CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA

AT BUKOBA (CORAM: MUGASHA. J.A.. MWAMPASHI, 3.A., AND NGWEMBE, J.A.l CRIMINAL APPEAL NO. 739 OF 2023 BEGAYA PAULO........................................................................APPELLANT

VERSUS THE REPUBLIC......................................................................RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Bukoba) (otaru, j i Dated 15th February, 2023 in Criminal Appeal No. 109 of 2019

JUDGMENT OF THE COURT Iff* & 24hMarch, 2025 NGWEMBE. J.A.: The appellant is seeking to fault the concurrent findings of the trial and first appellate courts on his conviction and sentence for the offence of rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code Cap 16 RE 2002 (now R.E. 2022). On the second count of impregnating a school girl contrary to section 60A (3) of the Education Act Cap 353 as amended by section 22 of the Written Laws (Miscellaneous Amendments) Act No. 2 of 2016, he was acquitted. Unsuccessfully, he appealed to the High Court against the count of rape, hence the present appeal seeking to demonstrate his innocence. The precise brief account on the genesis of this appeal, according to the particulars of the charge sheet, traces from unknown day of August 2018, at Bihanga village within Muleba District, in Kagera Region where the appellant was alleged to have had unlawful carnal knowledge of a girl of 15 years, pupil of standard seven (7) at Karanda Primary School. For the purpose of concealing her identity, the girl shall be referred to as the "victim" or "PW1" throughout this judgment. The victim's testimony was to the effect that, on unknown date and month, she met with the appellant and after a brief conversation they had sexual intercourse which on her was the first occasion. The outcome of their sexual relationship, revealed on

January, 2019 when she became weak and experienced sickness. On March 2019 she went for medical checkup at Mubunda Health Center, where she was found to be pregnant. She further testified that on 23/5/2019 she delivered a baby girl. Moreover, she named the father of that baby as the appellant (Begaya Paulo). The uncle of the victim Mr. Renatus Nicholaus testified as PW2, that the victim was 15 years, a pupil of standard seven at Karanga primary school and he named the perpetrator of the victim's pregnancy was the appellant. To prove that the victim was schooling at Karanga primary school, Mr. Karumuna (PW3) a Head Teacher, tendered a School Attendance Register where the victim's name was registered as 666, although the witness said she was 600/2013, that register was admitted as exhibit PI. PW3 also testified that on March 2019, the victim was weak and sick, upon her examination at Health Center, she was found pregnant. The last prosecution witness was Ms. Angelika Moris, a nurse of Mubunda Dispensary gave a similar account that upon examination on 25/3/2019, the victim was found pregnant of seven (7) months and fifteen (15) days. A PF3 was tendered and admitted as exhibit P2 to that effect. Having found with a case to answer, the appellant defended as DW1 that, the case against him was a result of family conflict with PW2 in relation to a piece of land and that the victim

failed to name him at the earliest possible time. Instead, she named him on 25/3/2019, almost eight (8) months from when she was impregnated and that the victim was couched to implicate him because of the family disputes. It was the appellant's testimony that the victim must have noticed her pregnancy in the first month or at least the first trimester. That, if she was well aware of her condition, she was expected to name the appellant at the earliest possible time. The unexplained delay of more than eight (8) months is 3 evident that she named the appellant as an afterthought. The same averment was testified by DW2. After a full trial, the appellant was convicted and sentenced to thirty (30) years imprisonment. As alluded to earlier, his appeal to the High Court was unsuccessful, thus the instant appeal is another effort to demonstrate his innocence. At the hearing of the appeal before the High Court, the issue of delayed reporting the incident of rape surfaced and both parties argued it. The appellant vehemently submitted that according to the charge sheet, the victim, on unknown date of August 2018, was raped by the appellant but she concealed to report and mention the appellant until on 25/3/2019 for no apparent reason. In this point the respondent Republic responded that the delay to report the offence was attributed to the immaturity of the victim, hence cannot defeat the

