IN THE COURT OF APPEAL OF TANZANIA

AT MBEYA

( CORAM: SEHEL, J.A.. MAIGE, J.A. And ISMAIL J.A.^

CRIMINAL APPEAL NO. 144 OF 2021

JOHN MOHAMED.............................................................................APPELLANT

VERSUS
THE REPUBLIC...................................................................... RESPONDENT
(Appeal from the decision of the High Court of Tanzania at Mbeya)

(Utamwa, J.^

dated the 22nd day of February, 2021

in
DC. Criminal Appeal No. 77 of 2020

JUDGMENT OF THE COURT

9lh July & 15th 2024

SEHEL, J.A.:

John Mohamed's job was a motorcycle taxi driver, commonly

known as ’bodaboda". At one time, he was accused of stealing a

motorcycle as such he was arrested and remanded in custody. Agnes

Solomon Shemdolwa (PW1) who happened to know the appellant bailed

him out and took him to her residence situated at Sisimba area within

the City and Region of Mbeya. Since then, the appellant started residing

in PWl's residence whereby there was a main house and a servant's

quarters. In the main house, PW1 was living with her husband and her
granddaughter, MH (the name is withheld to protect her privacy).

Nonetheless, we shall refer her as "the victim" or "PW2". The appellant

and other residents were living in the servant's quarters. The appellant

was not an employee but was treated as a family member by PW1. On

1st January, 2017, PW1 travelled to Dar es Salaam for medical treatment

at Muhimbili National Hospital. She returned in the evening of 15th

January, 2017.

While she was away, PW2 narrated that, on 13th January, 2017, at

around 08:00 hrs., her grandfather left for work while she remained at

home with the appellant. They then went to a farm which was just

nearby the house to plant potatoes. They were three of them, the

appellant, appellant's friend and her. At around noon hours, the

appellant asked PW2 to cook lunch for them which she did. When the

food was ready, the appellant's friend excused himself that he was going

to clean himself. So, he left and went home leaving behind the appellant

and PW2. The two had their lunch together. After they finished eating,

the victim started to clear the dining table by removing the used plates.

She smoothly did the first round but on her second round, the appellant

grabbed and pulled her to the girls' bedroom. He undressed her,

removed his trouser and raped her thrice. According to PW2, on that

2
day, she wore a skirt and a blouse. She said she felt pain on her arms

and blood oozed from her private parts. She could not urinate properly

on that day. After the appellant had satisfied his desire, he ordered her

to clean herself and wash her clothes which she did but she informed

the appellant that she would tell her grandmother. The appellant warned

her not to or else he would kill her. Thereafter, he left but returned on

the next day. At the time the incident was taking place, the grandfather

was at work. Upon his return, the appellant was not at home. Further,

according to PW1, the other family members who were in the servant's

quarters, on that day, travelled to Rujewa.

PW1 returned home on 15th January, 2017 and found the victim

was not cheerful as she used to be. She probed her but kept quiet. She

decided to conduct a prayer with her and asked her again, there and

then, PW2 started to cry and then narrated the whole ordeal she had

gone through while she was away. On that same night, PW1 reported

the matter to Mbeya Central Police Station where they were told to

come back in the following morning. The morning of 16th January, 2017,

they went back to the police station and they were issued with a Police

Form Number 3 (PF3).

 The investigative officer, one WP. 4163 Detective Sergent Jerda

(PW4) who was assigned the file for investigation, interrogated and

recorded the victim's story. The victim told her that, the appellant

dragged her from the sitting room to her room, locked the door and

raped her. That, she tried to raise an alarm but the appellant tied her

mouth with a piece of cloth she was wearing on that day. PW4 also

visited the scene of crime and observed that the neighbouring houses

were far away from each other, thus, it was not possible to hear

anything.

From the police, they went straight to Mbeya Referral Hospital for

medical examination. Dr. Oliver Masoi (PW3) examined the victim and

observed that her vagina had no bruises or blood or discharge. It was

his opinion that, given the lapse of time, it was not easy to detect

anything. He filled the PF3 which was admitted in evidence as exhibit PA

but expunged by the first appellate court on account that it was

unauthentic document.

