IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALLAM

(CORAM: MKUYE, J.A., MWAMPASHI. J.A.. And MGEYEKWA. J.A.'i

CRIMINAL APPEAL NO. 667 OF 2022

NELSON JONAS.... ........................ .................................. ................ APPELLANT

VERSUS
THE REPUBLIC....................................... ...... ...... ....................... RESPONDENT

(Appeal from the decision of the High Court of Tanzania

at Dar es Salaam)

(NkwabLJ.)
dated the 02nd day of November, 2022
in
(D O Criminal Appeal No. 56 of 2022

JUDGMENT OF THE COURT

03rd & 15th July, 2024

MWAMPASHI. J.A.:

In the District Court of Kinondoni at Kinondoni (the trial court), Nelson

Jonas, the appellant herein, was charged with two counts, to wit, rape and

unnatural offence contrary to sections 130 (1) (2)(a), 131 (1) and 154 (1)

(a) and (2) of the Penal Code [Cap 16 R.E. 2002, now R.E. 2022] (the Penal

Code). After a full trial, the appellant was convicted of both two offences

and was sentenced to serve thirty (30) years imprisonment on the offence

of rape and life imprisonment on unnatural offence. The sentences were

ordered to run concurrently. Aggrieved, the appellant unsuccessfully

appealed to the High Court hence, the instant second appeal before this

Court.

According to the particulars of the offence, it was alleged, on the first

count of rape, that on diverse dates between July 2018 and 13.01,2019, at

Ubungo Msewe within the District of Ubungo, in Dar es Salaam Region, the

appellant had carnal knowledge of "K.B", a girl of eleven (11) years of age

whose name is withheld and who shall hereinafter be referred to as the

victim or PW3. As on the second count of unnatural offence, it was alleged

that, at the same place, on diverse dates between 23.07.2018 and

13.01.2019, the appellant had carnal knowledge of the victim against the

order of nature.

The prosecution's case against the appellant was built on the evidence

given by four (4) witnesses. PW1 was the victim's father whose evidence

was to the effect that, on 13.01.2019 he was at home with other members

of his family including the victim and the appellant who used to be their

house boy. At some point in the afternoon, the victim complained that she

was not feeling well and supposedly went in her bedroom to have a rest.

Sometimes later, PW1 went to the victim's bedroom to check on how the

victim was doing, but the victim was not in there. He checked in other rooms

but all in vain. When he went in a guest room upstairs, aias, the appellant

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who was naked was having carnal knowledge of the victim against the order

of nature. He explained that, his conclusion that the appellant was having

carnal knowledge of the victim against the order of nature came from the

way he saw them, that is, the victim's and appellant's postures. The

appellant was thus, arrested by PW1 and the case was reported to the

police.

On the same date, the victim was taken to Palestina Hospital where

she was attended and medically examined by Dr. John Elias Joseph (PW2).

PW2's observation was that the victim was no longer virgin and that she had

many bruises in both her vagina and anus suggesting that she had been

penetrated by a blunt object. A PF3 in which PW2's findings were posted

was tendered and received in evidence as Exhibit P2. PW4 was CpI. Monica

of Oysterbay Police Station whose brief evidence was to the effect that the

case file was assigned to her on 14.01.2019 when he interrogated the

appellant who was in the police lock up and then went to PWl's home to

visit the scene of crime and to interview PW1.

The evidence from the victim (PW3) was to the effect that the

appellant used to rape and sodomize her on Saturdays and Sundays in the

guest room upstairs when her parents were not around and when her

grandmother was either sleeping or praying. She testified that she was

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raped and sodomized by the appellant several times, the first time was

sometimes in July, 2018 and the last time was on 13.01.2019 when her

father (PW1) found the appellant ravishing her in the guest room. Explaining

on what transpired on the material day, the victim told the trial court that,

on that material day, the appellant lured her to lie to her father that she was

not feeling well and caused her to go upstairs in the guest room. While in

the room, the appellant ravished her by inserting his penis in her anus and

vagina. She also told the trial court that she did not disclose the ordeal she

was undergoing because the appellant had threatened to kill her if she would

dare reveal it to anyone.

