IN THE COURT OF APPEAL OF TANZANIA

AT MBEYA

rCORAM : SEHEL. J.A.. MAIGE. 3.A. And ISM AIL J.A.^

CRIMINAL APPEAL NO. 103 OF 2021

MUSTAFA ALLY........................................................................... APPELLANT

VERSUS
THE R EP U B LIC ........................................................................RESPONDENT

(Appeal from the decision of the High Court of Tanzania at Mbeya)

f Ebrahim, J.l

dated the 5th day of November, 2021

in
DC. Criminal Appeal No. 80 of 2021

JUDGMENT OF THE COURT

3rd & 12th July, 2024

SEHEL J.A.:

Regina d/o Chakupewa (PW3) is a mother of two children. She has

a son, DRK, aged fourteen (14) years and a daughter, SR, aged ten (10)

years. Their names are withheld in order to disguise their identity.

However, for the purpose of this judgment, we shall refer DRK as "PW3"

or ''the brother" and SR as ''the victim" or "PW1". The children were

both schooling at Songwe II Primary School. PW2 was in standard VII

while PW1 was in standard V.

In order to make the ends meet, PW3 engaged herself with small

trading. She used to sell firewood at an evening market commonly

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known as Soweto market in Songwe area within the District and Region

of Mbeya to the locals. After school hours, her two children used to

assist her in her business.

On the other hand, Mustafa Ally, the appellant, was a famous

cassava seller in Songwe area. He even used to sell fried cassava at the

victim's school. He used to buy a bundle of firewood worth Tanzanian

Shillings Five Hundred (TZS. 500.00) for his cassava business from the

children. As such, the appellant was their regular customer. However, he

was not paying instantly. He used to ask the victim to carry the bundle

to his home to collect the purchased money.

On their way, they would pass through a Roman Catholic Church,

high voltage electricity poles and a bush with long grasses. When they

reached at the bush, the appellant used to forcefully drag her into the

bush, undressed her and he too undressed and ravished her. After

finishing, he used to give her money for the firewood, that is, TZS.

500.00 with some few extras for herself. According to the victim, the

appellant raped her four times. She could not remember the dates but

the fourth time was on the 5th August, 2019 where the appellant not

only raped her but also sodomised her. It was her evidence that the

appellant threatened her not to disclose to anybody or else he would kill

her. Fearing for her life, when asked by her brother why she was usually

late, she would reply that she was waiting for the change.

On 5th August, 2019, PW2 saw the victim defecated and had

faeces on her clothes. When asked, she told him that she had stomach

pain. At home, her mother also noticed the faeces. PW3 decided to wash

her. When she was washing her, she asked her what happened to her.

PW1 decided to open up and narrate the whole ordeal to her mother.

The victim mentioned the name of the appellant to PW3. PW3 went to

report the matter to Songwe Police Station where they were issued with

a Police Form Number 3 (PF3) by the Officer Commanding Station (OCS)

of that station, and took the victim to Mbalizi Hospital- Ifisi for medical

examination.

At the hospital, they were attended by a Clinical Officer, one Jacob

Chitta (PW5) who examined the victim and found that her hymen was

perforated caused by a sharp object and her anal sphincter muscles

were loose. PW5 filled the PF3 which was tendered and admitted in

evidence as exhibit P2.

The appellant was arrested on 7th August, 2019 by Rogart Julius

Chakupewa (PW4), the first cousin of PW2, while he was at his home.

Subsequently, he was charged before the Court of Resident Magistrate

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Court of Mbeya at Mbeya (the trial court) with two counts. The first

count concerned the offence of rape contrary to section 130 (1) (2) (e)

and 131 (1) of the Penal Code. It was particularized that, on diverse

dates between June, 2019 and 5th August, 2019, at Songwe area within

the District and Region of Mbeya, the appellant had carnal knowledge of

the victim, a girl aged ten (10) years.

The second count was unnatural offence contrary to section 154

(1) (a) of the Penal Code. It was alleged that on 5th August, 2019, at the

same place, the appellant had carnal knowledge against the order of

nature of the same girl aged ten (10) years. After a full trial, the

appellant was found guilty, convicted and sentenced to thirty (30) years

imprisonment with corporal punishment of twelve (12) strokes of cane

for the first count and life imprisonment for the second count. He was

also ordered to compensate the victim an amount to the tune of

Tanzanian Shillings One Million (TZS. 1,000,000.00).