On that same date, that is, on 16th January, 2017, PW1 telephoned

the appellant and requested him to meet her at Mbeya Referral Hospital.

Upon his arrival, he was arrested and taken to the police station.

Subsequently, he was charged before the Court of Resident Magistrate

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Court of Mbeya at Mbeya (the trial court) with an offence of rape

contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code.

In his defence, the appellant alleged that the whole incident was

the making of PW1 as she was pleading him to return home but he told

her that he was looking for money to refund to the person whose

motorcycle got stolen. He admitted that he used to reside at PW l's

residence, and that, on the incident day, he went to work on the farm

with PW2 and his friend but denied to have committed the offence. He

also admitted that he was arrested after he went to meet with PW1 at

the hospital.

After a full trial, the trial court observed that the evidence of rape

came from the victim, PW2. Reyling on the authority of Selemani

Makumba v. The Republic [2006] T.L.R. the trial court found

credence on PW l's evidence and ruled out the defence evidence. It thus

found the appellant guilty as charged, convicted him and sentenced him

to thirty (30) years imprisonment.

Aggrieved, the appellant appealed to the High Court of Tanzania at

Mbeya (the first appellate court). Having heard the appeal, it concurred

with the trial court's finding that PW2 was a credible witness whose

evidence can be relied upon to convict the appellant without there being

5
any corroboration. Accordingly, his appeal was dismissed. Still

undaunted, he has appealed to this Court.

On 6th May, 2022, he filed a five-point memorandum of appeal and

written arguments. Again, on 9th July, 2024, when the appeal was called

on for hearing, the appellant presented a supplementary memorandum

of appeal comprised of eight grounds, in total, the appellant presented

thirteen grounds which the respondent Republic conveniently condensed

them into the following grounds: one, the trial court did not fully

comply with requirement of section 192 (3) of the Criminal Procedure

Act (the CPA) as the memorandum of undisputed facts was not read

over and explained to the accused person, and that, the list of witnesses

and exhibits intended to be produced in the trial was not recorded, two,

the trial court recorded the evidence of the witnesses without complying

with section 210 (3) of the CPA, three, the prosecution failed to prove

its case beyond reasonable doubt, four, the charge sheet was defective,

and five, the defence case was not considered.

Before us, the appellant appeared in person, unrepresented,

whereas, Ms. Hannarose Kasambala, learned Senior State Attorney,

assisted by Mr. Davice Msanga, learned State Attorney, appeared for the

respondent Republic.

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 When the appellant was invited to argue his appeal, he simply

adopted the grounds of appeal and the written arguments and urged the

Court to consider them.

Mr. Msanga prefaced his submission by declaring the respondent's

stance that it does not support the appeal. Thereafter, he responded to

the grounds of appeal as follows.

In the first ground, Mr. Msanga conceded to the irregularities that

the trial court failed to comply with section 192 (3) of the CPA as the

memorandum of undisputed facts were neither read nor explained to

him. He also admitted that the trial court did not list the number of

witnesses and exhibits intended to be produced at the trial court. He

pointed out that, in terms of section 192 (3) of the CPA, the trial court is

mandatorily required to read over and explain to the accused person the

matters not in dispute. Nonetheless, he was quick to respond that the

two omissions did not prejudice the appellant nor rendered the entire

trial court's proceeding a nullity. They only vitiated the proceedings of

the preliminary hearing. To cement his argument, he referred us to the

case of the Kanisius Mwita Marwa v. The Republic (Criminal Appeal

No. 306 of 2013) [2022] TZCA 406 (11 July, 2020; TANZLII).