In his sworn defence the appellant admitted to have worked as a

houseboy and lived at PW l's home for seven months. He however denied

to have committed the offences in question. He claimed that the case was

fabricated and framed against him by PW1 who owed him his salary arrears

and who had refused to pay him promising that he would teach him a lesson.

Based on the evidence from the prosecution, particularly on the

victim's evidence and on corroborative evidence from PW1 and PW2, the

trial court found that the case against the appellant was proved beyond

reasonable doubt. It was found that the appellant did not only rape the

victim but also that he had carnal knowledge of her against the order of

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nature. The appellant was thus duly convicted of the two charged offences

and sentenced in the manner we have alluded to earlier. The conviction and

sentences by the trial court were confirmed by the High Court.

Still aggrieved, the appellant has preferred the instant appeal raising

six grounds of complaint which can be paraphrased as follows: One, that

the conviction was based on the evidence of PW3 which was invalid for

being taken in contravention of section 127 (2) of the Evidence Act [Cap. 6

R.E. 2022]; Two, the truthfulness and credibility of PW3 was not properly

assessed by the High Court; Three, the evidence of PW1 and PW2 was

contradictory, highly implausible and improbable hence lacking in

corroborative value; Four, the evidence on record was not re-evaluated by

the High Court; Five, the defence evidence was unjustifiably disregarded

on the ground that the appellant failed to cross examine PW1 on the

allegations raised by him in defence against the said PW1 and; Six, that the

case against the appellant was not proved beyond reasonable doubt.

When the appeal was called on for hearing, the appellant appeared in

person unrepresented whereas the respondent Republic had the services of

Mses. Sabina Ndunguru and Amina Ngalula, both learned State Attorneys.

When invited to argue his grounds of appeal, the appellant adopted

his written submissions he had earlier filed. He urged us to consider his

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submissions and allow the appeal. Beginning with ground 1 of appeal on

which it is complained that the conviction was based on PW3's evidence

which was invalid for being taken in contravention of section 127 (2) of the

Evidence Act [Cap. 6 R.E. 2022] (the Evidence Act), it was submitted that,

having rightly found that PW3's evidence was taken in contravention of the

law, the High Court erred in basing the conviction on such valueless

evidence which ought to have been expunged from the record. Placing

reliance on our decisions in Hassan Yusuph Ally v. Republic (Criminal

Appeal No. 462 of 2019) [2021JTZCA 472 (14 September 2021; TanzLII),

John Mkorongo James v. Republic (Criminal Appeal No. 498 of 2020)

[2022]TZCA 111 (11 March 2022; TanzLII) and Mohamed Ramadhani @

Kolahili v. Republic (Criminal Appeal No. 396 of 2021) [2023] TZCA 81 (2

March 2023; TanzLII), it was emphatically argued that the position of the

iaw is settled that the evidence of a child of tender age given in

contravention of section 127 (2) of the Evidence Act, has no evidential value

and that such evidence is liable for being expunged from the record.

It was his further submission that since the instant case was tried and

decided before the amendments of section 127 of the Evidence Act by Act

No. 11 of 2023, which introduced sub section (7) to section 127 under which

it is provided that notwithstanding any other law to the contrary, failure by

a child of tender age to meet the provisions of sub-section (2) shall not
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render the evidence of such child inadmissible, then the High Court erred in

law in basing the conviction on PW3's evidence on the ground that the

evidence was credible.

With regard to ground 2, it was submitted by the appellant that in its

judgment, the High Court did not re-evaluate and assess PW3's evidence to

determine whether PW3 told the truth and did not tell lies. It was contended

that, all what the High Court did was to simply remark that oral evidence

given by PW3 was materially corroborated by the oral evidence of PW1 and

PW2,

Grounds 3, 4 and 6 of appeal were conjointly argued by the appellant.

It was submitted that in the absence of PW3's evidence and Exhibits PI and

P2 which were expunged from the record by the High Court, the remaining

evidence given by PW1 and PW2 could not have supported the conviction.

