IN THE HIGH COURT OF TANZANIA

(MTWARA SUB REGISTRY)

AT MTWARA

CRIMINAL APPEAL NO. 13819 OF 2025

CASE REFERENCE NO. 202506062000013819

(Arising from the decision of the Resident Magistrate Court, Lindi at Lindi dated 26th
May, 2024 in Criminal Case No. 31761 of 2024 before Hon. D. E. Kimathi, SRM)

ALLY ABDALLAH NGASHA……......................................................... APPELLANT

VERSUS

REPUBLIC .................................................................................... RESPONDENT

JUDGMENT

Date of Last Order: 28th July, 2025

Date of Judgment: 29th August, 2025

E. E. KAKOLAKI, J.

In this fisrt appeal the appellant is seeking to displace the decision of the

Resident Magistrates Court for Lindi Region at Lindi where he was charged

and convicted of Rape; contrary to section 130 (1) (2) (e) and 131 (1)(a) of

the Penal Code, [Cap 16 RE 2022] now [R.E 2023], and sentenced to thirty

(30) years imprisonment. His conviction and sentence were premised on the

prosecution's case that, on the 24th day of October, 2024, at Tulieni Village

within Lindi District and Region, he did have carnal knowledge with one NKA

(identity concealed), a girl of 13 years old.

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The prosecution relied on seven (7) witnesses and two exhibits, the PF3 and

scene of crime sketch map as exhibits P1 and P2, respectively, after the

appellant had returned a plea of guilty when the charge was placed before

him. The prosecution paraded in Court were the victim’s mother and aunt as

PW1 and PW2, the victim, who is of unsound mind (PW3) and failed to render

her testimony, the trained people’s militia who arrested the appellant (PW4),

the Ward Executive Officer or WEO (PW5), the doctor (PW6), and the

investigator (PW7). On his side, the appellant maintained his stance that he

never raped the victim, whom he admitted to be of unsound mind. Having

considered both parties’ evidence as hinted above, the trial Court found that

the charge against the appellant was proved to the hilt and proceeded to

convict him as charged, while sentencing him to suffer an imprisonment term

of 30 years, as mentioned above. Displeased, the appellant has preferred

this appeal, demonstrating his grievances in six grounds of appeal as quoted

in verbatim hereunder:

1. That, the trial court erred in law and fact by holding that the charge

against the appellant was proved beyond reasonable doubt while there are

serious doubts thereon.

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2. That, the trial court erred in law and fact after convicting the appellant

without considering that the PW6 failed to prove the penetration to the victim

which is a vital ingredient of the offence charged.

3. That the trial Court erred both on law and fact by wrongly evaluating the

evidence tendered before her by Pw1, Pw2, PW4, PW6 and Pw7 which

resulted in failure of justice be seen to be done.

4. That, the trial court erred on both law and facts by relying on the exhibit

P1 (PF3) which was improperly tendered and illegally admitted, by allowing

to be party of evidence.

5. That, the trial court erred on both law and fact by accepting the evidence

tendered to prove the charge which the same was very doubtful and

contradictory.

6. That, the court erred on both law and fact for failing to consider the

defense evidence.

Briefly stated, the prosecution's case was to the effect that the appellant,

victim (PW3), and victim’s mother (PW1) knew each other before, as the

appellant was married to PW1’s young sister, and the victim and her sibling

sometimes used to live with the couple. On 24/10/2024, at noon, PW1, who

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was at her home, stated that the appellant passed by and asked the victim

to accompany her to the shop to buy groundnuts, as they would return soon.