7
 Admittedly, section 192 (3) of the CPA mandatorily requires, at

the conclusion of a preliminary hearing, the trial court to; first, prepare

a memorandum of the matters not in dispute, secondly, read over and

explain it to the accused person in a language that he understands and

lastly, require the accused person and his advocate if any and the

public prosecutor to sign the memorandum of undisputed facts. In the

case of M.T. 7479 Sgt. Benjamin Holela v. The Republic [1992]

T.L.R. 121, we stated in clear terms that this provision of the law

imposes a mandatory duty for the contents of the memorandum of

undisputed facts to be read over and explained to the accused person

but its omission does not affect the trial court proceedings. It only

vitiates the proceedings of the preliminary hearing - see: the cases of

Joseph Munene & Another v. The Republic (Criminal Appeal 109 of

2002) [2004] TZCA 30 (5 October 2004; TANZLII) and the Director of

Public Prosecutions v. Jaba John (Criminal Appeal No. 206 of 2020)

[2022] TZCA 406 (11 July, 2020; TANZLII). After nullifying the

proceedings of a preliminary hearing, all the evidence which the parties

thought was deemed proven, in terms of section 192 (4) of the CPA, will

need to be proven in the trial of the case - see the case of Brayson s/o

Katawa v. The Republic, (Criminal Appeal 259 of 2011) [2012] TZCA

31 (29 March 2012; TANZLII).

 According to the record of appeal, it appears that, after the trial

court had conducted the preliminary hearing, the memorandum of

matters not in dispute was prepared and three signatures of the

appellant, the prosecution and the trial magistrate were appended on it.

However, the record is silent on whether the memorandum was read

over and explained to the appellant in the language he understands.

This is a clear violation of the mandatory requirements of section 192

(3) of the CPA. Such procedural irregularity vitiated the proceedings of

the preliminary hearing but it did not affect the entire proceedings of the

trial court which was duly conducted. Besides, matters which were

recorded in the memorandum of undisputed facts and would have

required proof were three, namely; the personal particulars of the

appellant, the victim and the appellant were residing in the same

compound and, on the incident date, PW1 travelled to Dar es Salaam for

medical treatment. But these facts were also admitted by the appellant

in his defence, as such, we agree with Mr. Msanga that the appellant

was not prejudiced.

We have also observed that the record of appeal does not reflect

the list of witnesses and exhibits which the prosecution intended to

produce in the trial. That apart, it is settled law that, in the subordinate

9
courts, there is no law that requires either the names of witnesses to be

given or list of exhibits to be listed during the preliminary hearing even

though it has been the practice by the trial magistrates. We stated this

position of the law in the cases of Yusuph Nchira v. The D.P.P,

Criminal Appeal No. 174 of 2007, Jackson Daudi v. The Republic,

Criminal Appeal No. I l l of 2002 (both unreported) and Leonard

Joseph @ Nyanda v. The Republic (Criminal Appeal 186 of 2017)

[2020] TZCA 51 (12 March 2020; TANZLII).

In the case of Leonard Joseph @ Nyanda v. The Republic

(supra), we considered the import of section 192 (7) of the CPA read

together with rule 7 of the Accelerated Trial and Disposal of Cases

Rules, Government Notice Number 192 of 1998 (the G.N. No. 192 of

1998) and stated that, in terms of section 192 (7) of the CPA and rule 7

of G.N. No. 192 of 1998, the trial subordinate court has unfettered

discretion to give notice to any person who is likely to be called as a

witness after the preliminary hearing is concluded, and that, it does not

preclude the prosecution a right to call a witness who was not named at

the preliminary hearing. Accordingly, the ground of appeal lacks merit

and we dismiss it.

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 Next is the complaint that the trial court recorded the evidence of

the witnesses in contravention of section 210 (3) of the CPA. Mr.

Msanga briefly submitted that the appellant was not prejudiced as it is

the witness who is expected to complain that his/her evidence was not

properly recorded. Since there is no such complaint, Mr. Msanga did not

see the substance of the appellant's complaint.

Section 210 (3) of the CPA provides:

"The m agistrate shall inform each witness that he

is entitled to have his evidence read over to him
and if a witness asks that his evidence be read
over to him, the m agistrate shall record any
comments which the witness may make
concerning his evidence."

The above provision of the law requires the trial court to inform

every witness who testified before it of his right to have his evidence

read over to him after it is recorded and then to write down any

comments made by such witness after the same had been read over to

him. Theintention of such requirement is to ensure every testimony is

properly recorded, and that, it guards against distortion, perversion and

suppression of evidence - see: the case of The Republic v. Hans

Aingaya Macha (Criminal Appeal No 449 of 2016) [2019] TZCA 602

(15 April 2019; TANZLII). Given the clear wording of the provision of the
li
law, we agree with Mr. Msanga that it is the witness who has a right to

ask for his testimony to be read over to him.

