Jafari Mohamed @ Sultan vs Republic (Criminal Appeal No. 47 of 2024) [2026] TZCA 276 (10 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWARIJA, J.A.. KENTE. J.A. And MURUKE, J.A.^ CRIMINAL APPEAL NO. 47 OF 2024 JAFARI MOHAMED @ SULTAN ................. ............. ..................... APPELLANT VERSUS THE REPUBLIC ............................. .............. ...... ...................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Dar es Salaam) (Mkwiz&JLl Dated the 27th day of October, 2023 in Criminal Appeal No. 63 of 2023 JUDGMENT OF THE COURT 18th February &. 10th March, 2026 MURUKE. J.A.: The appellant, Jafari Mohamed, challenges the concurrent findings of the two lower courts, namely, the High Court (the first appellate Court) and the District Court of Mkuranga (the trial court) on a charge of unnatural offence, contrary to section 154 (1) a (1) of the Penal Code, Capl6 R.E. 2002 now (R.E. 2022). It was particularized that, on different dates between June and July, at Kisenvule Village within Mkuranga District in Coast Region, the appellant had carnal 1

knowledge against the order of nature of a boy aged 9 years, a pupil of standard three, at Kisemvule Primary School. The appellant denied the charge, therefore, a full trial whereby the prosecution case was built upon two exhibits, namely; the medical examination report (exhibit PI), and sketch map of the scene (exhibit P2). Prosecution also called 5 witnesses, namely Rehema Abraham Mtambo (PW1); the victim (PW2); Iddi Kiyeyeu (PW3); Elesi Mahingu Obadia (PW4); and WP 9292 D/C Zaina (PW5). On his defence case, the appellant testified as (DW1); Zuhura Omari Mapunda (DW2) and Mohamed Mzinga who testified as DW3, and no exhibit was tendered. Briefly, the facts according to the trial court record is that one day between June and July 2022, while playing at the school compound during break time at around 12.noon, PW2, the victim, and his friend PW3, saw the appellant with his friend standing near the school toilet calling them. They followed the appellant and his friend. Immediately they were drugged to an unfinished house, tied their hands and legs, covered their mouth with piece of clothes, undressed their trousers and underpants. That it was followed by the appellant sodomazing the victim while the appellant's friend sodomized PW3. After appellant and his friend were satisfied they released the two young boys, while 2

warning that they will kill them if they reveal the ordeal to any one. The incident of sodomy were done several times to PW2 and his friend PW3, while coming to school or after school, while on their way home. Following the act of being sodomized frequently, the victim attendance at school was questionable thus he was asked by their teacher to call their parents where PW1 who is PW2 mother heeded to the call and went to school. PW1 was informed of PW2's poor attendance and asked to take him for examination as there was a habit of students being sodomized by some of the people around the school. Upon examination, the victim was found with old bruises suggesting him to have been anal penetrated. Upon inquiry, he mentioned the appellant, who was arrested and charged accordingly. First prosecution witness was the mother of the victim (PW1). She testified at the trial court that on 16/9/2022 she was called by PW2's school teacher and informed of poor attendance of his son. She was also informed of the general situation of students being sodomized by various people and asked to take PW2 for checkup. PW1 told the trial court that PW2 was not in good health condition as he was vomiting and had diarrhea. She took PW2 to the hospital, where the Doctor confirmed that the child was canal known and was advised to 3

go to report to Police station at Mkuranga. PW1 went to the police where she was issued with PF3 and went back to the hospital. Upon examination by PW4, the victim was found with old bruises surrounding the anus and diagonised of venereal diseases. The victim named the accused by pointing him to Militiaman at his work place near the school compound leading to his arrest. The victim (PW2), testified further that the accused now appellant was kwon to him as he had his library close to school where he deals with music recording and burning of CD's. He told the trial court that one day between June and July 2022, when with PW3, and other student they were called by the appellant and his friends while out on break at around 12 noon to go and get sweets at a nearby school toilet. On arrival, they were caught and drugged to unfinished house. While there, their hands and legs were tied, mouth covered with piece of cloth, were undressed their shorts and underpants. The appellant and his friend also undressed, the appellant sodomized him, while appellant's friend sodomized PW3. When finished, they were given sweets and warned not to tell anyone or else they would be killed. The victim testified further that, after the incident they went back to school but decided to keep quiet. 4