As PW3 was of unsound mind and it was sunny, PW1 became adamant about

releasing her, but upon the appellant's insistence that it would not take them

longer, PW1 allowed her to go. The two could not return until 2.00 PM when

PW1 became doubtful and started searching for them, only to find the two

in the appellant’s house, whose walls were made of mud. As it was afternoon

with sunlight passing in through the windows, and peeping through the

window, PW1 saw the appellant making love with the victim. She

immediately went to call the victim’s aunt (PW2), who also witnessed the

incident, before the latter went to call his brother (the victim’s father) out of

fear that the two women would not be able to arrest the appellant. While in

those efforts, which proved futile, behind the appellant who had his door

locked from outside by PW1 to preserve evidence, managed to climb the wall

and dropped outside and opened the door for the victim before PW1 took

the victim and reported the matter to the WEO who issued them with the

introduction letter to present to the police where PW3 was issued with the

PF3 (exhibit P1) and attended by the doctor (PW6) who after examination

established that she was penetrated. As alluded to above, the appellant

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denied the accusations levelled against him, but the trial Court was satisfied

that his case was proved beyond reasonable doubt, convicted and sentenced

him accordingly.

At the hearing, both parties were heard viva voce as the appellant appeared

remotely from Lilungu prison unrepresented, while the respondent enjoyed

the services of Mr. Denis Nguvu, learned State Attorney.

When invited to address the Court on the merits of his appeal, the appellant

opted to hear first from the Respondent as he reserved his right of rejoinder.

He, however, prayed the Court to consider all his grounds of appeal and find

merit in them, hence, proceed to acquit him of the charge he was convicted

of.

In his response, Mr. Nguvu opened his reply submission by resisting the

appeal. With leave of the Court, he opted to merge the 1st, 2nd, and 3rd

grounds of appeal and argue them together for furthering the complaint that

his conviction was wrongly premised for want of proof of the charge facing

him beyond reasonable doubt, and that the rest of the grounds of appeal

were to be canvassed separately. I therefore intend to follow the same order

in this judgment when determining the raised grounds.

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Recanting the appellant’s assertion that his case was not proved beyond

reasonable doubt by the prosecution, Mr. Nguvu reminded the Court of the

charge of Rape facing the appellant under 130 (1) (2)(e) and section 131(1)

of the Penal Code Cap. 16 R.E 2022, for carnal knowledge of a child of 13

years, who, no doubt, is below the age of majority. Relying on the case of

Yustus Idan Vs. R, Criminal Appeal No. 454 of 2019 (2022) TZCA 622 at

page 7, he contended the prosecution was enjoined to prove three

ingredients under the circumstances of this case namely: one, penetration

of a male sexual organ into the victim's vagina, second, the victim’s age, and

third, identity of the person responsible for such unlawful act. According to

him, the trite law as stated in the case of Selemani Mkumba Vs. R, (2006)

TLR 379, is that the best evidence in sexual offences comes from the victim,

who, for the purposes of this matter, ought to be PW3. He, however, argued

that this witness was found by the trial Court to be of unsound mind and

therefore prevented from giving rational answers or incapable of testifying

after compliance with the provision of section 127(6) of the Evidence Act,

and the guidance provided in the case of Fadhili Makanga Vs. R, Criminal

Appeal No. 458 of 2017 (2020) TZCA 270, hence reliance on two eye

witnesses who are PW1 and PW2. He convincingly argued that, as it was

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held by the Court of Appeal in the case of Ismail Mnyawami Vs. R,

Criminal Appeal No. 337 of 2008 (2011) TZCA 91, where the victim is unable

to testify, then evidence of eyewitnesses suffices to ground a conviction.

Mr. Nguvu went on to submit that the two witnesses, PW1 and PW2, whom

the trial Court had an opportunity of observing their demeanour and believed

them, testified to have witnessed the appellant raping the victim (PW3) in

broad daylight, hence eliminating the chances of mistaken identification.

As regards the element of penetration, he contended that despite the

doctor’s oral testimony (PW6) and the findings made in the PF3 (exhibit P1)

indicating that the victim had no bruises or vaginal fluids in her vagina, the

conclusion was to the effect that she was penetrated with a blunt object as

she had no hymen, though found to be used to sexual intercourse. Since

what is important in rape cases is the presence of penetration, however

slight it is, the appellant didn't need to ejaculate to constitute the offence of

Rape, as it was held in the case of Ismail Mnyawami (supra) Mr. Nguvu

stressed. Regarding the ingredient of age, he submitted that, the same was

proved by the victim’s mother PW1, hence a proof beyond reasonable doubt

that, it is non but the appellant who perpetrated the offence as he even did

not dispute during preliminary hearing to have collected the victim from her
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mother’s custody on the fateful day as can be seen at pages 2-3 of the trial

court proceedings. In view of the above, he invited the Court to find the

grounds of appeal are devoid of merit, hence be dismissed as the case

against him was proved beyond reasonable doubt. In his rejoinder

submission, the appellant had nothing material to counter the respondent’s

submission apart from reiterating his earlier submission and prayers.

