EMMANUEL IBRAHIM AWAKI VS THE REPUBLIC

IN THE HIGH COURT OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA DC CRIMINAL APPEAL NO. 35127 OF 2024 (Arising from the Judgment of the District Court of Kondoa in Criminal Case No. 19419 of 2024)

BETWEEN EMMANUEL IBRAHIM AWAKI ……….……….…..………APPELLANT VS THE REPUBLIC ……….……………………..…..………..RESPONDENT

JUDGMENT Date of the last Order: 26/03/ 2025 Date of the Judgment: 08/04/ 2025 LONGOPA, J.: The appellant was convicted and sentence to life imprisonment for offence of rape C/S 130(1), (2) (e) and 131(3) of the Penal Code, Cap 16 R.E. 2022 which he allegedly committed against one GE aged 9 years old at Idindiri Village in Kondoa District within Dodoma sometimes in June 2024. 1|Page The prosecution called a total of five witnesses to prove its case while the appellant called three witnesses to support his defence. Upon hearing both sides, the trial court found the accused/appellant guilty of the offence hence on 12th day of November 2024 entered conviction and sentence against him to serve life imprisonment term. The appellant was aggrieved with the conviction and sentence of the trial court thus on 18th day of December 2024, the appellant instituted an appeal against both conviction and sentence in the following grounds, namely: 1. That, the Proceedings of the criminal case No. 000019419 of 2024 of the Kondoa District Court is tainted with illegalities.

2. That, the Prosecution failed to prove its case beyond reasonable doubts.

3. The Appellant was denied of his right to cross examine the PW2 the Victim. 2|Page 4. That, the Prosecution witnesses were contradicting. The parties appeared before me on 26th March 2025 for viva voce hearing of the appeal. The appellant enjoyed the legal services of Mr. Pastor Florence Kong’oke, learned advocate and the respondent had services of Ms. Prisca Kipagile, learned State Attorney. Both learned counsel commendably provided this court with thoughtful arguments based on well research position of the law. Indeed, the learned advocate for appellant and learned State Attorney for respondent have done justice to this court to be able to determine the appeal having heard thorough rival positions of the parties. Mr. Pastor Kong’oke, learned advocate was the first to make submission in support of the appeal. In respect of the 1st ground of appeal on irregularities, it was submitted that the proceedings do not indicate that the appellant was availed the copies of the charge and complainant's statement as required by section 9(3) of the Criminal Procedure Act, Cap 3|Page 20 R.E. 2022 which calls for the need to avail the Complainant's statement to the accused person. The proceedings are silent on availing the complainant's statement as well as being availed with the charge he was facing. The aim of availing the accused with the charge and the complainant statement is to give

him opportunity to be prepared for defence of the case he is facing. In the case of Maziku Shija Kimumo vs Republic, Criminal Appeal No. 382 of 2015 at page 13, the Court of Appeal stated that denial to avail of the charge and complaint's statement by the trial court vitiated the whole proceedings of the trial court. The applicant in that case applied for proceedings of the case and the Court of Appeal was of the view that denial of the proceedings though they were not legal requirement amounted to denying the appellant the right to defend properly his case. In the instant appeal the documents that the appellant was denied are mandatory. It was the duty of the court to avail the documents whether the same are requested or not by the appellant/ 4|Page accused person. The failure to avail the Complainant's statement makes the whole proceedings nullity as there was denial of equality in hearing of the case. It was the appellant’s prayer that this ground be allowed as it is meritorious. On the 2nd ground related to the failure to prove the case beyond reasonable doubts, it was submitted that the appellant was charged for rape of a girl of 9 years old. Save for words of the victim that she was aged 9 years old, there was nothing on record indicating that the victim was aged 9 years old. PW 1 and PW 5 stated about the age of the victim but none of them stated how she/he came to know

that the age of the victim was 9 years old. PW 1 was a school teacher who could have brought the attendance register or admission register that could have proved the aged of the victim to be 9 years old. PW 5 stated to have interviewed the victim's mother who disclosed that the age of the victim was 9 years old. There was no evidence relating to the reasons for failure to bring the victim's mother to testify on the age of the victim. 5|Page Counsel for appellant submitted that the question of age in sexual offences is a serious issue and very important as it forms the ingredient of the offence. In this case the appellant was sentenced to life imprisonment for the reason that age of the victim thus it was crucial to have cogent evidence on the same. In Ali Athumani vs Republic [1991] TLR 59 the High Court stated that in cases of defilement the age is mandatory thus any failure to prove age makes the proof of the case to have not met the standard of proof required under the law. It was reiterated that at page 2 of the Judgment of the trial Court, there are indications of reasonable doubts as the victim PW. 2 stated to have been carnally known in her vagina and against the order of nature/anus several times by the appellant. However, PW 4 who is medical officer stated to have found bruises on the victim's vagina but the anus was fine as there was nothing indicating penetration of