In the present appeal, we have gone through the record of appeal

and observed that, after recording the testimony of each witness, the

trial court wrote the word"ROFC" at the end of each witness's

testimony. ROFC is the short form of "Read Over and Found Correct".

This means that, after the trial court had finished recording the

testimony of each witness, it read over to the witness,and that, such

witness was satisfied that his testimony was properly recorded; there

was no comment on the manner it was recorded. As such, the trial court

complied with the requirement of section 210 (3) of the CPA. Besides, at

the trial court, the appellant did no raise any complaint on the way his

testimony was recorded. Given that, after the trial court had finished

recording the testimony of the appellant, it indicated that the testimony

was read over to him and it was found to be correct. Therefore, we are

satisfied that the appellant's testimony was properly recorded by the

trial court. This complaint has no merit. We dismiss it.

We now move to the ground challenging the merit of the appeal

wherein the appellant contended that the prosecution did not prove its

case beyond reasonable doubt. Mr. Msanga argued that the prosecution

12
case was proven to the required standard through the evidence of the

victim as she clearly testified that the appellant grabbed her when she

was clearing the dining table and took her to the girl's bedroom.

Therein, he undressed the victim, removed his trouser and raped her

thrice. Mr. Msanga submitted that the appellant warned the victim not to

tell her grandmother or else he would kill her.

He pointed out that, the evidence of PW2 was corroborated by

PW1, her grandmother, who testified that, upon her return, she found

PW2 was gloomy; after interrogating her, she told her that the appellant

raped her. That, the evidence of PW1 and PW2 was corroborated by

PW3, the doctor who examined the victim. He argued that, although

PW3 testified that there was normal vaginal opening, later on during

questioning by the trial court, he clarified that the victim was not virgin

as the hymen was perforated.

Submitting on the issue of age, he argued that the age of the

victim was proven by the victim herself as she testified that she was

born on 6th November, 2002, thus, in 2017 when the offence was

committed, she was 15 years old.

On the complaint that there was a delay in reporting the incident,

Mr. Msanga contended that there was no delay in reporting the incident

13
because the victim was waiting for her grandmother to return; she was

not comfortable to tell her grandfather.

At the end, Mr. Msanga urged us to confirm the concurrent

findings of the two courts below which were both satisfied that PW2 was

credible witness, and that, the best evidence in offences of this nature

comes from the victim of the offence. He referred us to the case of

George Seif Amiri v. The Republic (Criminal Appeal No. 38 of 2022)

[2024] TZCA 442 (11 June 2024; TANZLII) that cited the case of

Selemani Makumba v. The Republic (supra).

As stated earlier, the conviction of the appellant was based on the

credibility of the victim, PW1. Of course, the trial court was better placed

to assess the demeanour of the witness because it had opportunity to

see her when she was testifying. Nonetheless, the second appellate

court can re-evaluate the credibility of a witness by assessing the

coherence and consistency of such witness when it is re-examining the

findings of the two lower courts. We stated this position in the case of

Shaban Daud v. The Republic, Criminal Appeal No. 28 of 2000

(unreported) that:

Credibility o f a witness is the monopoly o f

the tria l court only in so far as demeanour is
concerned, the credibility o f a witness can also

14
 be determ ined in two ways: One, when
assessing the coherence o f the testim ony o f that
witness. Twor when the testim ony o f that
witness is considered in relation with the
evidence o f other witnesses including that o f the
accused person. In th ese tw o o th e r o cca sio n s
th e c re d ib ility of a w itn e ss can be
d e te rm in e d even b y a se co n d a p p e lla te
c o u rt w hen e x a m in in g th e fin d in g s o f th e
fir s t a p p e lla te cou rt. "[Emphasis added].