The appellant submitted further that, there were contradictions and

discrepancies in the evidence given by PW1 and PW2 which were not minor

as found by the High Court. It was insisted that PW2's evidence was hearsay

because he did not see the charged offences being committed and also that

in his evidence PW2 did not furnish the trial court with the necessary

scientific criteria of testing his conclusion that PW3 was penetrated by a

blunt object in both her vagina and anus. On this point, the appellant
referred us to the decision of the Court in Sylvester Stephano v.

Republic (Criminal Appeal No. 277 of 2016) [2018] TZCA 306 (4 December

2018; TanzLII).

Regarding PW l's evidence, it was argued that, his evidence was in

contradiction with PW4's evidence in respect of the date the case was

reported to the police. It was contended that while according to PW1, the

case was reported to the police on 13.01.2019, to PW4, it was on

14.01.2019 when it was so reported. The appellant further submitted that

PWl's evidence was improbable and implausible because it is not known

how, in such a short period of time, he managed to see and conclude that

the appellant was having carnal knowledge of PW3 against the order of

nature. It was contended that seeing people having sexual intercourse in a

bending posture or style, does not necessary mean that what is being done

is sexual intercourse against the order of nature.

As on ground 5, it was submitted that it was an error on part of the

two lower courts to have disregarded the defence evidence merely because

the appellant did not cross- examine PW1 on allegations raised in defence

against him. The appellant argued that, he being a layman could not have

been blamed of failing to cross-examine PW1. Citing the cases of John

Makolobela Kulwa & Another v. Republic [2002] T.L.R. 296 and

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Mohamed Haruna @ Mtupeni & Another v. Republic (Criminal Appeal

No. 259 of 2007) [2010] TZCA 141 (4 June 2010; TanzLII), it was argued

that a person is not guilty because his defence is not believed.

Submitting in reply and having expressed her stance that she was not

supporting the appeal, Ms. Ndunguru conceded that the complaint in ground

1 of appeal that PW3's evidence was taken in contravention of section 127

(2) of the Evidence Act, has merit. She contended that PW3 gave her

testimony without taking an oath or promising to tell the truth and not tell

lies, as required under section 127 (2) of the Evidence Act. It was thus

submitted that PW3's evidence was valueless and it ought to have been

expunged from the record.

Notwithstanding the above concession, Ms. Ndunguru hastened to

argue that even in the absence of PW3's evidence there was enough

evidence remaining to sustain the conviction. On this, Ms. Ndunguru

referred us to our decision in Athumani s/o Seif Omary v. Republic

(Criminal Appeal No. 410 of 2022) [2024] TZCA 459 (13 June 2024; TanzLII)

and pointed out that in the instant case there was direct evidence of PW1

who saw the appellant sodomizing PW3. She further submitted that the

evidence by PW1 was supported by that of PW2.

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 With regard to ground 2 of appeal, it was argued by Ms. Ndunguru

that PW3's evidence having been expunged from the record, ground 2 is

rendered absolute.

Regarding grounds 3,4 and 6 of appeal, it was submitted by Ms.

Ndunguru that the charges against the appellant were proved to the hilt by

PW1 who saw the appellant sodomizing PW3 and by PW2's evidence which

was to the effect that PW3 had been penetrated. She also contended that

as found by the High Court, there was no serious contradictions or

discrepancies in the prosecution evidence. Ms. Ndunguru pointed out that

there was no contradiction in the evidence given by PW1 and PW4 as

complained by the appellant because while PW1 testified that he reported

the case to the police on 13.01.2019, PW4's evidence was to the effect that

the case file was assigned to her for investigations on 14.01.2019.

Finally, on ground 5 of appeal, it was submitted by Ms. Ndunguru that

the appellant's defence that the case against him was framed up by PW1

who owed him his salary arrears and who had refused to pay him promising

to teach him a lesson, was an afterthought and was rightly disbelieved and

rejected by the two lower courts.

At the outset, we find it apposite to premise the determination of the

appeal by restating the settled principle of law that the Court's power in

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interfering with the concurrent findings of the lower courts is limited. It can

only do so where such findings are based on misapprehension of the

evidence or misdirection causing miscarriage of justice. See- Mbaga Julius

v. Republic (Criminal Appeal No. 492 of 2015) [2016] TZCA 274 (25

October 2016; TanzLII).

