THE UNITED REPUBLIC OF TANZANIA

THE JUDICIARY
IN THE HIGH COURT OF TANZANIA
AT MBEYA
CRIMINAL APPEAL No. 77 OF 2020.
(Original Criminal Case No. 16 of 2017, in the
District Court of Mbeya District, at Mbeya).

JOHN S/O MOHAMED.............................................. APPELLANT

VERSUS
REPUBLIC........................................................... RESPONDENT

JUDGEMENT

25/11/2020 & 22/02/2021.

UTAMWA, J,
In this first appeal, the appellant, JOHN S/O MOHAMED challenged
the judgement (impugned judgement) of the District Court of Mbeya
District, at Mbeya (the trial court), in Criminal Case No. 16 of 2017.
Before the trial court, the appellant stood charged with a single count of
rape contrary to section 130 (1), (2) (e) and 131 (1) of the Penal Code,
Cap. 16 R. E. 2002 (Now R. E. 2019), henceforth the Penal Code.
It was alleged before the trial court, that, on 13th January, 2017, at
Sisimba area within Mbeya City and Region, the appellant did have carnal
knowledge of one MH (a branded name for protecting her dignity), a girl

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aged 15 years old. The girl will hereafter be called the complainant for
convenience purposes.
The appellant pleaded not guilty to the charge, hence a full trial. At
the end of the day, the trial court, through the impugned judgment, found
the appellant guilty, convicted and sentenced him to 30 years
imprisonment.
Aggrieved by the conviction and sentence, the appellant preferred
this appeal. His petition of appeal was based on 6 grounds. However, the
same can be smoothly condensed to only 2 as shown below:
1. That, the trial court erred in law and facts in convicting and sentencing
the appellant, though the prosecution had not proved the charge
against him beyond reasonable doubts.
2. That, the trial court erred in law and fact in basing the conviction
against the appellant on the weakness of his defence evidence.

Owing to these grounds, the appellant pressed this court to allow the
appeal, quash the conviction, set aside the sentence and to set him free
from the prison.
It must also be noted at this juncture that, prior to the impugned
judgment, the appellant was charged before a subordinate court with the
same offence based on the same facts. He was found guilty and
sentenced. He appeal to this court (in Criminal Appeal No. 1 of 2018). This
court (Mongella, J.) found some serious irregularities in the judgment of
the trial court. The court thus, set aside the judgment and order a proper

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one to be recomposed. In compliance to that order, the impugned
judgement was made and pronounced, hence the appeal at hand.
When the present appeal was called upon for hearing, the appellant
appeared in person. The respondent (Republic) was represented by Mr.
Baraka Mgaya, learned State Attorney.
Though the appellant had nothing to submit during the hearing of his
appeal, the court noted the following facts in the petition of appeal: that,
the appellant's complaints regarding the first ground of appeal were
essentially that, the complainant's act of delaying to report the alleged rape
to authorities or her guardian or neighbours casts doubts and shows that
the case was fabricated against him. The trial court improperly banked on
the evidence of PW. 3, the doctor who examined the complainant's private
parts and found no bruises and blood discharge. He also stated that,
according to the PW. 3, the complainant's urine had blood which could be
caused by infection. The PF. 3 of the complainant was also doubtful for
showing that, it was for one Martha Hoba which was not the name of the
complainant, i. e. Masa Maxion. Again, the evidence of PW. 1 and PW. 4
were hearsay which could not prove any fact.
On his part, the learned State Attorney for the respondent contended
in his replying submissions regarding the first ground of appeal that, the
prosecution adduced sufficient evidence to prove the charge beyond
reasonable doubts before the trial court. The appellant was charged with
rape of Martha Hoba who testified as prosecution witness No. 2 (PW. 2) as
shown at page 6-8 of the typed proceedings of the trial court. She testified
that, the appellant pulled her into her room while they were only two in the

