Jaledo Charles vs Republic (Criminal Appeal No. 2978 of 2023) [2026] TZCA 149 (27 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: KEREFU. J.A.. KAIRO, J.A.. And NANGELA. J J U CRIMINAL APPEAL NO. 486 OF 2024 JALEDO CHARLES................................................................APPELLANT VERSUS THE REPUBLIC ................................................................ RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Sinda, J.) dated the 7thday of May, 2024 in Criminal Appeal No. 2978 of 2023 JUDGMENT OF THE COURT 19n d & 27th February, 2026 KEREFU, 3.A.: This is a second appeal by JALEDO CHARLES, the appellant herein, who was before the District Court of Chunya at Chunya charged with unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code, Cap. 16 of the Revised Laws (the Penal Code). It was alleged that on 29th June, 2023 at Sinjilili 'B' Village within the District of Chunya in Mbeya Region, the appellant had carnal knowledge of a boy child against the order of nature. To conceal the victim's identity, we shall henceforth refer to him as 'the victim' and or 'PW1' as he so testified before the trial court. i The appellant denied the charge laid against him and, as a result, the case proceeded to a full trial. To establish its case, the prosecution relied on the evidence of four witnesses and one documentary evidence, to wit, the Police Form No. 3 (exhibit PI). The appellant relied on his own evidence as he did not call any witness. The prosecution case, as obtained from the record of the appeal, can be briefly stated as follows: The victim who testified as PW1 stated that, on 29th June, 2023, while at their house, his uncle Jaledo called him into his room. PW1 obeyed and upon entering, he found the said uncle holding a knife and ordered him to remove his clothes. PW1 testified that, he told him that his mother had warned him not to do such act. However, the said uncle threatened and told him that, 'Ukikataa kuvua nguo nitakuchinja' Literally translated in English to mean, 'if you don't rem ove your clothes I w ill slaughter and or k ill you. It was the PW l's testimony that, after being threatened, he took off his trouser and his underwear and the said uncle inserted his penis into his anus and sodomized him. PW1 said, he felt pains. Thereafter, the said uncle discharged and warned him not to reveal the ordeal to his mother lest he would kill him. PW1 went on to state that, he managed to get home with difficulties as he could not walk properly. At home, his mother (PW2), who noticed that he was wet, asked him what had happened and PW1 only told her that his leg was not okay. However, in the following day, when PW2 asked him again, he decided to tell her the truth that he was sodomized by his uncle. Hence, PW2 reported the matter to the police. In her testimony, PW2 supported the evidence by PW1 and added that, on the fateful date, in the morning hours, she asked Sara, her daughter about the whereabouts of PW1. The said Sara told her that PW1 was with uncle Jaledo who was their neighbour, as they were both tenants in the same house. PW2 stated further that, she sent Sara to call PW1. Sara went there and later came back and informed PW2 that, she tried to call PW1 but there was no response and the door to the Jaledo's room was locked. PW2 went herself to Jaledo's room and called PW1. It was her testimony that, PW1 did not respond but, Jaledo responded and told her that, PW1 was with him, inside the room, assisting him to fix his bed. A moment later, PW2 saw PW1 coming out from Jaledo's room going straight to the toilet, as his trouser was wet. Upon inquiry, PW1 told her that he went to Jaledo's room to assist him to fix his bed. However, in the following day, PW2 continued to notice that PW1 was not okay, as he was not walking properly. Having interrogated him seriously and asked him to tell her the truth, PW1 told her that, the 3 appellant sodomized and warned him not to tell her, lest would kill both of them. Upon receipt of the said shocking news, PW2 informed her young sister namely Beatrice, who reported the matter to the police. Thereafter, the police came and arrested the appellant. Subsequently, PW1 was taken to Chunya District Hospital on 30th June, 2023, where he was examined by Dr. Albin Alex Kondi (PW3). It was the testimony of PW3 that, having examined PW1, he found that, the sphincter muscles of his anus were loose, an indication that he had been penetrated by a blunt object. PW3 filled the PF3 to that effect and the same was admitted in evidence as exhibit PI. No. F3661 D/SGT Mohamed (PW4), testified that, he was involved in the investigation of the incident. PW4 recorded the appellant's cautioned statement where he denied to have committed the offence but admitted to have invited PW1 into his room to assist him to fix his bed. In his defense, the appellant (DW1), admitted to know PW2 and PW1, as his neighbours, as they all live in the same house. The appellant also admitted that, on the fateful