George Jonas Lesilwa vs Republic (Criminal Appeal No. 374 of 2020) [2024] TZCA 1270 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI fCORAM: SEHEL, J.A., KIHWELO. 3.A, And MLACHA, 3. X ) CRIMINAL APPEAL NO. 374 OF 2020 GEORGE JONAS LESILWA......................................... .................. APPELLANT VERSUS THE REPUBLIC . ...... . . ................ ......................... . RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Moshi) fMwenempazi, 3.) Dated 7th day of December, 2020 in fDC^ Criminal Appeal No. 30 of 2019 JUDGMENT OF THE COURT 6th & 10th December 2024 MLACHA, J.A.: The appellant, George Jonas @ Lesilwa, a roving photographer and mountain climber/porter, was arraigned at the District Court of Moshi, at Moshi, in Criminal Case No. 579 of 2017 on a charge with 3 counts of Unnatural Offence contrary to section 154(l)(a) and (2) of the Penal Code (Cap 16, R.E. 2002; now R.E. 2019). He was found guilt, convicted and sentenced to life imprisonment on each count, sentences were to run concurrently. His first appeal to the High Court of Tanzania at Moshi in (DC) Criminal Appeal No. 30 of 2019 was not successful, hence the appeal before the Court.

The summary of the evidence leading to the conviction of the appellant can be presented as follows: Hellen Daudi (PW2), Ritha Aloyce Kavishe (PW6) and the appellant lived as tenants in one house located at Mnazi, Kiboriloni area, Moshi District, Kilimanjaro Region. They rented adjacent rooms. PW2 had a boy aged 9 years old, (who shall be referred to as PW1 or 'SH') to conceal his identity, who also lived in the same house. PW6 also had a boy aged 8 years old, (who shall be referred to as PW5 or 'CB' to conceal his identity), who also lived in the house. Matilda Dominic Lyimo (PW3) lived in another house, nearby. She too had a boy aged 9 (who shall be referred to as PW4 or ■ BS.' to conceal his identity). PW1, PW4 and PW5 were school mates. They were also familiar to the appellant. The appellant used to provide gifts to the kids; juice and sweets. On 29/10/2017 at 15:00 hours, PW3 saw TZS.500.00 in the school bag of PW4 and became suspicious. She inquired from PW4 who said that he received it from uncle v D'f making reference to the appellant. On further inquiry, PW4 said that he received the money as a gift after being sodomized. PW3 was shocked. She walked with the boy to PW2. She gave the story to PW2 who was also shocked. PW2 called PW1 to check if he was okay, PW1 gave a similar story that he was sodomized as well. PW6 who was around called PW5 and got a similar response.

He also said that he was sodomized. The boys gave an account to their mothers on how it was done. That, the appellant used to invite each to his room, during the day, in the absence of his wife, Mariam George {DW3), lay them on the bed, undressed and sodomized them. Each was threatened that he could be killed if he could disclose the matter. Each claimed to have experienced pains and agony. Based on this information, the matter was reported to Majengo Police Station that issued three PF3 forms and referred the boys to Mawenzi Hospital. Dr. Michael Kimbama (PW7) of Mawenzi Hospital examined the boys and filled his findings in the PF3 forms that were admitted in evidence as exhibits PI, P2 and P3. He endorsed on each PF3 that he could not find any bruises but the anuses were open with loose sphincter muscles. He certified that the boys had been sodomized, The appellant distanced himself from the charges levelled against him. He agreed to be familiar to the kids, generally, due to his work as a photographer but denied committing the crimes. Mama Pendo (Francisca Moshi) who supervised tenant affairs of the house did not like the way the kids were visiting the appellant to take their photos. Hence she requested him to vacate but he resisted to move out without a valid notice. A grudge developed between them. She promised to fix him.

It was also part of his evidence that on 29/10/2017, while away from home, he received a call from his wife who told him that mama Pendo had gathered people at home including people's militia (auxiliary police) accusing him to have sodomized 9 children. He was arrested later in the day in connection to the allegations and sent to the police station. He went on to say that one day while at the Roman Catholic Church taking photo, his young brother, Emanuel Joseph (DW2) came with PW5 to pick money to buy food. His wife was at the church also, so there was no food at home. He gave them TZS.2,000.00 to buy food. He denied to give TZS 500.00 to PW4. DW2 acknowledged to receive TZS 2,000.00 from DW1 for food. Maria George (DW3) corroborated the evidence of DW1 that there were grudges between him and Fransisca who did hot want kids to visit their home. The defence of the appellant did not manage to inject doubts to the prosecution case. He was found guilt, convicted and sentenced as intimated above. The conviction and the sentences were confirmed by the High Court as alluded to above. The appellant had 8 grounds of appeal which can be paraphrased as follows; one, that, the evidence on record was recorded in contravention of section 210 (3) of the Evidence Act, Cap 6 R.E. 2022 (the Evidence Act); two, that, the evidence of PW1, PW4 and PW5 was

recorded contrary to section 127 (2) of the Evidence Act; three, the age of the victims (PW1, PW4 and PW5) was not proved; four/the evidence of PW2 and PW3 was received without notice of additional witness; five, exhibits PI, P2 and P3 were tendered contrary to the law; six there was no corroboration to the evidence of PW1, PW4 and PW5; seven, the conviction and sentence imposed on the appellant was illegal and; eight, the prosecution case was not proved beyond reasonable doubt. The appellant appeared in person, fending for himself, whereas the respondent Republic was represented by Ms. Janeth Sekule, Senior State Attorney, assisted by Tusaje Samwel, State Attorney. When the appellant was invited to submit on the grounds of appeal, he opted for the respondent Republic to respond to his grounds of appeal first, while retaining his right of rejoinder, if need be. We plan to start with the 8th ground of appeal. On taking the floor, Ms. Samwe! contended that, the evidence of PW1, PW4 and PW5, the victims of the crimes, and that of PW7, the doctor, proved the offences beyond reasonable doubt. Amplifying, she contended that, the appellant called boys to his room, undressed them, laid them on the bed and inserted his penis to their anuses. He threatened to kill them in case they disclosed this to anybody. They kept

the matter as a secret until 29/10/2017 when they revealed it to their respective mothers (PW2, PW3 and PW6) as appearing in pages 26, 27, 29 and 30 of the record. This evidence was corroborated by the evidence of PW7 who observed a loose anus to each of the victims as appearing at pages 34-35 of the record. Based on this evidence, it was the contention of Ms. Samwel that, the case for the prosecution was proved beyond reasonable doubts. She cited the decisions of the Court in the case of Good luck Kyando v. Republic [2006] TLR 363 and Elibariki Naftali Mchomvu v. Republic, (Criminal Appeal No. 332/2019) TZCA 606 (5th October, 2022; TANZLII) to support her stance. She urged the Court to dismiss the appeal. The appellant made a lengthy submission expressing his grievances to the prosecution case as a whole. He highlighted the following areas: (i) Confusions on his names. He contended that it was not possible for the children and their mothers who lived with him for more than 3 years to miss his name. He denied the names of uncle 'G' or V D' and stressed that his name is John Jonas Lesilwa. (ii) Failure to report the crime at an early stage. That, it was not possible for a child aged 8 or 9 years to be sodomized and keep it as a secret for himself without telling his parents, guardian or teacher for all those days. He associated this evidence with a lie. (iii) Credibility of PW3; that, it was

not possible for PW3 to move with PW4 with such a serious allegation across 2 houses without breaking the news. He raised suspicion on why he chose PW2. (iv) Contradictions in evidence; that, the evidence of PW2 and that of PW5 were contradictory on the manner in which the sodomy was done. Whereas PW2 said that he was sodomized twice, PW5 said it was once, (v) Credibility of PW2, PW3 and PW6; that, it could not be possible for parents to'fail to notice that their children had been sodomized for such a long time, (vi) Negative role of male parents; he questioned the reason as to why no male parents (fathers) came at the police station and the court to give evidence, (vii) Failure to call key witnesses; he wondered why the investigator did not come to give evidence and tender the sketch map of the scene of crime and why mama Pendo and the ten cell leader could not come as witnesses. He contended that if those people could come as witnesses, they could give evidence against PW1, PW2, PW3, PW4, PW5 and PW6. He urged the Court to find him not guilt and set him free. We had ample time to examine the record of appeal (the record) and consider the submissions made by parties on the 8th ground of appeal; whether the prosecution had evidence to prove the case beyond reasonable doubt. In resolving the controversy between the parties we will be guided by the cardinal principle that, this being a criminal case,

the burden lies on the prosecution to establish the guilt of the accused beyond reasonable doubts - see section 3 (2) (a) of the Evidence Act. The accused has no duty to prove his innocence. His duty is to inject doubts in the prosecution case. See: Chausiku Nchama Magoiga v. The Republic, (Criminal Appeal No. 217 of 2020) TZCA 17810 (9 November, 2023; TANZLII), The DPP v. Daniel Wasonga, Criminal Appeal No, 64 of 2018 and Phinias Alexander and others v. Republic, (Criminal Appeal No. 276 of 2019) TZCA1898 (16 December, 2020; TANZLII) to mention a few. We take note of the rule that, where there are concurrent findings of facts by two courts below, the appellate court cannot interfere with such findings, unless, there are sufficient grounds for doing so. See our decision in Amratilal D. M. Zanzibar silk stores v, A. H. Jariwala t/a Zanzibar Hotel [1980] TLR 31 followed in a number of decisions of the Court including Dickson Joseph Luyana & Another v. The Republic, Criminal Appeal No. 1 of 2005 (unreported), Samwel Daud and Mwita Matiko v. Republic, Criminal Appeal Nos. 177 and 178 of 2011) (unreported), Joseph Yombo @ Mahema v. The Republic, (Criminal Appeal No. 448 of 2016) TZCA 22 (25th February, 2020; TANZLII) and Nimo Samu v. The DPP, (Criminal Appeal No. 31 of

2019. TZCA 674 (7th November, 2022; TANZLII). In Samwel Daud and Mwita Matiko it was sated thus: "This court has established through case law that in a second appeal, such as this one, we can interfere with the findings o f fact by the courts below if we are satisfied that the findings o f facts were based on a disregard o f an established principle o f practice, misapprension o f evidencef omissions to consider available evidence, a misapprension o f applicable law and/or misdirection or none directions on the evidence * We can also interfere on being convinced that the appellants were not given a fa ir hearing by the courts below ." (Em phasis supplied) We think the findings of facts by the lower courts were based on a misapprension and omission to consider the evidence critically, calling for an interference. We shall try to demonstrate. The evidence of 'SHT (PW1) at page 16 of the record reads as under: "... he called me in ... he dosed the door, held me tight, la id me on his bed by m y stomach, i.e. m y face facing down, he undressed m y trouser and underwear, he also rem oved his short, akatoa kidudu chake akaniwekea katikati ya m atako yangu. .. I was feeling severe pain, I

wanted to cry but he said he would k ill me. I cried out, no one heard m y cry, after he finished, he pulled his short, he also pulled m ine (dressed me up), he opened the door and le t me out, he said if I dare speak out, he would k ill me. ... it was the first time he did that He never did it again. ... I never went to George's house before. " (Em phasis supplied) His testimony goes as follows at page 17 of the record: "... it was mama 'BS' who told mother. Mama 'B S' is our neigbour. ... 'B S' said he (appellant) was sodom izing me, ananifanyia tabia mbaya. ... George sodomized me several times in his room, " (Em phasis added) The evidence of'BS' (PW4) appearing at pages 26-27 of the record goes as under: 7 know George, we used to call him unde 'D ' He stays where 1 SH' (P W l) lives. ... Unde V ' called me so that he could send me to the shop. He took me to his room a t his home place, he undressed my clothes, he also undressed his, akachukua kidudu chake akaniingizia matakoni. ... I felt pain. ... he offered me Tzs. 500.00. ... he sodom ized me twice ...I d id not te ll m other as unde 'D ' threatened to k ill me I dare to te ll anyone." (Em phasis supplied)

Gn cross examination he said: "I do not recall the first day you sodomized me, I told mother when it was second time. ...I fe lt pain > I did not te ll m other as you threatened to k ill m e." (Em phasis supplied) The evidence of 'CB' (PW5) appearing at page 29 o f the record goes as under: 7 know George. He was living with us a t the same house, we used to call him uncle 'D'. ... George used to ca ll me in pretext o f sending me to the shop, once I entered in his room ; he undressed m y trousers, he also undressed his and anaanza kunifanya on bed, anachukua dudu lake ananiingizia kwenye makalio. ... I felt pain when he was inserting his penis. I did not cry. ... he threatened to k ill me. I do not recall how m any times, but it was many times he did this to me. He was sodomizing me since I was in standard I. I did not tell m other or father as he used to threaten to k ill me if I dare tell anyone. ... 'SH ' is living with us a t mama Pendo's house." (Em phasis supplied) We find shortcomings in the following areas. One 7 the naming of the appellant. He was referred to as George, uncle 'G' and uncle 'D' by the victims and their respective mothers. One may wonder if the boys

and their mothers were familiar to the appellant whom they have lived together for many years, why some of them called him uncle 'G'while others named him as uncle 'D'. Two, material contradictions in evidence. PW1 said he entered the room once and was sodomized once. But later changed and said it was twice. One may wonder why this sudden change. Further, despite the evidence that PW1 was sodomized as alleged, PW7 did not see any bruises in his anus which appeared to have been used to such acts. That also apply to PW4 who was sodomized twice. His PF3 did not speak of any bruises. We wonder the way a boy aged 8 or 9 years can be sodomized by an adult person with the untold pains without leaving bruises. This defeat logic. It is even worse for PW5 who alleged to have been sodomized many times. This casts serious doubt to the evidence to the medical evidence. Three, credibility of witnesses. Given the age of the boys, we find it difficult to believe, particularly with PW5 who was sodomized for two consecutive years, the way the parents or teachers failed to notice anything unusual to the child, particularly on the first day, because as was explained by themselves, the ordeal left them with serious pains. It was not easy, as the evidence tend to suggest, that they were sodomized and walk home. Four, as correctly hinted by the appellant, we see no reason as to why the investigator was not called as a witness given the seriousness of the

offences. It was important in our view, to call the investigator to lay the foundation of the case to support what was said by the victims. We wonder why the gender desk of the police, popularly known as 'Dawati la Jinsia', distanced itself from this case. We expected its operations to be revealed through the evidence of the investigator. The absence of the investigator, in the circumstance of this case, leave much to be desired and doubts. Five, we find it difficult to believe the way the appellant could sodomize the boys in his room, during the day, in a house which had many tenants, for a period of 2 years without being noticed. It was not possible for his wife and other tenants, to be away during the day, for all those days. Our doubts are compelled by the appellant's defence that the case was fabricated by grudges between him and mama pendo which was supported by DW3, the appellant's wife. It is apparent that there was a misapprehension and omission to make a proper assessment of the evidence. If the lower courts had subjected the evidence to scrutiny in the way we have done, they could find that there was no evidence to prove the offences beyond reasonable doubt. It is obvious that, the prosecution did not discharge their burden of proof in the standard required.

That disposes ground 8. This ground alone disposes the entire appeal. Therefore, we find no reason to discuss other grounds of appeal. In the event, we find merit in the appeal which is allowed. The conviction is quashed and sentence imposed on the appellant is set aside. We order immediate release of the appellant from prison unless lawfully held on some other grounds. DATED at MOSHI this 9th day of December, 2024. The Judgment delivered this 10th day of December, 2024 in the presence of the appellant in person and Mr. Henry Kasiano Daudi, learned State Attorney for the respondent/Republic is hereby certified as a true copy pf the original. B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL / / / A. ULU ! DEPUTY REGISTRAR COURT OF APPEAL