IN THE COURT OF APPEAL OF TANZANIA

AT DODOMA.

( CORAM: MWARIJA, J.A., KEREFU, J.A And ISMAIL J.A.)

CRIMINAL APPEAL NO. 605 OF 2021

ANTHONY TITO........................................................................ APPELLANT

VERSUS

THE REPUBLIC..................................................................... RESPONDENT

(Appeal from the Decision of the Resident Magistrate's Court of Dodoma
at Dodoma)

(Mpelembwa, SRM - Ext.Jur.^

dated the 15th day of October, 2019

in

Criminal Appeal No. 24 of 2021

JUDGMENT OF THE COURT

5th & 16th February, 2024

MWARIJA, J.A.:

In the District Court of Bahi at Bahi, the appellant, Anthony Tito

was charged with three counts. In the first count, he was charged with

the offence of rape contrary to ss 130(1), (2) and 131(1) of the Penal

Code, Chapter 16 of the Revised Laws. It was alleged that, on unknown

date in August, 2019 at Bahi Sokoni Village within Bahi District in

Dodoma Region, the appellant did have carnal knowledge of one V.T.

(name withheld for the purpose of protecting her dignity), a girl who

was aged 16 years (hereinafter "the victim")

 In the second and third counts, the appellant was charged with

the offences of impregnating a school girl and aiding and abating or

soliciting a school girl for marriage contrary to ss 60 A (3) of the

National Education Act, chapter 353 of the Revised Laws as amended by

ss 22 of the Written Laws (Miscellaneous Amendments) (No.2) Act of

2016 (the Education Act) and 4 (1) of the Education Act, respectively. It

was alleged in the second count that, on unknown date in August 2019

at Bahi Sokoni Village within Bahi District in Dodoma Region, the

appellant impregnated the victim. On the third count, it was alleged

that on the same date and place as in the first and second counts, the

appellant unlawfully solicited the victim to get married to him.

The appellant pleaded not guilty to the three counts and as a

result, the case had to proceed to a full trial. At the trial, the

prosecution relied on the evidence of four witnesses while in his

defence, the appellant relied on his own evidence.

In its judgment, the trial court found that, the second and third

counts had not been proved and the appellant was, as a result found not

guilty and acquitted. However, as for the first count, the offence was

found to have been proved beyond reasonable doubt. He was

consequently convicted and sentenced to thirty (30) years

imprisonment.

Aggrieved, the appellant appealed to the High Court. The appeal

was transferred to the Resident Magistrate's Court of Dodoma to be

heard by Mpelembwa, Senior Resident Magistrate vested with extended

jurisdiction (SRM - Ext. Jur). Having heard the appeal, the learned SRM

- Ext. Jur. was satisfied that, the appellant was properly convicted of the

offence of rape and thus dismissed the appeal. Dissatisfied further, the

appellant preferred this second appeal.

It is imperative at this stage, to state the brief facts giving rise to

the appellant's arraignment and his ultimate conviction. In 2019, the

victim, who was born in 2003, was a Form II student at Kikuyu

Secondary School. In the same year, she was transferred to Bahi

Secondary School so that she could attend her ailing grandmother. She

continued with her studies at the said school until in November 2019

when she absconded after having realized that she was pregnant. The

situation in which she found herself compelled her to leave her

grandmother's home and went to stay elsewhere. Later, on 23/4/2020,

she returned to her grandmother's home and a day thereafter, delivered

a baby. According to the victim, the appellant was the person who

impregnated her.

Before she left her grandmother's home, the victim named the

appellant to her aunt, Theresia Laurent Maganga (PW2) as the person

who was responsible for the pregnancy. When the victim returned to

her grandmother's home and after she had delivered, PW2 reported the

incident to the police and the appellant was arrested and charged as

shown above.

In her testimony, the victim, who testified as PW1, gave evidence

to the effect that, the appellant started to seduce her in July 2019. She

met him for the first time at the river where the appellant expressed his

affection to her and that he intended to marry her. PW1 went on to

state that, she refused the proposal but the appellant continued to make

advances to her. He later traced the victim's place of residence and

when he managed to meet her, he asked her to collect a certain luggage

at his home and assist him to send it to one Chege, a Form IV student

at her school. When she agreed and went to the appellant's residence,

although she resisted to enter in the house, the appellant forcefully

pulled her inside the house. She resisted and raised an alarm but the

appellant threatened to finish her if she continued to do so. Having

dragged her in the house, the appellant undressed and forcefully had

carnal knowledge of her without using any protection. She felt severe

pain as a result of being raped.

