Meshack James @ Lubisila vs Republic (Criminal Appeal No. 503 of 2022) [2025] TZCA 1142 (16 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: GALEBA. J.A., MGEYEKWA, J.A. And MLACHA. J J U CRIMINAL APPEAL NO. 503 OF 2022 MESHACK JAMES @ LU BISILA.......................................................APPELLANT VERSUS THE REPUBLIC.............................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Salema, J.^ dated the 23th day of September, 2022 in DC Criminal Appeal No. 22 of 2021 JUDGMENT OF THE COURT 1st & 16th October, 2025 MLACHA, J.A. The appellant, Meshack James @ Lubisila, was charged with and convicted of unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code, Chapter 16 of the Revised Laws at the District Court of Tabora in Criminal Case No. 89 of 2020. It was alleged that, on 2/7/2020 during day time at Ipuli area within the Municipality and Region of Tabora, the appellant did have carnal knowledge of a child aged 4 years against the order of nature, who for the purpose of preserving his dignity, shall be referred to as JP or the victim. He was convicted and sentenced to life i

imprisonment. His appeal before the High Court could not succeed hence this second appeal. The facts leading to the conviction of the appellant can be presented as follows: The appellant was employed on 2/7/2020 by the victim's parents, Jackline Mmari (PW1) and Prosper Wilson Mmari (PW2), to carry PJ to school using his bicycle at a consideration of TZS. 15,000.00 per month. He picked JP in the morning, took him to school and dropped him later in the day after school. It is alleged by the prosecution that after dropping him home, he ran away. PW1 who was inside the house heard JP crying. She got out. Upon inquiry, she was told that the appellant had ran away. JP complained that the appellant had inserted his penis into his anus. PW1 inspected the child and noticed sperms in both his anus and shorts. She communicated the matter to her husband (PW2) who responded quickly. She also communicated the matter to a neighbour, Rosemary Peter (PW4), who also examined JP and saw sperms in his shorts. JP who testified as PW3, told them that while on the way back from school, the appellant took him to his residence, undressed him, and inserted his penis into his anus causing him injury. He then took him back home and ran away.

PW1 and PW2 moved to the police station for a PF3 and rushed JP to Kitete Government Hospital for medical examination. At the hospital, Dr. Abas Mohamed Kapona (PW5) examined him and found bruises and sperms in the anus, confirming sodomy. He recorded his findings in the PF3 (exhibit PI). PW2 said the appellant came at home on the following day and they put him under arrest. They sent him to the police station and later charged at the District Court, as alluded to above. In his defence, the appellant (DW1), admitted to know JP whom he was employed to take to school by his parents by using his bicycle. He admitted taking him to school that day, but denied committing the offence. He said that on the next day he went to the residence of JP and was put under arrest by his father. He was interrogated on why he had sodomized JP and denied to commit the crime. He was later sent to the District Court and charged. He said that he did not know who sodomized the boy. The trial court believed the evidence from the prosecution side. It rejected the defence of the appellant who was convicted and sentenced to life imprisonment, a decision which was confirmed by the High Court as alluded to above. «

The appellant filed two memoranda of appeal; the memorandum of appeal and supplementary memorandum of appeal, which have a of total 10 grounds of appeal. The grounds carry the following complaints: one, that, the offence was not proved beyond reasonable doubts; two, that, the victim who was a child of tender age, did not make the promise to tell the truth as per section 135 (2) of The Evidence Act; three, that, PW4 is not in the list of witnesses produced by the prosecution during the preliminary hearing; four, that, the PF3 of the appellant, exhibit PI was not read after admission; five, that, the police officer who recorded the cautioned statement of the appellant was not called as a witness and; six, that, the age of the victim was not proved. T h e a p p e lla n t appeared in person while the respondent Republic was represented by Mr. Winlucky Mangowi learned State Attorney who teamed up with Mr. Steven Mzava and Ms. Joyce Nkwabi, also learned State Attorneys. Mr. Mzava addressed the Court on behalf of the team. When he was invited to address the grounds of appeal, the appellant opted for the respondent Republic to respond to his grounds of appeal first, while retaining his right of rejoinder where need be. Mr. Mzava started with complaint number two; that, JP did not promise to tell the truth as required by section 135 (2) of the CPA. He