the anus of the victim. The findings of the medical officer on absence of penetration of victim's anus raises doubts on the evidence of the victim thus making the same contradictory as the unnatural offence stated in the evidence of the 6|Page victim was untrue according to the evidence of the PW 4. There was no count of unnatural offence preferred as the prosecution knew that the victim's evidence was not disclosing the offence of that nature. The prosecution did not question the child on the unnatural offence allegation in order to show that the evidence of the victim on the offence of rape was correct. It was submitted that there are serious doubts on the evidence of the PW 2 who is the victim thus the appellant’s position that the case was not proved beyond reasonable doubts by the prosecution who were duty bound to prove. The appellant relied on the case of Maziku Shija Kimumo that the appellant had no duty to prove his innocence except to show loopholes or doubts which actually he managed as we have demonstrated above. Accordingly, the appellant stated this ground has merits and urged this court to uphold it. On the 3rd ground on denial of the right of the appellant to cross examine against the evidence of the PW 2, it was submitted that page 11 of the proceedings reveals that PW 2 was examined in chief and there 7|Page proceeded to be cross examined by one Ms. Lukio,

State Attorney and there was no re-examination done. The appellant was denied the right to cross examine the testimony of PW 2. The denial to cross-examine which deprived the appellant the right makes the whole proceedings violate the Evidence Act especially Section 146 of the Act relating to examination of witnesses’ stages. The learned State Attorney was not allowed to cross examine on behalf of the appellant. The Court of Appeal has stated that denial of the right to cross examine amount to denial of the right to be heard. The case of Frank John Mariki and Another vs Republic, Criminal Appeal No 289 of 2015 (TANZLII) is illustrative on this aspect. It is argued that the proceedings are vitiated by the denial of the right to be heard as the appellant was denied the right to cross examine the witness. It was reiterated that this Court be willing to allow the appeal as there was no proof of the case beyond reasonable doubts and the proceedings were marred with irregularities thus revealing that the trial was unfair against the appellant for failure to adhere to the rights of 8|Page the parties in the case thus denying him the right to be heard thus violating fair hearing right. We pray that this Court allow the appeal, quash the proceedings and set aside the conviction and sentence. On the other hand, Ms. Prisca Kipagile, learned State Attorney for the respondent objected the

appeal for lack of merits. In respect of the 1st ground, it was submitted that such ground lacks merits as there was no right violated for failure to avail the complainant’s statement and a charge. It was reiterated that the appellant was called upon to plead when arraigned in court and the preliminary hearing where he only admitted his personal particulars while denied all other facts indicates that the appellant understood the charge and facts constituting the offence. There was no right denied as the appellant was given opportunity to cross examine every witness of the prosecution and right to defence where there were three witnesses of the defence for the appellant herein. The respondent is of the view that there is nothing prejudiced the appellant to vitiate the proceedings, conviction and sentence. 9|Page In Elibariki Naftal Mchomvu vs Republic, Criminal Appeal No. 332 of 2019, at pages 9-10, the Court of Appeal stated that non- provision of the complainant statement to the accused does not vitiate trial and it is not fatal. The respondent is of the view that there was no merits in this ground of appeal. In respect of 2nd ground on proof beyond reasonable doubt, it was submitted that the prosecution managed to prove the case to the required standard. The appellant was charged for rape c/s 130(1), (2) (e) and 131 of the Penal Code, Cap 16 R.E. 2022 ingredients of the

offence were: (1) age of the victim (2) penetration and (3) that it is the appellant who committed the offence of rape by penetrating the victim’s genetalia. With regard to age, the respondent’s State Attorney stated that it was clear that the same was proved by PW 1, a school teacher of the victim as revealed in page 10 of the proceedings of the trial court who stated explicitly that age of the victim was 9 years. In Eliud Mgashi vs Republic, Criminal Appeal No 658 of 2020, at page 7, the Court of Appeal 10 | P a g e stated that witnesses who may prove about age of the victim include the guardian, parent, victim and a medical practitioner. In the instant appeal, the school teacher is a guardian. There is no legal requirement to the guardian to lay foundation on the age. The evidence of PW 1 and PW 2 evidence tallied on the fact that PW 1 was a headteacher of the Idindiri Primary School while PW 2 is a student/ pupil at that school. The appellant did not cross examine on the age of the child as stated by PW 1 thus failure to cross examine indicates that the appellant admitted the age of the victim was correct. The victim’s parent was not necessary to prove the age. There is no specific number of witnesses required to prove the case as per section 143 of the Evidence Act, Cap 6 R.E. 2022 which provides that “no number of witnesses is required to prove the case.” Thus, age was