Again, in the case of Salum Ally v. The Republic, Criminal

Appeal No. 106 of 2013 (unreported), we observed that:

"... on whether or not any particular evidence is

reliable, depends on its credibility and the weight
to be attached to such evidence. We are aware
that, a t its m ost basic, credibility involves the
issue whether the witness appears to be telling
the truth as he believes it to be. In essence, th is
e n ta ils th e a b ility to a sse ss w h e th e r th e
w itn e s s's te stim o n y is p la u s ib le o r is in
h a rm o n y w ith th e p re p o n d e ra n ce of
p ro b a b ilitie s w h ich a p ra c tic a l and
in fo rm e d p e rso n w o u ld re a d ily re co g n ize a s
re a so n a b le in th e circu m sta n ce s
p a rtic u la rly in a p a rtic u la r c a se ." [Emphasis
added].

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 The ensuing question is whether the victim gave a credible

account for this Court to sustain the concurrent findings of the two

courts below. We have dispassionately revisited the record of appeal and

observed that the evidence of PW2 is wanting as it is inconsistent with

other pieces of evidence in the record. For instance, the evidence of

PW2 concerning the attire she had put on the day the offence was

committed materially differs with the evidence of PW4 who recorded her

statement few days after the offence was reported. At page 11 of the

record of appeal, PW2 testified that:

"On that day; I wore a skirt and a blouse."

Whereas, PW4 told the trial court the following:

"The victim told me that she scream ed but the

suspect tied her mouth with the kitenge she was
wearing."

This means that the evidence of the victim does not tally well with

the evidence of the investigative officer. We find this kind of discrepancy

is material and dented the credibility of the victim.

There is another disturbing evidence which dented the credibility

of the victim. It comes from the doctor, PW3, who examined the victim

16
on 16th January, 2017. After examining the victim, the doctor's observed

the following:

"The vag in a h a d no b ru ise s o r b lo o d o r

d isch arg e . The urine test revealed that the
urine had blood clinically when a person
com plaining o f rape comes three days after the
incident; it is not possible to see anything
regarding penetration. "[Emphasis added].

We wonder whether it is probable for the doctor not to detect

anything unusual to a person who had sex for the first time, and the fact

that, she was raped thrice to the extent that blood oozed from her

private parts. To be precise, PW2 gave the following narration on how

she was hurt by the appellant's act:

”He told me to go bath and wash the blood­

stained clothes. The blood oozed from m y private
parts. I fe lt bad when he did the act to me. I was
not able to urinate. My arms were paining . "

We are alive to the fact that the doctor explained that it was due

to the lapse of time of three days, but, given the circumstances of the

pain and wounds she sustained, we find it highly improbable for the

bruises and tears to heal within such shortest period of time, that is,

within three days.

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 Our doubts are further fortified with the innocent conduct of the

appellant. For instance, the victim said that, after she was raped on 13th

January, 2017, the appellant disappeared but returned in the morning of

14th January, 2017. This kind of behaviour is inconsistent with the guilt

mind. Again, PW4 explained how the appellant was arrested that it was

after PW1 had telephoned him and requested him to meet her at the

hospital. The evidence of PW4 corroborated the appellant's evidence

that he was arrested after he went to meet with PW1 at the hospital

after he was asked to by PW1.

More so, when we looked at the defence case which the appellant

also complained that the two lower courts did not consider it, we note

that his defence had shaken the prosecution case. This is because the

evidence on record shows that when PW1 was in Dar es Salaam, she

used to call the appellant and asked him whether he was at home or

not. Here we wish to reproduce the extract of PW l's evidence:

"On the day I travelled to Dar es S a la a m I did

not leave you [the appellant] at home. You [the
appellant] told me that you [the appellant] w ill
be driving the motorcycle o f your [appellant's]
friend..., I communicated with you [the
appellant] on the phone when I was in Dar es
Salaam and you [the appellant] told me that you

18
 [the appellant] went home. I treated you [the
appellant] as part o f my family. There are days
you [the appellant] slept outside the house and I
asked you."

