Criminal Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA c CRIMINAL APPEAL NO. 36177 OF 2024 (Arising from the decision of the District Court of Masasi at Masasi in Criminal Case No. 000013155 of2024) JUMA SAIDI HUSSEIN ©MAKABAMBO @MBUTU....... APPELLANT VERSUS THE REPUBLIC.............................................................. RESPONDENT JUDGMENT ICC February & ICC March, 2025 MPAZE, J.: Before the District Court of Masasi at Masasi, the appellant was arraigned with the offence of rape contrary to sections 130 (1) (2) (e) and 131 (3) of the Penal Code [Cap 16 RE 2022] (the Penal Code). In the particulars of the offence, it was alleged that on the 30th day of April, 2024 at Chiroro Village within Masasi District in Mtwara Region, the appellant did have carnal knowledge of a girl aged six (6) years old. For this judgment, I shall refer her as the victim or PW1 to disguise her identity. The appellant denied the charge, leading to a full trial. To establish its case, the prosecution lined up five witnesses namely; the victim (PW1), i Zaitun George Mwika (PW2), Emmanuel Sabas (PW3), WP 7224 D/CPL Mariam (PW4), E 2957 SGT Audifast (PW5). They also tendered five documentary exhibits; the victim's birth certificate (Exhibit Pl), PF3 (Exhibit P2), Certificate of Seizure and Sketch Map (Exhibit P3 collectively), Chain of Custody Form (Exhibit P3) and one physical exhibit, the victim's white gown with a floral print (Exhibit P4). In his defence, the appellant called one witness, Saluma Daima Daima (DW2). Briefly, the prosecution case obtained from the trial court record can be stated as follows; The victim was residing with her grandmother (PW2) at Chiroro village. On the 30th of April, 2024 PW2 woke up early and left for the farm, instructing the victim to go to her Mama Mkubwa's house. It was alleged that shortly after PW2 had left, while the victim was still inside a shed that PW2 used as a kitchen, she heard a knocking sound. Moments later, the appellant entered, grabbed his penis, and inserted it into her vagina. It is said that the victim began crying, but the appellant showed no concern. After he had satisfied his desire, according to the victim, he left, 2 leaving her lying on the bed. She remained there until PW2 returned in the evening and found her still there. The victim stated that when PW2 arrived, she woke her up and sent her to buy vegetables. Upon returning, the victim began coughing, and blood started trickling from her vagina. When she coughed again, a large clot of blood came out. At that moment, PW2 questioned her about what had happened, asking, 'Who did this to you?' The victim responded, Mbutu (the appellant) For her part, PW2 stated that when she returned home at around 19:00 hours, she did not find the victim at home. However, shortly after, the victim returned, but she appeared unhappy. Later, when PW2 sent her to bring salt, she noticed that the victim's clothing was stained with blood. PW2 then questioned her; 'What happened? Where did you go to play today?' The victim replied, 'I played here at home, wamenibaka na Mbutd Upon inspecting her, PW2 observed that the victim's vagina had clotted blood, with some fresh blood still oozing. She immediately took her to the Masasi police station, where they were issued with a PF3, and proceeded to the Mkomaindo hospital for a medical examination. 3 At Mkomaindo Hospital, the victim was examined by PW3, who found her admitted in Ward No. 4. When questioned, she hesitantly replied, Amejikwaa kisikikimechoma. 'However, upon further examination, PW3 observed fresh bleeding from the vagina, bruises on the right labia majora, and a perforated hymen. PW3 also noted that the victim's legs and clothes were stained with clotted blood. Upon removing the accumulated blood, fresh bleeding resumed, requiring medical intervention. An ultrasound confirmed a blood clot in the cervix due to penetration, though no abdominal injuries were detected. HIV and STI tests were negative. PW3 concluded that the victim had been penetrated by a blunt object, completed a PF3 (Exhibit P2), and placed her under medical care. PW4, the investigator in this case, detailed her role in interviewing witnesses, interrogating the appellant, visiting the crime scene, sketching the scene map, and seizing the victim's bloodstained gown. The gown and the certificate of seizure were tendered and admitted as Exhibit P3 and P4, respectively. After concluding her investigation, PW4 determined that the offence of rape had been committed, primarily relying on the evidence of PW1 and PW3. 4 PW5, the Exhibit Keeper, confirmed receiving the victim's gown on 2nd May, 2024 and storing it until 18th July, 2024 when he handed it over to PW4 for tendering in court. He also tendered the chain of custody form, which was admitted as Exhibit P3. In his defence, the appellant denied committing the offence, raising an alibi that on the fateful day, he left home early at around 12:00 hours down {sic} and went to the farm, returning at 5:00 pm. Thus, he claimed that at the time of the incident, he was not at the scene but was at the farm. He further asserted that he was arrested on allegations of stealing peas and taken to the police station for that offence. However, to his surprise, upon being taken to court, he was charged with this offence instead. He denied the allegations, claiming the case was fabricated against him. DW2 corroborated the appellant's claim regarding the circumstances of his arrest. Having considered the prosecution and defence case, the trial court was satisfied that the prosecution had proven its case beyond reasonable doubt. Consequently, the appellant was found guilty, convicted and sentenced to life imprisonment. 