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

Mbeya (the first appellate court) but his appeal was dismissed. Still

undaunted, he has appealed to this Court. On 6th May, 2022, he filed a

memorandum of appeal comprised of seven (7) grounds which are:

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1. That, the High Court Judge erred in law and
fact when she dismissed the appeal without
having regard that the prosecution failed to
prove the charges to the required standard,
that:

(a) The only witness to the said crime was

PW1 and there was no any other
witness.

(b) The one who examined PW1

contravened section 240 (1) (2) and (3)
o f the Criminal Procedure Act which
requires only qualified doctors to do so
and not otherwise but PW5 was a
Clinical Officer.

(c) The one who issued PF3 to PW1 and

the investigative officer were not called
before the trial court to testify by the
prosecution.

(d) The prosecution witnesses such as PW1,

PW2, PW3 and PW4 were family
members witnesses whom in fact their
testimonies were not corroborated by
non - family members.

2. That, the trial magistrate and a High Court

Judge failed totally to scrutinize the PF3 which
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 lacked the stamp or the seal o f the police
force to prove its quality and genuine.

3. That, the High Court Judge erred in law when

she dismissed the appeal of the appellant
without evaluating the petition o f appeal filed
by the appellant.

4. That, the High Court Judge erred in law when

she dismissed the appeal o f the appellant
without considering the appellant's rejoinder
submission which is appearing at page 60 of
the record o f appeal.

5. That, the charge against the appellant was not

proved since the appellant's defence was
ignored by the two courts below.

6. That, the sentence is very excessive and

contrary to the Minimum Sentence Act, Cap.
90R.E.2019.

7. That, in fact the case against the appellant

was not prove to the required standard o f law.
And the appellant's defence was not
considered by the two courts below.

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 On 3rd July, 2024, when the appeal was called on for hearing, the

appellant presented a supplementary memorandum of appeal containing

the following grounds:

1. That, in his evidence before the trial court,

PW5 testified that the sperms were seen while
he didn't write this finding o f sperms in exhibit
P2 (the PF3).

2. That, PW5 did told explain to the trial court

the kind o f instruments he used to examine
PW1 and the evidence shows that when PW5
asked the victim (PW1) if she was ever
penetrated, PW1 replied to him that it is true
whereas PW5 was required to examine the
victim and not to ask her questions.

3. That, High Court Judge erred in law when she

dismissed the appeal o f appellant while the
evidence o f PW1 was uncorroborated and
contradictory in that, in her evidence, she
stated that she was raped four times and
sodomized once but when the doctor asked
her, she replied; I quote 7 was raped and
sodomize almost four times".

4. That, the lower court erred in law when it

dismissed the appeal o f the appellant by

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 relying on in admissible evidence o f PW3 and
PW2 while PW3 stated that PW2 told her
(pw3) that, I quote; "her brother David told
me that it seems Cecilia (PW1) is sick because
she defecated herself" whereas in his
evidence, PW2 did not state if he ever told his
mother (PW3) about this evidence thus it is
not known exactly where did PW3 get the
evidence from.

In this appeal, the appellant fended for himself, whereas, Ms.

Mwajabu Tengeneza, learned Senior State Attorney assisted by Mr.

Stephen Rusibamaila and Ms. Lilian Chagula, learned State Attorneys,

appeared for the respondent Republic.

When called to expound the grounds of appeal, the appellant

adopted them and opted to let the learned Senior State Attorney to

respond to his appeal and reserved his rights to rejoin, if need to do so

would arise.

Ms. Tengeneza who responded to the appeal on behalf of the

respondent began her submission by declaring the respondent's stance

that it supports the conviction and sentence meted out to the appellant.

She then sought leave of the Court to argue the four grounds in the

supplementary memorandum together with grounds 5 and 7 in the

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memorandum of appeal, to combine ground 1 (c) together with ground

2 in the memorandum of appeal while the remaining grounds would be

argued separately.