proved by PW 1 who is the guardian. According to Ms. Kipagile, learned State Attorney, penetration of the victim was proved by the victim herself (PW 2) who informed the court how the appellant executed the commission of the offence of rape by taking the victim to the escarpment/ gorge, undressing the victim, 11 | P a g e undressing himself then penetrating the vagina of the victim as reflected on page 11 of the proceedings. PW 3 corroborated this evidence as she/he saw the incident where the appellant threatened to kill the victim if she reported the matter to anyone. PW 4, the medical officer also corroborated the evidence of the victim orally together with Exhibit PE. 1 (PF 3) that proved penetration as revealed in page 16 of the proceedings. That element of penetration was fully proved. The aspect of unnatural offence and the disparities of the evidence of PW 2 and PW 4 has no merits as principle in the case of Selemani Makumba vs Republic [1999] TLR is illustrative where the court stated that the best evidence in the sexual offences is that of the victim. The learned State Attorney argued that it was sufficient to believe the victim on what she stated as she had credible and reliable evidence as she is one who experienced the ordeal. She reiterated that the element of penetration was proved. 12 | P a g e For the last ingredient, it was submitted that the same was

well proved without any flicker of doubts as the victim named the appellant alone as the person who raped her as per page 11 evidence in the proceedings. The same was witnessed by PW 3 who was an eye-witness to the instance of rape as per page 12 of the proceedings. The totality of the prosecution evidence points to the appellant to have been the one raped the victim. As the prosecution proved the elements of rape before the trial court, the same wa proved beyond reasonable doubts as the ingredients were established. On the 3rd ground, it was submitted that it is only slip of the pen issue that the court that tried the case indicated that the appellant did cross examine the witness. The respondent cited Sylvester Stephano case on effect of mere typing errors. Also, in the case of Edward Ezekiel Sheyo vs the DPP, Criminal Appeal No 78 of 2022 [2023] TZHC 19403 (10 February 2023) (TANZLII), at page 17, the court observed that merely typing errors of typed proceedings is normal and does not vitiate the trial/ the whole proceedings. It was submitted that the appeal that the appeal be 13 | P a g e dismissed in its totality and the conviction and sentence of the trial court be upheld thus continue to be in force. In rejoinder, Pastor Kong’oke, learned advocate reiterated that the failure to avail the complainant’s statement and charge denied the appellant the right to prepare

adequate defence. It was argued that basically, the appellant does not know the complainant todate as whether the complainant was PW 1, PW 2 or PW 3 thus he was treated unfairly. The appellant lacked the benefit of the complainant’s statement. The proceedings reveal that the appellant did not get an opportunity to cross- examine the PW 2. The case of Elibariki Naftali Mchomvu is distinguishable. It was reiterated that the 1st ground is merited by denial of the complainant statement. On the 2nd ground, it was rejoined that the age of the victim was not proved. It is true that school teacher was capable of testifying on age but reckoned from documents and year of birth. There was no evidence of age of the child/victim, the appellant could not have cross examined on age of the victim. The cross-examination failure has no merits. The age was to be 14 | P a g e proved by the prosecution. There was no age proved. The parent was the witness who was necessary/ important to prove age of the victim only. It was further reiterated that the evidence of PW 2 was doubtful as the medical doctor said there was no unnatural offence. The evidence of PW 2 was not reliable and credible. On the question of the typing errors, the proceedings are in the original form of the proceedings. The case of Sylvester Stephano case, there were the typing errors are corrected by the trial court, it is

our submission that there was no typing error thus record of the court should be taken to reflect the truth and correct position of the law. We submit that the errors could be corrected by the prosecution filing an application to correct the errors but todate none has been filed. As the proceedings indicates that the appellant was not availed opportunity to cross examine the proceedings are a nullity. It was appellant’s prayer that the appeal be allowed. 15 | P a g e Having heard well researched rival submissions of the parties, this court is enjoined to determine the validity of the appeal. This court has thoroughly reviewed the proceedings of the trial court, judgment and petition of appeal in light of the grounds of appeal. The applicable legal principles both statutory and precedents were also considered to determine the appeal. On the first ground of appeal relating to the failure of the trial court to avail the appellant with Complainant’s statement, it is correct that section 9(3) of the Criminal Procedure Act, Cap 20 R.E. 2022 is couched in mandatory form that the accused person is entitled to be availed with such statement. However, the effect of the failure to avail such statement has two schools of thought. The first school may be taken to be that in Maziku Shija @ Kimumu vs Republic (Criminal Appeal No. 382 of 2015) [2016] TZCA 667 (19 February 2016) (TANZLII), at

pages 12-13 where the Court of Appeal stated that: 16 | P a g e We think the appellant was denied a fair hearing in that he was not allowed to test the credibility of the witness by referring to a previous statement that the witness had signed. Bearing in mind that the appellant is a lay person the trial magistrate was obliged to ensure that he was availed of all his rights pertaining to the conduct of the prosecution against him. We note that Mr. Ngole agreed that the appellant was entitled to see the paper that he demanded to be tendered by the witness…We think this was an unfortunate remark. The appellant who is a lay person said that he needed the proceedings so as to enable him to prepare his defence. Though the magistrate said that there was no such procedure it is equally true that there is no procedure for denying a lay accused person a copy of proceedings when he requires the same for preparation of his defence. In fact, for justice to have been done and seen to be done, the trial magistrate ought 17 | P a g e to have acceded to the appellant's request notwithstanding the constraints faced by the justice administration system. It was not absolutely necessary that the appellant should have been given typed proceedings. A certified photocopy would have sufficed in our view. Though this school holds the view that failure to avail the complainant with proceedings which he