5 Dissatisfied with the conviction and sentence, the appellant has appealed to this court, on the following grounds of appeal; 1. That, the trial court erred in both law and fact by convicting and sentencing the appellant relying on the evidence ofPW1 while section 127(2) of the evidence act was not complied with as the victim asked leading questions contrary to the law. 2. That the trial court erred in law and fact by convicting the appellant basing on the contradictory evidence adduced by PW1, PW2 and PW3. 3. That the trial court erred in both law and fact by convicting and sentencing the appellant while the prosecution failed to call material/ crucial witness to connect the missing link in the party especially Mama Saiurnu and Mama Nai. 4. That the trial court erred in law and fact by convicting the appellant while the trial court failed to take into cognizance the defense of the appellant and accorded weight of any kind. 5. That the trial court did not analyze properly the prosecution witness and defense witness and with a fair decision. 6 6. That the trial court erred in both law and fact by convicting and sentencing the appellant while the offence was not proved at a required standard by the law. At the hearing, the appellant appeared in person unrepresented while the respondent was represented by Mr. Edson Lawrence Mwapili, the learned State Attorney. When he was invited to argue his appeal, the appellant opted for the State Attorney to respond on his grounds of appeal first and thereafter make a rejoinder if the need to do so would arise. At the outset, the State Attorney supported the conviction and sentence imposed against the appellant. In his submission, he argued the 4th and 5th grounds of appeal jointly asserting they are all related to the trial court's failure to consider the prosecution and defence case in its judgment. The rest of the grounds, he dealt with them separately. Starting with the 1st ground, the appellant contended that the trial court erred in law and fact by convicting and sentencing him based on PWl's evidence while failing to comply with section 127(2) of the Evidence Act 7 [Cap. 6 R.E. 2022] (the TEA). Specifically, he challenges that the victim was asked leading questions, which is legally improper. Mr. Mwapili, upon reviewing the trial record, observed that PW1 was asked, 'Jez utaiambia Mahakama ukweli?' to which PW1 responded, 'Ninaahidi kuiambia Mahakama ukweli/ Following this exchange, the trial court recorded, 'Section 127(4) of the Evidence Act [Cap. 6] has been complied with.' In his view, all legal requirements under section 127(2) were met before PW1 testified. The only issue was the trial magistrate's erroneous citation of section 127(4) instead of section 127(2). However, he maintained that this mis citation did not render PWl's evidence inadmissible. He supported his argument with section 32 of the Legal Sector Laws (Miscellaneous Amendments) Act, 2023, which introduced subsection (7) to section 127 of the Evidence Act. The amendment expressly states that failure to comply with procedural requirements does not render the evidence of a tender-age child inadmissible. 8 Thus, despite the minor discrepancy, he insisted that the evidence remains valid and admissible. Accordingly, he prayed for this ground of appeal to be dismissed. Objecting to the 2nd ground of appeal, where the appellant alleged that the trial court erred in law and fact by convicting and sentencing him based on contradictory evidence from PW1, PW2, and PW3, Mr. Mwapili contended that a thorough review of the witnesses' testimonies revealed no material inconsistencies. Consequently, he asserted that this ground is baseless and ought to be dismissed. On the 3rd ground of appeal, the appellant criticized the prosecution for failing to summon key witnesses, namely Mama Salumu and Mama Nai. In response, Mr. Mwapili contended that, in sexual offence cases, the best evidence of rapes comes from the victim, as they are best positioned to recount the incident and identify the perpetrator. To support his argument, he cited the case of Robert Sanqanya v. R (Criminal Appeal No. 363 of 2019), [2022] TZCA 18 (10 February 2022). In the present case, he asserted that PW1, the victim, testified and provided her account before the court. Given this legal position, Mr. Mwapili 9 argued that, Mama Salumu and Mama Nai were not essential witnesses. Their absence neither undermines the prosecution's case nor justifies drawing an adverse inference against the prosecution. Consequently, he contended that this ground lacks merit and should be dismissed. Regarding the 