The incident continued for some time, always during break time or on the way home and each time, they were given sweets (big bom). PW2 testified further that in one incident appellant sodomized PW3 and his friend sodomized him, PW1, came to school after being informed of the victim's poor attendance at school. That is when the victim and PW3 were called and taken to hospital for examination. The victim told PW1 the whole episode and mentioned the appellant as the person who had been sodomizing him. The victim pointed at the appellant who was at his music library close to school. PW3, evidence is the replica of the PW2 evidence as he too was being sodomized by the appellant's friend who was not arrested. PW4, a Medical officer of Mkuranga Hospital, attended PW2 when he was taken to the hospital and tendered PF3 (exhibit PI). The last prosecution witness was PW5, an investigator who interrogated the victim and his friend (PW3), then visited the snare of crime and tendered sketch map (exhibit P2). On the part of the appellant, he denied all the accusation insisting not to know PW2 and his friend PW3, while admitting his office of music library to be nearby the victim's school at Kisemvule. The appellant also called two witnesses. DW2 on his part apart from 5

knowing the appellant and his business that are near Kisemvule Primary School, where the victim schooled, he knew nothing on the incident of June and July 2022. He came to know this in September, 2022 when the case started in Court. DW3 like DW2 knew nothing regarding the offence appellant charged, but confirmed that the appellant's business is nearby the victim's school. Based on the substance of the evidence received, the trial court, as was the first appellate court, found that PW2 (the victim) and PW3 the (victim's friend) were credible witnesses, corroborated by PW4, the doctor who tendered PF3 (exhibit PI) hence forth grounded and supported the conviction and sentence respectively. The appellant is before us on a second appeal, raising seven grounds of complaint namely one; the trial court conducted examination in chief to defence witnesses, two; conviction and sentence based on contradictory and unreliable evidence of PW2 and PW3, three, conviction based on the evidence of PW2 and PW3 received contrary to the law, four; failure to call material witnesses; five; failure to conduct identification parade, six; delay in reporting the incident to police, seven; failure by the prosecution to prove the case beyond reasonable doubts as required by law. 6

At the hearing, the appellant appeared in person, unrepresented whereas Ms. Lilian Aloice Mmassy, Senior State Attorney assisted by Mr. Moses Mvungi and Ms. Amina Macha, both State Attorneys, represented the respondent/Republic. When the appellant was invited to amplify on his grounds of appeal, he prayed to adopt them and the submission, then let the learned Senior State Attorney submit first, while reserving his right to respond later. He implored the Court to consider and allow all the grounds of appeal, quash conviction and set aside the sentence, then let him free. On the first ground, the appellant submitted that, he was subjected to unfair trial when the trial court decided to lead the two defence witnesses in chief while the appellant was the right person to lead them. He contended that the irregularity is a serious one, that he was denied fair trial citing the case of Kassim Salum Mnyukwa v. Republic Criminal Appeal No. 405 of 2019 (unreported) to support his arguments. In response to ground, one, Senior Learned State Attorney, submitted that looking at page 33 of the records it is as if the trial court led the witnesses DW2 and DW3. However, upon reading the content of the evidence in- chief of the two witnesses, it is clear that it is their own evidence not lead. So right to be heard was given to the appellant. 7