requested amounted to denial of his right to be heard thus unfair hearing of the case against the appellant. The second school of thought is that evidence must be considered in its totality to find out whether such failure caused injustice to the accused/ appellant. This school considers that generally failure to avail the complainant statement to the accused is curable under section 388 of the Criminal Procedure Act. This is the most recent and consistent school of thought in this jurisdiction. This position was reiterated in the case Daniel Kivati Monyalu vs Republic (Criminal Appeal 224 of 2019) [2021] TZCA 561 (7 September 18 | P a g e 2021) (TANZLII), at pages 7-8, the Court of Appeal of Tanzania stated explicitly that: Section 9(3) of the CPA is couched in mandatory terms. Provision of the complainant's statement to accused is at the initiative of the court where conditions therein are fulfilled. The record of appeal shows clearly that the trial court failed to provide the appellant with the said statement and as argued by both sides, undoubtedly, section 9(3) of the CPA was contravened. We are of the view that, had the High Court Judge carefully considered what transpired in the trial court, he would not have found that this complaint by the appellant was an afterthought. At this juncture, what remains thereof is to consider the fatality of the said anomaly and the

consequences thereof. Taking into account all the circumstances obtaining, we agree with the learned State Attorney that the appellant was not in any way prejudiced by the said anomaly. 19 | P a g e Consequently, we find that although the trial court failed to comply with section 9(3) of the CPA, the appellant was not prejudiced and the anomaly is curable under section 388 of the CPA. Thus, this grievance lacks merit (Emphasis is added). A similar position has been reiterated in Rashid Juma Kimolo vs Republic (Criminal Appeal No. 784 of 2023) [2025] TZCA 242 (19 March 2025) (TANZLII), at pages 10-11, the Court of Appeal of Tanzania categorically states that: This court had an opportunity to deal with similar issue regarding the effect of non-compliance with section 9(3) of the CPA in Abdallah Seif v. The Republic [2022] TZCA 196, TANZLII and Elibariki Naftal Mchomvu v. The Republic [2022] TZCA 606, TANZLII. In the latter case the Court stated: “... the accused's entitlement to such information or statement enshrined in section 9(3) of the CPA is one of the tenets of the fair trial. Nonetheless, in 20 | P a g e this case it has not been demonstrated that the omission caused the appellant any injustice. We agree with Ms. Mlenza that he utilized fully the opportunity to cross examine the complainant as well other witnesses which suggest that he was able to martial a formidable

defence not having served with a copy of the complaint's statement. Accordingly, we hold that the error did not occasion any failure of justice justifying our interference. It is curable under section 388 of the CPA." What happened in the instant case is similar to what was described above. The appellant understood the charge, he cross-examined all prosecution witnesses and was able to marshal his defence. Therefore, the omission to serve him with the complainant's report did not prejudice him or cause miscarriage of justice. The omission is curable under section 388 of the CPA. This ground is similarly dismissed for lack of merit. 21 | P a g e The same position was expressed in plethora of authorities including the following, namely: William Kisanga vs Republic (Criminal Appeal No. 90 of 2017) [2020] TZCA 279 (28 May 2020) (TANZLII); Asobhisye Amangsye vs Republic (Criminal Appeal No. 627 of 2020) [2023] TZCA 17974 (14 December 2023) (TANZLII); and Jovin Daud vs Republic (Criminal Appeal No. 4821 of 2020) [2024] TZCA 97 (23 February 2024) (TANZLII), to mention but a few. It is lucid that the recent and most consistent principle is that generally the failure to avail the accused/ appellant with complainant’s statement is not fatal and it is curable under section 388 of the CPA. Upon perusal of the records of trial court it is clear that the appellant was afforded the right to

be heard sufficiently. First, the charge was read and explained to the appellant where he was invited to enter plea. Second, the appellant entered plea of not guilty to the offence. Third, when the facts of the case were read, the appellant denied everything except his personal particulars implying that he understood very well the charges he was facing. Fourth, the appellant was present when all the prosecution 22 | P a g e witnesses testified and he was availed opportunity to cross examine all the witnesses. Fifth, the appellant defended oneself and called other witnesses to testify in his favour. All those aspects reveal that the appellant was not prejudiced by failure of the trial court to avail the complainant’s statement. It is settled view of this court that this ground of appeal lacks merits. The second ground of appeal is on proof of the case. The parties are at cross-roads regarding proof of the case to the required standard. It was the appellant’s view that the case was not proved to the required standard. The complaint was premised on two aspects, namely: one, that age of the victim was not proved. Two, that evidence of PW 1 was contradictory thus unreliable and incredible as it differed with that of PW 4, a medical officer who stated that there was no unnatural offence committed against the victim. On the other hand, the respondent’s counsel reiterated that