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house. He then undressed her and inserted his penis into her private parts
causing pain to her. In law, the best evidence comes from the victim of
sexual intercourse. He supported the contention by the decision of the
Court of Appeal of Tanzania (the CAT) in the case of Seleman Makumba
v. Republic [2006] TLR. 379. The evidence of the complainant thus,
sufficed to prove the charge.
It was also the contention by the learned State Attorney that, the
trial court based on the evidence of the complainant to convict the
appellant as shown at page 3 (paragraph 4) of the impugned judgement.
The delay by the complainant to report the matter to her guardian (her
grandmother) was, according to her own evidence, due to the fact that her
grandmother had travelled leaving her with the appellant in the house.
There is thus, no any sign showing that the case was fabricated against the
appellant. Besides, the appellant did not cross-examine PW. 1
(grandmother of the complainant) and the complainant herself on the
alleged fabrication of the case. The law guides that, where an accused
person fails to cross-examine a witness on a particular fact implicating him,
then he is taken to have accepted such fact. He supported this particular
contention by the decision of the CAT in the case of Martin Misara v.
Republic, Criminal Appeal No. 428 of 2016, CAT at Mbeya
(unreported). The alleged fabrication is thus, an afterthought by the
appellant.
Regarding the appellant's challenge against the PF. 3, the learned
State Attorney argued that, the same is a mere expert opinion which does
not necessarily prove the case. He cited the case of Mawazo v. DPP,

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Criminal Appeal No. 455 of 2017, CAT at Mbeya (unreported) to
support the argument. The complainant's oral evidence thus, sufficed in
proving the charge against the appellant. He also admitted that, there were
discrepancies on the name of the complainant that, the PF. 3 showed that
the victim was Martha Hoba as indicated in the charge sheet. Again, the
PW.3 (the doctor who examined her) testified that the examined person
was Martha Hoba. However, when the complainant (PW.2) testified, she
said she was Martha Maxon. The learned State Attorney, nevertheless,
argued that, the discrepancy of the names did not show that those were
two different persons.
It was also the contention by the learned State Attorney that, the
discrepancy on the complainant's name did not prejudice the appellant.
This is because, even in his defence, he stated that he had been charged
with rape of Martha with whom he lived, meaning the complainant in the
case under consideration. Besides, in law, discrepancies between the
charge and the evidence are not fatal if they do not prejudice the accused.
He cited the case of Festo Domician v. Republic, Criminal Appeal No.
447 of 2016, CAT at Mwanza (unreported) to cement the contention.
Concerning the appellant's complaint that the trial court based the
concoction on hearsay of the PW. 1 and PW. 4, the learned State Attorney
submitted that, the assertion was not true. This is because, page 5 of the
impugned judgement shows that, the trial court based the conviction on
the evidence of the complainant as PW.2.
Regarding the second ground of appeal, the learned State Attorney
reiterated his contention that, the conviction was based on the evidence of

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the complainant as shown at page 5 of the impugned judgement. The trial
court evaluated the appellant's defence as required by the law and found it
lacking strength to shake the prosecution evidence.
Ultimately, the learned State Attorney urged this court to dismiss the
appeal at hand for want of merits and to uphold the impugned judgment of
the trial court.
In his rejoinder submissions, the appellant reiterated the contents of
his petition of appeal. He underscored that, the PW. 1 did not speak the
truth before the trial court that when she came from a journey she found
the complainant sick. He also blamed the prosecution for not calling the
grandfather of the complainant as their witness. The man had informed the
police that the complainant was not sick. He thus, insisted for his appeal to
the allowed.
I have considered the record, the grounds of appeal, the arguments
by the parties and the law. I will now test the grounds of appeal. I prefer
to begin with the second improvised ground of appeal for the sake of
convenience. If need will arise, I will also test the first ground of appeal.
Regarding the second ground of appeal, the issues for determination
are three as follows:
i. Whether or not the trial court in fact, based the conviction
against the appellant on the weakness of his the defence
evidence.
ii. In case the answer to the first issue will be affirmative, then
whether or not the course taken by the trial court offended the
law.

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 Hi. If the answer to the second issue will be positive, then what
will be the legal remedy for the violation of the law.

As to the first issue, I am of the view that, the impugned judgment

supports the contentions made by the learned State Attorney for the
respondent. This is because, according to the fourth and fifth pages (of the
unpaged impugned judgment), the trial magistrate evaluated the evidence
of both sides. The magistrate in fact, based the conviction on the evidence
of the complainant (as PW. 2). She had testified to the effect that, it was
the appeal who had raped her in the house of PW. 1 while they were only
two. The trial magistrate further considered the defence by the appellant
that the complainant had been tutored by the PW. 1 to testify against him
following some grudges between him and the PW. 1. The trial magistrate
found that defence was incapable of shaking the evidence of the
complainant.
Under the circumstances shown above, it cannot be argued that the
trial court based the conviction on the weakness of the appellant's defence.
Rather, it based it on the complainant's evidence. I therefore, answer the
first issue under the second ground of appeal negatively. This finding
makes the testing of the second and third issues needless since their
examination depended much on the first issue being answered
affirmatively. I therefore, dismiss the second ground of appeal. This finding
thus, calls for testing the first ground of appeal.
Concerning the first ground of appeal, the issue is whether or not the
prosecution proved the charge against the appellant beyond reasonable