admitted that JP did not promise to tell the truth but contended that, he proved to be a sincere and reliable witness so his evidence should not be expunged. He submitted that, JP was sincere because he spoke clearly what happened to him that day, saying the appellant picked him to school in the morning and returned him later in the day. And that, while on the way back home, the appellant took him to his home place where he undressed him and inserted his penis into his anus. He added that JP was firm during cross examination and did not appear to speak a lie. He contended further that, the evidence of JP is in line with the evidence of PW1 and PW2 who said that the appellant took JP to school and deviated the route on the way back leading to his house where he inserted his penis into his anus. He submitted that, where the evidence shows consistency, the court can take it into account in determining the case despite the absence of the promise. He cited our decisions in Francis Eliud @ Mnyamwezi v. Republic [2024] TZCA 665 and George Jonas Lesilwa v. Republic [2024] TZCA 269 to support his contention. He submitted further that, based on our decision in Marwa Wangiti Mwita v. Republic [2020] TZCA 4, the ability of JP to name the appellant at an earliest stage add credit to his evidence. He urged the Court to consider the evidence of JP despite the fact that JP did not promise to speak the truth. 5

Next was complaint number three; that the name of PW4 was not listed in the list of prosecution witnesses at the preliminary hearing. Submitting on this complaint, Mr. Mzava contended that there is no law which bars a witness who was not listed at the preliminary hearing stage to appear and give evidence. He cited our decision in Leonard Joseph @ Nyanda v. Republic [2020] TZCA 51 to support his stance and urged the Court to dismiss the complaint. On complaint number four, Mr. Mzava admitted that the PF3, exhibit PI, was not read after admission. He urged the Court to expunge it. But, that notwithstanding, the learned State Attorney contended that, even in the absence of the PF3, the oral evidence of PW5 can be acted upon. He urged the Court to hold that the absence of the PF3 did not affect the evidence of PW5. Next was complaint number six; that the age of the victim was not proved. Mr. Mzava admitted that, whereas PW3 said that he was 5 years old, his mother (PW1) said that he was 4 years old which was a contradiction. He was however quick to submit that, the contradiction is not fatal so long as the evidence of the 2 witnesses proved that JP was under 18 years.

Next was complaint number five; failure to call the police officer who recorded the cautioned statement of the appellant. Mr. Mzava contended that, this complaint is baseless because there is no any cautioned statement tendered in evidence in this case. He urged the Court to dismiss it. Lastly was complaint number one; that the offence was not proved beyond reasonable doubt. Making reference to section 154 (1) (a) under which the appellant was charged, Mr. Mzava submitted that, the offence has two elements; canal knowledge of the victim against the order of nature and penetration. That is, the prosecution must prove that the penis of the appellant penetrated into the anus of JP for sexual satisfaction. He submitted that, there is such evidence in this case to prove the two elements. Amplifying, he contended that, the offence was proved by the evidence of JP who said that the appellant inserted his penis into his anus and that of the doctor who saw bruises and sperms at the anus of JP. Further, the appellant admitted sending him to school and back on the material day. He beseeched the Court to dismiss the complaint. In the totality, Mr. Mzava supported the decision of the High Court and urged the Court to dismiss the appeal.

The appellant being a layman could not say anything useful in rejoinder. He only said that there was no good evidence to prove the offence and urged the Court to set aside the decisions of the lower courts and set him free. On our part, we have examined the evidence closely and considered the submissions made before us. We will respond to the complaints raised in the order adopted by the learned State Attorney. He started with the complaint that PW3 did not promise to speak the truth but went on to urge the Court to find that his evidence can be used despite the absence of the promise because he appeared sincere and credible. He cited our decisions to support his position. The decisions he cited are in line with subsection (6) of section 135 of the Evidence Act. We agree with him with some reservations as we shall point out later. The complaint is thus baseless and dismissed. Next is the complaint that the evidence of PW4 is not admissible because his name is not in the list of prosecution witnesses produced at the preliminary hearing. We agree with the learned State Attorney that, there is no law barring a witness whose name is not in the list of prosecution witnesses produced during preliminary hearing to give evidence. Further, we think this complaint is also baseless on another 8