all three elements of the offence of rape were proved, namely penetration, age of the victim and that it is the appellant was committed the offence. 23 | P a g e I have thoroughly reviewed available records, and certainly this ground of appeal appears to be delinquent of merits. I state so as a result of review of available oral evidence of PW 1, PW 2, PW 3, PW 4 and PW 5 as well as documentary evidence on record, Exhibit P.1. which is the PF 3. The prosecution evidence was not seriously challenged by the appellant’s evidence to raise any reasonable doubts. In fact, exhibit P. 1 cements the cause in respect of two important aspects of the offence of rape which are penetration and age. The question of penetration is critical to establish the offence of rape. In the Maligile Maingu vs Republic (Criminal Appeal No.432 of 2021) [2023] TZCA 17303 (5 June 2023) (TANZLII), at page 17, the Court reiterated that: In terms of the cited provision, to prove the offence of rape, penetration however slight is sufficient to constitute the sexual intercourse necessary to the offence. The basic element to be proved is the penetration of the victim's vagina and there is no need of proving the existence of 24 | P a g e sperms in the victim's vagina because penetration however slight is sufficient to establish rape. See the case of George Mwanyigili vs. Republic, Criminal Appeal No. 335 of 2016.

In this case, the Court held that: "Once again; we agree with Mr. Mtenga that what is important is the fact that there were bruises in the victim girl's female organ, an aspect which was indicative of the fact that there was penetration which is a crucial ingredient of the offence of rape. It is on record that evidence of all prosecution’s witnesses reiterated on the victim being penetrated. PW 1, PW 2, PW 3, PW 4 and PW 5 stated in course of adducing their respective evidence that the victim was penetrated. Two witnesses are categorically material in respect of penetration of the victim for the offence of rape to subsists. Evidence of PW 2, the victim is very lucid. She stated that appellant penetrated her on the material date. Evidence of PW 2 is to the effect that the appellant raped her. It is on record that PW 2 stated among others, that: … the 25 | P a g e accused person took me and laid me down to the grass there. He undress my clothes and then he undresses his clothes and then inserted his penis into my vagina and anus "aliniingizia dudu lake mbele na nyuma" and he warned me not to say to anyone and that he is going to kill me. And he did it to me several times and that time the school was closed it was in June 2024. This evidence leaves no doubt as the victim categorically stated that ordeal by stating that the appellant is the one who inserted his penis in

the victim’s vagina. The evidence of the victim in sexual offences is the best evidence. The principle applicable in the circumstances was recently reiterated in Butongwa John vs Republic (Criminal Appeal 450 of 2017) [2021] TZCA 415 (26 August 2021) (TANZLII), at page 10, the Court observed that: That the best evidence of sexual offences comes from the victim, is too familiar a principle to require more justification from us. The cases of Seleman Makumba vs. Republic [2006] T.LR 379 and many others on the 26 | P a g e point, including those cited by Ms. Mapunda, now form a settled principle. On that basis, the best evidence of rape in this case has to come from PW2. This evidence was corroborated by PW 4, the medical practitioner’s evidence. Totality of PW 4 testimony is that victim’s vagina was penetrated. Exhibit P.1 reveals that PW 4 found bruises on the vagina of the victim and the fingers were partially penetrating to the victim’s vagina evidence that victim was penetrated. As such conclusion of evidence on record leaves no doubt that the victim was penetrated. The second most important ingredient is that of age. Age of the victim can be proved by different mechanisms including the evidence of the victim himself, parents, school records or medical record that has indicated the age. There is plethora of authorities on this aspect. In the case of Hassan Bundala @ Swaga vs

The Republic (Criminal Appeal 386 of 2015) [2015] TZCA 261 (23 February 2015), at page 4 the Court of Appeal observed that: 27 | P a g e Not only was the age of the victim mentioned in the charge sheet but the medical evidence through PW6 and the PF3, exhibit PE1 showed that the victim was aged 8 years when she was raped. The appellant did not challenge this evidence then and he can't be heard at this stage to say that the age of the victim was not proved. Also, in the case of Peter Bugumba @ Cherehani vs Republic (Criminal Appeal 251 of 2019) [2023] TZCA 221 (4 May 2023) (TANZLII), at pages 6 -7, the Court observed that: Besides proof of penetration, establishment of the age of the complainant is particularly significant as emphasized in the case of Issaya Renatus v. Republic, Criminal Appeal No. 542 of 2015 (unreported): "We are keenly conscious of the fact that age is of great essence in establishing the offence of statutory rape under section 130 (1) (2) (e), the more so as, under the provision, it is a requirement that the victim must be under the age of eighteen. That being 28 | P a g e so, it is most desirable that the evidence as to proof of age be given by the victim, relative, parent, medical practitioner or, where available by the production of a birth certificate. We are however, far from suggesting that proof of age, must, of necessity, be derived from such