4th and 5th grounds of appeal, where the appellant challenges the trial court's failure to consider and analyze the evidence from both sides, Mr. Mwapili contended that it is a well-established legal principle, as set out in Stephen John Rutakikirwa v. R, Criminal Appeal No. 78 of 2008 (unreported), that a trial court has a duty to assess both the prosecution and defence evidence in reaching its determination. He further argued that upon examining the trial court's judgment, particularly the first and second pages, it is evident that the trial magistrate duly evaluated and analyzed the evidence from both sides. Therefore, he stated that the 4th and 5th grounds are baseless and should be dismissed. Alternatively, he submitted that should this court find that the trial court did not adequately assess the evidence, as the first appellate court, it has the duty to independently re-evaluate the evidence and draw its own conclusion io On the last ground of appeal, the appellant argued that the trial court erred in law and fact by convicting and sentencing him when the prosecution failed to prove the case beyond reasonable doubt. Mr. Mwapili opposed this claim, stating that given the offence which the appellant was charged with, which is statutory rape, the prosecution was required to prove three key elements; the age of the victim, the act of penetration, and the perpetrator. He alleged that all these elements were sufficiently established through the following evidence; One, in proving age PW1 (the victim) testified that she was six years old. PW2 (her grandmother) corroborated this and tendered PWl's birth certificate, which was admitted as Exhibit Pl. Two, proof of Penetration PW1 testified that she was penetrated in her front private part. PW2 and PW3 (the doctor) corroborated this. PW3 also tendered PF3, which was admitted as Exhibit P2. Three, PW1 clearly identified the appellant, stating; 'Mbutu raped me in the banda where my grandmother cooks (sic) every day.' Mr. Mwapili emphasized that, it is a settled legal principle that the best evidence in sexual offences comes from the victim's credible testimony. Since 11 PW1 clearly testified and identified the appellant as the perpetrator, the prosecution successfully proved its case beyond reasonable doubt. Therefore, He prayed this ground of appeal be dismissed. On rejoinder, the appellant had nothing to add except to pray that this court note that he never committed this offence. Having dispassionately considered the grounds for appeal, submission, and trial court record, I find the main issue for determination is whether this appeal has merit. Upon considering these grounds of appeal, save for the 1st ground which challenges the procedural irregularity regarding compliance with section 127(2) of the TEA, and the 4th ground which challenges the trial court's failure to consider the appellant's defence, all the remaining grounds, as they center on the complaint that the appellant was convicted despite the case not being proven beyond a reasonable doubt, will be addressed jointly. The appellant on the 1st ground of appeal argued that the trial court failed to comply with section 127(2) of the TEA by asking the victim leading questions. The State Attorney opposed this contention, contending that the trial court adhered to the law. 12 Section 127(2) of the TEA provides that a child offender age may give evidence without oath or affirmation, provided they he/she promise to tell the truth. The Court of Appeal in John Luoqa v. R, (Criminal Appeal No. 493 of 2022) [2024] TZCA 762 (19 August 2024) affirmed that such a promise is a condition precedent for admitting the child's evidence. However, the law does not specify how the court should determine whether the child understands the nature of an oath or the duty to speak the truth. In Godfrey Wilson v. R, (Criminal Appeal No. 168 of 2018) [2019] TZCA 109 (6 May 2019), the Court of Appeal provided guidance, stating that before receiving a child's evidence, the trial magistrate should ask basic questions to assess the child's ability to testify. The Court outlined possible questions, including 7. The child's age. 2. The child's religion and whether they understand the nature of an oath. 3. Whether the child promises to tell the truth and not lies'. In the present case, before recording PWl's evidence, the trial magistrate conducted a preliminary inquiry, asking; 13 Court: victim unasoma wapi? PW1: Nasoma kwenye shuie ya misingi Chiioio, Court: Umekuja na nani hapa? PW1: Na bibi na babu Court: Leo umekuja kufanya nini? PW1: Nimekuja kukwambia kuwa mimi niiikuwa nime/aia nikasikia Mbuta amekuja. Court: Je unaiahidi kuiambia mahakama ukweii? PW1: Naahidi kuiambia mahakama ukweii Court: Section 127 (4) of the Evidence Act Cap 6 is Complied with. Signed SRM 17/05/2024' From this exchange, the appellant alleged that PW1 was asked leading questions. However, leading questions are those that suggest the desired answer are only prohibited in examination-in-chief and re-examination, as per the general rule of evidence. 