IN THE COURT OF APPEAL OF TANZANIA

AT SHINYANGA

( CORAM: MKUYE, 3.A., GALEBA. 3.A, And KAIRO J.A/1

CRIMINAL APPEAL NO. 439 OF 2018

AMOS JACKSON.................... ....................... ........................ APPELLANT

VERSUS
THE REPUBLIC ................................ ..... ..................... .......RESPONDENT
[Appeal from the Decision of the High Court of Tanzania
at Shinyanga]

fMakani, J.)

dated 9th day of November/ 2017

in

Criminal Appeal No. 95 of 2016

JUDGMENT OF THE COURT

11th & 22ndJuly, 2022

KAIRO, J.A.:

In the District Court of Kahama at Kahama, the appellant was

charged of rape contrary to sections 130 (1) (2) (a) and 131 (1) of the

Penal Code, [Cap 16 R.E. 2002, now R.E. 2022] (the Penal Code). It

was alleged that, on 31st day of December, 2015 at about 16.00 hrs at

Bulyanhulu village within Kahama District in Shinyanga Region, the

appellant did unlawfully have sexual intercourse with a girl aged 6 years.

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To conceal her true identity, we shall refer to her as PW1 or the victim.

The appellant denied the charge and the case proceeded to a full trial.

The prosecution side called four (4) witnesses to prove the case

against the appellant. The names of the said witnesses were; the victim

(PW1), Kulwa Mathias; the victim's father (PW2), Joyce Makewa; a

nurse who examined the victim (PW3), and No. 6314 D/SGT Simon

(PW4). The prosecution also tendered a Police Form No. 3 (PF3) which

was admitted as exhibit PI. On the other hand, the defence side had

only one witness who was the appellant (DW1) with no exhibit.

The prosecution case at the trial was to the effect that, the

appellant and the accused were close relatives as uncle and niece,

residing in the same homestead. It was alleged that, the appellant used

to lure the victim by giving her some money and raped her on various

Occasions. In all those occasions, the appellant threatened the victim not

to disclose that ordeal to anyone. It was not until on 31st December,

2015 when PW2 found him raping the victim at the maize farm, that the

sexual abuse story came out in the open. PW2 raised an alarm and the

appellant was apprehended and taken to Bugalama Police Station and

the victim was taken to the hospital for medical examination.

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 After the trial, it was a finding of the trial magistrate that the

prosecution failed to prove the offence of rape as charged but was

satisfied that the offence of grave sexual abuse was committed and

dully proved, as according to him, the offence was a minor and cognate

to rape. The trial magistrate, therefore, substituted the charged offence

of rape to grave sexual abuse c/s 138 C of the Penal Code and

sentenced him to serve an imprisonment term of 20 years in jail.

The appellant was not amused and decided to appeal to the High

Court. Again, luck was not on his part as the first appellate court

dismissed the appeal, quashed and set aside the conviction of grave

sexual abuse and substituted it with the earlier offence of rape he was

charged of. The first appellate court further enhanced the sentence to

life imprisonment in terms of the provisions of section 131 (3) of the

Penal Code.

Still wishing to vindicate his innocence, the appellant has preferred

this second appeal comprising of two sets of memoranda of appeal so as

to challenge the decision of the High Court. The first set was lodged on

23rd April, 2019 comprising of three grounds and the second set which

was lodged on 8thJuly, 2022 has five grounds of grievance. However,

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we wish to state from the onset that we shall reproduce only the third

complaint in the second set of the memorandum of appeal, which is the

basis of our determination in this appeal. The same states:-

That, the Honorable Judge erred in law to convict and sentence

the appellant without considering that he was under eighteen (18)
years when was charged (see pg. 18 -19) o f the proceeding.

When the appeal was called on for hearing, the appellant

appeared in person with no legal representation. He adopted the

grounds of appeal and opted to hear the response of the respondent

subject to his right to make rejoinder where necessary.

On the other hand, Ms. Verediana Peter Mlenza, learned Senior

State Attorney teamed up with Misses. Immaculate Mapunda and

Caroline Mushi, both learned State Attorneys, to represent the

respondent Republic.

Ms. Mlenza took off by declaring the respondent's position that the

conviction against the offence of rape which the appellant was

previously charged of still stands, but the sentence meted on the

appellant was illegal.

