POTINANT JACTAS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY

AT BUKOBA CRIMINAL APPEAL NO. 19360 OF 2024 (Arising from Criminal Case No. 107 of2023 District Court ofKaragwe) POTINANT JACTAS @ TA LI GILA............ ....................... ....... APPELLANT

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

JUDGMENT 4th and 28th March, 2025 BANZI, J,: Potinant Jactas @ Taligila, the appellant, was arraigned before the District Court of Karagwe (the trial court) charged with the offence of rape contrary to sections 130(l)(2)(e) and 131(1) of the Penal Code [Cap. 16 R.E. 2022]. It was alleged that, on 4th August, 2023 at Ihembe village, within Karagwe District in Kagera Region, the appellant had canal knowledge of a "victim", a primary school girl aged 14 years. The appellant denied the charge, and in a bid to prove the case against him, the prosecution side summoned eight witnesses and tendered three exhibits. After a full trial, the trial court was satisfied that the prosecution managed to prove the case against the appellant whereby, it convicted and Page 1 of 22 sentenced him to thirty (30) years imprisonment. Dissatisfied with his conviction and sentence, the appellant preferred this appeal. The factual background leading to the conviction of the appellant reveals that, at the material time, the victim was living with her aunt, PW1. She and her friends, PW3 and PW4 were studying at Ihembe Primary School, where the appellant used to be Mathematics teacher. The victim, PW3 and PW4 were also attending tuition at the appellant's house from Monday to Friday after class hours and on Saturday at morning hours. On the fateful date, 4th August, 2023 after tuition hours, the appellant

allowed other pupils to leave and told the victim to remain behind whereby, he used that opportunity to pull her to his bedroom and raped her. According to the victim, it was her third time to have sexual intercourse though the first and second time, was not with the appellant but with other men whom she didn't know. After being raped, she returned home but did not inform her aunt. Her evidence was supported by PW3 and PW4 who contended that, after being ordered to leave, they pretended to have gone but they went behind the window, six meters away where they peeped in and witnessed the appellant raping the victim. According to them, the window was closed but it had space at the middle which assisted them to see inside. However, according to PW3, since they could not see properly what was going on, she sneaked in to the sitting room where she managed to see the appellant Page 2 of 22 having sexual intercourse with the victim as the door was not properly closed. On the following day, 5th August, 2023 after tuition, the victim remained with the appellant while PW3 and PW4 on their way home, passed at PWl's house for purpose of drinking water. PW1 asked them where did they leave the victim and they told her that, she had remained with the appellant at his home. She told them to go to call her immediately. When they left, PW1 followed them but she met the victim with PW3 and PW4

on the way. After inquiry, she slapped the victim on the shoulders. The victim begged her not to slap her and promised to reveal what had befallen her. PW1 took her to the bedroom where she told her that, on 4th August, 2023 she was raped by the appellant after telling other pupils to leave. According to her, she returned to the sitting room where she left PW3 and PW4 who upon being asked, they confirmed about the rape incident. PW1 further stated that, after being informed what had befallen to the victim on the previous day, she informed the Village Executive Officer and the victim's father (PW6) whereby, they went to Nyaishozi Police Post to report the matter. They were issued with RB to arrest the appellant and a PF3 for medical examination. They went to Nyakayanja Health Centre where she was examined by a doctor, PW7. According to PW7, the victim was carnally known more than once as her vagina had minor laceration with no hymen. Page 3 of 22 His findings were exhibited in PF3 (Exhibit P4). Apart from that, attendance register, admission register and birth certificate of the victim were admitted as Exhibit Pl, P2 and P3 respectively. In his defence, the appellant categorically denied to have committed the alleged offence. According to his testimony, he was a volunteer teacher at the said school and he admitted to have been teaching tuition classes at his home whereby, one of