14 In contrast, what the trial magistrate conducted was not examination­ in-chief but a preliminary inquiry to assess PWl's competence, which is permitted under the law. The questions were neutral and intended to confirm the child's basic understanding before receiving her testimony. Additionally, although PWl's promise did not explicitly include the phrase 'not to tell lies, 'the Court of Appeal in Mathayo Laurence William Mollel v. R, (Criminal Appeal No. 53 of 2020) [2023] TZCA 52 (20 February 2023), clarified that a promise to tell the truth inherently implies a promise not to tell lies. This omission, therefore, does not render PWl's testimony inadmissible. Moreover, the reference to section 127(4) instead of 127(2) by the trial magistrate appears to be a clerical oversight, which does not affect the validity of the proceedings. This is further supported by section 127(7) of the TEA, as amended by the Legal Sector Laws (Miscellaneous Amendments) Act, 2023, which provides that procedural lapses in recording a child's promise do not affect the admissibility of their evidence. 15 Since the record shows that the trial magistrate complied with section 127(2) of the TEA, the appellant's argument lacks merit. The first ground of appeal is accordingly dismissed. On the 4th ground of appeal the appellant contended that the trial court failed to consider his defence. In response, the State Attorney argued that the trial magistrate properly evaluated and analyzed the evidence from both parties before reaching a decision. However, upon a thorough review of the trial court's judgment, I find no merit in the State Attorney's argument that the trial court adequately considered the appellant's defence. The principle of fair trial demands that the defence case be analyzed and weighed against the prosecution's evidence, even if ultimately rejected. This position was emphasized in Luhemeja Buswelu v. R, (Criminal Appeal No. 164 of 2012) [2013] TZCA 369 (19 September 2013), and Leonard Mwanashoka v. R, (Criminal Appeal No. 226 of 2014) [2015] TZCA 294 (24 February 2015), where the Court of Appeal underscored the duty of trial courts to consider and address an accused person's defence before convicting. 16 In the instant case, the trial magistrate merely concluded that the appellant's defence of alibi did not cast doubt on the prosecution's case, without conducting a proper evaluation or analysis of his evidence. Such an approach falls short of the legal requirement for courts to engage with the defence case meaningfully rather than dismissing it in a cursory manner. Nonetheless, as the first appellate court, I have the duty to re-evaluate the entire record and assess whether the trial court's failure led to a miscarriage of justice. In doing so, I will consider the appellant's defence in the context of whether the prosecution proved its case beyond reasonable doubt. This approach aligns with the principles established in Yusuph Amani v. R, Criminal Appeal No. 255 of 2014 (unreported), where the Court reaffirmed the appellate court's mandate to step into the shoes of the trial court and remedy any failure in evaluating the defence case. Accordingly, I shall proceed to examine the appellant's defence in the broader context of the prosecution's case. Moving to the complaint that the prosecution failed to prove its case beyond a reasonable doubt. It is undisputed that the appellant was charged with the offence of rape involving a girl under the age of 18, commonly 17 referred to as statutory rape. This offence is prescribed under section 130(1) and (2)(e) of the Penal Code, which states; '130. -(1) It is an offence for a male person to rape a girl or a woman. (2) A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions: (a) N/A (b) N/A (c) N/A (d) N/A (e) With or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from him' From the above provision, as correctly argued by the State Attorney, the prosecution was required to prove three essential elements; that the victim was below 18 years of age at the time of the incident, penetration occurred and it is the appellant who committed the offence. Numerous cases have expounded on how age can be proved. One such authority is Issaya Renatus v. R, Criminal Appeal No. 542 of 2015 [2016] TZCA 218 (29 April 2016), where the Court of Appeal held that; 18 'It is most desirable that proof of age be given by the victim, a relative, a parent, a medical practitioner, or, where available, through the production of a birth certificate.' In this case, the prosecution asserted that the victim was six years old at the time of the incident. Her age was not only specified in the charge sheet but also confirmed through her own testimony. This evidence was further corroborated by PW2, PW3 and the victim's birth certificate (Exhibit Pl). The appellant did not dispute this evidence. In the absence of any contrary proof, I find that the prosecution successfully established that the victim was below 18 years old at the time of the alleged offence. With the victim's age already proven, the next element to consider is penetration. In his submission, Mr. Mwapili urged the court to find that penetration was proved through the testimony of PW1, which was corroborated by PW2 and PW3, as well as the PF3 (Exhibit P2). To establish the offence of rape, section 130(4) of the Penal Code provides; 19 'Penetration, however slight, is sufficient to constitute the sexual intercourse necessary to the offence.' An analysis of the evidence given by PW1, PW2, PW3 and Exhibit P2 clearly demonstrates that penetration occurred. PW1 recounted experiencing heavy vaginal bleeding. PW2, who examined her, also observed the bleeding. PW3, the medical doctor, provided a detailed medical report confirming that PW1 had been penetrated. His findings indicated that her hymen was perforated and her vagina was abnormally wide, consistent with penetration by a blunt object. Moreover, an ultrasound examination revealed a blood clot in the cervix, caused by the penetration, which resulted in excessive bleeding. In light of section 130(4) of the Penal Code, this evidence demonstrates that penetration was more than slight, thereby satisfying the legal requirement for proving this element of the offence. With the first two elements established, the final issue for determination is whether it was the appellant who committed the offence. Section 130(1) and (2) of the Penal Code provides; 20 '130. -(1) It is an offence for a male person to rape a girl or a woman. (2) A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions...’ As discussed earlier, the appellant was charged under section 130(2)(e). Under this provision, for an act to constitute rape, there must be proof of sexual intercourse, which legally requires penile penetration of the vagina. In other words, the male organ (penis) must penetrate the female organ (vagina). Any other form of sexual activity such as touching, fondling, or penetration with objects or body parts other than the male organ does not constitute rape under this specific section, though it may fall under other sexual offences recognized by law. It is within this statutory context that the prosecution was required to prove that it was the appellant who inserted his penile organ into the victim's vagina. In assessing whether the appellant was the perpetrator, I am guided by the well-established principle that in sexual offences, the best evidence comes from the victim. While corroborative evidence from other witnesses 21 may strengthen the case, the victim's testimony remains central to establishing the identity of the offender. However, while guided by this principle, I will also exercise caution in evaluating the victim's evidence. It is essential to ensure its credibility by considering key factors such as coherence, reliability, and the overall circumstances of the case. The Court of Appeal, in Martin Jacob @ Mlila v. R (Criminal Appeal No. 434 of 2021) [2024] TZCA 447 (11 June 2024), reinforced this cautious approach by referring to the longstanding warning articulated by Lord Justice Matthew Hale in the 17th century, which underscores the necessity of carefully scrutinizing evidence in sexual offence cases. The Court stated; 'That rape is an accusation easily to be made and hard to be proved and harder to be defended by the party accused. Such position has been repeated in many decisions of the Court including the case of Tito Paulo Kuchungura (supra). Therefore, allegations of rape require to be addressed cautiously. Owing to the nature of the offence, the evidence must be examined carefully. Despite the rule that the victim’s evidence is the best as was held in the case ofSeieman Makumba v. Republic [2006] T.L.R. 379, yet such evidence should not be taken as a holy version to be believed wholesome rather, credibility of the victim must 22 be tested and approved. See: Mohamed Said v. Republic, (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (23 August 2019, TANZLII). [Emphasis added] Similarly, in Straton s/o Steven Mboya v. R (Criminal Appeal No. 576 of 2020) [2024] TZCA 349 (10 May 2024), the Court reaffirmed that every witness is entitled to credence unless their testimony is improbable, implausible, or contradictory. In evaluating the credibility of the victim's evidence, this court will assess its coherence and consistency with the testimony of other witnesses. As established in the case of Martin Jacob @ Mlila v. R (supra), the assessment of a witness's credibility is determined by examining the consistency and reliability of their testimony in relation to other existing evidence. To assess whether the evidence establishes that it was the appellant who penetrated PW1, the court examined the testimony given. PWl's account, as recorded, states; 'On 30/04/2024, I was at home alone. My grandmother was at the farm. While inside, I heard a noise 'duh duh duh. 