Claudian Sospeter Makalanga vs Republic (Criminal Appeal No. 251 of 2024) [2026] TZCA 144 (26 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LEVIRA, J.A.. MPEMU, J.A. And ISSA, J.A.^ CRIMINAL APPEAL NO. 251 OF 2024 CLAUDIAN SOSPETER M AKALAN G A..................................................... APPELLANT VERSUS THE R EPU B LIC ......................................................................................RESPONDENT (Appeal from decision of the Resident Magistrate's Court of Mwanza at Mwanza) (Ndvekobora, PRM-Ext. Ju ris t dated the 2n d day of November, 2023 in RM. Criminal Appeal No. 27 of 2023 JUDGMENT OF THE COURT 19th & 26th February, 2026 LEVIRA, J.A.: The appellant was convicted of unnatural offence contrary to section 154 (1) (a) of the Penal Code, Cap. 16 and sentenced to thirty (30) years imprisonment by the District Court of Misungwi at Misungwi in Criminal Case No. 103 of 2022. Aggrieved, he appealed to the High Court of Tanzania at Mwanza and his appeal was transferred to the Principal Resident Magistrate with extended jurisdiction (PRM with Ext Juris.), at the Resident Magistrate's Court of Mwanza at Mwanza. However, his appeal was not successful, the

conviction and sentence were upheld. Undoubtedly, the appellant has preferred the present appeal protesting his innocence. Brief facts of the case leading to appellant's conviction and sentence are to the effect that: The prosecution alleged that between 2020 and 2022 at Bukumbi village within Misungwi District in Mwanza Region, the appellant did have unlawful carnal knowledge to one DSI (name withheld) a boy aged 13 years old against the order of nature. The appellant denied the charge. Therefore, the prosecution had to call three witnesses and tendered one exhibit to prove it. DSI, the victim was the first prosecution witness (PW1). He testified to have known the appellant as his teacher who taught him mathematics when he was in standard five and he was also a sport teacher. Further that, the appellant unnaturally abused him in 2021. PW1 recollected that, one day during break time, the appellant asked one pupil to call him to his office. PW1 went to the appellant's office and found other pupils. The appellant told them that there were some questions which they did not understand so he would teach them. Thereafter, those pupils left and the appellant ordered PW1 to remain in his office, closed the door and window, undressed him, covered his eyes with cloth, ordered him to bend holding a chair, then he 2

inserted his penis in PW l's anus. According to PW1, the appellant warned him not tell anyone. He continued to abuse him several times and used to give him TZS. 5,000.00 to 10,000.00. PW1 felt itch in his anus and decided to tell his mother that the appellant used to have canal knowledge of him against the order of nature in his office. His mother one Elizabeth Joseph Ngasi (PW2) took PW1 to the hospital. In her testimony, PW2 stated that PW1 was 13 years old and that on 16th and 17th September, 2022 while at home, she saw his son (PW1) was not sleeping well. Upon asking him what had befallen him, PW1 told her that he had pain and itch in his anus and that the appellant used to unnaturally abuse him. She therefore took PW2 to Misungwi District hospital for medical checkup and the doctor confirmed that PW1 was unnaturally offended. Musa Mishamo (PW3) was the doctor who attended PW2. He testified that on 17th September, 2022 he received PW1, a boy of 13 years old who was accompanied by his mother (PW2). He examined his anus and discovered that, there was penetration in the anus caused by a blunt object. The muscles of the anus were weak and the anus was open with width of 13 millimeters (1.3 cm). According to him, normally the anus is supposed to be close or intact, it open when he goes to defecate. After the examination, PW3 filled his findings in a PF3 which he tendered and it was admitted as

exhibit PI. The prosecution closed its case. The trial court was satisfied that the prosecution had established a prima facie case and the appellant had a case to answer. The defence side had three witnesses; to wit, the appellant (DW1); Shija Elias Mpilipili (DW2) and Ndege Blenzi (DW3). The appellant testified that he was teaching at Bukumbi Primary School and he used to share office with other two teachers. In September, 2021, he was arrested and taken to Misungwi Police but did not know the offence he committed. At the Police, he was told that he was accused to have unnaturally offended (PW1) who was at the hospital discharging faeces. Later, the appellant was released on bail, he went to school, he found PW1 was not admitted at the hospital. The appellant denied to have committed the offence. He explained that it was not possible to commit such offence in his office because the office is located at the center of the school and there were other teachers and pupils. Besides, he said, according to PW1 the offence was committed in 2021 but PW2 said it was in 2022 between April and August. The appellant, testified further that, he assigned work to pupils including PW1, but they did not do it. Thus, he punished them and reported them to the class teacher. According to him, he only taught PW1 while he was in standard five.