prosecution case nor suggest the appellant's innocence. In consideration of this point, the first appellate court agreed with the respondent Republic that the delay to report, under the circumstance, did not negatively affect the prosecution case. It was the learned Judge's reasoning that immaturity of the victim was a valid reason as the victim feared reprisal from the appellant. She went further that the victim would not disclose the rape and impregnation when knowing that she would be expelled from school. Thus, proceeded to dismiss that point. This point has again surfaced in this appeal, which we intend to consider in due course of this decision. In the instant appeal, the appellant has raised a total of eight grounds. Out of those grounds, ground 1, 3, 4, 6 and 7 are new intended to raise factual issues which were not raised at the first appeal. The position of our law is that grounds not raised by the appellant in the first appeal cannot be raised at the second appeal, it is even serious to the extent that the second appellate court lacks jurisdiction to determine those new grounds. The rationale is that an appellate jurisdiction is grounded on determining matters which were dealt with by the lower court, it would follow therefore that the court cannot have jurisdiction to deal with matters which do not fall within the appellate jurisdiction. However, in every general

rule there is exception. The exception to the above principle is that, such new grounds of appeal may be determined by the appellate court if they raise points of law. Here, another rule is raised which holds that points of law may be raised at any time even at the second or third appeal. Therefore, to summarise the gist of the appellant's complaints is: one, that the charge was defective; two, exhibits PI and P2 were improperly admitted and relied upon; three, defence evidence was not considered; and four, the offence of rape was not proved beyond reasonable doubt Upon calling this appeal for hearing before the Court, Ms. Chema Maswi and Judith Mwakyusa, both learned Senior State Attorneys appeared for the respondent Republic while the appellant appeared unrepresented. When he was invited to address the Court regarding his appeal, the appellant adopted his grounds of appeal and urged the Court to consider them and let him free. Then Ms. Judith Mwakyusa responded for the respondent Republic expressing, from the outset, that they resist the appeal. The learned Senior State Attorney submitted that the charge was properly drafted and not defective. Regarding the propriety of exhibit PI and P2, she conceded that the said exhibits were not read over to the appellant after admission, she thus, invited this Court to expunge the two exhibits. She admitted also that the defence evidence

was not expressly analysed, but to her that was sufficient analysis as per page 106 of the record of appeal. Alternatively, she urged us if we should find that the defence evidence was not properly considered to step into the lower court's position and evaluate the evidence including that of the defence. Regarding the last point of whether the offence was proved beyond reasonable doubt, the learned Senior State Attorney answered in affirmative that the offence of rape was proved to the hilt. Sailing through the evidence on record, she maintained that all elements of the offence of rape were established and proved to the required standard, hence implored the Court to uphold the conviction and sentence. The learned Senior State Attorney, insisted that the first element of penetration was proved as was so testified by the victim. That, the appellant having lured the victim by a packet of juice and Tshs, 500/= he had sexual intercourse. Further that the appellant was properly identified as the victim clearly mentioned the appellant as the one who raped her. Also, she candidly acknowledged that the victim did not mention the date, month or the year when the rape occurred, but she maintained that the evidence had supported the charge relying on the case of Elia s/o Richard Shoo v. Republic (Criminal Appeal No. 196 of 2021) [2024] TZCA 422 (10 June 2024). Ms. Mwakyusa proceeded to

argue that the victim mentioned the appellant on 23/03/2019 and that her age was 15 years. PW2 also testified that the victim was 15 years old and a standard seven (7) pupil. Regarding failure to mention the appellant at the earliest opportunity, Ms. Mwakyusa, quickly submitted that the victim failed to do so due to 7 the circumstances surrounding the rape, that she was feeling ashamed and also was subjected to fear to reveal the rape incident for being pregnant. Concerning why the respondent did not undertake the DNA test, the learned Senior State Attorney admitted that under the circumstances DNA test would assist to prove the case, but maintained that even without DNA test the offence of rape was proved. It was her position that DNA test would have effect only in respect of the second count of impregnating a school girl, the offence for which the appellant was acquitted. According to Ms. Mwakyusa the available evidence proved the offence beyond reasonable doubt. She thus, prayed for the appeal to be dismissed in its entirety. In rejoining, the appellant had nothing useful rather he urged the Court to consider his grounds of appeal and let him join his family. In determining this appeal, we will follow the four points customized above. To begin with is whether the charge was defective. The appellant did not point out the defect, but the respondent even after being probed, did not submit any further than saying that the charge was properly drafted. We reproduce it for the purpose of resolving this ground: "TANZANIA POLICE FORCE PF. 9