the attendees was the victim. On 4th August, 2023 after tuition hours, he told the pupils to leave and told them to come back on the next day. On 5th August, 2023 the pupils went there at 8:00 AM and left at 11:00 AM. He further denied to have told the victim to remain after I other pupils had left. Thereafter, he started to clean his house and at 2:00 PM, PW1, PW6 and the militiaman went there and he was told that, he was accused of raping the victim on 4th August, 2023. He denied the accusations but he was arrested and taken to Nyaishozi Police Post and later to Kayanga Police Station where he wrote his statement. He further contended that, he had grudges with PW1 as one day when the victim was in standard five, he caned her whereby, the victim went home crying and PW1 appeared before him threatening him. In his view, PW1 had grudges with him. He further contended that, PW3 and PW4 testified against him under the influence of PW1. Page 4 of 22 As alluded above, after being convicted and sentenced to thirty years imprisonment, the appellant lodged this appeal containing five grounds but during the hearing, his learned counsel consolidated all grounds to one complaint that, the prosecution did not prove the case beyond reasonable doubt. At the hearing, the appellant enjoyed the legal services of Mr. Pereus Mutasingwa, learned Advocate whereas, the respondent was represented

by Ms. Agnes Awino, learned State Attorney. In his chief submission, Mr. Mutasingwa contended that, the case against the appellant was not proved beyond reasonable doubt. He began to attack the evidence of PW3 and PW4 contending that, there is possibility that, the two witnesses did not eye-witness the incident because of the following reasons. Though PW3 said they were six metres away, they did not disclose whether the six metres concern the distance from where they stood to the window or from ground to the window. In case of the latter situation, it is unbecoming if the girls were tall enough to peep in at six metres, and in case of the former situation, how possibly they managed to see at a distance of six metres away. He added that, PW3 admitted to have failed to see through the window and decided to go inside the house where she saw through the bedroom door since it was open. After seeing the act, Page 5 of 22 she heard someone was wearing sandals and decided to run away. If she saw the act as she claimed, it could also be easier to recognise the person who was wearing sandals. He further argued that, according to the evidence on record, the tuition started at evening hours and hence, there is possibility that it ended at late evening or night. In that situation, the PW3 and PW4 ought to have disclosed the light which assisted them to see what was transpiring inside the

house. According to him, there is contradiction between PW2, PW3 and PW4 on how the appellant and the victim laid down. While PW2 said that the appellant laid on her back, PW3 and PW4 claimed that, PW2 laid down on her back and the appellant was on top of her. This creates doubt on the possibility of seeing the act being done. Submitting on whether the appellant raped the victim, he stated that, although in his examination, PW7 found the victim with wounds in her genitals, he did not explain the age of the wounds considering that, PW2 clearly explained that, she had sexual intercourse with two men whom she did not recall. Apart from saying that, she did not explain when she had sex with them. Basing on that, there is doubt if the alleged penetration was done by the appellant. Page 6 of 22 Concerning the age of the victim, it was his argument that, the same was not proved due to contradictions on prosecution case. According to her father, the victim was born on 18th September, 2009 so as the birth certificate (Exhibit P3). However, the admission register (Exhibit Pl) indicates that, she was born on 13th July 2010, which in his view these contradictions are fatal. According to him, all these show that, the documents were fabricated to incriminate the appellant as there was grudges between the appellant and PW1. Lastly, the learned counsel attacked credibility of PW2, PW3 and PW4

by failing to report the incident to the parent of the victim at the earliest stage. Likewise, PW3 and PW4 did not report despite the fact that, on the following day, they passed at the house of the victim's aunt. The duo did not report until they saw her aunt scolding her. In all these situations, according to him, the case was not proved beyond reasonable doubt. In that regard, he prayed for the appeal to be allowed by quashing the conviction, setting aside the sentence and releasing the appellant from custody. In her response, Ms. Awino opposed the appeal contending that, the case against the appellant was proved beyond reasonable doubt. She contended that PW2, PW3 and PW4 who were key witnesses to their case clearly explained how the incident occurred. In their evidence PW2, PW3 and PW4 explained the time they go to tuition at evening hours during weekdays Page 7 of 22 and at 8:00 AM on weekends. She added that, PW2 explained how the appellant ordered PW3 and PW4 to leave and how he took her to his room where he raped her. Also, PW3 and PW4 explained how they peeped through the window and witnessed the rape. Moreover, they explained that there was light and the distance from the window to the bed was six metres away. According to her, as PW3 and PW4 left the victim and the appellant inside the house, there is no possibility of another person entering there and rape the