The above evidence supported the appellant's defence that PW1

was pleading with him not to leave the house but he told her that he

cannot return home as he was trying to look for money to refund the

person whose motorcycle was stolen. Therefore, in totality, when one

looks at the evidence of PW2 in comparison with other witnesses such

as PW1, PW3 and DW1, there is a lot to be desired from the victim's

evidence. We believe that, had the two courts below carefully

considered the totality of the prosecution and defence evidence, they

would have not taken the victim's evidence as a gospel truth. At this

juncture, we wish to reiterate what we said in the case of Mohamed

Said v. The Republic (Criminal Appeal No. 145 of 2017) [2019] TZCA

252 (23 August 2019; TANZLII) that:

"We are aware that; in our jurisdiction , it is

settled law that the best evidence o f sexual
offence comes from the victim .... We are also
aware that under section 127 (7) o f the Evidence
A ct [Cap. 6 R.E. 2002] a conviction for a sexual
offence m ay be grounded solely on the

19
 uncorroborated evidence o f the victim. However,
w e w ish to em p h asize th e n e e d to s u b je c t
th e e v id e n ce o f su ch v ic tim s to s c ru tin y in
o rd e r fo r c o u rts to b e s a tis fie d th a t w h a t
th e y s ta te co n ta in n o th in g b u t th e tru th ."
[Emphasis added].

Lastly, we wish to address the complaint concerning charge sheet.

The appellant argued that the person who appeared to adduce evidence

as a victim of rape was not the one mentioned in the charge sheet. Mr.

Msanga admitted that the names of PW2 are the not the ones

mentioned in the charge sheet but argued that the defect is curable

under section 388 (1) of the CPA, because the appellant heard the

prosecution evidence and had opportunity to cross examine the

witnesses such that he was able to mount his defence. Much as we

agree with the contention of the learned State Attorney, but looking at

the evidence as a whole and the reason that led the first appellate court

to expunge exhibit P3, we find that the prosecution failed to prove the

charged offence against the appellant. Perhaps, we should reproduce

the reasoning of the first appellate court. At page 71 of the record of the

appeal, it stated the following:

7 agree with the appellant that; P F 3 a lle g e d ly

to b e o f th e co m p la in a n t (e x h ib it P A ) is

20
 u n a u th e n tic as e vid e n ce . T his is so
b ecau se, in th e fir s t p la ce , th e co m p la in a n t
in tro d u c e d h e rs e lf b e fo re th e tr ia l c o u rt a s
'M S'. H ow ever, th e P F 3 sh o w s th a t, th e g ir l
e x a m in e d b y P W 3 (D r. O liv e r) w as one
'M H '. The nam e o f 'M H ' is th e one w h ich
a ls o a p p e a rs in th e ch a rg e s h e e t a s th e
v ic tim 's nam e . Again, the second name o f 'H 'in
the PF3 is obviously altered by a pen after a
correction o f the previous name by white
correction-fluid. The PF3 also has another
alteration in relation to the date o f examination
o f the com plainant I t is th us, su sp e cte d th a t
th e a lte ra tio n w ere e ffe c te d by an
u n m a n d a te d p e rso n so a s to s w e e t th e
co n te n ts o f th e ch a rg e sh e e t a n d th e fa c ts
o f th e c a se ."

From the above, it is crystal clear that the first appellate court

observed that the name of the person who appeared before the trial

court to testify as the complainant differs with the one mentioned not

only in the PF3 but also in the charge sheet. We are perturbed by the

way the first appellate court went on to expunge the PF3 for being

unauthentic evidence instead of dismissing the entire appeal on account

that the prosecution failed to prove its case beyond reasonable doubt.

That said and done, we find merit on grounds three, four and five.
21
 In the end, we find merit in the appellant's appeal and we allow it.

Accordingly, we quash the conviction and set aside the sentence of

thirty (30) years imposed upon the appellant. We further make an order

of the immediate release of the appellant, John Mohamed, from prison

unless he is otherwise lawfully held.

DATED at MBEYA this 13th day of July, 2024.

B. M. A. SEHEL
JUSTICE OF APPEAL

I. J. MAIGE
JUSTICE OF APPEAL

M. K. ISMAIL
JUSTICE OF APPEAL

The Judgement delivered this 15th day of July, 2024 in the

presence of Appellant in person and Mr. Yussufu Aboud, learned Senior

State Attorney assisted by Mr. George Ngwembe, learned State Attorney

for the Respondent/Republic is hereby certified as a true copy of the