and tight, he inserted his penis into her anus. I have considered the relation they have between the two, which is the father and daughter and the coherence during her testimony as shown above, thus, I am settled that PW2 as a victim was a witness of truth. For instance, at page 12 of the typed proceeding reflect what is in handwritten proceeding of the trial court when the victim was crossed examined by the appellant who is her father replied as follows; “Xxd Accused: It is true that you sodomized me. Even God know that you did the act to me. Even Robert saw us on bed doing the act of sodomize.” For the above analysis of evidence, and being guided by the principal of law that each case must be decided largely on its own facts, I am of the view under above circumstances depicted, the victim’s evidence despite of 28 being corroborated by PW2 was the best evidence to be relied

upon to enter conviction of the appellant at the trial court. Thus, I am settled the case at the trial was proved beyond reasonable doubt as per requirement of the law, in the premises all grounds of appeal under this category are devoid of merit hence dismissed. As I wind up, I would like to say, it is cardinal principle of criminal law that the duty of proving the charge against an accused person always lies on the prosecution and in that understanding the accused cannot be convicted basing on weakness of his/her defence. (see John Makolebela Kulwa Makolobela and Eric Juma alias Tanganyika [2002] T.L.R. 296; Magendo Paul & Another v. Republic [1993] T.L.R. 219 and Mike Nwankwo vs Republic [2024] TZCA 773 (TANZLII); and Mohamed Haruna @ Mtupeni and Another v. R, Criminal Appeal No. 259 of 2007 (unreported) to mention a few. I have considered the defence of the appellant, the appellant only said he knows nothing about this case against him. I am not drawing adverse inference to him for the said scanty evidence, but I think he had reasonable obligation by common sense, after taking regard the evidence adduced by his own children to clarify albert brief none responsibility of the 29 charge against him, or whatever to cast the doubts the prosecution case. Be that as it may, as rightly decided by the trial court, the same did not contradict direct evidence of PW1 and PW2, thus unhelpful to him. In conclusion thereof and foregoing endeavors, I am satisfied that the Appellant was properly convicted and sentenced. Thus, I find no reason to fault the decision of the trial court. Consequently, this appeal is devoid of merit and is hereby dismissed in its entirety. It is so ordered. DATED at MOSHI this 24th day of September, 2024.

X

JUDGE Signed by: A. P. KILIMI 30 Court: Judgment delivered today on 24th day of September, 2024 in the presence of Ms. Edith Msenga learned State Attorney for the Republic, also appellant present in person. Sgd; A. P. KILIMI

JUDGE 24/09/2024 Court: Right of Appeal explained. Sgd; A. P. KILIMI

JUDGE 24/09/2024 31