victim. According to her, through the evidence of PW2, PW3 and PW4, the offence of rape was proved against the appellant. In respect of contradiction on how the two laid down, Ms. Awino submitted that, there was no such contradiction. PW2 explained that she laid down on her back and the appellant was on top of her. That evidence was supported by PW3 and PW4 who said the same thing. In alternative, she argued that, if there was such contradiction, the same does not go to the root of the matter, considering that, the appellant raped the victim regardless how they laid down. Concerning proof of penetration, it was her submission that, the age of the wounds is not the requirement of the law in proving the offence of rape. In her view, penetration was proved by PW7 and supported by PW2 who said that, she was penetrated two days before she was examined. That evidence was supported by PW3 and PW4 who saw the appellant penetrating the victim. She cited the case of Kambarage Page 8 of 22 Mayale vs Republic (Criminal Appeal No. 208 of 2020) [2023] TZCA 17944 (13 December 2023) TanzLII which emphasized on ingredients of proving rape but does not include age of wounds. Besides, the fact about age of the wound was not challenged during cross examination. Returning to proof of age of the victim, it was her submission that, the age can be proved by parent, relative or any other person

conversant with the age of the victim, birth certificate and other documents like school register. The victim said that she was born in 2009. Her father proved her age saying that, she was born on 18th September, 2009. In addition, the birth certificate shows that, she was born on 18th September, 2009. In respect of the head teacher who contended that she was born in 2010, that was a minor contradiction and it cannot corrode the evidence of parent and birth certificate. Besides, according to her, even if the victim was born in 2010, she was still below eighteen years. Responding to the fabrication of documents, she stated that, the claim was based on speculations. In addition, school admission and class attendance registers (Exhibit Pl and P2) were not read over to the appellant as required by law, thus, the same should be expunged from the record. All in all, even in absence of Exhibit Pl, the age of the victim was proved by father of the victim and birth certificate (Exhibit P3). Page 9 of 22 Regarding to failure to report the incident on the earliest time, it was her submission that, this argument has no basis because the victim explained the reasons for the delay to report that, she was afraid to be scolded by her aunt, however, she had intention to report. Concerning on why did she not shout at the crime scene, it was her argument that, the victim was afraid of her

teacher. All in all, according to her, failure to report on earliest time did not corrode the credibility of prosecution witnesses. Concerning grudges between the appellant and PW1, Ms. Awino argued that, there were no grudges because if there were such grudges, PW1 would not have trusted him by handing him over her niece. Besides, she was paying him well which indicates that, there were no grudges between them. She concluded her submission by insisting that, basing on the evidence of PW2, PW3 and PW4, the case against the appellant was proved beyond reasonable doubt and hence, she prayed for this appeal to be dismissed. In his rejoinder, Mr. Mutasingwa insisted that, who penetrated the victim, is the issue in question considering that PW2 explained that, she was penetrated by two persons whom she did not recall. Apart from that, the victim, did not explain when those two men penetrated her. He further insisted that, the victim had no intention to report and she did so after being scolded. Also, PW3 and PW4, had no intention to report as they remained silent until when they were asked by the victim's aunt to look for her and Page 10 of 22 later being scolded. According to him, all these create doubt on the prosecution side. The grudges between the appellant and the victim's aunt ended up in framing this case. Concerning Exhibits Pl and P2, he prayed for the same to be expunged

from the record as they were not read over after being admitted. He reiterated his prayer for this appeal to be allowed. Having carefully considered the submissions of learned counsel for both sides and having thoroughly examined the evidence on record, the main issue for determination is whether the case against the appellant was proved beyond reasonable doubt. However, before digging deeper into the merit or otherwise of the appeal, I find apposite to comment on one issue concerning failure to read Exhibits Pl and P2 after being admitted in evidence. It is settled law that, once a document has been cleared for admission and admitted in evidence, it must be read out in court. This is done in order to avail the accused with opportunity to know its contents so as to prepare a focused defence. Failure to do so, it occasions a serious error amounting to miscarriage of justice and consequently, such document is normally expunged from the record. See the cases of Said Salum vs Republic (Criminal Appeal No. 499 of 2016) [2020] TZCA 1881 (2 December 2020) and Issa Hassani Uki vs Republic (Criminal Appeal No. 129 of 2017) [2018] TZCA 361 (10 May 2018) both Page 11 of 22 reported at TanzLII. In our case, the record reveals that, Exhibit Pl and P2 were not read over to the appellant after being admitted in evidence which is contrary to the laid down procedure of admitting evidence. Thus,