CHARGESHEET STATEMENT OF THE OFFENCE: Rape c/s 130 (1) and (2) (e) and 131 (1) o f the Penal Code Cap [Cap 16 RE, 2002] PARTICULARS ROF THE OFFENCE: That BEGA YA S/O PAULO is charged on unknown date in August, 2018 at Bihanga village within Muleba District in Kagera region did unlawfully have sexual intercourse with one ANASTAZIA D/O SOSPETER @ KABAGORORA 15 yrs old Primary School Girl Std VII Karanda Primary School. 2nd COUNT STATEMENT OF THE OFFENCE: Impregnating a school girl C/S 60A (3) o f The Education Act Cap 353 as amended by section 22(30 o f the Written Laws (Miscellaneous Amendments Act) No. 2 o f 2016. PARTICULARS OF THE OFFENCE: That BEGA YA S/O PAULO charged on unknown date in august, 2018 at Bihanga village within Muleba District in Kagera Region did impregnate one ANASTAZIA D/O SOSPETER @ KABAGORORA 15 yrs old Primary School Girl Stef VII Karanda Primary School. STATION: MULEBA DATE: 19-06-2019 PP: SGD-A/mSP" The charge did not cite the name of the court at which the charge was filed instead, it was headed as TANZANIA POLICE FORCE. This was an impropriety in terms of form but it is curable as the charge was filed in the court vested with requisite jurisdiction. The other aspect which would otherwise be thought by the appellant to be a defect is non disclosure of the date when the offence was committed. In law this is not a defect but in case the period of time

so mentioned in the charge is not established by evidence then it is evidential failure. See the case of Paschal Aplonal v. Republic (Criminal Appeal No. 403 of 2016) [2019] TZCA 758 (25 October 2019) where it was held that failure to mention the date in the charge could not impeach the prosecution case where sufficient evidence is adduced on the period within which the offence was committed. Therefore, the first ground is destitute of merits. Coming to the propriety of admission and reliance of exhibits PI and P2, we join hands with the parties, that the two exhibits were not read over after being admitted. It is the requirement of our law developed by precedent that in criminal trial a documentary exhibit having been cleared for admission and actually being admitted, it must be read out to let the adverse party aware of the contents so that he may properly prepare his defence and make cross examination when he is invited to do so. Failure to read over the documentary exhibits is fatal as the appellant though present in court was convicted on the basis of documentary evidence he was unaware of. In the case of Issa Hassani Uki v. Republic (Criminal Appeal No. 129 of 2017) [2018] TZCA 361 (10 May 2018), the Court inter alia held: "It is fairly settled that once an exhibit has been cleared for admission and admitted in evidence, it must be read out in court. In Thomas Pius

the documents under discussion were: Postmortem Report, cautioned statement, extra-judicial statement and sketch map. We relied on our previous unreported decision o f Sunni Amman Awenda v. Republic, Criminal Appeal No. 393 o f 2013 to hold that the omission to read them out was a fatal irregularity as it deprived the parties to hear what they were all about". See also Thomas Pius v. Republic (Criminal Appeal No. 245 of 2012) [2016] TZCA 818 (5 May 2016) and Hussein Said Said @ Baba li Karim @ White & Another v. Republic (Criminal Appeal 298 of 2017) [2020] T7CA 50 (12 March 2020). We accede to the suggestion made by Ms. Mwakyusa that the remedy is to expunge them, consequently exhibit PI (school attendance register) and exhibit P2 (a PF3 in respect of examination of the victim's pregnancy) are expunged from the record of appeal. However, the facts which those exhibits sought to establish would remain by other oral evidence adduced by the prosecution witnesses that the victim was a school girl and that she was pregnant. Coming to ground three the appellant laments that the defence evidence was not considered by the courts below. We have examined the record of appeal and find that it is true, the defence evidence was not considered in both judgments of the lower courts. We also visited page 106 where the learned Senior State Attorney argued that it was shown that the court