'Then Mbuta came, removed his 'mdudu,' and inserted it here (while pointing to her private part)... At the dawn bibi came back. Bibi told me 'amka 23 huko' bibi called Rahma and Sadu and asked them what happened to me they said that they did not know. I came out while hiding my clothes, 'nilikua natembea huku nguo nimezibana' bibi sent me to pick some vegetables I went without saying anything. I came back bibi pulled the short I wore and saw blood... Bibi asked me 'amekufanyia nani hivyo 'I said Mbuta' On the other hand, PW2 stated that upon returning home at around 19:00 hrs, she did not find PW1. However, after a short while, PW1 returned. PW2 testified; . .1 returned home late because the bicycle we used got issues. We reached home around 19:00hrs. I did not find PW1 at home but few minutes my grandchild came back,... I asked her to go pick some salt for me. When she stood up, I discovered that her clothes are stained with blood. I asked her what happened? Where did you go to play today? She said I played here in our home 'wamenibaka na Mbuta' when I inspected her, her vagina had blood dotted and some of blood was still freshly spilling out of the vagina...' The evidence further reveals that PW1 was taken to the hospital, where she was examined by PW3. However, PW3 testified that upon questioning PW1 about what had happened to her, PW1 responded; 'Amejikwaa kisiki kimechoma.' 24 Additionally, the record indicates that during cross-examination, PW1 mentioned that Mama Salumu and Mama Nai arrived at the scene to assist her. In response to the appellant's cross-examination, she stated; 'Mama yake Salumu and Mama yake Nai came to help me but they did not find you.' However, during re-examination, she responded; 'Mama Sa/um and Mama Nai came into my rescue but Mbuta had already left.' k critical examination of the above testimonies reveals inconsistencies that cast doubt on whether the prosecution successfully established that the appellant committed the offence. While PW1, in her examination in chief, implicated the appellant, PW2 testified that upon asking PW1 who had assaulted her, she responded, 'wamenibaka na Mbuta'which implies that more than one person was involved. This directly contradicts PWl's initial assertion that only the appellant was responsible. Furthermore, when examined by PW3 at the hospital, PW1 provided an entirely different account, stating that she was injured by a tree stump. This inconsistency significantly affects the reliability of her testimony and raises doubts as to whether she was coerced into making her initial statement or if her account was influenced by external factors. The 25 conflicting statements call into question whether PW1 was penetrated by a penile organ or whether her injuries were caused by a tree stump. Medical evidence plays a critical role in corroborating sexual offence allegations. However, in this case, PW3's findings do not align with PWl's initial testimony. If penetration had occurred as PW1 initially claimed, it would be expected that she would consistently maintain this account rather than later asserting that she was injured by a tree stump. Additionally, while PW1 stated that after the act, she remained inside and did not leave, PW2 testified that upon returning home, she did not find PW1. This contradiction further weakens the prosecution's case. Moreover, during cross-examination, PW1 stated that Mama Nai and Mama Salumu arrived to assist her after the alleged act, but by that time, the appellant had already left. This raises further concerns about the reliability of the prosecution's case. If these two women indeed arrived to assist PW1, why is there no detailed account of how they assisted her? If they found her injured and bleeding, would they have simply left without offering any help? Considering that the victim is a child of tender age, it is highly unlikely that they would have arrived and then left her in such a state without providing any form of 26 assistance. The absence of any explanation regarding their role in this situation is indeed troubling and leaves many questions unanswered. These two women, Mama Nai and Mama Salumu, were crucial witnesses as they were allegedly the first to arrive at the scene. If they had testified, they could have provided clarity on what transpired. Their absence from the witness list creates a gap in the prosecution's case and warrants an adverse inference against the prosecution, as emphasized in the case of Aziz Abdalah v. R [1991] T.L.R 71. This court is mindful of the legal principle that contradictions in testimony must be assessed to determine whether they are minor or major. If they are minor, they may be disregarded. However, if they are major and go to the root of the case, they cannot be ignored. This principle was underscored in the case of Dickson Elia Nsamba Shapwata and Another v. R (Criminal Appeal No. 92 of 2007) [2008] TZCA 17 (30 May 2008). Upon careful analysis, the contradictions identified in PWl's testimony are substantial and go to the root of the case. These inconsistencies, coupled with the absence of material witnesses and the lack of corroborative medical 27 evidence, create reasonable doubt as to the appellant's guilt. Consequently, the prosecution has failed to establish its case beyond a reasonable doubt. Accordingly, the appeal is allowed, the conviction is quashed, and the sentence is set aside. The appellant is to be released forthwith unless otherwise lawfully held. It is so ordered. Datedat Mtwafa this 10th March, 2024. M.B. Mpaze Judge Court: Judgment delivered in Mtwara on this 10th day of March, 2025 in the ' A * •••* presence of Mr. Edson Lawrence Mwapili State Attorney and the appellant. 10/3/2025 28