date, he invited PW1 to his room to assist him to fix his bed. He however, dissociated himself from the accusations levelled against him. He thus challenged the evidence of PW1 and PW2 that they gave untrue story before the trial court. That he knew nothing about that crime and that, the case was framed against him due to jealous, though, he did not disclose the nature and or basis of the alleged jealous. After a full trial, the trial court accepted the version of the prosecution's case and specifically placed much reliance on the evidence of PW1, the victim, whose evidence was found to have been corroborated by PW2 and PW3 together with exhibit PI. Thus, the appellant was found guilty, convicted and sentenced to thirty years' imprisonment. The appellant's appeal before the High Court was not successful, as apart from sustaining his conviction, it also substituted the sentence of thirty (30) years imprisonment imposed on him and enhanced it to life imprisonment. Undaunted, the appellant has preferred the instant appeal. In the memorandum of appeal, he indicated twelve (12) grounds, which raise the following complaints: One, failure by the first appellate court to find that the case was framed against the appellant; two, failure by the victim to report the incident to PW2, immediately upon reaching home; three, both lower courts erred to ground the appellant's conviction by relying on the evidence of PW1, PW2 and PW3 who were incredible and unreliable witnesses as their evidence is tainted with contradictions; four; failure by the lower courts to draw adverse inference on the prosecution for failure to summon material witnesses; five, that the prosecution case was not proved beyond reasonable doubt; and finally, the appellant's defence evidence was not considered. At the hearing of the appeal, the appellant appeared in person, whereas the respondent Republic was represented by Ms. Mwajabu Tengeneza, learned Principal State Attorney assisted by Mses. Ellen Masululi and Veronica Mtafya, both learned Senior State Attorneys. Upon being given an opportunity to amplify on the grounds of appeal, the appellant adopted them together with his written arguments and opted to initially hear the response of the respondent but, reserved his right to rejoin, if need to do so would arise. At the outset, Ms. Masululi, who addressed the Court on behalf of her colleagues, declared the respondent's stance of opposing the appeal. She then submitted that, after going through the grounds of appeal, she discerned that the third, seventh, eighth and tenth grounds are new as they were neither raised nor determined by the first appellate court. She argued that, it is a settled position, that this Court will only consider and determine matters which were deliberated and determined by the first appellate court. On that account, she cited the case of Rutoyo Richard v. Republic, Criminal Appeal No. 114 of 2017 [2020] TZCA 298 and she then implored us not to entertain the said grounds, unless they involve a point of law. Having carefully examined the grounds of appeal submitted by the appellant before the first appellate court as indicated at page 64 of the record of appeal before us, we readily agree with the submission made by Ms. Masululi that, the third, seventh, eighth and tenth grounds of appeal, are new and should not have been raised at this stage as, this Court is precluded from entertaining purely factual matters which were not raised or determined at the first appeal. We have reaffirmed this position in our numerous decisions - see for instance, the cases of Abdul Athuman v. Republic [2004] TLR 151 and Sadick Marwa Kisase v. Republic, Criminal Appeal No. 83 of 2012 [2013] TZCA 389. In that regard, this Court will not entertain the said grounds, as they raise issues of facts which were not canvassed and decided upon by the first appellate court. Having disposed the said grounds, we proceed to determine a crucial issue as to whether the case against the appellant was proved beyond reasonable doubt, which is the subject of the remaining grounds of appeal. Before doing so, we should state, at the onset that, this being a second appeal, the Court will rarely interfere with concurrent findings of fact made by the courts below. The exceptions to the rule are when the findings are perverse or demonstrably wrong and occasioning miscarriage of justice. This position was well stated in Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] TLR 149; Mussa Mwaikunda v. Republic [2006] TLR 387. Starting with the first, second, fifth, sixth, ninth and eleventh grounds on the appellant's complaint that the charge against him was not proved to the required standard. The appellant referred us to the testimonies of PW1, PW2 and PW3, and argued that, the said witnesses were incredible and unreliable as their evidence was tainted with contradictions and inconsistencies. To amplify on this point, the appellant referred us to pages 9 and to 14 of the record of appeal and argued