considered the defence, but we have found a mere statement that the defence evidence did not cast doubt. The relevant paragraph is reproduced: "As pointed out by the learned State Attorney, the evidence adduced by the prosecution side did prove beyond reasonable doubt that the appellant committed the offence o f rape as charged and evidence adduced by the defence, did not cast even a scintiiia o f doubt on the prosecution's case. As such; there is no reason to fault thejudgment o f the trial court". What the appellate judge stated above, in all dimensions, cannot amount into an analysis or consideration of the defence evidence. Apart from narrating the appellant's evidence at page 102, the first appellate court did not consider the defence evidence just like the trial court which considered only the prosecution evidence. We have resolved on this point that the best we can do is to recite what we decided in the case of Leonard Mwanashoka v. Republic (Criminal Appeal No. 226 of 2014) [2015] TZCA 294 (24 February 2015) that: "Failure to evaluate or an improper evaluation o f the evidence inevitably leads to wrong and/or biased conclusions or inferences resulting in miscarriages o fjustice. It is unfortunate that the first appellate judge fell into the same error and did not re-evaluate the entire evidence as she was duty bound to do. She did not even consider that defence case

too. It is universally establishedjurisprudence that failure to consider the defence is fatal and usually vitiates the conviction". In the instant appeal as earlier pointed, the appellant's evidence was clear and detailed, he denied the offence and claimed that the case against him was framed up in connection to a land dispute between him and the victim's grandfather. The same was supported by DW2, the appellant's young brother one Merious Paul. He narrated that he was arrested by the victim's grandfather and the militia to prove that his case was nothing but a concocted plan authored by the victim's grandfather as reprisal. To justify his defence, he raised the fact that the victim failed to name him at the earliest possible time, but she mentioned him after more than eight (8) months from the date of incident. Moreover, he disputed to have committed the alleged offence of rape. The uncontested defence of the appellant did cast doubt on the prosecution case. Under the circumstances, we find that it was important for the lower courts to address and analyse the defence evidence together with that of the prosecution so as to arrive at a balanced conclusion before convicting the appellant. This ground is merited, we allow it. We will also revert back in the course of determining the ground of whether the offence of rape was proved to the hilt against the appellant. Coming to the

last point, the issue is whether the offence of rape was proved beyond reasonable doubt against the appellant. As intimated earlier, the appellant raised mainly three aspects: first, he was not mentioned at the earliest opportunity as the rapist; second, no DNA test was taken while the child born out of the purported rape was already born before commencement of trial; third, he was acquitted for the second count of impregnating the victim, he would not therefore be convicted for the rape of the same victim. We are still mindful that the appellant denied the offence and, in his defence, strongly suggests that the case against him was a retaliation engineered by the victim's grandparent, the theory which was also supported by DW2. The record of appeal indicates that the trial court reasoned that the offence of rape was proved against the appellant which finding was upheld by the High Court for the reason that the two offences (rape and impregnation) were distinct hence acquittal in one of them would not affect conviction on the other. Generally, that reasoning is correct, however, it depends on the circumstances of each case. Considering that the victim was proved to be pregnant and even gave birth to her baby girl on 23/5/2019 and the charge comprising two counts of rape and impregnating school girl was lodged in court on 19/06/2019, this is to say a proper arraignment of the

appellant proceeded when the child was already born but no DNA test was undertaken and there was no explanation from the prosecution. The victim was firm in her evidence that it was her first sexual intercourse in her life time and she had conceived on that day. The perpetuator of that first sexual intercourse was the appellant. In such circumstances, the offence of rape and impregnation are inseparable unlike what the lower courts' reasoning. It is crystal clear that where the offence of impregnation was not proved as in this case, the offence of rape could not stand. The holding of the first appellate court that the two offences were different cannot stand in the circumstances of this case. What the learned Judge suggested would be possible in other scenarios different from the circumstances of this appeal. Since the victim had conceived on the first and only rape incident, in the absence of evidence that the victim subsequently had another sexual intercourse with the appellant, then the acquittal for the 2nd count necessitated as well acquittal for the 1st count. There is also an issue of credibility of the victim. We are aware that the best evidence in sexual offences, comes from the victim but in order for that victim to be accepted as the best witness, she or he must be credible and reliable. It is true that the trial court is in a better position to assess the demeanour of the witness as held in Yasin Ramadhani Chang'a v. Republic [1999] T.L.R.