More so, there is no prejudice occasioned. If anything, it is the respondent who is to complain not the appellant, insisted Ms. Mmassy. Having heard both sides on ground one, it is true that from pages 32 to 34 of the records indicates the "XD" (Examination-in-Chief) was conducted by the trial court for DW1, DW2, and DW3. The essence of examination in chief was explained by the Court in the case of Kassim Salum Mnyukwa v. Republic (Criminal Appeal No.405 of 2019) [2022] TZCA 93 stated that: V exam ination in chief is essentiaiiy the domain o f a party that has caiied the witness in question; in this case, the appeliant so as to give evidence on his side. It is during exam ination in chief when the party concerned is afforded with an opportunity to te li his/her side o f the story and e licit his/her account o f what transpired concerning the incidence. The given evidence w iii eventuaiiy assist the tria l court to eiucidate what happened so as to arrive a t a fa ir and balanced decision". Reading the content of the evidence of DW1, DW2, and DW3 it is crystalclear that it is evidence in narration not led by the trial court. More so, it is for the respondent to complain not the appellant.Learned State Attorney rightly submitted in our view that there is no any 8

prejudice to the appellant as the witness testified in narration saying what they wanted to tell the court. Thus ground one is without merits. On ground two, the appellant is blaming the first appellate court to uphold the conviction based on the evidence of PW2and PW3 which was incredible, untruthful, contradictory and unreliable against the appellant. In his written submission, the appellant argued that for the court to rely solely on the testimonies of a child of tender age to sustain conviction in sexual offences, it must satisfy itself upon assessment of credibility, truthfulness and reliability of such evidence that the witness in question is telling the truth nothing but the truth. In that determination of credibility, truthfulness and reliability of the witnesses cannot be done in isolation of other pieces of evidence on the record and the circumstances surrounding the case. The appellant cited to us the case of Shabani Daud v. R, Criminal Appeal No 28 of 2000 (unreported) to support his augments. In response the respondent's counsel submitted briefly that the victim (PW2) and PW3 were the one that suffered by being sodomized by the appellant. They were being given sweets and threatened not to tell anyone or else risk being killed. Their evidence was nothing but the truth only. Being competent witnesses, they are entitled to credence 9

referring us to the case of Good luck Kyando v. R, [2006] T.L.R. 363 to support her argument. There is no contradiction between PW2 and PW3 at all. The incident took place several times during the day while at school. Looking at their age, gift given and threats to be killed if they disclose the ordeal minor contradiction can be ignored, insisted the respondent's counsel. Having heard both parties on this ground, it is worth noting that the evidence of PW2 and PW3, who were both victims of the sexual offence by the appellant and his friend who was not arrested, both testified what had befallen them between June and July, 2021 coherently, consistently and without hesitation and the two courts below believed them. For clarity at page 11 of the record PW2 is recorded to have said: "In between o f June and Ju ly 2022 one day I was with any friend Iddi Kiyeyeu (a co student) whereby we saw the accused pray p u li table nearly he school. We were heading home. On the 2nd day while we were on break a t 12:00 hrs we were praying with my friend Ibu a t the school compound, the accused called us for sweets. "Njooni mchukue pipi'. We went across them. They called us nearby the school toilet (m en's toilet). They catched us and drugged us 10

in unfinished house nearby the toilets. I was drugged by the accused and his friend drugged my friend. They gave us sweets and they brought us inside uncompleted house "pagaia" where they tied us "walitufunga Kamba m iguuni na m ikononi" Jafari did so to me. They put piece o f clothes in mouth. The accused undressed my trouser and boxer he took out his penis and inserted it into my anus, mmmh it was so painful. Thereafter they untied me and my friend was also untied by another friend o f Jafari. Another one was guarding outside if people were coming. We were in hard tim e we couldn't make alarm. Pieces o f doses were put in our mouths. They threatened us with lazor bread that we shouldn't te ll anyone if we could do so we would have been killed. I started to g et out and there after Ibu got and we le ft them Inside the "pagaia" from there we went back a t school we did not te ll teacher we did afraid being killed. A t 16:00 hrs we went back home. He went on calling me from school at 10:00 hrs during break or at 12:00 hrs at break and sometimes while going back home. Always they called us when he saw me with Ibu. They used to bring us in the same pagaia. They used to tie us. On other days his friend used to insert his penis onto may mouth and Jafari did the l i