that, although both, PW1 and PW2 testified that, after the awful act, PW1 was not walking properly, PW3, at page 20 of the same record, testified that, having medically examined PW1, there was no pain discovered. That, PW3, also testified that, PW1 was penetrated at his anus more than once, while PW1 and PW2 narrated only one incident of 29th June, 2023. In addition, the appellant challenged the credibility of PW2 that, she gave contradictory statements before the trial court and the police. That, before the police she stated that, the appellant threatened her with a knife, while before the trial court, she did not mention the said knife. To support his proposition, he cited the cases of Malimi Peter v. Republic, Criminal Appeal No. 480 of 2020 [2024] TZCA 65 and Mohamed Said Matula v. Republic, Criminal Appeal No. 93 of 2018 [2021] TZCA 105. He then urged us to find that, the pointed-out contradictions had created doubts in the prosecution case which should to be resolved in his favour. The appellant also attacked the credibility of PW1 for his delay to report the incident to PW2. That, although PW1 in his testimony testified that, he was sodomized on 29th June, 2023, did not reveal the said ordeal to PW2, immediately, after meeting her at home. That, upon being asked as why he was walking with difficulties, PW1 started saying that, his leg was not okay, but in the next day, he said he was sodomized. It was the appellant's argument that, the act of PW1 to remain silent, for such a long time, coupled with his conducts of starting telling lies on his condition, raises doubt on his credibility, which should, again, be resolved in his favour. To support his proposition, he cited the case of Marwa Wangiti & Another v. Republic [2002] TLR 39. Furthermore, the appellant faulted the prosecution for failure to summon material witnesses namely, Sara and Beatrice, who were mentioned by PW1 and PW2 to be involved in this matter. That, Sara 9 was sent by PW2 to call PW1 from the appellant's room and Beatrice observed PW1 walking with difficulties. He equally wondered as why both lower courts did not draw adverse inference on the prosecution side for such failure. Based on his submission, the appellant concluded that the prosecution case was not proved to the required standard and urged us to allow the appeal and set him at liberty. In her response, Ms. Masululi argued that the prosecution case was proved beyond reasonable doubt through the evidence of PW1 which was corroborated by PW2 and PW3. She elaborated further that, the trial court and the first appellate court properly evaluated the evidence adduced by the said witnesses and were satisfied that the evidence of PW1, the victim, which is the best evidence in cases of this nature, was sufficiently corroborated by PW2 and PW3. That, the said evidence clearly narrated on how the appellant called PW1 into his room and later, sexually assaulted him. That, upon being found by PW2 and asked what had befallen upon him, PW1, mentioned the appellant as the person who sexually abused him. Ms. Masululi added that, in his testimony found at page 25 of the record of appeal, the appellant himself admitted to know PW1 and PW2 very well before the incident as they were neighbours living in the same house. The appellant further admitted that, on the fateful date, he invited PW1 in his room, though he claimed that, he called him to assist in fixing his bed. As for the delay by PW1 to report the incident to PW2, Ms. Masululi argued that there was no delay, because the incident happened on 29th June, 2023 and PW1 informed PW2 on 30th June, 2023. It was her argument that, PW1 did not report immediately, as the appellant threatened to kill him, if he disclosed the ordeal to PW2. On the pointed-out contradictions in the evidence of PW1, PW2 and PW3, although, Ms. Masululi conceded that there were those contradictions, she argued that, the same are minor defects which do not go to the root of the matter and dispute the fact that PW1 was sodomized by the appellant. To support her proposition, she cited the case of Elia Richard Shoo v. Republic, Criminal Appeal No. 196 of 2021 [2024] TZCA 422. On the issue of failure by the prosecution to summon Sara and Beatrice mentioned by PW1 and PW2, although, Ms. Masululi also, readily conceded that the said persons were not summoned, she argued that they were not material witnesses given the nature of this case. In addition, and to substantiate her argument, she cited section 152 of the Evidence Act, Cap. 6 of the Revised Laws (the Evidence Act) and argued that, the said law does not require a specific number of witnesses to prove a fact, what is required is the quality of evidence and credibility of witnesses. ii She thus insisted that, in the instant appeal, the prosecution case was proved beyond reasonable doubt through the evidence of PW1, PW2 and PW3. That, having established its case against the appellant, the prosecution found it unnecessary to summon other witnesses. She then