The victim went on to adduce evidence to the effect that, she did

not disclose the incident to anybody because the appellant warned him

not to do so. Later on, she discovered that she had become pregnant

and thus informed the appellant who decided to leave Dodoma and went

to live in Dar es Salaam. While there, he continued to communicate

with the victim and in November 2019, upon the appellant's

arrangement, she joined and stayed with him at Chanika, Dar es

Salaam.

On 23/4/2020 she returned to her grandmother's home and on

24/4/2020 she delivered a baby boy. In May, 2020 after the matter had

been reported to the police, she was taken to Bahi Health Centre where

she was examined by Dr. Amina Ally Hamis (PW3) and thereafter, her

statement was recorded at Bahi Police Station.

The prosecution relied also on the evidence of PW2 the said

Theresia Laurent Maganga. It was her evidence that, she became aware

of the relationship between the victim and the appellant after the former

had become pregnant and absconded from school. The witness testified
further that; she was given the appellant's photograph by the victim who

later on went to Dar es salaam to stay with the appellant on the promise

that they would get married. When the victim returned to Dodoma and

after she had delivered, PW2 reported the matter to the police and the

appellant was consequently arrested and charged.

The case was investigated by WP 2265 D/C Mgeni (PW4). In the

course of her investigation, she recorded the statements of the victim

and the appellant. She also conducted investigation at Bahi Secondary

School where, according to her, she confirmed that the victim was a

student. She prepared the charge and the appellant was taken to court.

In his defence, the appellant, who as stated above, denied all the

three counts, disputed the prosecution evidence. He defended himself to

the effect that, the evidence of PW1 did not establish that he was the

one who impregnated her. This, he said, is apparent from the fact that,

no medical examination was conducted to prove that allegation. He

added that, there was no cogent evidence because the victim and PW2

did not tender any exhibit to show that the former had cohabited with

him as alleged by the said witnesses. He stressed that, the prosecution

evidence did not prove the case against him beyond reasonable doubt.

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 In its judgment, the trial court found that the prosecution did not

prove the second and third counts. It thus acquitted the appellant of

those counts. The learned trial Resident Magistrate was however,

satisfied that the first count had been proved beyond reasonable doubt.

He believed the evidence of PW1 as corroborated by the oral evidence of

PW3 as being credible and relying on inter alia, the case of Selemani

Makumba v. Republic, [2006] T.L.R 379, found that it had proved the

offence of rape against the appellant.

As shown above, the appellant was dissatisfied with the decision of

the trial court and thus preferred an appeal against his conviction. The

learned SRM-Ext. Jur. who heard the appeal concured with the finding of

the trial court that the evidence of the victim to the effect that the

appellant forcefully had carnal knowledge of her after he had dragged

her into his house was credible and therefore, proved the offence

charged in the first count. Like the trial court, the first appellate court

held that, even though the medical report contained in the PF3 (exhibit

PI) is silent on whether or not the victim was penetrated, relying on the

case of Magina Kabilu @ John v. Republic, Criminal Appeal No. 564

of 2016 (unreported) held that, the oral evidence of PW1 sufficiently

proved that she was penetrated. On that finding, the first appellate court

dismissed the appeal.

In this appeal, the appellant has raised a total of eight grounds of

complaint contained in two memoranda of appeal. The first

memorandum filed by his advocate on 3/1/2022 consists of two grounds

while the second memorandum filed by the appellant in person on

10//1/2022 contains five grounds.

On the date of hearing, the appellant was represented by Mr.

Leonard Haule, learned counsel while the respondent was represented

by Ms. Lina Magoma, learned Senior State Attorney assisted by Ms. Rose

Ishabakaki, learned State Attorney. Before the appeal could proceed to

hearing, Mr. Haule informed the Court that he was abandoning the

grounds of appeal contained in the memorandum filed by the appellant

and thus would argue the grounds filed by him on 3/1/2022.