same to Ibu. Always they used to give us "big bom " sweets. One day PW1 was called by my class teacher that I was not doing w ell in class. That's when I was called and Ibu also was called. I was brought at hospital where I was exam ined PW1 asked me as to who did that and I told here its Jafari and his friend. We went at his office whereas I had shown them. Even during cross-examination, PW2's evidence was not shaken at all by the appellant. If anything, PW2's evidence incriminated more the appellant as here below: "Yes, I know you. For the first time I saw you at school while was praying pool table nearby. Yes we came at your office with security officers and I pointed you and I said "hdio huyu" that's why you was arrested one day after the accom plishm ent o f your deal. You picked me into your m otor cycle. Yes, you used to commit an offence in the pagaia. I was with Ibu whereby you did so to me and your friend inserted his penis onto anus o f Ibu. Yes, you used to play pool table nearby the school a t the "bango la shuel" I pointed you not by force. I know you very well. I was so sure that it's you and you the one who did so to me. Yes, I and Ibu pointed you as among the ones who did so. 12

I said it's true that you're the one who inserted a penis onto my anus" It was expected that the appellant would have cross - examined PW2 on such vital evidence incriminating him with the offences charged. But that was not done. It is settled law that a party who fails to cross-examine a witness while testifying is deemed to have accepted that piece of evidence and will be estopped from asking the trial court to disbelieve what the witness said. To the contrary, the appellant completely failed to shake the victim's evidence through cross examination as was held in the case of Gerson Geteni v. Republic, Criminal Appeal No. 73 of 2021 [2024] TZCA 452 (19 February 2024, TanzLII) that: " We are aware that there is a useful guidance in law that a person should not cross ~examine if he/she cannot contradict But it is also trite law that failure to cross-examine a witness on an im portant m atter ordinarily im plies the acceptance o f the truth o f the witness's evidence. We have noted that while PW2 said they were being given sweets as gift by the appellant and his friend, PW3 said apart from sweets they were sometimes given money Tsh. 500, or 1000 up 1500. These are

slight discrepancies in testimony of the witnesses of tender age that can be overlooked. See also the case of Dickson Elia Nsamba Shapwata & Another v. Republic (Criminal Appeal No. 92 of 2007) [2008] TZCA 17 (30 May 2008, TanzLII), Toyidoto s/o Kosima v. Republic (Criminal Appeal No. 525 of 2021) [20231 TZCA 17305 (5 June 2023, TanzLII), and Frank Maganga v. Republic (Criminal Appeal No. 93 of 2018) [2021] TZCA 105 (13 April 2021, TanzLII). It is our view that the alleged contradictions are minor, and they don't go to the root of the case so as to discredit the two prosecution’s witnesses. Thus, ground two lacks merits, and it is therefore dismissed. In the 3rd ground, the appellant complained that the evidence of PW2 and PW3 was received contrary to the provision of section 127 (2) of the evidence Act, Cap 6. R.E. 2022, in that the two witnesses who were both of the tender age, did not promise to tell the truth before giving their evidence. On the other hand, the learned Senior State Attorney replied in terms of the court record that at page 15 and 19 of the record the trial court not only led PW2 and PW3 by asking questions to ascertain whether they knew the meaning of telling the truth but also recorded that the witness promised to tell the truth.