I have dispassionately considered the submissions by the parties regarding

the 1st, 2nd and 3rd grounds of appeal and took time to revisit the impugned

judgment as well as the evidence on record. The issue which this Court is

enjoined to determine is whether the charge of Rape was proved by the

prosecution against the appellant beyond reasonable doubt. The settled legal

stance as spelt in section 117(1) and (2) of the Evidence Act, [Cap. 6 R.E

2023] is that he who alleges must prove, in which, in the present matter,

the onus of so proving lies on the prosecution. The standard of proof as per

section 3(2)(a) of the Evidence Act is that of beyond reasonable doubt, as

the accused bears no duty of proving his innocence, rather to raise doubt on

the prosecution's case since conviction must be premised on the strength of

the prosecution's case and not the weakness of the defence case. See also

the cases of Mohamed Said Matula Vs. R [1995] T.L.R. 3 (CA), Simon

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Edson @ Makundi Vs. R, Criminal Appeal No. 5 of 2017 [2020] TZCA 1730

andMohamed Haruna @ Mtupeni and Another Vs. R, Criminal Appeal

No. 259 of 2007 (2010) TZCA 250.

It is an undisputed fact in this matter that the charge of Rape preferred

against the appellant was under 130 (1) (2)(e) and section 131(1) of the

Penal Code, [Cap. 16 R.E 2022] now [Cap. 16 R.E 2023], calling for proof of

three ingredients: one, the victim’s age; second, penetration; and three,

identity of the accused person as the person who perpetrated the offence.

Starting with the element of age, I accede to the submission made by Mr.

Nguvu that the victim’s age was legally established by her mother, PW1, to

be 13 years when she said that PW3 was born on 06/03/2011, being a

competent person to establish the victim's age as held in a number of

decisions. See the cases of Mohamed Jumanne Vs. R, Criminal Appeal No.

569 of 2021 (2024) TZCA 526 and Barnaba Bazilia Honoli Vs. Republic

(Criminal Appeal No. 659 of 2021) [2024] TZCA 997 (28 October 2024). In

Barnaba Bazilia Honoli (supra) on the subject matter, the Court of Appeal

observed thus:

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 “We reasoned that, such proof can also be made by the
parents, relative of the victim, medical practitioner or if
available, by production of the birth certificate”

Next is the identity of the accused person. It is evident from the record that,

after its inquiry regarding victim’s competence in testifying the trial Court

observed the provisions of section 127(5) and not subsection (6) of the

Evidence Act as submitted by Mr. Nguve, and came to findings that, the

victim (PW3) being person of unsound mind was unable to render her

testimony after having failed to give rational answers to the questions put to

her by the Court. Indeed, the law on treatment of a person of unsound mind

who is prevented by his condition from understanding the questions put to

him and giving rational answers was followed, thus a justification for the trial

Court to rely on evidence of other eyewitnesses, as it was also held in the

case of Ismail Mnyawami (supra). In the present case, the said

eyewitnesses, as mentioned by Mr. Nguvu, are PW1 and PW2, who testified

to the effect that, on the fateful date, they found the appellant in his house

and managed to identify him after peeping through the window, as it was

broad daylight, and the appellant was known to them before. Like the trial

Court, I entertain no doubt that the appellant was properly identified in his

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house after he had collected the victim from her home with the intent of

buying her ground nuts, but instead took her to his house, as stated by PW1.

