Frank Emmanuel Mwasanu vs Republic (Criminal Appeal No. 54 of 2022) [2026] TZCA 379 (31 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: MKUYE. J.A.. RUMANYIKA. J.A, And AGATHQ. J.A .l CRIMINAL APPEAL NO. 584 OF 2022 FRANK EMMANUEL M W ASANU ................................. ................ APPELLANT VERSUS THE REPUBLIC................................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) fNGUNYALE,J^ dated the 26th day of July, 2022 in Criminal Appeal No. 54 of 2022 JUDGMENT OF THE COURT 19th February & 31st March, 2026 RUMANYIKA, 3.A.: Briefly, in March 2018 at Bulyaga Village in Rungwe District and Mbeya Region a ten-years-old boy of Ibigi Primary School met the appellant, Frank Emmanuel Mwasanu. He had carnal knowledge of the victim against the order of nature, at the appellant's residence, invited through one Junior, the victim's fellow child. The boy shall be referred to as the "victim" or "PW1", in order to conceal his identity. The appellant was the victim's village mate whom he knew before. That, on arrival, the appellant grabbed the victim, he blindfolded him while covering his mouth with a piece of cloth to prevent him from screaming for a help. Then the appellant penetrated the victim's anal cavity to the satisfaction of the former's sexual desire. Then the said Junior, who was allegedly still hanging around accompanied the victim back home. Later on, the victim complained of anal pains, drawing attention of his parents and neighbors, where he revealed the secret. That, the appellant used to have his carnal knowledge against the order of nature. The matter was accordingly reported to the local leaders and iater on to the police. Also, the victim was taken to Dr. Justine Malecela (PW6) who examined him. The corresponding clinical findings were posted as is appearing in exhibit PI, revealing some bruises on the victim's anal walls. Then the appellant was arraigned before the trial District Court of Rungwe at Tukuyu for the charge of unnatural offence contrary to section 154(1) (a) and (2) of the Penal Code. PW2 is the victim's father who also stated that the victim was born on 07/07/2008, establishing his age. That, at first the appellant whom he did not know before was arrested for accusations of using the boy in some theft incidents, as an innocent victim. It also at the same time transpired to him that the appellant had carnal knowledge of the victim. Huruma Eskala (PW3) testified that she was a neighbor of the victim. That, initially, the victim and the appellant had been accused of taking part in some theft incidents, whereby the appellant was arrested and so identified by the victim. That, further, it 2 transpired that the boy had been molested by the appellant. Fredy Sote was the Ten Cell Leader in the locality who testified as PW4. That, in that capacity he had the incident reported to him before he escalated it to the police and, on being apprehended, the victim accordingly identified the appellant. PW5 was the victim's mother, who stated that on 26/03/2018 the victim informed her to have been molested by the appellant who also used him in stealing. That, together with PW3 and another lady, they examined the victim and found that, indeed he had his ana! cavity penetrated, and she reported the appellant to the local authorities immediately. On his part, the appellant testified as DW1. He denied the charged offence and liability, but he was just fixed. That, upon being arrested, being accused of using the innocent victim in stealing, some people beat him up until when he named Kevi and Benny as his companions in some theft incidents. And that, the victim identified him as such. Only on the next day to be accused of molesting the victim, whom he knew before. After a full trial, the appellant was convicted and sentenced to thirty years' imprisonment. Dissatisfied, he appealed to the High Court of Tanzania unsuccessfully. Still disgruntled, this is his second appeal, further protesting his innocence. The three points of grievance fronted in the memorandum of appeal are paraphrased, thus: One, the petition of appeal 3 was improperly evaluated; two, the victim's evidence lacked corroboration to ground conviction; and three, the prosecution case was not proved to the hilt. At the scheduled hearing of the appeal, the appellant appeared in person, unrepresented. The respondent Republic was represented by Mr. Alex Mwita, learned Senior State Attorney, together with Ms. Veneranda Massai, learned State Attorney. While reserving his right, if need be, to rejoin later, the appellant opted to let the learned State Attorney respond to the grounds of appeal first. From the very outset, Ms. Masai readily supported the appeal, basically on the third ground. That, indeed the prosecution case was not proved beyond reasonable doubt. Expounding the point, it was conveniently contended as follows: Firstly, the charge which appears on page 1 of the record of appeal, concerned the incident of 24/03/2018, but this fact was not substantiated by any one of the prosecution witnesses. That, the said material variance between the charge and the evidence rendered the prosecution case wanting, and therefore the charged offence not proved. Secondly, it is not clear, whether the charged offence was committed at Bulyaga-Tukuyu as stated in the particulars of the offence or near Bagamoyo, as alleged by the victim. That, those two places are 4 geographically quite distinct, for the purposes of establishing the crime scene and its location. Thirdly/ that the said Junior was such a material witness, though not called to testify. It was contended that, If the victim was credible and indeed a witness of truth, that indeed Junior had played such a significant role as a go-between player, his evidence was vital to show if at all he escorted the victim to the crime scene and back home, after