Beginning with the complaint on ground 1 of appeal that the conviction

was based on PW3's evidence which was taken in contravention of section

127 (2) of the Evidence Act, we are in agreement with the appellant, as

conceded by Ms. Ndunguru, that the testimony of PW3 was taken in

contravention of section 127 (2) of the Evidence Act. It is apparent,

according to the proceedings on page 28 of the record of appeal, that before

recording PW3's evidence, the trial court did not examine PW3 who was by

then aged 12 years, to test her competence and find out whether she knew

the meaning and nature of an oath for her to give sworn evidence or if she

did not, then for her evidence to be taken under her promise to tell the truth

and not tell any lies as required under section 127 (2) of the Evidence Act.

The record is also clear that, after PW3's personal particulars had been

recorded, and upon the trial court became aware that PW3 was a child of

tender age, the trial court, jumped into the conclusion that PW3 would speak

the truth and it proceeded recording her evidence. This was a clear violation

of section 127 (2) of the Evidence Act.

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 We are also in agreement with the appellant and Ms. Ndunguru that

the position of the law is settled that, the evidence of a child of tender age

taken in contravention of section 127 (2) of the Evidence Act, is liable for

expunction from the record. See- Godfrey Wilson v. Republic (Criminal

Appeal No. 168 of 2018) [2019] T7CA 109 (6 May 2019; TanzLII), Hamis

Issa v. Republic (Criminal Appeal No. 274 of 2018) [2019] TZCA 384 (7

November 2019; TanzLII) and Mwalim Jumanne v. Republic (Criminal

Appeal No. 18 of 2019) [2021] TZCA 193 (12 May 2021; TanzLII). PW3's

evidence which was taken in contravention of section 127 (2) of the

Evidence Act, was thus, supposed to be expunged from the record, which

we hereby do, the evidence is expunged from the record. The only issue, as

it was argued by Ms. Ndunguru, is whether after the expunction of PW3's

evidence from the record, there is sufficient remaining evidence in support

of the charges against the appellant.

As we have alluded to above, Ms. Ndunguru was of a strong view that

even in the absence of PW3's evidence, the remaining evidence on record,

is sufficient to sustain the conviction. Whether Ms. Ngunguru is right or not

will be answered when grounds 4 and 6 of appeal are dealt with.

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 Ground 2 of appeal that the truthfulness and credibility of PW3 was not

properly assessed by the High Court is rendered redundant by the

expunction of PW3's evidence from the record.

As for ground 3 of appeal where it is being complained that the evidence

of PW1 and PW2 lacked corroborative value, we are in agreement with Ms.

Ngunguru that the ground is baseless. First of all, there was no contradiction

between the evidence given by PW1 and PW4 on the date when the case

was reported to the police. While PWl's evidence was to the effect that the

case was reported to the police by him on 13.01.2019, what was testified

by PW4 was that the case file was assigned to her on 14.01.2019 when he

interrogated the appellant and went to PWl's home to interview him and

visit the scene of crime. In that regard, the evidence given by PW1 and PW4

was on two different aspects and it can therefore not be said that their

respective evidence was contradictory.

Secondly, the evidence by PW2 to the effect that he medically examined

the victim and observed that the victim was no longer virgin and that she

had bruises in both her vagina and anus, cannot be said to be hearsay

evidence. That the victim had lost her virginity and that she had bruises in

both her vagina and anus were PW2's own findings and observations from

the examination he conducted on the victim. Further, considering the kind

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of examination in question, PW2's expert opinion that the bruises observed

in the victim's vagina and anus suggested that the victim had been

penetrated by a blunt object sufficed. Under the circumstances of the matter

and the nature of the evidence in question no furnishment of scientific

criteria to support his conclusion was necessary. Ground 3 of appeal fails

and it is accordingly dismissed.

With regard to ground 5 of appeal, the complaint is that the appellant's

defence was unjustifiably disbelieved. It was his defence that the case

against him was framed up by the victim's father (PW1) who owed him his

salary arrears. The reason given by the two lower courts for disbelieving the

appellant's defence and for regarding it as an afterthought was that the

appellant had failed to cross-examine PW1 in that regard.