For a start, we wish to state that, in the second appeal like the

present one, the Court rarely interferes with concurrent findings of facts

by the two lower courts. Interference of such concurrent findings will

only be done where either or both two lower courts had

misapprehended the nature, substance and quality of the evidence or a

violated some principle(s) of law or practice. This position was well

stated in the case of Aloyse Maridadi v. Republic, (Criminal Appeal

No. 208 of 2016) [2017] TZCA 244 (6 July 2017; TANZLII) that cited the

case of Wankuru Mwita v. Republic, Criminal Appeal No. 219 of 2012

(unreported) that:

"The law is well-settled that on second appeal,

the Court w ill not readily disturb concurrent
findings o f facts by the trial court and the first
appellate court unless it can be shown that they
are perverse, demonstrably wrong or clearly
unreasonable or are a result o f a complete
misapprehension o f the substance, nature and
quality o f the evidence; misdirection or non­
direction on the evidence; a violation o f some

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 principle o f law or procedure; or have occasioned
a miscarriage o fjustice."

See also: The Director of Public Prosecutions v. Jaffari

Mfaume Kawawa [1981] T.L.R. 149 and Musa Mwaikunda v. The

Republic [2006] T.L.R. 387. In that regard, we shall be mindful of this

long-established principle of law.

Starting with grounds 1 (c) and 2 in the memorandum of appeal,

that the issuer of the PF3 and the investigative officer of the case were

not called to testify by the prosecution, Ms. Tengeneza admitted that

these two police officers were not called to testify. However, she argued

that failure to call them did not prejudice the prosecution's case. She

explained that, although, the prosecution has a burden to prove the

case beyond reasonable doubt, it has a duty to call such witnesses

needed to prove the case. She contended that the police officers were

not called because they were not material witnesses. Besides, she

argued, in terms of section 123 of the Evidence Act, no particular

number of witnesses is required to prove the case.

In the same grounds of appeal, the appellant faulted the PF3,

arguing that it was invalid as it lacked the seal and the stamp of the

issuer. Ms. Tengeneza briefly responded that it was superfluous to bring

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this complaint because the first appellate court found the PF3 was

wrongly admitted in evidence. In his rejoinder, the appellant reiterated

his complaints contained in the grounds of appeal that the PF3 had no

stamp and seal of the police thus invalid, and that, PW5 said he saw

sperms but his alleged finding is not reflected in the PF3.

In the first place we wish to stress that, in the circumstance of the

present appeal where the first appellate court correctly held that the PF3

was wrongly admitted in evidence and it was not the basis of sustaining

the appellant's conviction and sentence, we find that this complaint is

superfluous. We do not see any justification for this Court to discuss

again a document which was rightly discredited by the first appellate

court. In any event, we have carefully re-examined the evidence of

PW5 but we failed to find any evidence suggesting that PW5 observed

or found sperms on the victim. At this juncture, we find it prudent to

reproduce part of the evidence of PW5 which he gave before the trial

court. He said:

"... I took the child to examine... I took at her

appearance. Her clothes were dirty and she
sm elled stood and also the discharge was coming
out.... I examined her vagina and it showed her
hymen was perforated and the said perforation

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 was caused by a blunt object. Then I turn her
back and it showed in the anus the discharge
was coming out and that it was due to the
sphincter muscles being loose."
From the above evidence of PW5, it is not true that he said he saw

sperms as claimed by the appellant.

In addition, the prosecution is not bound to bring each and every

witness conversant with the facts of the case to prove the case. Here,

we wish echo the exception to the general rule of drawing adverse

inference to the prosecution case. In the case of Azizi Abdalah v. The

Republic [1991] T.L.R. 71, we laid three exceptions to such rule that:

one; the adverse inference is normally drawn in obvious cases, where,

upon viewing the matter objectively, the court is satisfied that the

inference will not result into a miscarriage of justice. Two, where there

are more than one witness who are acquainted with the facts and could

have deposed about the incident but not called, the absence of some of

them from the list of witnesses does not generally create a doubt on the

prosecution case, and three, even where the adverse inference is

properly drawn, that does not necessarily ruin the prosecution case. The

Court must judge the evidence as a whole and arrive at its conclusion

accordingly, taking into account the persuasiveness of the evidence

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given in the light of such criticisms as may be levelled at the absence of

possible witnesses.