Having heard both parties in this ground, we wish to start by stating that the requirements of asking simplified questions is no longer a requirement under the law. The Court in the case of John Ngoda v. The Republic 2023 TZCA 13 stated that: "Although it is shown at page 8 o f the record that the tria l m agistrate did not ask any prelim inary questions to determine if the witness understood the nature o f oath for her to qualify to give evidence on oath , it is evident that he recorded her to have said, "1 prom ise that I w ill speak the truth" before he allowed her to testify. Certainly the tria l court could not le t her testify on oath since it had not established whether she understood what an oath entailed. Nonetheless, so long as the tria l m agistrate extracted the child witness prom ise to speak the truth in compliance with the law, he rightly allow ed her to give evidence on the strength o f such promise. The appellant's tw ofold com plaint on this aspect is plainly unfolded. We dism iss it". The interpretation of the above section has been a subject of discussion by the Court in numerous decisions. In the case of Issa Nambaluka v. Republic, Criminal Appeal No. 272 of 2018 (unreported), it was held that, the said provisions permits a child of 15

tender age, that is, a child whose apparent age is not more than fourteen years, to give evidence on oath or affirmation or to testify without oath or affirmation, but upon promising to tell the truth, not lies. The purpose of asking a child simple question is therefore intended to determine whether he would testify on oath. If he does not understand the nature of oaths, the law provides that he should promise to tell the truth. Although in this case the learned trial Resident Magistrate inquired also into PW2's understanding of the duty of telling the truth, which was unnecessary, that was inconsequential so long as he promised to tell the truth, thus in compliance with Section 127(2) of the Evidence Act. As reflected at page 19 of the record, before the trial court recorded the evidence of PW3, he similarly promised to tell the truth. In the circumstances, the appellant's complaint on ground 3 is without merits. As regards the fourth ground, the appellant challenges the prosecution contending that it failed to call material witnesses, namely, the victim's school teacher and any member of Ulinzi shirikishi or any other local leader. The respondent's counsel submitted in reply that, under Section 143 of the Evidence Act, Cap.6 [ R.E.2019] (now 16

R.E.2023) is only a relevant witness who should be called to prove a case. In the case at hand, PW1, PW2, PW3, PW4, and PW5, were material witnesses to prove the prosecution case, which they did. The mentioned other witnesses by the appellant were not relevant in the circumstance of this case. It is worth to note that under section 143 of the Evidence Act, (supra) that there is no specific number of witnesses required to prove a fact in issue. What is required is the credibility of witnesses and not their number. She cited the case of Yohanis Msigwa v. Republic [1990] T.L.R 148 to support her arguments. It is true that the teacher whom PW1 alleged to have informed her of bad attendance of PW2 was not called to testify. Aiso the Mlinzi shirikishi, who arrested the appellant, did not testify at the trial. However, there was no dispute that PW2's attendance was not good at school and no dispute that the appellant was arrested by Mlinzi shirikishi after he was pointed out by PW2 and PW3. It is our view that, they were not material witnesses in the circumstances of this case. Thus, even in their absence, the prosecution could prove the case through the evidence of PW1, PW2, PW3, PW4, and PW5. Thus, ground four lacks merit. 17

On the fifth ground, the appellant challenged the identification/recognition of prosecution witnesses. The learned Senior State Attorney, replied to ground five that, the incident took place in the day light, several times. The appellant was known by the victim PW2 and PW3, whom they pointed out to the arresting officer in the presence of PW1 (the victim's mother) at their place of business described by the victim. Thus, there was no need for the identification parade. Before resolving the issue on ground five, we wish to insist that, it is settled that the evidence of visual identification is of the weakest kind and most unreliable and that it should not be acted upon unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight as propounded in the case of Waziri Amani v. Republic [1980] TLR 250. In the instant appeal, PW2 and PW3 in their testimonies said that the offence was committed during the day, all the time. The victim managed to point out the appellant in his office among other persons, also recognized him by his name while describing his place of business and the kind of business that the appellant was doing. PW2's evidence was corroborated by PW3's evidence. Therefore, in our view there was no need for conducting identification parade. 18