the two exhibits are hereby expunged from the record. Back to the case under scrutiny, considering that in his submission, Mr. Mutasingwa contended that the case was not proved beyond reasonable doubt, and considering that this is the first appeal, it is trite law that in the first appeal, the court is required to re-evaluate the entire evidence of the trial court and where possible come out with its own findings. This has been stated in numerous cases including the case of Edson Simon Mwombeki vs Republic (Criminal Appeal No. 94 of 2016) [2016] TZCA 266 (18 October 2016) TanzLII, where it was stated that: "The first appellate court has a duty to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and if warranted arrive at its own conclusion of facts." From the evidence of both sides, it is undisputed that, the appellant was a volunteer teacher teaching at Ihembe Primary School, and had a tuition class after school hours. It is also clear that, the victim, PW3 and PW4 were his pupils attending tuition at his house after school hours. The prosecution evidence reveals that, on the date of the incident, the victim was Page 12 of 22 raped by the appellant while PW3 and PW4 eye-witnessed the said rape. The burning issues to be answered are whether the appellant had sexual intercourse with the victim and whether the rape was

eye-witnessed by PW3 and PW4. It is settled law that, in proving the offence of rape, the prosecution has to prove that the victim was penetrated and it was the accused person who raped her. Also, this being the statutory rape, the age of the victim must be proved. This was settled in the case of Wambura Kiginga vs Republic (Criminal Appeal 301 of 2018) [2022] TZCA 283 (13 May 2022) TanzLII, where it was stated that: "In all categories of rape, the basic ingredient for the prosecution to prove is penetration of the female genitals by the male sex organ. When it comes to statutory rape, there is an additional burden ofproof of age of the victim in order to ascertain that at the time the offence was committed, she was below 18 years of age since birth." See also the cases of Robert Sanganya vs Republic (Criminal Appeal No. 363 of 2019) [2022] TZCA 18 (10 February 2022) and Masanyiwa Msolwa vs Republic (Criminal Appeal 280 of 2018) [2022] TZCA 456 (21 July 2022) both reported at TanzLII. Page 13 of 22 Starting with proof of age, it is a settled principle that, age of the victim can be proved by parent, victim, relative, medical practitioner or by production of Birth Certificate. In the case of Omary Rashid © Milanzi vs Republic (Criminal Appeal 298 of 2021) [2023] TZCA167 (31 March 2023) TanzLII, it was held that: "It is a settled principle of law in this country that the age of

the victim can be proved by the victim, relative, parent, medical practitioner, Birth Certificate, teacher, dose friend or any other person who knows the victim." See also the case of Shani Chamwela Suleiman vs Republic (Criminal Appeal 481 of 2021) [2022] TZCA 592 (28 September 2022) TanzLII. In his submission, Mr. Mutasingwa contended that, the age of the victim was not proved because the date mentioned by the father which is the same as birth certificate differed with the admission register tendered by Ezra Mashanda, (PW5), the head teacher of Ihembe Primary School where the victim was schooling. On her side, Ms. Awino was of the view that, the age was proved by the father of the victim. It is undisputed that, according to the evidence of the father of the victim (PW6), the victim was born on 18/09/2009. The same date is indicated on the Birth Certificate (Exhibit P3). On the other hand, the admission register (Exhibit Pl) tendered by PW5, shows that, the victim was born on 13/07/2010. However, as alluded above, Page 14 of 22 Exhibit Pl was admitted in contravention of the law and hence, it was expunged from the record. Considering that, Exhibit Pl is no longer part of the evidence on record, the alleged contradiction dies automatically. Since evidence of the father and the birth certificate reveal the same date, 18/09/2009, it is the finding of this court that the victim