evidence. There may be cases, in our view, where the court may infer the existence of any fact including the age of the victim on the authority of section 122 of [the Evidence Act]… On record, the question of age was proved beyond circumspection. Oral evidence of PW 1, the school teacher of the victim stated that the age of the victim is 9 years old. This evidence was collaborated by PW 4, a medical doctor who stated explicitly that he examined the victim of sexual offence aged 9 years old. Similarly, PW 5 police officer testified that the age of the victim was 9 years old. This evidence tallies squarely with that of PW 2, the victim who stated that she is aged 9 years old. 29 | P a g e In law, the evidence of PW 1, PW 2 and PW 4 suffice to establish the question of age of the victim as per well established legal principle that age may be proved by a guardian, parent, victim or medical practitioner. PW 1 was a head teacher of the school where the victim is studying hence the guardian. PW 2 was the victim herself and PW 4 is the medical practitioner who examined the victim. That oral evidence alone is sufficient as it was not serious challenged through cross-examination by the appellant. More lucidly, Exhibit P.1 speaks volumes. In Exhibit P. 1 it is clearly stated that the age of the victim is 9 years old. The age appears twice in PF 3, which exhibit P.1 whereas on the first

page it is stated and on the second page where a medical practitioner examining a victim has stated categorically that estimated age of the victim is 9 years old. Guided by the principle in Hassan Bundala @ Swaga (Supra) and of Peter Bugumba @ Cherehani (supra), this court is certain that age of the victim was proved without any flicker of doubts. 30 | P a g e With regard to whether it is the appellant who raped the victim, it is certain that there are two eye-witnesses of the incident, PW 2 who is the victim and PW 3 who is the victim’s young brother. Both PW 2 and PW 3 stated that the incident happened on the material date whereas the appellant raped the victim and warned both PW 2 and PW 3 not to report to anyone about the incident thus threatened to kill any one who would report it. With regard to contradictory nature of the victim’s evidence, this is not difficult limb to determine. The appellant’s counsel premised the contradiction of the evidence on the fact that evidence of PW 2 stated that she was penetrated against the order of nature while the PW 4 testimony was to the effect that anus was never penetrated. That is the only basis of the appellant’s lamentation on failure to prove the case to the required standard. It should be noted that the offence the appellant stood charged was offence of rape c/s 130(1), (2) (e) and 131 of the Penal Code Cap 16 R.E.

2022. The offence of rape has nothing to do with penetration of the 31 | P a g e victim’s anus. Thus, the mere mention of the penetration of the anus by PW 2 does not in itself make the evidence of the victim contradictory. There was no allegation or charge of unnatural offence preferred against the appellant thus legally speaking one cannot rely on mere mention of penetration of the anus to raise the reasonable doubts. I am inclined to find out that evidence of PW 2 is credible and reliable evidence in law. The reasons are that: one, the evidence of PW 2 on the offence of rape that was the subject matter before trial court was consistent with evidence of all other witnesses. PW 2’s testimony on rape tallied with all other prosecution’s witnesses. Two, the cross-examination of the PW 2 by the appellant revealed consistency and did not shake the testimony of PW 2. Third, PW 2 testimony revealed that she knew the appellant as he used to go at the victim grandmother’s place to drink liquor. The trial court’s magistrate having found that evidence of PW 2 was credible, this Court has nothing on record to controvert such finding on credibility of the evidence of PW 2. As PW 2 was a competent witness who 32 | P a g e testified in trial court in consistent and lucid manner, there is no reason whatsoever for this court to interfere with the finding on credence of that testimony. The

principle is illustrative in the case of Nyakuboga Boniface vs Republic (Criminal Appeal No. 434 of 2016) [2019] TZCA 461 (29 November 2019) (TANZLII), at pages 5-7, where the Court of Appeal held that: To begin with, we would wish to make it plain that any person, who is a competent witness in terms of the provisions of section 127 of the Law of Evidence Act, Cap. 6 R.E. 2002 (the TEA), is entitled to be believed and hence, a credible and reliable witness, unless there are cogent reasons as to why he/she should not. See: Goodluck Kyando Vs Republic [2006] T.L.R.

363. There are no rules of thumb in determining the credibility, truthfulness or reliability of a witness. It all depends on how the demeanour of the witness, has been assessed by the presiding Judge/magistrate, and the assessment which is made to the evidence which he/she gives in court. This 33 | P a g e is because the assessment of demeanour, is the monopoly of the presiding Judge/magistrate. Having found that all ingredients of the offence of rape were well established within the parameters required by the law, it is crucial to restate that in circumstances of the case dictate that prosecution managed to meet both the standard of proof and the duty to prove. In Matibya N g'habi vs Republic (Criminal Appeal No. 651 of 2021) [2024] TZCA 34 (14 February 2024) (TANZLII), at page 7, the Court of Appeal illustratively stated that: At the outset, it is instructive to state that, this being a criminal case, the burden lies on the prosecution to establish the guilt of appellant beyond reasonable doubt. In Woodmington v. DPP [1935] AC 462, it was held inter alia that, it is a duty of the prosecution to prove the case and the standard of proof is beyond reasonable doubt. The term beyond reasonable doubt is not statutorily defined but case laws have defined it. For instance, in the 34 | P a g e case of Magendo Paul & Another v. Republic [1993] T.L.R. 219 the Court held that: "For a