On the sixth ground, the complaint is that, there was a delay in reporting the alleged offence from 16th September, 2022 to 20th September, 2022. In reply, the respondent's counsel argued that PW1 knew the incident on 16th of September 2021, when she was informed of her son's poor attendance at school and asked to take PW2 for medical examination. Equally so, PW2 was sick, therefore delay of 3 days was not long. Indeed, as correctly submitted by the respondent's counsel, PW1 who is the mother of (PW2), the victim, testified at page 12 of the record that, on 16th September, she was called by the victim's teacher while PW2 was not in good condition as he was vomiting and had diarrhoea. He took him to the hospital and the doctor told her that there was penetration and advised her to report the matter to the police station. She reported the matter on 19th September, 2022 where she was given PF3 and on 20th September, 2022 she took PW2 to the hospital where he was examined by PW4 and found that there was penetration as there were old bruises in the anus. PW2 was also found with gonorrhea and other venereal diseases. In our view taking into account the circumstance that PW2 was sick and PW1 was responsible to take care of him, therefore, the delay of 3 days in our view is not inordinate in the circumstances of this case. Hence this ground lacks merit. 19

In ground seven, the complaint is the alleged failure by the prosecution to prove the offence generally. The respondent's counsel replied this ground saying that this being a sexual offence, evidence of the victim (PW2), proved the offence as the same was corroborated by the evidence of PW3, PW4, and PW5. The defense by the appellant was nothing but an after thought, thus she moved the Court to dismiss the appeal as there is concurrent finding by the two courts below. Before we proceed in resolving ground seven, it is worth noting that this is a second appeal. It is a settled position of the law that, the Court will not interfere with concurrent factual findings of the courts below, unless there has been misapprehension of the nature and quality of the evidence occasioning miscarriage of justice. For this position, see for instance, DPP v. Jaffar Mfaume Kawawa [1981] T.L.R. 149 and Isaya Mohamed Isack v, The Republic, Criminal Appeal No. 38 of 2008, Seif Mohamed E. L. Abadan v. The Republic, Criminal Appeal No. 320 of 2009 and Wankuru Mwita v. The Republic, Criminal Appeal No. 219 of 2012 (both unreported). In the latter case, the position was emphasized thus: "... The law is w ell-settled that on second appeal, the court w ill not readily disturb concurrent findings o f facts by the tria l court

and first appellate court unless it can be shown that they are perverse, dem onstrably wrong or clearly 10 unreasonable or are a result o f a com plete misapprehension o f the substance, nature and quality o f the evidence; a violation o f some principle o f law or procedure or having occasioned a m iscarriage o f justice?'. In sexual offences like the case at hand, it is a rule that, the best evidence comes from the victim. PW2 gave the account of what transpired with regard to having been carnally known by the appellant against the order of the nature as from June to July, 2021 when the appellant was arrested. PW2's evidence was corroborated by PW3 who was the a victim of sexual offence by the appellant's friend, who was not arrested. PW4 the medical doctor who examined the victim and tendered exhibit PI, proved that the victim was penetrated. Both two courts below believed PW2 and PW3 as truthful and credible witnesses and we agree with that finding. The appellant did not provide us with any plausible reason to convince us to interfere with the concurrent findings of the two courts below; neither have we seen any. In view of evidence of the victim that the appellant failed to contradict at the trial court, the defense of the appellant is nothing but an afterthought as correctly submitted by Ms. Mmassy, learned Senior State Attorney for 21

the respondent/Republic. From the foregoing, it is our finding that, the present appeal is without merits. It is therefore, dismissed. It is so ordered. DATED at DAR ES SALAAM this 7th March, 2026. A. G. MWARIJA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL Z. G. MURUKE JUSTICEOF APPEAL The Judgment delivered via virtual link, this 10th day of March, 2026 in the presence of the appellant appeared in person and Ms. Janeth Masonu, learned Senior State Attorney for the respondent/Republic and Ms. Tabitha Mwita, Court Clerk, is hereby 22