On our part, we do not find any reason to fault the two lower courts'

disbelief of the appellant's defence and regarding it as an afterthought. First

of all, notwithstanding the trite principles that an accused person has no

duty to prove his innocence and that conviction cannot be based on the

weakness of the defence, we have held in a number of cases, including in

Mohamed Kitindi v. Republic [1986] T.L.R. 134, Hatibu Ghandhi & 8

Others v. Republic [1996] T.L.R. 12 and John Madata v. Republic

(Criminal Appeal No. 453 of 2017) [2020] TZCA 154 (2 April 2020[; TanzLII)

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that, the accused person is expected to make the theme of his defence

known in the course of the trial before the prosecution case is dosed.

Further, it is our considered view that where, as it is in the instant case,

an accused person's defence is that for certain reasons the case against him

has been framed up by a certain person who is called by the prosecution as

a witness, and where such an accused person desires his defence to be

believed and not to be regarded as an afterthought, then he is expected to

hint and let his defence known in the course of the trial through cross-

examination, particularly in cross-examining the prosecution witness who

had allegedly framed him. The accused person cannot have such a defence

in his mind and keep it to himself not raising it during cross-examination

and then expect the court to believe him when he raises it late in his defence

after the case for the prosecution has been closed and in the absence of the

witness who allegedly framed him.

Considering the psychological effect and stigma to which not only the

victims of rape or sodomy but also their loved ones are always subjected to,

the appellant's defence that the case against him was framed up by PW1

just because PW1 owed him his salary arrears have exercised our minds a

great deal. We must confess that, we found it hard to believe that a father

who owes his house helper salary arrears and does not want to pay him,

15
 can opt to conspire with his daughter, a minor, to frame up the said house

helper with such accusations. That being the case, we find no reason to

fault the two lower courts that disbelieved the appellant's defence because

there were justifications for doing so. For the above given reasons ground

5 fails.

Finally, are grounds 4 and 6 of appeal which, we think, are the

gravamen of the appeal. The appellant's complaint in the two grounds is

that the evidence was not properly evaluated and assessed and therefore

that the two lower courts erred in finding and concluding that the case

against the appellant was proved beyond reasonable doubt. The evidence

by the victim (PW3) having been expunged from the record, the issue for

our determination, as we have posed it earlier, is whether the remaining

prosecution evidence, particularly from PW1 and PW2, was sufficient to

sustain the appellant's conviction.

The evidence by PW1, as summarized at the beginning of this judgment,

is to the effect that he found and saw the victim who is her daughter being

ravished by the appellant. This was maintained by him even in cross-

examination where he is on record insisting that he saw her daughter being

ravished by the appellant with his two eyes. The evidence given by PW1, in

that regard, was direct evidence. It was evidence from an eye witness which

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was found credible by the two lower courts. At this juncture we should

interpose and restate that when credibility of a witness is in question, an

appellate court will generally not disturb the findings of the trial court. It is

so because it is the trial court which is in the best position to decide on that

question as it is the court that heard the witness and observed the

demeanour and manner the witness testified at the trial. See- Leonard

Joseph @ Nyanda v. Republic (Criminal Appeal No. 186 of 2017) [2020]

TZCA 51 (12 March 2020; TanzLII). We thus, have no reason to fault the

concurrent finding by the two lower courts on the credibility of PW1.

In his evidence, PW1 concluded that from the posture or the way he saw

the appellant ravishing the victim, the appellant was having carnal

knowledge of the victim against the order of nature. The conclusion by PW1

has been challenged by the appellant who has argued that in such a short

duration, PW1 could not have seen and concluded that it was sodomy which

was being committed. He insisted that just because PW1 found and saw the

victim in a bending posture does not necessarily mean that what was being

committed against her was sodomy.

We have seriously pondered the argument raised by the appellant on

how PW1 came to the conclusion that what he saw being done to the victim

was her being sodomized and not any other sexual offence being committed

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against her. We think that the argument by the appellant makes sense.