The last ingredient for determination of the offence of Rape is penetration,

which Mr. Nguvu submitted to have been proved by both PW1 and PW2,

who witnessed the appellant raping the victim, corroborated by PW6’s

testimony and PF3 exhibit P1 proving the existence of penetration as the

victim PW3 was found to have no hymen and used to sexual intercourse

though she had no bruises nor vaginal fluids. Having glanced at the said

evidence as stated by PW6 and remarked in the PF3 (exhibit P1) it is evident

to this Cour that after examining her (PW3), the doctor (PW6) noted that

she had no hymen, no watering, nor had she had any bruises in her vagina

or anus. He thus concluded that she was experienced in sexual intercourse

and was penetrated with a blunt object like a penis. Now this Court, while

aware of the settled law under section 130(4)(a) of the Penal Code that

penetration, however slight, suffices to prove the sexual intercourse

necessary for the offence, the glaring question is whether PW3 was

penetrated on 24/10/2024 to the extent of being found experienced in sexual

intercourse. For this question to be properly answered, it was the

prosecution's duty and t h e Court to ensure that the witness gave the

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relevant evidence which specifically proved the offence. I so view as it is of

utmost importance for the prosecution to lead evidence establishing

penetration and not to simply give a general statement alleging that

rape was committed without elaborating i n d e t a i l what actually took

place. See the case of Mathayo Ngalya @ Shabani V R, C riminal

Appeal No. 170 of 2006, (2008) T Z C A 1 4 .

Applying the above principle to the facts of this case, it is not in dispute that

the eyewitnesses, PW1 and PW2, apart from merely stating that, they found

the appellant raping or having sex with the victim, no further details or

explanations were ever rendered by them elaborating on what actually took

place. To avoid putting words into their mouths, let's hear from the horses’

mouths. PW1 was recorded to inform the Court, thus:

’’Accused’s house has 2 windows and the house is made of mud.

I look inside through the window, and found accused person
naked with my child and he was making love with my child. I
could recognize him because there was light comes through the
windows.’’

And PW2 had this to tell the Court, too:

’’We arrived at the house of Ally Abdah @ Babu Ally. She told me
to go to the window and look inside the house and I did that. I
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 found Babu Ally with victim who is the child of PW1 having sex
and I watch them for only three minutes. XX (victim) is my aunt
and she has only 13 years old. She is mentally unfit and she
didn’t speak well as she confusing matters.’’

From the two above excerpts of PW1 and PW2’s evidence, I find it was not

enough for PW1 to merely allege that she found the appellant making love

with the victim, or for PW2 to assert the appellant was found having sex with

the victim, as love or sex can be made orally through the tongue kiss or by

penetration penis or any other part of body or instrument inserted into

vagina, anus or orifice. Failure by PW1 and PW2 to describe how love or sex

was made, I find their evidence insufficient to prove the offence of Rape,

given the fact that the victim was found to have neither bruises nor fluids in

both vagina and anus. The mere fact that she was used to sexual intercourse

leaves this Court with doubt, as it does not necessarily mean that she was

penetrated on 24/10/2024, since she might have been penetrated before

that day by the unseen or mentioned perpetrator. In view of that deficiency

in evidence, I find the element of penetration of PW3 specifically on

24/10/2024, as alleged in the charge, was left unproven. Had the trial Court

appreciated this fact, I believe it would not have arrived to the findings

reached. The case against the appellant, therefore, I find was not proved

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beyond reasonable doubt, hence there is merit in the 1st, 2nd and 3rd grounds

of appeal. The three grounds, therefore, have the effect of disposing of this

appeal, and I see no point in venturing much effort to determine the rest of

the grounds of appeal, as that will amount to an academic exercise.

Consequently, the appeal is allowed as the appellant’s conviction is quashed

and the sentence meted out to him is set aside. It is hereby ordered that he

should be released from prison forthwith unless otherwise lawfully held.

Order accordingly.

Dated at Mtwara, this 29th day of August, 2025.

E. E. KAKOLAKI
JUGDE
29/08/2025.

Court: The Judgment has been delivered at Mtwara today on the 29th day
of August, 2025, through video conference in the presence of the appellant
appearing from Lilungu Prison, Mr. Edson Mwapili, State Attorney for the
Respondent, and Ms. Asha Mboga.
Right of appeal explained.
Sgd:
S. NSANA
DEPUTY REGISTRAR
29/08/2025.
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