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doubts before the trial court. In my view, there are merits in some of the
complaints advanced by the appellant as narrated above. In the first place,
I agree with him that, in fact, the evidence of PW.l, one Agnes Solomon
Shemndolwa (grandmother of the complainant) was not so helpful to the
prosecution case. This was because, she mainly testified on the information
given to her by the complainant. This was because, according to the
evidence, she was not at the scene of crime (her home) on the material
date. She had travelled to Dar es Salaam for medical check-up. The PW. 4,
one Sgt. Jedar (investigator of the case) also testified on the information
she had collected and was not at the scene of crime on the material date.
Her evidence was not also so helpful to the prosecution.
Furthermore, I agree with the appellant that, the PF.3 allegedly to be
of the complainant (exhibit P.A) is unauthentic as evidence. This is so
because, in the first place, the complainant introduced herself before the
trial court as Masa Maxion. However, the PF.3 shows that, the girl
examined by PW. 3 (Dr. Oliver) was one "Martha Hoba." The name of
"Martha Hoba" is the one which also appeared in the charge sheet as the
victim's name. Again, the second name of "Hoba" in the PF.3 is obviously
altered by a pen after a correction of the previous name by white
correction-fluid. The PF.3 also has another alteration in relation to the date
of examination of the complainant. Nonetheless, the alterations are not
initialled by anyone to show that the same was performed by an authorised
person. It is thus, suspected that the alterations were effected by an un­
mandated person so as to sweet the contents of the charge sheet and the
facts of the case. It is more so since the PW. 3 herself (Dr. Oliver) did not

Papp 8 of 14
offer any explanation on the alterations when she testified before the trial
court.
Owing to the weaknesses in the PF.3 and the discrepancies of the
complainant's name demonstrated above, a sober court will not consider
such piece of evidence as adequate for proving a fact beyond reasonable
doubts. I will not thus, agree with the learned State Attorney for the
respondent that the discrepancies did not prejudice the appellant. I thus,
expunge the PF.3 from the record.
On the other hand, I have also considered the evidence of the
complainant herself. She expressly testified that, it was the appellant who
dragged her into her own room forcibly, undressed her and inserted his
penis into her vagina three times. That act was done when they were only
two in the house of PW. 1 where they both lived.
The appellant's defence that the complainant had been tutored by
the PW. 1 to implicate him is not tenable. This follows the facts that, in the
first place, the PW. 1 was not at home when the event occurred. It is also
in the evidence by PW.l that, she was in good terms with the appellant
and she had assisted him in bailing him out when he was locked in a police
cell. She was also smoothly communicating with him when she was in Dar
es Saalm. Again, the appellant himself said in his defence that he had no
grudges with the complainant. One cannot thus, imagine as to how the
complainant could have implicated him for the alleged grudges between
him and the PW.l. Besides, the appellant did not cross-examine the
complainant on the aspect of being tutored by the PW. 1. He did not also
cross-examine her and the PW. 1 on the alleged grudges between him and

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the PW. 1. The effect of the accused's failure to cross-examine a witness
on an implicating fact implies, in law, that, the accused has admitted the
truth of that fact as rightly argued by the learned State Attorney for the
respondent. The piece of defence evidence just mentioned above was thus,
an afterthought that cannot help the appellant at this appellate stage of
the matter.
The complaint by the appellant that the complainant delay to report
the matter created doubts is also short of force. This view is based on the
following facts: that, it is clear in evidence that, the house at issue did not
have neighbours around. The husband of the PW. 1 was also not at home
at the material time. It is further on record that, the PW.l immediately
reported the matter to police upon being informed by the complainant of
the event when she returned back home from Dar es Salaam. The
complainant also testified when cross-examined by the appellant that, she
was afraid of telling the husband of the PW.l on the event. She also
testified that, she felt bad when the appellant did the act to her. The
appellant also threatened to kill her if she told PW.l of the incidence.
In my settled opinion therefore, the delay to report the matter to
police or to the PW.l or any neighbour was well explained by the
complainant. The circumstances that surrounded her therefore, justified
her delay to report the matter anywhere before she reported the same to
the PW.l when she came back home from Dar es Salaam. It is more so
considering her young age of only 15 years. A girl of that age, who was
also dependent on PW.l could not be expected to act otherwise in the