was born on 18/09/2009. I am of the settled view that, even though there would be contradictions on the date of birth, considering that there was no dispute that the victim is below eighteen years, still the offence of statutory rape stands. Thus, as far as the age of victim is concerned, the same was proved PW6 and Exhibit P3.' Reverting to the issue of penetration, it is common knowledge that, in sexual offences, the best evidence comes from the victim. See the case of Selemani Makumba vs Republic [2006] TLR 379. However, in the case of Mohamed Said vs Republic (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (23 August 2019) TanzLII, it was emphasised that, the word of the victim of sexual offence should not be taken as a gospel truth but rather her or his testimony should pass the test of truthfulness. In the instant case, the victim claimed that, on the fateful date after tuition class, the appellant asked her to remain after permitting other pupils to leave. Thereafter, he asked her to sleep with him. After she refused, the Page 15 of 22 appellant pulled her from the sitting room to the bedroom where he left the door open and began to have sexual intercourse with her. According to her, the appellant was the third man to sleep with as on previous days, she had sexual intercourse with other two men whom she did not know. Thereafter, she returned home but did not report to

her aunt, PW1 because there were guests and she was afraid to be beaten. On the following day, she went to the tuition and after classes, she remained with the appellant but later, her aunt sent PW3 and PW4 to fetch her. After arriving home and inquired about where she was, she did not report the rape incident until she was slapped by her aunt. Looking at her testimony, one may conclude that, on the date of the incident, the victim had sexual intercourse with the appellant. PW7 who examined her on 05/08/2023 found evidence of penetration on the victim and concluded that, she was carnally known more than once and she had no hymen. Also, she had minor laceration on her genitals. Despite such evidence, it is not known whether the alleged penetration was caused by the appellant considering the fact that, the victim admitted to have sexual intercourse with other two men which she didn't know. Likewise, it is not known what period had passed from the date she had sexual intercourse with the said men to the time the appellant is alleged to have raped her. This gap could have been saved if there was evidence to establish the age Page 16 of 22 of the alleged laceration. Nonetheless, as correctly submitted by learned counsel for the appellant, PW7 did not disclose whether the alleged laceration was fresh or not in order to conclude that, it was the appellant who was responsible for such

penetration and not the two other men. Basing on the behaviour of the victim who failed to disclose when she had sexual intercourse with other two men, we cannot conclude with certainty that, she is credible witness. Thus, it is the considered view of this court that, penetration against the appellant was not proved beyond reasonable doubt. Apart from that, there is another issue concerning delay to report the incident which questions the credibility of the victim. In his submission, Mr. Mutasingwa argued that the victim, the same as PW3 and PW4, had no intention to report the matter and she did so after she was slapped something which, according to him, creates doubt on the prosecution case. Responding to that, Ms. Awino contended that the victim delayed to report the incident because she was afraid to be scolded. The question to ask, is whether she had intention to report. The evidence on record does not show if she had that intention. She claimed to have been raped after being slapped by PW1 in the course of interrogation on why she stayed at the appellant's house. Moreover, there is no evidence to show that, the victim received threats from the appellant that prevented her to report the incident to her aunt immediately after returning home on the same date of the alleged rape. Page 17 of 22 If she had intention of reporting the alleged rape, she could have done

so immediately after arriving home. Even if there were guests in their house as she alleged, she could have reported immediately after departure of guests. However, she remained silent and she was not willing to reveal anything even on the following day because her act of reporting after being scolded tells it all. Such delay raises doubt on her credibility which gives credence to defence evidence that, there is likelihood of fabrication of the case against the appellant. The evidence of the victim was supported by PW3 and PW4 who claimed to eye-witness the alleged rape. Nevertheless, a close scrutiny of their evidence reveals that, these witnesses were not credible just like the victim. At page 16 of the proceedings, PW3 stated as follows: "...ive did not go home, rather we went behind her bedroom at the window and took a peek through the window, teacher Potinant went outside to check if we have left, he did not see us because we were behind. He did hold[victim's] hand taking her in a bedroom, when they reached at the bedroom door, [victim] was resisting and refusing to enter while grunting. During that time, we went at the bedroom at a distance of about 6 metres...on seeing that they have entered in a bedroom ofMr. Potinant, we went at the bedroom window... While we were at the Page 18 of 22 window, I did not see properly, I removed the shoes and went back inside the house at