Considering PW l's evidence on that respect, it cannot certainly be said that

what PW1 saw was the victim being sodomized and not being raped. PW1

might have mistakenly but innocently concluded that the appellant was

sodomizing the victim. There is thus, no cogent evidence from PW1 proving

that sodomy was committed by the appellant. In the absent of such

evidence from PW1 and the victim's evidence having been expunged from

the record, the remaining evidence in proving the second count on unnatural

offence is wanting. While PW4's evidence is nothing but hearsay, that from

PW2 which was to the effect that the victim had been penetrated both in

her anus and vagina, cannot, by itself, sustain conviction on the second

count of unnatural offence. The second count of unnatural offence was thus,

not proved to the hilt and the relevant conviction is quashed and the

respective sentence is set aside.

However, the fact that it is doubtful and it cannot be certainly said that

what PW1 saw was the appellant sodomizing the victim does not mean that

we have any iota of doubt that PW1 saw with his two eyes the victim being

ravished by the appellant. The fact that the appellant was found and seen

by PW1 while ravishing the victim stands firm. As we have alluded to above,

the only doubt successfully raised by the appellant in his argument is

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whether it was exactly sodomy which was being committed by the appellant

when PW1 entered the guest room and found the victim being ravished.

It is also our observation that what is dear from the record, particularly

from PWl's evidence, is that PW1 caught the appellant in flagrante delicto

ravishing the victim. Based on the fact that PW1 saw the appellant ravishing

the victim and having been found that under the circumstances of this case,

the ravishment cannot be certainly said to have been by sodomy, we then

conclude that the ravishment PW1 saw being committed by the appellant

against the victim was by raping her. PWl's evidence to that respect is

supported by the evidence of PW2 which is to the effect that the victim was

found with bruises in her vagina suggesting that she had been penetrated

by a blunt object. Our conclusion that, under the circumstances of this case,

it was rape which was proved and not unnatural offence, is also based on

the consideration that unnatural offence carries a stiffer sentence of life

imprisonment while rape carries a sentence of thirty (30) years'

imprisonment.

We thus hold that the evidence by PW1 and PW2 sufficiently proved

the offence of rape against the appellant on the first count while mindful

that though generally the best evidence in sexual offences cases, is that

from the victim, that does not however, mean that in every case where there

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is no such evidence from the victim, the relevant offences cannot be proved.

All what matters is the credibility and reliability of the evidence adduced by

the prosecution in the absence of the victim's evidence. Insisting that point,

the Court in Mbaraka Ramadhan @ Katundu v. Republic (Criminal

Appeal No. 185 of 2018) [2021] T2CA 27 (18 February 2021; TanzLII)

observed that:

"Conviction can be based on account o f the evidence

o f an eye witness without a victim o f the crim e in
question being caiied to testify"

In the instant case, as we have intimated above, we have the evidence

from PW1, the eye witness, who saw the appellant ravishing the victim by

raping her. PW l's evidence that the victim was so ravished is also supported

by the evidence by PW2.

Based on the above discussion and findings, in determining grounds 4

and 6 of appeal, we conclude that the remaining prosecution evidence after

expunging the victim's (PW3's) evidence from the record, was sufficient and

proved only the offence of rape on the first count. In respect of the second

count on unnatural offence, as we have endeavoured to demonstrate above,

the remaining evidence was insufficient and the conviction couid not be

sustained on such evidence.

 All said and done, the appeal is partly allowed. Whereas, the conviction

on the second count of unnatural offence is quashed and the respective

sentence of life imprisonment is set aside, the conviction on the first count

of rape and its respective sentence of thirty (30) years' imprisonment, are

sustained.

DATED at DAR ES SALAAM this 12th day of July, 2024.

R. K. MKUYE
JUSTICE OF APPEAL

A. M. MWAMPASHI
JUSTICE OF APPEAL

A. Z. MGEYEKWA
JUSTICE OF APPEAL

The Judgment delivered this 15th day of July, 2024 in the presence of

Appellant in person vide video link from Ukonga Prison and Mr. Titus Aron,

learned State Attorney for the Respondent/Republic is hereby certified as a

true copy of the original.

R. W. CHAUNGU
DEPUTY REGISTRAR
COURT OF APPEAL

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