case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed. " It is noteworthy that, the duty and standard of the prosecution to prove the case beyond reasonable doubt is universal in all criminal trials and the duty never shifts to the accused. All ingredients of the offence of rape in this appeal were sufficiently established by the prosecution’s testimonies leaving no room for doubts. Similarly, the defence evidence never raised any cogent doubts to warrant this court to interfere with the findings of the trial court. As a result, the second ground crumbles naturally for being devoid of merits. 35 | P a g e The last ground relates to the failure to observe the right to be heard of the appellant. The parties are not in concurrence on the denial of the right to cross examine PW 2 testimony. The appellant argued consistently that appellant was not availed opportunity to cross examine PW 2, the victim instead the same learned State Attorney cross-examined the witness hence contravening the provisions of section 146 of the Evidence Act, Cap 6 R.E.

2019. That version of argument is countered by the respondent that at no point in time the learned State Attorney cross examined PW 2. The respondent argued that what appears on record is only a slip of the pen thus the court should disregard the lamentation as the settled legal principle is that error due to slip of pen are curable. It is settled law that effect of denial of the right to cross-examine results into the disregard of the evidence of the witness which was not subjected to cross- examination. In Pantaleo Teresphory vs Republic (Criminal Appeal No. 515 of 2019) [2023] TZCA 47 (23 February 2023) (TANZLII), at pages 27-28, the Court stated that: 36 | P a g e Contrary to the above position of the law, when subjected to cross-examination, the victim refused to respond to the question put to her by the appellant. That conduct amounted to denying the appellant his right to cross- examine her hence a contravention of the mandatory requirements of section 229(3) of the CPA. Her evidence could not therefore form the basis of a decision of the court. It is an illegal evidence hence should be disregarded. Such is the stance the Court took in the case of Ex-D. 8656 CPL Senga Idd Nyembo and Seven Others vs Republic, Criminal Appeal No. 16 of 2018 (unreported): "We must emphasize that a party to court proceedings has the right to cross-examine any witness of the opposite party

regardless of whether the witness has given his testimony under oath or affirmation (as the case may be) or not. This right is a fundamental one to any Judicial proceedings and thus the denial of it will usually result in the decision in the case being overturned. Unless, 37 | P a g e a party has waived his right to cross-examine cannot be taken as legal evidence unless it is subject to cross- examination. Consequently, the testimony affecting a party cannot be the basis of decision of the court unless the party has been afforded the opportunity of testing the truthfulness by way of crossing-examination (See Kabulofwa Mwakalile & 11 Others v. Republic (1980) TLR 144.” The above is still good law. We subscribe to it. By analogy, we hold that the victim's evidence deserved no consideration in grounding the appellant's conviction. The records of the proceedings reveal partly on the testimony of PW 2 as follows: XXD by Mrs. Lukio. • there were no people when you did that to me. • you covered my mouth and said if we tell someone you will kill us. 38 | P a g e • when I went to fetch water, you used to drink pombe at our place and then you followed me to canyon. • it was on 2/6/2024 and on 05/06/2024. • No further questions. RXD by Mrs. Lukio S/A. NIL Court: The witness thanked and discharged from his oath. Section 210 (3) of CPA complied with. A.A MHANDO-SRM 04/09/2024. That forms

the basis of lamentation by the appellant in this appeal. The appellant’s counsel has fought tooth and nail for this court to overturn the whole of the proceedings, conviction and sentence imposed against the appellant on basis of denial to cross-examine PW 2. It is only few words 39 | P a g e that form the basis of lamentation in this ground of appeal, namely: “XXD by Mrs. Lukio.” I have thoroughly considered the whole testimonies on record. It is my view that to determine whether words: “XXD by Mrs. Lukio” meant that it is the learned State Attorney who did the cross-examination, two aspects can guide this court to reach to a fair conclusion. First, is consistency in terms of recording the evidence particularly titling of the stages of examination. Second, the contents following thereat in light of the examination of the witnesses particularly PW 2 and PW3. It is clear that whenever the court was referring to examination of witness by the prosecution with regard to prosecution’s evidence, the trial court used only two alternatives, either, XD or REX by S/A or XD by Mrs. Lukio, S/A which meant examination in chief by State Attorney or Mrs. Lukio, State Attorney. There nowhere except for cross-examination of the PW 2, where words “Mrs. Lukio” appear without title S/A. In the circumstances, I am of the settled view that such words “Mrs. Lukio” in 40 | P a g e cross-examination