ground. Our look of the list of prosecution witnesses appearing at page 9 of the record of appeal has shown us a witness called Rosemary Goria listed as number 2. We think that, if the appellant had taken trouble to cross examine PW4 on this aspect, it could be revealed that Rosemary Peter and Rosemary Goria may be were one and the same person because Goria appears as a surname while Peter appears as the middle name. The complaint is dismissed. On the complaint that the PF3 (exhibit PI) was not read after admission, we are in agreement with Mr. Mzava that it was not read in court and has to be expunged. Exhibit PI is thus expunged from the record. But like Mr. Mzava, we have the view that, expunging exhibit PI cannot render the evidence of PW5 useless. It will remain as an oral account of any witness which will be assessed and accepted or rejected based on his credibility and coherence of the evidence when measured in relation to other pieces of evidence. The complaint that there was need to call the police officer who recorded the cautioned statement as a witness is strange, for like Mr. Mzava, we could not find any cautioned statement in the proceedings. None of the witnesses spoke of it. It was not tendered in evidence. It is obvious that, the complaint is misconceived and we proceed to dismiss it.

On the contradiction to the age of the victim we share the views of Mr. Mzava which he formed after being engaged by the Court that, JP said his age was 5 years as opposed to what was said by his mother because possibly at the time of giving evidence, he had already crossed to 5 years. We thus find the complaint as being baseless and dismiss it. Finally, there is the complaint that the offence was not proved beyond reasonable doubts. The contention of the learned State Attorney is that the offence was proved by the evidence of PW3 who narrated the way the appellant took him to school and the way he deviated the route of the way back and took him to his room where he was sodomized. That, the appellant inserted his penis into his anus and caused her some pains. That, both PW1 and PW4 saw sperms in the shorts of PW3. PW5 also saw bruises and sperms in the anus of PW3. This evidence, according to the learned State Attorney proved the offence beyond reasonable doubts. We agree with what was submitted by the learned State Attorney but our evaluation of the evidence have shown some gaps in the evidence. One, we did not find the reason as to why the investigator of the case was not called as a witness. We have the view that much as the best evidence in rape cases comes from the victim but where the investigator is left behind without explanation, the court can draw an adverse 10

inference to the prosecution case. We have the view that, in serious a case like this one, which attract a long custodial sentence, the police from the gender desk, popularly known as "Dawati laJinsiaf, must be involved fully and must come forward to tell the court their findings in the investigation process to prevent fabrication of evidence. If the investigator was called for instance, he could tell the trial court the way the victim was brought and received at the police station, his physical condition and the way he was sent to the hospital. He could also say why the appellant could not be arrested on the same day. Two, we do not know why the appellant just dropped the child on the date of the incidence and quickly escaped but then returned at the scene of crime on the following day. This is reflected in the evidence of PW2 and DW1. PW2 said so at page 16 that, "... on the following day, the accused came to take the victim and I arrested him..." The appellant had a similar story at page 26 of the record when he said, "On the following day I went to the residence o f the complainant and I was arrested by the father o f the victim ." We have doubts if the appellant was real the culprit, because we have the view that if he was real the culprit, and quickly escaped as was testified by JP and his mother, he could not have returned on the next day to continue with his work. There was thus doubt in the prosecution case which were not cleared. We give the appellant the benefit of doubt. 11

We thus, based on what we have demonstrated above, we quash the conviction of the appellant, set aside the sentence imposed on him and direct his immediate release unless he is held on some other lawful cause. Appeal allowed. DATED at TABORA this 15th day of October, 2025. The Judgment delivered this 16th day of October, 2025 in the presence of appellant, virtualy, in person and unrepresented, Ms. Suzan Barnabas, learned State Attorney for the Respondent/Republic and Ms. Janekisa Bukuku, Court Clerk, is hereby certified as a true copy of the Z. N. GALEBA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL