Baraka Mashaka vs Republic (Criminal Appeal No. 641 of 2020) [2024] TZCA 788 (20 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MKUYE, 3.A.. KITUSI, 3.A.. And ISSA. 3.A.^ CRIMINAL APPEAL NO. 641 OF 2020 BARAKA MASHAKA.............................................................................. APPELLANT VERSUS REPUBLIC ....................................... ......................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Maevekwa, 3/1 dated the 9th day of October, 2020 in Criminal Appeal No. 54 of 2019 JUDGMENT OF THE COURT 14th & 20th August, 2024 KITUSI, J.A.: This appeal arises from a conviction for unnatural offence contrary to section 154 (1) (a) of the Penal Code, it being alleged that on 10th December, 2015 the appellant had carnal knowledge of a 9 - year - old boy against the order of nature. Upon convicting the appellant, the District Court 6f Chato, sentenced him to life imprisonment. The appellant's first appeal to the High Court was barren of fruits. There was evidence from the victim who testified as PW2 that the appellant lived near his parents therefore a person he knew. PW2's father

Omary Abdalla (PW1) confirmed the fact the appellant was their neighbour. On the basis of that acquittance, on the fateful day the appellant talked PW2 into going with him to pick fruits. When the appellant and PW2 were at the shamba of one Mama Arith, the owner of the house where the said appellant lived, he sodomized him causing injury and pain. After the appellant had finished with PW2, he escorted him towards home but only for a short distance. When PW2 got home he told his mother (PW3) about the ordeal he had gone through. PW3 called her husband (PW1) to relate to him about their son's predicament. PW1 initiated the culprit's arrest by reporting the matter to one Mjani Isack (PW4) a member of People's Militia at Buseresere village. PW4 arrested the appellant and turned him over to the police. According to PW4, when the appellant was interrogated by the police, he admitted committing the offence. Detective Corporal Jishosha (PW6) recorded the appellant's cautioned statement bearing his confession and he tendered it as exhibit PEI. The appellant also made an extra judicial statement that was taken by a magistrate known as Rebeca John Sonoko (PW8), in which he also allegedly confessed. The prosecution's case that PW2 had had anal sex was confirmed by medical evidence adduced by Dr. Joram Nyanza (PW7) who initially

examined him, and later referred him to Masanja Gonji (PW8) who re examined the victim and completed the PF3. The appellant gave a very short defence praying for a lenient sentence because, and we quote him: "I did not know that it is an offence". The trial court's evaluation of the evidence led it to conclude that the prosecution had proved the case and that the defence did not cast any doubt. At the High Court although exhibits PEI and PE5, the two confessions, were expunged for the omission to read their contents, the learned judge considered the appellant's defence as somehow amounting to a confession. Citing the case of Paulo Joseph v. Republic, Criminal Appeal No. 63 of f 2010 (unreported), the learned judge reiterated the principle that no witness is better than an accused who confesses his guilt. But also, the learned judge believed other prosecution witnesses especially PW2 who had promised to tell the truth and only the truth prior to narrating the evidence. The first appeal was therefore dismissed. The appeal before us raises a total of 5 grounds of appeal which the appellant prayed us to consider. At the outset, we agree with Mr. Castuce Clemence Ndamugoba, learned Principal State Attorney who represented the respondent Republic, that the 2n d and 4th grounds were not raised before

the High Court and since they do not raise points of law, do not qualify to be addressed. That is the settled law as it translates this Court's appellate jurisdiction being exercised on matters that only came up and were determined by the first appellate court. However, grounds 2 and 4 raise issue with failure by the prosecution to call evidence of a professional apart from that of PW8, a totally new complaint. r ■ . We shall therefore deal only with grounds 1st, 3rd and 5th. The appellant presented his grounds of appeal and asked us to consider them in determining this appeal in his favour. He had nothing to add even after the submissions by the learned Principal State Attorney. • Ground 1 complains that the case was not proved beyond reasonable doubt because penetration was not proved. Addressing this ground, Mr. Ndamugoba submitted that proof of that fact came from PW2 himself who described the act, medical evidence which showed that there was a tear along PW2's anal canal and PW1 who said that his son had been hurt. With respect, we are unable to comprehend the essence of this F complaint because proof of penetration could not be clearer than what was stated by PW2 supported by PW8 and PW1. Therefore, we agree with the learned Principal State Attorney that there was sufficient proof of

penetration which renders the first ground of appeal devoid of merit. We dismiss it. Mr. Ndamugoba conceded the complaint in ground 3 that the sentence Of life imprisonment was not proper, for the reason, according to the learned Principal State Attorney, that there was no proof of age of the victim in this case to justify that sentence. He submitted further that life imprisonment is r imposed to a person who is convicted of unnatural offence preferred under section 154 (1) (a) and (2) of the Penal Code. Under those provisions, a conviction requires proof that the victim is below the age of 18 years, which, Mr. Ndamugoba candidly said, was missing in this case. We agree with Mr. Ndamugoba that in order for the prosecution to secure a conviction for unnatural offence against a victim of the age below 18 years, it must first charge him under section 154 (1) (a) and (2) of the Penal Code unlike in this case where the charge was drawn under section 154 (1) (a) only. Secondly, the prosecution must lead evidence to prove that the victim is of the age below 18 years. This ground has merit and we accept Mr. Ndamugoba's invitation to allow this ground and if appropriate, as it shall be manifested later in this judgment, reduce the sentence to 30 years. In ground 5, the appellant picks issue with a contradictory reference by the High Court, to the conviction having been for armed robbery. Mr.

Ndamugoba submitted that the error was a mere slip of the pen and prayed that we should dismiss it. We agree that the learned first appellate judge inadvertently wrote that the appellant had been convicted of armed robbery. This must have been a mere slip as argued by Mr. Ndamugoba, because the learned judge's judgment at page 55 opens with the citation of the correct offence with which the appellant had been charged, that is, unnatural offence under section 154 (1) (c) of the Penal Code. Even the fact that she upheld the sentence of life imprisonment imposed by the trial court, points to that fact because the maximum sentence for armed robbery is 30 years. In reference to the conviction, we agree with the learned judge that the appellant's defence was a shot at his own feet. In addition, in Muhsin Mfaume v Republic, Criminal Appeal No. 99 of 2012 [2020] TZCA 204 (15 May 2020), we quoted the following paragraph from the case of David Gamata & Another v. Republic, Criminal Appeal No. 216 of 2014 [2015] TZCA 362 (7 December 2015), which we associate ourselves with. The Court held: 'W e take it to be one o f the settled principles o f law that if an accused person in the course o fhis defence gives evidence which carries the prosecution case further, the court w ill be entitled to take into account such evidence o f the accused in deciding on the question o f his guilt".

For the reasons discussed we dismiss the appeal against conviction as it has no merit bearing in mind that not only did the prosecution witnesses prove the case but even the appellant advanced it. We however allow the appeal in respect of the sentence and vary it accordingly for the reasons shown earlier. The appellant shall serve a sentence of 30 years imprisonment instead of the imposed life imprisonment which we hereby set aside. Except for the variation in the sentence, this appeal is dismissed. DATED at MWANZA this 19th day of August, 2024. The Judgment delivered this 20th day of August, 2024 in the presence of Appellant in person and Ms. Brenda Mayalla, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. R. K. MKUYE JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL [ \ M i4 u . - A. S. CHHGULU DEPUTY REGISTRAR COURT OF APPEAL HUG e g : 7