The two grounds are to the following effect:

"1. That, both the trial and the first appellate

courts erred in law and fact by convicting the
appellant basing on weak, incredible,
contradictory and implausible evidence o f the
prosecution witnesses which did not prove the
charged offence beyond reasonable doubt.
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 2. That the first appellate court erred in law and
fact by failing in its duty to re-evaluate the
entire evidence hence arrived at unjust
decision."

Further to the two grounds above, the learned counsel made a

prayer under rule 81 (1) of the Tanzania Court of Appeal Rules, 2009 to

argue an additional ground of appeal, the prayer which was not opposed

by the learned Senior State Attorney. The Court granted the prayer to

argue that ground which constituted the 3rd ground of appeal, that:

"J. The trial and the first appellate courts erred

in law and fact in convicting the appellant in the
case in which there was variance between the
charge and evidence."

Starting with the 3rd ground of appeal, Mr. Haule argued that,

according to the charge, the offence was committed at Bahi Sokoni but

in her evidence, PW1 said that it was committed at Mwanachugu. He

argued further that, whereas it is stated in the charge that, the offence

took place in August, 2019, from the evidence of the victim, the incident

happened in July, 2019. According to the learned counsel, since the

charge was not amended to rectify the variance on the date and place at

which the offence was committed, the appellant was improperly

convicted. In support of his argument, Mr. Haule cited the case of

Francis Fabian @ Emmanuel v. Republic, Criminal Appeal No. 261

of 2021 (unreported).

Responding to the submissions made by the appellant's counsel on

that ground of appeal, although she admitted that there is variance

between the charge and the evidence as regards the place where the

offence was committed, Ms. Magoma argued that, the discrepancy is not

fatal. She cited s. 234 (3) of the Criminal Procedure Act, Chapter 20 of

the Revised Laws (the CPA) to bolster her argument. On the variance of

the date, she argued that, the month of July mentioned by PW1 is the

time when the appellant started to seduce her and since from her

evidence, a reasonably long time passed before he raped her coupled by

the fact that, she delivered a baby on 24/4/2020, the offence was

obviously committed in August 2019.

Having considered the nature of the discrepancies complained of,

to start with the time of commission of the offence, we agree with the

learned Senior State Attorney that, the variance is minor such that the

amendment of the charge was not necessary. Section 234(3) of the CPA

cited by Ms. Magoma states as follows:

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 "234 - (1)....
(2)....

(3) variance between the charge and the

evidence adduced in support o f it with respect to
the time at which the alleged offence was
committed is not material and the charge need
not be amended for such variance if it is proved
that the proceedings were in fact instituted
within the time, if any, limited by law for the
institution thereof."

Since the time of institution of the proceedings was not an issue, this

complaint is devoid of merit.

With regard to the place at which the offence was committed, we

do not, with respect, find the variance to be significant. According to

PWl's evidence, the offence was committed in the appellant's house

situated at Mwanachugu. It was not disputed that Mwanachugu is not

in Bahi Sokoni Village within Bahi District. Furthermore, even if that

would have been the case, since it was alleged that the offence was

committed in the appellant's house, the misdescription of the location of

the house is, in the circumstances, not a fatal discrepancy. We thus find

that; this complaint is also without merit.

ii
 On the 1st and 2nd grounds of appeal which Mr. Haule argued them

together, it was the learned counsel's contention that, the appellant's

conviction was based on insufficient evidence. He argued that, the

allegation by the prosecution that the appellant did have carnal

knowledge of the victim was not proved. This, he said, is because the

victim mentioned the appellant after about 10 months from the time

when the offence was allegedly committed and also because she did not

report any of the incidences from the time when the appellant seduced

her to the time of the alleged offence. Relying on the case of Issa

Mfaume v. Republic, Criminal Appeal No. 128 of 2017 (unreported),

the learned counsel argued that such delay tainted the victim's credibility

thus rendering the case unproved.

In reply, Ms. Magoma submitted that, the evidence of the victim

proved that she was raped by the appellant. According to the learned

Senior State Attorney, the victim gave a true account on how the

appellant seduced the victim and later raped her at his home, followed

by his act of inviting her to Dar es Salaam where he cohabited with her.