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 Amplifying, Ms. Mlenza submitted that, the complaint in the said

ground of appeal hinges on the age of the appellant; the issue being

whether or not the appellant was below 18 years of age when he

committed the offence he was charged of. She went on submitting that

the charge sheet upon which the appellant was arraigned in court

indicated that he was 19 years of age. However, during the Preliminary

Hearing (the PH), the appellant disputed his age as stated in the charge

sheet. She referred us to page 5 of the record of appeal to verify her

assertion. She argued that at that stage, the prosecution was duty

bound to prove that he was above 18 years of age, and the trial court

was obliged to conduct an inquiry and make a finding of his exact age,

but it did not.

In further clarification, Ms. Mlenza submitted that on 6th February,

2018 when the appellant was being sworn in before defending himself,

he stated his age to be 17 years of age at the introductory part. Again,

there was no any fact finding on his age, instead, the trial court went

ahead and recorded his defence. Besides, the appellant was neither

cross examined by the prosecution on the stated fact nor any material

evidence from the prosecution side was adduced to contradict it. She

referred us to pages 18 - 19 of the record of appeal.

 Stating the legal stance of the law on failure to contradict or cross

examine a witness on the stated matter, Ms. Mlenza argued that the

lapse implies that the prosecution believed the veracity of the appellant's

assertion regarding his age. In the premise, she invited the Court to so

conclude.

She further argued that, the appellant's assertion on the matter is

in line with the legal position to the effect that a child himself is among

the persons who is better placed to know his/her age. She cited to us

the case of Hamis Chumba @ Hando Mhoja v. Republic, Criminal

Appeal No. 36 of 2018 (unreported) to buttress her argument. She

added that, since the prosecution failed to contradict the stated fact, the

appellant is entitled to the benefit of doubt, if any. As such, the

appellant was below 18 years of age when the offence was committed.

She contended that despite being found guilty of rape to which she

subscribed to, but the life sentence meted on him is illegal considering

his age and being a first offender as depicted on page 25 of the record

of appeal. She argued that, in the circumstances, the proper sentence

was corporal punishment under section 131 (2) (a) of the Penal Code.

She finally prayed the Court to quash the life sentence imposed on the
appellant and substitute it with corporal punishment which she argued

to be the proper sentence,

Ms. Mlenza however went on to argue that, since the appellant

was convicted in year 2016 and was serving an illegal sentence since

then, administering corporal punishment on him at this moment will

occasion injustice on him. Instead, she implored the Court to release

him from prison.

Given the submission by the Republic, the appellant had nothing to

rejoin. He simply prayed to be released from prison.

Having considered the submission by Ms. Mlenza in response to

the ground of appeal and the entire record of appeal, the issue for

determination is whether the appellant: was under 18 years of age when

the offence was committed. If the answer is in affirmative, we will then

determine whether the sentence imposed on him was proper,

There is no dispute that the charge sheet stated the age of the

appellant to be 19 years. Nevertheless, the record of appeal on page 5

bears out that the appellant disputed his age as stated in the charge

sheet during the PH when required to verify the matters that were not in

dispute. As rightly argued by Ms. Mlenza, the trial court was required at
this juncture to conduct a fact-finding inquiry for the purpose of

ascertaining the appellant's age. Unfortunately, that was not done.

The record of appeal further on page 18 reveals that on 6th

February, 2016 when the appellant was sworn in before giving his

defence, he gave the following explanation at the introductory part:-

"DW1: AMOS JACKSON, 17 YEARS, SUKUMA,

CHRISTIAN ' PEASANT OF KAKOLA, SWORN AND
STA TES AS FOLLOWS..."

[Emphasis supplied]

Again, neither the trial court made the required inquiry nor was

the appellant cross examined on the stated age by the prosecution. It

follows therefore that, the appellant's age as he stated was not disputed

during the trial, which means what the appellant stated concerning his

age went unchallenged and therefore was the truth. The law is long

settled that failure to cross examine a witness on a certain relevant

matter is deemed to have accepted the truth of the stated assertion. We

have in times without number pronounced the said stance in various of

our decisions including Issa Hassan Uki v. The Republic, Criminal

Appeal No. 129 of 2017, Nyerere Damian Ruhele v. Republic,

Criminal Appeal No. 501 of 2007, and George Maili Kembogo v.

Republic, Criminal Appeal No. 327 of 2013 (all unreported) to mention

but a few.

In Nyerere Damian Ruhele (supra) we stated as follows:-

"We are aware that there is a useful guidance in law

that a person should not cross-examine if he/she
cannot contradict But it is also trite law that
failure to cross examine a witness on an
important matter ordinarily implies the
acceptance o f the truth o f the witness's
evidence."

[Emphasis supplied]

We are alive that in the present case, the charge sheet indicated

the appellant's age to be 19 years when the offence was committed.