On our part, we have objectively revisited the entire evidence on

the record and we are satisfied that the absence of the investigator of

the case did not ruin the prosecution case. We shall explain further

when dealing with grounds 5 and 7 in the memorandum of appeal and

the four grounds contained in the supplementary memorandum of

appeal. It suffices to state here that, we find no merit in grounds 1 (c)

and 2 of appeal. We dismiss them.

Responding to ground 1 (b) in the memorandum of appeal that

PW3 was not competent to examine the victim as he was not a

practising medical doctor, placing reliance on the authority in the cases

of Makende Simon v. The Republic (Criminal Appeal No. 412 of

2017) [2021] TZCA 156 (3 May, 2021; TANZLII) that cited the case of

Charles Bode v. The Republic (Criminal Appeal No. 46 of 2016)

[2019] TZCA 578 (6 March, 2019; TANZLII), Ms. Tengeneza was brief

that PW5 who was a Clinical Officer at Mbalizi Hospital-Ifisi had capacity

to examine the victim.

On our part, we have revisited the record of appeal and noted that

PW5 was not a medical doctor. He was a Clinical Officer. We have held

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without number that, given the definition of Clinical Officer that he is an

officer who is qualified and authorized to practice medicine, and that, he

can observe, interview and examine sick and healthy individuals in all

specialities to document their health status and can apply pathological,

radiological, psychiatric and community health techniques, he is a

competent and qualified person to examine the victims of sexual

offences -see: Makende Simon v. The Republic (supra). This ground

of appeal also fails and we dismiss it.

On ground 3 in the memorandum of appeal that the first appellate

court failed to consider his grounds of appeal contained in the petition of

appeal, we are at one with the submission of Ms. Tengeneza that this

complaint is baseless. The record of appeal bears out at pages 69 to 80,

that the first appellate court canvassed and determined all grounds of

appeal raised by the appellant in his petition of appeal. His petition of

appeal appearing at pages 54 - 55 of the record of appeal raised eight

grounds. In its judgment, the first appellate court considered and

determined grounds 3, 5 and 8 separately and clustered grounds 1, 2, 4

and 7 as they all boiled down to the issue that the case was not proved

to the required standard. With clear evidence on record, we are satisfied

that the complaint by the appellant is devoid of merit. We dismiss it.

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 Moving on to ground 4 in the memorandum of appeal that his

rejoinder submission was not addressed by the first appellate court, Ms.

Tengeneza submitted that this ground is equally without merit since it is

evident from the record of appeal that his rejoinder was considered. She

referred us to page 60 of the record of appeal where the appellant made

a rejoinder submission. She argued further that, essentially, the

appellant repeated his grounds of appeal in his rejoinder submissions

which were all adequately addressed by the first appellate court as

reflected at pages 69 to 80 of the record of appeal.

Having revisited the record of appeal, we agree with Ms.

Tengeneza that this ground is not supported by the record of appeal. It

is apparent at pages 69 to 80 that the first appellate court adequately

considered and weighed the appellant's rejoinder submission with that

of the prosecution side but found no merit on his complaints. Therefore,

this ground of appeal is also devoid of merit and we proceed to dismiss

it.

Responding to grounds 5 and 7 in the memorandum of appeal

together with the four grounds in the supplementary memorandum of

appeal, Ms. Tengeneza argued that the case was proved to the required

standard. Expounding her submission, she submitted that the victim of

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the offence who was found credible and reliable by the two lower

courts, was consistent in her evidence that the appellant posed as a

genuine customer. He used to buy firewood from them without paying.

He then asked PW1 to carry the bundle of firewood to his home and to

collect the money for the said purchase but, on their way, he used the

opportunity to rape her. The appellant raped the victim four times and

on the fourth time, which was, on the 5th August, 2019, he sodomized

her. She further submitted that the victim's evidence was corroborated

by the doctor who examined her (PW5) and by her mother (PW3) and

brother (PW2) who saw her defecated. The learned Senior State

Attorney admitted that the evidence of PW5 differs with the evidence of

PW1 regarding the frequency in sodomization but she was quick to add

that such discrepancy was immaterial and did not discredit the evidence

of PW1. Ms. Tengeneza also admitted that PW5 did not describe the

instrument he used in examining the victim. Nonetheless, she argued

the omission was not fatal as it is not one of the ingredients in proving

the offence of rape or unnatural offence. She explained that, according

to section 130 (4) of the Penal Code, penetration however slight is

sufficient to prove a statutory rape, and, for the unnatural offence there

must be proof on carnal knowledge against the order of nature.