the appellant had quenched his sexual desire. As such, the unexplained failure to call the Junior dented the prosecution case. To reinforce her point, Ms. Masai cited Fredrick Fidelis v. R (Criminal Appeal No. 12 of 2023) [2025] TZCA 224 and Ismail Juma Sumaku v. R (Criminal Appeal No. 626 of 2022) [ 2024] TZCA 1289. As it was naturally expected of him, the appellant had nothing to rejoin, although, quietly, he welcomed Ms. Masai's support of the appeal, without more. As hinted, earlier on, the central issue is whether the prosecution case was proved beyond reasonable doubt, against the appellant. Notably, the charging offence under section 154(1) (a) and (2) of the Penal Code requires that, for the charged offence to be established and proved, at least one main condition has to be met. That, the accused had carnal knowledge of the victim against the order of nature. Whether or not 5 the victim consented to the act is immaterial. See- Babu Idd v. R (Criminal Appeal No. 332 of 2015) [2016] TZCA 582. We note, in its findings at page 24 and 25 of the record of appeal, the trial court to have placed a significant watch, solely on the testimony of the victim to found the conviction. We are aware of the danger for a court of law to convict solely on the evidence of the victim, unless the latter is found to be truthful and credible. See- Selemani Makumba v. R [2006] T.L.R 379. The victim, in the present case may have been consistent and coherent enough in his evidence, as he is said to be. Let alone the naming of the appellant at the earliest opportune and reporting of the pain he was passing through, all constituting such a positive impact. Indeed, ordinarily, that one would assure credibility of the victim's testimony, as it has been proposed on many occasions, such as in Mafuru Manyama & Others v. R (Criminal Appeal No. 256 of 2007) [2011] TZCA 129. However, we agree with Ms, Masai on a contrary contention that, the victim's evidence needed to be corroborated with an independent piece of evidence under the circumstances. In other words, the victim would not have been credible enough without evidence of the said Junior. It is so because, Junior was such a material witness. His evidence, potentially, would probably have a first-hand knowledge and reliable information on 6 the circumstances that may have preceded the commission of the charged offence. For the victim, literally, it is the said Junior, independent of the victim's evidence, who would have established three things to substantiate the prosecution story; First, that, indeed, the victim got to the crime scene on the alleged material date and time; second, that indeed he is the one who escorted the victim to the crime scene (invited by the appellant) as a go between/agent. And third, that he remained within the vicinity of the crime scene until when the appellant was done with the victim, before the two young boys led their way back home, together. With respect, in the absence of Junior's evidence, all these issues remained unproved. Unfortunately, the reasons for failure to call that material witness are not forthcoming. Putting it differently, this is a fit case where the victim's evidence lacked corroboration, rendering it to be incredible and unreliable. On account of the preceding mishap, therefore, we are inclined to draw such an adverse inference, in favor of the appellant. That, had the said Junior appeared in court, he probably would have testified in the appellant's favor. Who knows? We have taken this stance on several occasions such as in Jumanne s/o Marco v. R (Criminal Appeal No. 522 of 2016) [2020] T2CA 228. As a result, the said omission undermined credibility of the prosecution's case. It rendered the impugned conviction unfounded and improper. Therefore, the first complaint is merited and successful. As regards the issue, when exactly was the charged offence committed, it will not detain us than is necessary. Indeed, unlike what is shown in the particulars of the offence, none of the witnesses (including the victim himself) said it was 24/03/2018 at noon, specifically. Notably, the anomaly significantly contravened our long-established legal principle. That, any material fact which is specifically stated in the charge counts most, as it has to be so consistently adduced in evidence. Unfortunately, this was not done in the present case. Consequently, in the absence of any amended charge which would put things in order, the charged offence remains unproven. See- Salum Rashid Chitende v. R (Criminal Appeal No 204 of 2015) [2015] TZCA 572. Therefore, Ms. Masai was respectfully correct, on this account, also, to support the appeal. We also agree with Ms. Masai's assertion that, the place of commission of the charged offence was not clear. It is so, she contended, on one side the charge and the evidence of the victim, in that regard are greatly at variance. Is it Bulyaga-Tukuyu as stated in the charge or near Bagamoyo, as alleged by the victim? Notably, those were two different places. Much as the prosecution led no evidence to overcome the uncertainty. Therefore, the said variance was material enough to dent the prosecution case. In the circumstances, the appeal is merited and allowed in its entirety. Consequently, we quash the conviction and set aside the sentence imposed s on the appellant. The appellant has to be released immediately from prison, unless he is held for some other lawful causes. DATED at DODOMA this 30th day of March, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL The judgment delivered this 31st day of March, 2026 in the presence of the Appellant in person, Ntegwa Mpinyagwa, learned State Attorney representing the respondent/Republic, through Virtual Court and Mr. Shafii Kassim, the Court Clerk, is hereby certified as a true copy of the original. C. R MAGESA DEPUTY REGISTRAR COURT OF APPEAL