emphasized that, in convicting the appellant, the trial court relied mainly on the testimony of PW1, the victim who clearly testified on how he was sodomized by the appellant. That, the testimony of PW1 was corroborated by PW2 and PW3. That, the evidence of PW1 was the best evidence which could have been relied upon by the trial court to mount the appellant's conviction even without any corroboration, as long as the court was satisfied that the witness was telling the truth. In that regard, and based on her submission, she insisted that the prosecution case was proved beyond reasonable doubt and urged us to find the first, second, fifth, sixth, ninth and eleventh grounds devoid of merit. We wish to start by stating that, the law regarding the credibility of witnesses is settled that every witness is entitled to credence unless there are cogent reasons not to believe that witness - see: Goodluck Kyando v. Republic, [2006] T.L.R. 363. Moreover, on appeal, the credibility of a witness can be gauged through coherence and consistence of his or her testimony and its relation to the evidence of other witnesses. In the case of Elisha Edward v. Republic, Criminal Appeal No. 33 of 2018 [2021] TZCA 397 (24 August 2021: TANZLII), the Court restated the position set in its 12 previous decision in Shabani Daudi v. Republic, Criminal Appeal No. 28 of 2000 (unreported) when emphasizing on assessment of credibility of witnesses, that: " Credibility o f a witness is the monopoly o f the trial court but only in so far as demeanour is concerned. The credibility o f the witness can also be determined in two other ways. One, when assessing the coherence o f the testimony o f that witness and two, when the testimony o f that witness is considered in relation to the evidence o f other witnesses including that o f the accused person. In those two occasions, the credibility o f a witness can be determined even by a second appellate court when examining the findings o f the first appellate court". In the instant appeal, as intimated above, in convicting the appellant, the trial court relied on the evidence of PW1. It found that the evidence of PW1, the victim, was reliable and the best evidence in cases of this nature. Having carefully scrutinized the evidence of PW1, like the courts below, we are satisfied that he was a credible and reliable witness and was consistent in what he was testifying. His evidence was direct and explicit on how the depraved sexual act occurred to him. He was unambiguous that the appellant inserted his male member into his anus and sodomized him. It is however, a common ground that, PW1 did not disclose his 13 tribulation promptly as correctly argued by the appellant. However, according to PW1, he revealed it to PW2, on the second day, on the fear of being killed by the appellant, as he earlier on threatened to kill him, if he discloses the ordeal to PW2. We are alive to the principle that, the ability of a witness to name a suspect at the earliest opportunity is an assurance to his and or her credibility - see Marwa Wangiti & Another (supra). We however, wish to state that the applicability of that principle, in cases of this nature should be looked at with precaution within the context of PW l's immaturity coupled with his mind having been overwhelmed by an awful, shameful and degrading act. In the case of Selemani Hassani v. Republic, Criminal Appeal No. 203 of 2021 [2022] TZCA 127, having been faced with an akin situation, we observed that, the said principle can apply fairly and unrestrictedly in respect of, say, cases involving property offences, it will not apply with equal force in cases concerning sexual offences where immaturity of the victim, death threats or shame associated with such offences may dissuade the victim from reporting the matter with promptitude. We then cited with approval, the observation by the Supreme Court of the Philippines in the People of the Philippines v. S PO I Arnulfo A. Aure and S PO I Marlon H. Ferol, G.R. No. 180451, October 17, 2008, that: 14 "Delay in reporting an incident o f rape due to death threats and shame does not affect the credibility o f the complainant nor undermine her charge o f rape. The silence o f a rape victim or her failure to disclose her misfortune to the authorities without toss o f m aterial time does not prove that her charge is baseless and fabricated. It is a fact that the victim would rather privately bear the ignom iny and pain o f such an experience than reveal her shame to the world or risk the rapist's making good on his threat to hurt or k ill her" In the circumstances, and being guided by the above authority, we agree with Ms. Masululi that the act of PW1 of delaying to reveal the ordeal, immediately, to PW2 did not corrode his credibility. In addition, and having revisited the entire evidence on record and taking into account the principle which is applicable in proving sexual offences, we equally find the complaint by the appellant on the failure by the