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 Connected to the above was the complaint in ground 1 (a) in the

memorandum of appeal that the only witness to the crime was PW1. Ms.

Tengeneza admitted that the key witness was the victim herself since,

generally, in sexual offences, it is not easy to find an independent

witness apart from the victim (s). It was her submission that, in terms of

section 127 (6) of the Evidence Act, the trial court can ground a

conviction on the independent evidence of the child of tender years of

the victim of the crime if it is satisfied that such witness was telling

nothing but the truth. She further referred us to case of Selemani

Makumba v. The Republic [2006] T.L.R. 379 wherein it was held that

the best evidence in sexual offences comes from the victim. She added

that the evidence of PW1 was corroborated by the evidence of the

doctor, PW5 who examined the victim and confirmed that she was

penetrated in both orifices. It was further corroborated by the evidence

of PW2 and PW3 who saw PW1 defecated. The appellant rejoined that

the case against him was concocted as there was no explanation in

delaying to report the matter.

In the present appeal, as alluded earlier, the appellant was

charged with two counts, namely; statutory rape and unnatural offence.

In order to prove statutory rape, the prosecution is required to prove

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penetration however slight, and that, the victim was under the age of

eighteen (18) years.

Starting with the age of the victim, this was well proven by PW3

who was the mother of the victim. This witness told the trial court that

the victim was born on 20th February, 2009 at Idiga Songwe Dispensary.

This means that, on 5th August, 2019, when the two offences were

alleged to have been committed, the victim was ten (10) years old. It is

settled law that the proof of age of the victim can be given by either the

victim, relative, parent, medical practitioner or through proof by a birth

certificate, if available -see: the case of Issaya Renatus v. The

Republic (Criminal Appeal No. 542 of 2015) [2016] TZCA 218 (29 April

2016; TANZLII).

As regards to the proof on penetration and sodomization, PW1

testified that the appellant used to buy firewood from them but was not

paying instantly. He used to ask her to carry the firewood to his home to

collect money. However, on their way, the appellant pushed her in the

bush with long grasses, undressed her and ravished her. After raping

her, he used to give her money for the firewood with some extras for

her. The victim further testified that the appellant did rape her four

times but on the fourth which was on 5th August, 2018, the appellant

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also sodomized her. Her evidence was corroborated by her brother

(PW2) and her mother (PW3) who saw her defecated on the fourth

incident day. Her evidence was further corroborated by PW5 who

examined and observed that PWl's hymen was perforated and her anal

sphincter muscles were loosen. The learned Senior State Attorney rightly

admitted that the evidence of PW5 differed with the evidence of PW1 on

the frequency of sodomization. Nevertheless, we find that such

contradiction was minor as it did not go to the root of the fact that the

appellant raped and sodomized the victim as testified by PW1 and

corroborated by PW2, PW3 and PW5. In that respect, it is not true that

the victim's evidence was the only evidence relied on by the two lower

courts to convict and sentence the appellant. We also concur with the

argument of Ms. Tengeneza that the prosecution was not required to

prove the kind and type of instrument used by PW5 in examining the

victim of rape and unnatural offence.

Besides, the victim knew well her assaulter as he used to sell

cassava at her school and at times, he used to give her free fried

cassava. She also named the appellant by his first name to her mother.

The victim explained in the trial court the reason which led her to delay

in reporting the matter that the appellant was threatening to slaughter

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her if she revealed the ordeal to her mother. In that respect, it goes

without saying that the prosecution proved beyond reasonable doubt

that the appellant was the person who raped and sodomized PW1. Given

the cogent evidence coming from PW1 and corroborated by PW2, PW3

and PW5 coupled with the fact that the appellant acknowledged that he

was a cassava seller and was arrested on 7th August, 2019, the

investigator of the case was not a material witness. As such, this is the

reason that the absence of the investigator did not affect the

prosecution case. Therefore, we find grounds 5, 7 and 1 (a) inthe

memorandum of appeal and four grounds in the supplementary

memorandum of appeal baseless. We dismiss them.