DW2 testified that the appellant was his co-teacher but he knew nothing about the charge he was facing. Additionally, DW3 also recognized the appellant as a teacher at Bukumbi Primary School since 2020. Further that in 2022, he started sharing office with the appellant together with another teacher. The said office is close to the library, head teacher's office, store and nearby there is staff room and open space for parade. He went on to testify that, on 19th September, 2022 while attending standard seven examination seminar, they were told that the appellant was arrested at night being accused to have unnaturally offended PW1. DW3 was surprised because he knew the appellant was not of bad behavior. He also knew PW1 because he was teaching him and always, he attended classes. However, he testified further that, he received some complaints from parents that the appellant was punishing a lot of their children. He advised him not to punish them much as they were still young. That marked the end of defence evidence. Having weighed the evidence by both sides, the trial court was satisfied that the prosecution proved its case against the appellant beyond reasonable doubt, convicted and sentenced him as indicated earlier. The first appellate court upheld the appellant's conviction and sentence. In demonstration of his dissatisfaction, the appellant has knocked the door of this Court armed

with ten (10) grounds of appeal, five in the memorandum of appeal filed in Court on 26th March, 2024 and five grounds in the supplementary memorandum of appeal filed on 20th August, 2024. The main complaint of the appellant in this appeal is that the charge against him was not proved beyond reasonable doubt and thus it was not right for the first appellate court to uphold his conviction and sentence. He highlighted some of the weaknesses of prosecution case including; variance between the charge and evidence, failure to call material witnesses, the prosecution evidence lacked corroboration, exhibit PI was wrongly relied upon, failure of the trial court to evaluate evidence on record and failure to consider defence case. The appeal was scheduled for hearing on 19th February, 2026 and the parties appeared ready to proceed. The appellant appeared in person, unrepresented whereas, Ms. Hellen Chuma, learned Senior State Attorney assisted by Mr. Sileo Leonce Mazullah and Ms. Sarah Perius Sinitala, both learned State Attorneys teamed up to represent the respondent, Republic. The appellant opted and adopted his grounds of appeal and written submissions to form part of his oral submission before the Court. He however, reserved his right to make a rejoinder.

Upon taking the floor, Mr. Mazullah supported the appeal straight away on ground that, the prosecution case against the appellant was not proved beyond reasonable doubt. He submitted on weakness of the evidence of PW1 found on page 12 of the record of appeal. PW1 was a victim who testified that from 2021, he was being unnaturally abused by the appellant. However, he added, in cross examination, PW1 changed the story and stated that the appellant started to abuse him in July, 2022; while the charge states that the offence was committed between 2020 to 2022. Apart from that, the learned counsel also referred us to page 19 of the record of appeal where PW3 testified that, he received the victim in September, 2022 and that the victim told him that the offence was committed eight months ago, meaning January, 2022; but also that, the last time he was offended was a week before he went to him (PW3) for medical examination, meaning 10th September, 2022. According to Mr. Mazullah, this evidence is contradictory and it was not clear when the offence was committed. The contradiction, he submitted, goes to the root of the case because the witnesses who were supposed to prove the case were not credible; hence the charge remained unproved. In addition, he submitted that the prosecution failed to call material witnesses; for instance, a pupil who was sent by the appellant to call the victim to his