However, the appellant, apart from objecting the stated age during the

PH, went further to pronounce his age to be 17 years in an introductory

clause before sworn in to give his defence. As rightly argued by Ms.

Mlenza that proof of age can be given by the child witness as it

happened in the matter at hand.

Though it can be argued that introductory clause before the

witness testifys is not by itself an evidence, however, in the matter at

hand, the appellant started by objecting his age as per the charge sheet
during PH. The prosecution was expected to lead evidence to contradict

the appellant's age and not otherwise. It is our firm view that, even if he

would not have objected his age during the PH, the prosecution had the

obligation to contradict the stated fact, but did not. It is our conviction

that would there be any doubt to the contrary, the prosecution would

not have failed to cross examine him on it. On that account, even if

there are doubts, the same are legally resolved in favour of the

appellant [See the cases of Chacha Ng'era v. Republic, Criminal

Appeal No. 87 of 2010 and Clement Aloyce v. Republic, Criminal

Appeal No. 13 of 2012 (both unreported).

Flowing from what we have endeavoured to discuss above, the

appellant's age as he stated was not disputed in any point in time during

the trial and thereafter. We are therefore convinced that the appellant

was below the age of 18 when the offence was committed as correctly

argued by Ms. Mlenza.

Having found the issue in affirmative, we now turn to determine

whether or not the sentence imposed upon him was proper.

It is imperative to note that, the appellant was sentenced to serve

an imprisonment term of 20 years after being convicted of the offence

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of grave sexual abuse. However, the said sentence was quashed and set

aside by the first appellate court (High Court). In substitution thereof,

the appellant was convicted of rape as previously charged and,

therefore, the sentence was enhanced to life imprisonment under the

provision of section 131 (3) of the Penal Code.

It was the argument of Ms. MIenza to which we subscribe that the

sentence was illegal. The law is settled that where the offender of rape

is a person of 18 years and below, upon conviction he is supposed to be

sentenced in terms of section 131(2) (a) of the Penal Code. The said

provision states:

"131(1)...... NA

131(2) Notwithstanding the provisions o f any Saw,

where the offence is committed by a boy who
is o f age o f eighteen years or less, he shaii-

(a) if a first offender,■

, be sentenced to
corpora! punishment only"

As to whether or not the appellant was a first offender, the last two

lines on page 24 and first line on page 25 of the record of appeal

quenches the thirst by giving an answer to the issue. The concerned

part states:

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 iAccused Mitigation: I pray for lenience as I don't
have parents and I have no place to live.

PP: No records as to accused previous conviction...f/

Gleaned from the quoted excerpt, the appellant, apart from being

a boy under 18 years, he was also a first offender, as such he was

required to be given a corporal punishment only as a sentence after he

was found guilty of the offence of rape by the first appellate court.

It is unfortunate that the said flaw went un-noticed by the High

Court, being the first appellate Court mandated to re-evaluate the

evidence of the trial court and draw its own inferences of fact- [see

Standard Chartered Bank of Tanzania Ltd v. National Oil

Tanzania Ltd and Another/ Civil Appeal No. 98 of 2008 quoted in The

Registered Trustees of Joy in the Harvest v. Hamza K. Sungura,

Civil Appeal No. 149 of 2017 (both unreported). The pointed-out flaw

therefore cannot be left to stand lest it continue occasioning miscarriage

of justice to the appellant.

In the premise therefore, the imposed sentence is illegal as

correctly argued by the learned State Attorney. Consequently, we

hereby quash and set aside the life sentence imposed on the appellant,

in lieu thereof, we pronounce that the appellant deserved corporal

punishment in terms of section 131 (2) (a) of the Penal Code as he was

under 18 years of age when committing the offence. We however,

subscribe to the proposition by Ms. Mlenza that considering the time the

appellant has spent in prison, justice demands that he be released from

custody. Accordingly, we order an immediate release of the appellant,

Amos Jackson from the prison unless held for some other lawful cause.

Appeal allowed to the stated extent.

DATED at SHINYANGA this 22nd day of July, 2022.

f

R. K. MKUYE
JUSTICE OF APPEAL

Z. N. GALEBA
JUSTICE OF APPEAL

L. G. KAIRO
JUSTICE OF APPEAL

The judgment delivered this 22nd day of July, 2022 in the presence
of the appellant in person, and Ms. Caroline Mushi, learned State
Attorney for the Respondent/Republic is hereby certified as a true copy
of the original.

W. S. Ng'humbu
For: DEPUTY REGISTRAR
COURT OF APPEAL

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