Concerning the complaint raised in ground 1 (d) that PW1, PW2,

PW3 and PW4 were family members whose evidence was not

corroborated by non-family members, Ms. Tengeneza admitted that

PW1, PW2, PW3 and PW4 were all closely related family members but

she argued that each of these witnesses were competent and

compellable witnesses in terms of section 127 (1) of the Evidence Act.

She further argued that there is no rule of practice or law which requires

that the evidence of near relatives to be discounted, unless there is

20
ground to do so. To support her submission, she referred us to the case

of Mustafa Ramadhani Kihiyo v. The Republic [2006] T.L.R. 323.

We do not intend to dwell much on the issue, as rightly argued by

the learned Senior State Attorney, the law does not prohibit the court

from grounding a conviction on the evidence of the family members if

found to be credible and reliable. The fact that they were related is

irrelevant so long as they are witnesses of credence and believed by the

trial court as truthful witnesses - see: the cases of Mustafa

Ramadhani Kihiyo v. The Republic (supra) and Esio Nyomolelo &

2 Others v. The Republic (Criminal Appeal 49 of 1995) [1996] TZCA

29 (28 October 1996; TANZLII). For instance, in the latter case, the

Court said:

"It is common knowledge that in any trial

evidence is forthcoming from witnesses who
directly or circumstantially witnessed an incident
taking place.... The fact that they are related to
the deceased is, in our view, irrelevant. I f they
were witnesses o f credence and were believed by
the trial court. We see no reason for casting
doubt on their evidence."

In the same vein, in the present appeal, the evidence of rape and

sodomization came from the victim herself and supported by the

21
evidence her brother (PW2) and her mother (PW3) who saw faeces on

her clothes. The fact that they were closely related was irrelevant

because the two lower courts believed these family members and found

them to be credible witnesses. Therefore, we see nothing to fault the

concurrent findings of the two courts below. We proceed to dismiss this

ground of appeal.

We now turn to address ground 6 in the memorandum of appeal.

Ms. Tengeneza submitted that the appellant was charged with and

convicted of an offence of statutory rape contrary to section 130 (1) (2)

(e) and 131 (1) of the Penal Code, and unnatural offence contrary to

section 154 (1) and (2) of the same Act. She contended that, in terms of

section 5 (d) of the Minimum Sentence Act, the sentences to be imposed

on the appellant are as prescribed under the Penal Code.

Section 5 (d) of the Minimum Sentence Act provides that:

"(d) where any person is convicted o f any sexual

offence specified under Chapter XV o f the Penal
Code, as amended by the Sexual Offences
Special Provisions Act, the court shall sentence
such person to imprisonment for a term
prescribed under that Chapter. "

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 The above provision of the law requires the trial court to impose a

sentence of imprisonment to an offender of sexual offences to a term

prescribed under Chapter XV of the Penal Code. Section 131 (1) of the

Penal Code prescribes a maximum sentence of thirty years imprisonment

to an offender convicted of an offence of rape; corporal punishment;

fine and for an order to pay compensation. Therefore, the sentence

imposed on the appellant in respect of the first count of statutory rape,

that is, to serve a term of thirty years in prison, to receive twelve

strokes of cane and to pay compensation of TZS. lm to the victim was

well within the law.

Similarly, the sentence imposed on the appellant in respect of the

second count of unnatural offence was within the law. Besides, the first

appellate court had opportunity to consider an discuss it and it correctly

held that the trial court did not err when it imposed a life imprisonment

which was the only sentence prescribed under section 154 (2) of the

Penal Code where the victim is a child under the age of eighteen (18)

years of age. In that regard, we are satisfied that the appellant was

properly sentenced. This ground of appeal has no merit and we dismiss

it.

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 In the end, we do not find cogent reasons to disturb the

concurrent findings of the two courts below. As such, we uphold the

conviction and sentence of the appellant and proceed to dismiss the

appeal in its entirety.

DATED at MBEYA this 10th 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 12th day of July, 2024 in the

presence of Appellant in person and Ms. Prosista Paul, learned Senior

State Attorney for the Respondent/Republic is hereby certified as a true

codv of the original.

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