Ms. Magoma stressed that, in her evidence, the victim stated that the

appellant pulled her in his house, undressed her and forcefully inserted

his penis into her vagina thereby causing her to suffer severe pain. The

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learned Senior State Attorney cited the case of Selemani Makumba

(supra) and Charles Yona v. Republic, Criminal Appeal No. 79 of 2019

(unreported) which the Court observed that, the best evidence in a

sexual offence is that of the victim. In the circumstances, she argued,

the evidence of PW1, the victim of the sexual offence, proved the

ingredients of the charged offence of rape beyond reasonable doubt.

We have duly considered the submissions of the learned counsel

for the parties in the 1st and 2nd grounds of appeal. It is noteworthy to

state that, this being a second appeal, as a matter of principle, the Court

cannot interfere with concurrent findings of the two courts below on

matters of facts unless there has been a misapprehension of the

substance, nature and quality of the evidence, misdirection or non­

direction thereto or violation of some principle of law or procedure

resulting into miscarriage of justice. - see for instance the cases of

Salum Mhando v. Republic, [1993] T. L.R 170, Mohamed Said v.

Republic, Criminal Appeal No. 145 of 2017 and Jama Ally @ Salum v.

Republic, Criminal Appeal No. 52 of 2017 (both unreported).

In the case at hand, the trial court believed PW1 as the witness of

truth and relied on her evidence to found the appellant's conviction.

That finding was upheld by the first appellate Court. It found that
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whereas the age of the victim was proved by her birth certificate, her

evidence that she was raped by the appellant was credible and

therefore, proved the offence beyond reasonable doubt.

Indeed, as observed by the two courts below, the best evidence in

sexual offences is that of the victim. Such evidence of the victim alone

may be acted upon without corroboration once the court is satisfied that

the same is credible. This is in terms of s. 127(6) of the Evidence Act,

Chapter 6 of the Revised Laws which states as follows: -

"127(1)....
(2)....
(3)....
(4)....
(5)....
(6) Notwithstanding the preceding provisions o f
this section, where in criminal proceedings
involving a sexual offence the only independent
evidence is that o f a child o f tender years or o f a
victim o f the sexual offence, the court shall
receive the evidence, and may after assessing
the credibility o f the evidence o f the child o f
tender years or as the case may be the victim o f
sexual offence on its own merits, notwithstanding
that such evidence is not corroborated, proceed

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 to convict, if for reasons to be recorded in the
proceedings, the court is satisfied that the child
o f tender years or the victim o f the sexual
offence is telling nothing but the truth."

Mr. Haule has challenged the credibility of PWl's evidence

contending first, that she mentioned the appellant after about 10

months from the date of the alleged offence, secondly, that she did not

report to any person or authority when the appellant started to entice

her and thirdly, that she did not prove that it was the appellant who

raped her. In our considered view, since the trial court, which was best

placed to assess the credibility of the witnesses, had found her credible,

the finding which was upheld by the first appellate court, we are, with

respect, of the settled view that the challenge on her credibility is

without merit.

Furthermore, the fact that the matter was reported after 10

months from the date of the incident is, from the evidence, due to

sufficient reason. After having impregnated the victim, the appellant

moved her to Dar es Salaam. It was after the victim and the appellant

had returned to Dodoma that PW2 reported the matter to police. For

these reasons, we are unable to agree with the arguments made by the

learned counsel for the appellant.

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 In the final analysis and on the basis of the above stated reasons,

we find that this appeal is lacking in merit and hereby dismiss it.

DATED at DODOMA this 15th day of February, 2024.

A. G. MWARIJA
JUSTICE OF APPEAL

R. J. KEREFU
JUSTICE OF APPEAL

M. K. ISMAIL
JUSTICE OF APPEAL

The Judgment delivered this 16th day of February, 2024 in the

presence of Mr. Leonard Haule, learned counsel for the Appellant and

Ms. Patricia Mkina, learned State Attorney for the respondent / Republic,

is hereby certified as a true copy of the original.

H R
P'l DEPUTY REGISTRAR
COURT OF APPEAL

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