prosecution to summon Sara and Beatrice, mentioned by PW1 and PW2 to have no basis. We however, wish to emphasize that, pursuant to section 152 of the Evidence Act, there is no particular number of witnesses which is required in proving a certain fact, what matters is the weight of evidence and credibility of a witness. Besides, it is the prosecution that has the duty to prove its case and the right to choose which witnesses to call so as to give evidence in support of the charge. See for instance, the cases 15 of Yohanis Msigwa v. Republic [1990] T.L.R. 148 and Abdallah Kondo v. Republic, Criminal Appeal No. 322 of 2015 [2016] TZCA 836. On the alleged contradictions, having revisited the evidence of PW1, PW2 and PW3, we do not, with respect, consider them to be material to the extent of affecting the credibility and reliability of their evidence. By any means, we cannot expect the said witnesses to match in their testimonies in all aspects as each one of them testified on what she or he witnessed at a different interval of the commission of the offence. It has been the position of this Court that contradictions by witness or between witnesses is something which cannot be avoided in any particular case - see Dickson Elia Nsamba Shapwata & Another v. Republic, Criminal Appeal No. 92 of 2007 [2008] TZCA 17 and Marmo Slaa @ Hofu & 3 Others v. Republic, Criminal Appeal No. 246 of 2011 [2012] TZCA 398. As such, we have no hesitation to agree with Ms. Masululi that the appellant's complaint on that aspect, is plainly baseless as the pointed-out contradictions do not go to the root of the matter. It is therefore our considered view that, both courts below properly evaluated the evidence on record and were satisfied that the case against the appellant was proved beyond reasonable doubts. We have specifically revisited the testimony of PW1 and there is no doubt that he clearly 16 explained on how the incident occurred. PW1 in particular, at pages 8 and 9 of the record of appeal, narrated on how the appellant called him in his room, threatened him with a knife, forced him to undress his clothes and inserted his penis into his anus and on how he felt pains. As rightly submitted by Ms. Masululi, in cases involving sexual offences the best evidence is that of the victim. The sole evidence of the victim can be safely relied upon by the court to sustain a conviction. See for instance the cases of Selemani Makumba v. Republic [2006] T.L.R. 379 and Rashidi Abdallah Mtungwa v. Republic, Criminal Appeal No. 91 of 2011 [2012] TZCA 413, among others. As intimated above, the testimony of PW1, the best evidence in this case, was well corroborated by the testimony of PW2 who found PW1, after coming from the appellant's room, walking with some difficulties. The evidence of PW1 was also corroborated by PW3 who medically examined PWl's private parts and found that the sphincter muscles of his anus were loose, an indication that he had been penetrated by a blunt object. All these witnesses, in our view, proved the prosecution case to the required standard. The appellant's last complaint hinges on the failure by the lower courts to consider his defence evidence. He contended that, both lower 17 courts did not objectively evaluate and/or analyze his defence evidence and no reasons were assigned for such omission. Responding, Ms. Masululi was very brief and to the point that both lower courts sufficiently considered the appellant's defence and rejected it. To clarify her argument, she referred us to pages 57 to 59 and 89 to 93 of the record of appeal, respectively. She thus urged us to dismiss the twelfth ground for lack of merit. In rejoinder submission, the appellant did not have much to say other than urging us to consider his grounds of appeal, allow the appeal and set him at liberty. Having perused the record of appeal, we agree with Ms. Masululi that the appellant's complaint under this ground is not supported by the record, as it is vivid at pages 57 to 59 and 89 to 92 of the record of appeal, that both lower courts adequately considered and weighed the appellant's defence against the prosecution case but rejected it for being incapable of weakening the prosecution case. We thus dismiss the twelfth ground of appeal for lack of merit. For the foregoing reasons, we do not find any cogent reasons to disturb the concurrent findings of the lower courts, as we are satisfied 18 that the evidence taken as a whole establishes that the prosecution's case against the appellant was proved beyond reasonable doubt. In the event, we find the appeal devoid of merit and it is hereby dismissed in its entirety. DATED at MBEYA this 26th day of February, 2026. R. J. KEREFU JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL The Judgment delivered this 27th day of February, 2026 in the presence of the Appellant in person, Mr. Augustino Magessa, learned State Attorney for the Respondent/Republic and Mr. Soud Omary, Court Clerk; is hereby certified as a true copy of the original. 19