a sitting room...the bedroom door was not dosedproperly, I saw [victim] lying on bed on herback while teacher Potinant, apart from not been properly dosed, the door had a jar at the middle. The bed had a mattress, he tied on her chest [victim] pulled her dress up while teacher Potinant pulled his trouser to his knees. I managed to identify them because there was light, it was noon... "[Emphasis added]. On her side, PW4 stated that: "... we did hide ourselves inside the trees fence at the gate. Teacher Potinant came outside to check if we had left, he did not see us, but we were ata place where we could see him. He went inside the house and hold [the victim's] hand taking her inside the bedroom, but [the victim] was resisting. He managed to enter with her inside the bedroom, teacher Potinant put off his waist belt, [victim] iied on the bed on her back. We went at the window so as to check them...I checked them through the window, I saw [victim] lying on herback while teacher Potinant was on her top. [Victim] pulled her dress, while teacher Potinant pulled down his trouser to his knees. The window was dosed, but not locked, it had jar at the middle. I therefore saw them properly... the light was from outside because it was at night. "(Emphasis supplied). Page 19 of 22 From the extracts above, it is obvious that, PW3 and PW4 blatantly lied and thus, they were not truthful

witnesses. According to them, while they were outside, they witnessed the act of appellant pulling the victim from sitting room to the bedroom who was grunting. Surprisingly, none among the two stated that, the outside door was open in order to see what was going on at the sitting room while they were hiding outside the fence. Apart from that, they claimed to peep through window which was closed but had jar in the middle at a distance of six metres away. Now, the question to ask, how did they manage to see what was taking place inside the house at a distance of six metres from the closed window. Besides, they did not disclose the size of the alleged jar in the middle of the window which assisted them to see through. Bad enough, PW3 admitted that, she couldn't see properly through the window. Furthermore, the two witnesses contradicted each other because according to PW3, she managed to see them because it was noon. On the other hand, PW4 said that, it was night and there was light from outside. What was stated by PW3 is a blatant lie, because if tuition was taught after school hours, obviously, it was done at evening hours not at noon as * contended by her. As for PW4, she did not disclose the source of light with its intensity considering that, in normal circumstances, the light outside the house, especially at evening hours, is not the same as the light inside the Page 20 of

22 house, therefore, it is desirable for the person contending to have seen a person inside the house to state how he was able to see that person. All these create doubt on the truthfulness of their evidence. It settled that were there is doubt, that doubt has to be decided in favour of the accused. In the case of Silvanus Ansigali @ Mbilinyi vs Republic (Criminal Appeal No. 15 of 2010) [2012] TZCA 325 (17 September 2012) TanzLII, it was held that; "It is a principle of law that where doubts arise in a factual situation, the benefit is given to the accused person. The doubts must, however, be reasonable. Courts should not, and cannot, give benefit to a situation where the doubts raised are irrational." Basing on the position of the law quoted above in line with analysis of the evidence of PW3 and PW4, it is doubtful whether the victim was raped on the date of the alleged incident and whether the duo eye-witnessed the alleged rape. These doubts are reasonable and rational. In my view, they ought to be resolved in favour of the appellant. From the foregoing reasons, it is my finding that the case against the appellant was not proved to the required standards, that is beyond reasonable doubt. Thus, the appeal is found with merit and the same is hereby allowed. The judgment of the trial court is quashed and the sentence Page 21 of 22 is set aside. I hereby order that; the appellant be released from custody unless held for other lawful reasons. It is accordingly ordered. I. K. BANZI

JUDGE 28/03/2025 Delivered this 28th March, 2025 in the presence of Ms. Mgeni Mdee, learned State Attorney for the respondent, the appellant in person, Hon. Audax V. Kaizilege, Judge's Law Assistant and Ms. Grenica Protase, RMA. Right of appeal duly explained. I. K. BANZI

JUDGE 28/03/2025 Page 22 of 22