office and the investigator in this case. For those reasons, he supported the appeal and urged us to allow it. In rejoinder, the appellant had no much to say. He only prayed to be set free. We wish to note at the outset that, this case was handled as if it was a private prosecution a fact which leads to a resultant outcome we are about to pronounce. It is common knowledge in our jurisdiction that criminal matters are handled by the prosecution. For that reason, the prosecution is duty bound to prove the case against an accused person beyond reasonable doubt. The burden of proof never shifts. The narrated facts of the case and the entire evidence as demonstrated, make the question as to whether the charge against the appellant was proved beyond reasonable doubt, not difficult to answer. We note from the record of appeal that, in answering the above question the lower courts placed much reliance on the evidence of PW1. There is no doubt that in sexual offences, the best evidence comes from the victim as it was decided in a number of our decisions. However, applicability of this principle goes hand in hand with credibility and reliability of a witness. In other words, the principle cannot be applied blindly. Credibility of a

witness is assessed through consideration of a number of things including, demeanor of a witness, coherence of his/her testimony in relation with other witnesses, including that of the accused person, the list is not exhaustive. See for instance: Rashid Shaban v. Republic, [2016] TZCA 633 (29 July 2016). In the present case, PW1, the victim testified that he was unnaturally abused by the appellant in 2021 as it can be observed on page 12 of the record of appeal. Shortly, when cross examined, he said, the appellant started to unnaturally abusing him in July, 2022. On page 15 of the record of appeal, when PW2 was cross examined, she responded "My son told me on 16 to 17/09/2022 that you unnaturally offended him ." We observe further that, when taken to PW3 for medical examination, he told him that he had been unnaturally offended for the past eight months, but the last time he was abused was a one week before going to the hospital, on page 19 of the record of appeal. Looking at the different versions of testimony which PW1 gave at different occasions, it is obvious that coherence and consistency is lacking in his evidence. As a result, the question when exactly the offence was committed or began to be committed remained unanswered and it is

doubtful whether indeed the appellant committed that offence as alleged. In one hand, if one has to believe that PW1 started to be unnaturally abused by the appellant in 2021 as he claimed; in that year the appellant had not started to use the office alleged to be the scene of crime, this can be gathered from his (DW1) defence which was corroborated by DW3. On the other hand, if the appellant abused him on 16th or 17th September, 2022 as stated at page 15 of the record of appeal, it was not true that he was last abused one week before going to see PW3 on 17th September, 2022. Likewise, if PW1 was abused for the past eight months before going for medical examination, it means that it was from January, 2022 and not July as stated by PW1 at page 13 of the record of appeal. Having evaluated the evidence on record and gone through the decision of the first appellate court, we are unable to go along with the reasoning of the learned Magistrate with Ext Juris while determine the issue as to whether the appellant was the one who penetrated PW1. We agree with the position she stated that, in sexual offences the best evidence comes from the victim. However, as stated earlier, this principle cannot be applied blindly even in the situation, like in the present case, where credibility of the victim is questionable. Much as it might be true that PW1 was unnaturally known, the crux of the matter was who did that. In our considered option, 10

the prosecution failed to prove that it was the appellant and nobody else committed that offence. We say so because PW1 was the only witness in that respect, although he claimed that the appellant sent his fellow pupil to call him to his office, the prosecution did not bother to call him/her as a witness to corroborate his evidence. Moreover, as we noted at the beginning, this case was not investigated as no investigator was called by the prosecution to testify on what he did and the outcome of his investigation. PW2 testified that having been told by PW1 that he was unnaturally abused, she took him to the hospital; nothing on the record suggests that this matter was reported to the Police. Nonetheless, the issue of a PF3 (exhibit PI) was introduced by PW3 that, after examining PW1, he filled the PF3. The record of appeal is silent as to where did he get the said PF3. In our view, the investigator, if at all there was one, was a material witness who also could give evidence linking the appellant and the incident. It is settled principle that, failure to call material witness entitles the court to draw adverse inference against the prosecution, as we accordingly do. All said and done, we find that the prosecution failed to prove the case against the appellant beyond reasonable doubt. We allow the appeal, quash 11

conviction and set aside the appellant's sentence. We order immediate release of the appellant from custody, unless he is lawfully held for another cause. DATED at MWANZA this 25th day of February, 2026. M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 26th day of February, 2026 in the presence of the Appellant in person, Mr. Adam Murusuli, learned State Attorney for the Respondent/Republic and Ms. Gloria Masige, Court Clerk; is hereby certified as a true copy of the original. 12