489. Also the appellate court without such advantage can still test credibility through other means like considering consistence, coherence, and logical possibility of the evidence adduced by a witness in question. See Shabani Daud v. Republic, Criminal Appeal No. 28 of 2001. In this case, PW1 testified to have been penetrated for the first time in her life time with the appellant. She was not threatened and yet, concealed the incident for eight (8) months. She did not mention the appellant for the whole period of eight months until when she was found to be pregnant and no explanation for that concealment was given. The general rule is that unexplained delay or failure to report the offence affect the credibility of the witness. See; Selemani Hassani v. Republic (Criminal Appeal No. 203 of 2021) [2022] TZCA 127 (22 March 2022); Lameck Bazil & Another v. Republic (Criminal Appeal No. 479 of 2016) [2018] TZCA 191 (4 September 2018); and Marwa Wangiti and Another v. Republic, [2002] TLR 39. The first appellate judge raised the victim's immaturity; fear for reprisal from the appellant; and expulsion from school as reasons for her failure to disclose rape and mention the rapist. However, we have perused the record of appeal, it is apparent that none of the prosecution witness testified on anything regarding fear or threat from the appellant or that she was scared of the expulsion from school because of pregnancy. Therefore, those reasons by the learned High Court Judge were not backed by evidence. We presuppose that, it is a cardinal principle which must not be forgotten that a court's judgment should be based strictly on the evidence on record, and not on extraneous factors or assumptions. See; Hamis Rajabu Dibagula v. Republic [2004] T.L.R.

196. The liberty of the court to take judicial notice and legal presumption is narrow, hence extraneous assumption which prejudice the appellant was among the appellant's complaint in this appeal. We have also considered the decision of the Court in Elia Richard Shoo v. Republic (supra) referred by the learned Senior State Attorney, we find the facts or circumstances distinguishable from this appeal. Whereas in that case, the victim was threatened by the rapist; in the instant case, to the contrary the victim was not threatened. Moreover, while in the former case the date of occurrence of the offence was stated in the charge sheet, in this case besides the date being 18 unknown the victim did not mention even a month and year when she was raped. Last, is our consideration on the DNA test. Although this Court has held in deferent decisions that as a general rule, DNA is never paramount evidence in criminal trials. However, we find in this case that the paternity of the born child had a bearing on the rape incident. Since the victim claimed to have been impregnated in the only one incident with the appellant, which was her first encounter. Therefore, there was no other way to establish the father of the child apart from DNA test at least for the current science development. We are fortified because, if the appellant was not proved to be the father of the child, then there was a

probability of the father being someone else and it is such other people who raped the victim. Such probability cannot be denied in respect of the rape. We find in cases like this, DNA test is of utmost importance. See: Felician Joseph v. Republic (Criminal Appeal 152 of 2011) [2012] TZCA 93 (28 May 2012) in which the Court gave a comprehensive consideration on the need to use DNA, though it was not related to sexual offences. All said and done, we find several gaps; contradictions; unreliability of the key prosecution witnesses; and failure to consider the defence evidence raise reasonable doubts which negatively affected the prosecution case. The offence of rape against the appellant was not proved to the required standard by law. We, therefore, allow the appeal, quash the conviction and set aside sentence meted on the appellant and order for his immediate release from prison unless otherwise held for a lawful cause. DATED at BUKOBA this 24th day of March, 2025. S. E. A. MUGASHA

JUSTICE OF APPEAL A. M. MWAMPASHI

JUSTICE OF APPEAL P. J. NGWEMBE

JUSTICE OF APPEAL The Judgment delivered this 24th day of March, 2025 in the presence of the appellant in person and Ms. Mgeni Mdee, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. C. M. MAGESA

DEPUTY REGISTRAR

COURT OF APPEAL