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absence of the PW. 1. I thus, do not think that the delay to report the
matter implied any concoction of the case against the appellant.
The appellant's complaint that the complainant was not found with
blood or bruises is also not forceful. Those are not part of important
ingredients of the offence of rape in our law. The law guides that, one of
the important ingredients of rape is only penetration. That penetration,
however slight, may constitute the offence of rape; see section 130(4)(a)
of the Penal Code. The complainant in the matter at hand, afforded to
prove the penetration of the appellant's penis into her vagina as shown
above.
I have also considered the fact that, the appellant's charge before
the trial court was statutory rape. The complainant's consent was not thus,
a necessary ingredient. However, age was. In the case at hand, it is on
record that, the complainant testified that, she was born on the 6th
November, 2002. This showed that she was in fact, aged around 15 years
and was under the age of 18 years on the material date (13th January,
2017). The appellant did not also dispute this age of the complainant and
did not even cross-examine her on this fact.
The law guides on how age of a child (or victim of crime) can be
properly proved in evidence under circumstances of the nature under
consideration. The CAT for example, held in the case of Kazimili Samwel
v. Republic, Criminal Appeal No. 570 of 2016, CAT at Shinyanga
(unreported) following its previous decision in Issaya Renatus v.
Republic, Criminal Appeal No. 542 of 2015 (unreported) as follows:
that, such age can be proved through the evidence of the victim

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himself/herself or by deducing or inference it from other evidence or
circumstances of the case under section 122 of the Evidence Act. These
provisions guide that, the court may infer the existence of any fact which it
thinks likely to have happened, regard being had to the common course of
natural events, human conduct and public and private business, in their
relation to the facts of the particular case.
Moreover, this court (Ismail, J.) in the case of Tuma s/o Malando
@ Sungwa v. Republic, High Court of Tanzania (HCT), at Mwanza
(unreported) following the Issaya Renatus case (supra) underlined the
position highlighted above in the Kazimili Samwel case (supra). The
HCT further held, (in following the Issaya Renatus case) that, it is most
desirable that, evidence as to proof of age be given by the victim, relative,
parent, medical practitioner or, where available, by the production of a
birth certificate. That however, does not suggest that proof of age must, of
necessity, be derived from such evidence.
Owing the reasons just shown above, I am convinced that, in the
matter at hand, the ingredient of age of the complainant was proved
beyond reasonable doubts.
It follows thus, that, the complainant was generally a credible
witness. In fact, her own evidence was capable of proving the case against
the appellant in this charge of sexual offence (rape) without any
corroborative evidence as per section 127(6) of the Evidence Act. It is also
the general law on evidence that, a single witness is capable of proving a
fact on issue and support a conviction. This is because what matters is the
weight of evidence and not the number of witnesses; see section 143 of

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the Evidence Act and the decision in Mohamed Msoma v. Republic
[1989] TLR 227 (HCT). It is also the law that, every witness is entitled to
credence in his/her testimony and must be believed unless there are
cogent grounds for not believing him or her; see the Court of Appeal of
Tanzania (CAT) decision in Goodluck Kyando v. Republic, Criminal
Appeal No. 118 of 2003, CAT at Mbeya (unreported). In the case at
hand, there is no reason to disbelieve the evidence of the complainant as
demonstrated previously. The law further commands that, the best
evidence in offences of this nature comes from the victim of the offence as
guided in the Seleman Makumba case (cited supra by the learned State
Attorney for the respondent).
Owing to the reasons shown above, I agree with the learned State
Attorney, though on slightly different reasons, that the prosecution in fact,
proved the charge against the appellant beyond reasonable doubts before
the trial court. The issue regarding the first ground of appeal is thus,
positively answered. Consequently, I also dismiss the first ground of
appeal.
Having made the above findings regarding the first and second
grounds of appeal, I dismiss the entire appeal for want of merits. It is so
ordered.

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Date; 22/02/2021.

CORAM; Hon. JHK. Utamwa, J.

Appellant; present (by virtual court link while in Ruanda Prison-Mbeya).
For Respondent; Ms. Hanarose Kasambala, State Attorney.
BC; M/s. Gaudencia, RMA.

Court: Judgment delivered in the presences of the appellant (by virtual

court while in Ruanda Prison-Mbeya) and Ms. Hanarose Kasambala,
learned State Attorney for the Respondent, in court, this 22nd February,
2021.

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