of PW 2 was a slip of pen/hand on part of learned trial Magistrate. This is fortified by the second aspect on totality of evidence of PW 2. In the examination in chief, PW 2 had categorically stated she knew the accused (appellant) because the accused used to go to victim grandmother’s house for drinking liquor. Indeed, that is what is confirmed in the cross examination that when the incident happened there were no other people at place, and that it is the appellant was covered the victim with hand on her mouth not to raise alarm and threatened the victim and her young brother not to raise alarm. Similar evidence is reflected in the testimony of PW 3 when cross- examined by the accused/appellant that when appellant raped the victim there were no other people outside at that place on material date, and that PW 2 and PW 3 did not raise alarm as they were threatened by the appellant. 41 | P a g e It is settled view of this court, considering both the consistency of the recording and titling of the stages of examination of the witnesses on record on one hand, and contents of the alleged testimony in cross examination of PW 2, it is obvious that responses were addressing the appellant in second person singular “you did it to me” or “when you did it to my sister” reflect that appellant got opportunity to cross examine the testimony of PW 2. There is no flicker of doubt in my mind

that words “Mr. Lukio” in cross examination of PW 2 was a typing error on part of the trial Court. This court is guided by a principle in Noel Samwel vs Republic (Criminal Appeal No.418 of 2020) [2023] TZCA 17518 (23 August 2023), at pages 6-7, where the Court of Appeal held that: We have considered this ground and we are in agreement with the learned State Attorney that, it was a typing error where the record showed that in her evidence PW3 said that the age of the victim was eleven years. In fact, upon our perusal of the original hand-written record, we have 42 | P a g e found that PW3 like other witnesses said that the victim was aged twenty- one years at the material time. This matter was also sufficiently dealt with by the first appellate court. In the circumstances, this ground fails. Though in the instant appeal there are no written proceedings are the electronic case management system (ecms) records applied, yet that does not defeat the fact that when the evidence is considered in terms of consistencies in recording for all witnesses and contents therein for PW 2 testimony, reveal nothing but that appellant was fully accorded right to cross examine the evidence of PW 2. Thus, that ground also falls for being unmeritorious. Before I conclude the analysis in this appeal, I find it pertinent to observe one more important aspect in respect of denial of the right to cross

examination of the witnesses. It is settled law that denial of cross examination warrants that particular evidence to be illegal and cannot form basis of conviction. However, a distinction must be made that where there are more than one witnesses for prosecution who testified and 43 | P a g e lamentations on denial of right to cross examination is not across the board for all witnesses, the court may exclude the whole testimony not subjected to cross examination and proceed to evaluate the remaining evidence on record to find out if it supports conviction. This is the legal position forming part of jurisprudence in this country. The superior court of land has articulated and provide a guidance where cross -examination is only in respect of the victim’s evidence. In the Pantaleo Teresphory case (supra), at page 29, the Court of Appeal of Tanzania stated that: We, however, fully agree with Ms. Kasambala that, even in the absence of the victim's evidence there still remains evidence on which the appellant's guilt stand proved pointing to the testimony by PW1, PW3, PW4 and PW5. Although the best evidence of a rape case comes from the victim (prosecutrix), it is also settled position of the law that even in the absence of evidence by the victim a charge can still be proved by other witnesses. (See Ismail 44 | P a g e Mnyawami vs Republic, Criminal Appeal No. 337 of 2008

(unreported). For avoidance of doubt, in Haji Omary vs. Republic, Criminal Appeal No. 307 of 2009 (unreported) in which tender age of a child witness prevented him from testifying, the Court lucidly stated: “The law recognizes that there are instances where charges may be proved without victims of crimes testifying in court. Take murder for example where the victims are deceased. Senility, tender age or decease of the mind may prevent a victim from testifying in court (See section 127 of the Evidence Act) but this does not mean that a charge cannot be proved in the absence of the victim's testimony. In this case the victim was a four year old child. He was indeed a child offender age. Though we agree that ideally the reason for the non-taking of the testimony of the victim should have been entered on record however such failure neither weakened the case for the prosecution nor resulted in a failure of justice.” 45 | P a g e It is on record that lamentation of the appellant was with regard to evidence of PW 2, the victim alone. Eventhough the whole testimony of PW 2 would be discarded, it is certain that conviction and sentence would be based on the remaining evidence. There was evidence of PW 1, PW 3, PW 4 and PW 5 which was watertight to warrant the conviction. Totality of the remaining evidence could have sufficiently proved the offence of rape beyond all reasonable doubts.

PW 3 being an eye-witness whose evidence was so consistent provided a direct evidence to support having seen an act of appellant committing the offence of rape against the victim remained watertight including the reasons for not raising an alarm on the incident date. PW 3 identified the appellant very well as he knew him before. Similarly, totality of evidence of PW 1, PW 4 and PW 5 corroborated both existence of elements of rape namely age of the victim and existence of penetration of victim’s vagina. There would be no flicker of doubt that such evidence in exclusion of that of PW 2 would indeed suffice to enter conviction and sentence against the appellant. 46 | P a g e At this juncture, it is safe to conclude that the instant appeal is devoid of merits thus deserved to be dismissed in its entirety for being preferred unmeritoriously before this court. The conviction and sentence of the trial court is upheld for being correct decision arrived at in consistency with applicable law and sufficiency of the evidence on record. It is so ordered. DATED at DODOMA this 8th day of April 2025. E.E. LONGOPA

JUDGE 08/04/2025. 47 | P a g e