Boniphace Lutanga @ Makunza vs Republic (Criminal Appeal No. 746 of 2024) [2026] TZCA 431 (22 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA ( CORAM: LEVIRA, J.A., MPEMU. J.A. And ISSA, 3. A.l CRIMINAL APPEAL NO. 746 OF 2024 BONIPHACE LUTANGA @ MAKUNZA... .......................................... APPELLANT VERSUS THE REPUBLIC ............................................................................ RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Mwanza at Mwanza) (Ndvekobora. PRM-Ext, Juris.) Dated the 13th day of June, 2023 in RM Criminal Appeal No. 4 of 2023 JUDGMENT OF THE COURT 4th March & 22n d April, 2026 MPEMU, 3.A.; The District Court of Sengerema convicted and sentenced the appellant to thirty (30) years prison term for the rape of a fifteen (15) years old girl and a standard seven pupil of Ilokanilo Primary School. In addition to that sentence, the appellant was ordered to compensate the victim T2S 1,000,000.00 for the injuries sustained in the rape incident. The first appeal to the High Court, which was transferred to and heard by IMdyekobora, Principal Resident Magistrate with Extended Jurisdiction (PRM-Ext. Juris.) was not successful, hence the instant appeal. Facts of this case are that; on 4th March, 2021, the victim who testified as PW1 and Sumaku Makeja (PW3), were on their way home after classes, from Ilekanilo Primary School. Shortly, the appellant appeared and requested PW3 to proceed home while the victim was requested for a little conversation. The conversation however took a different form as the appellant pushed the victim in the cassava farm, dressed her off and his trousers too, covered the victim's mouth and then penetrated his penis into her vagina. Since PW3 was almost ten strides, he heard the victim screaming for help. He thus raised an alarm alerting Sospeter Zakaria (PW4), Shija and Cosmas Dominick. The trio together with PW3, rushed and found a man, who came to be the appellant, on top of the victim. He dressed up quickly and asked for an apology before he threw stones onto them and then took to his heels towards the mountain side. PW3, PW4 and others pursued the appellant unsuccessfully, then proceeded to his residence and arrested him. Both the victim and the appellant were referred to Ilekanilo Village Executive Officer's Office and then proceeded to Sengerema Police Station. The police interrogated the duo and other witnesses and thereafter the victim was referred to Sengerema Mission Hospital where one Maria Joseph Voetten (PW5) conducted clinical examination. No hymen was found, but she noted live sperms as indicated in the PF3 (exhibit PI). The appellant was accordingly charged as forestated, and 2 though denied, he was convicted and sentenced accordingly. His first appeal was fruitless; thus, he is now before the Court armed with 16 grounds of appeal in three memoranda. 6 grounds formed the contents of a memorandum filed on 19th September, 2024, followed by another supplementary memorandum filed on 16th July, 2025 comprising of 5 grounds and finally, other 5 grounds were contained in another supplementary memorandum of appeal lodged on 27th February, 2026. In all, the main complaints go as follows: 1. The appellant was not recognized at the crime scene to take part in the rape o f the victim. 2. The prosecution case is crowded with contradictions such that, conviction could not base on that evidence. 3. This being a statutory rape, the age o f the victim was not proved. 4. Failure by both courts below to consider the defence evidence. 5. Procedure relating to ruling o f a case to answer and signing o f witnesses' evidence was flouted. We thus heard the parties on 4th March, 2026 in which, the appellant appeared in person, unrepresented, whereas Ms. Jaines Kihwelo, learned Senior State Attorney, assisted by Mr. Benedicto Ruguge, learned State Attorney, represented the respondent Republic. They resisted the appeal. The appellant was invited to address the Court. He simply banked on the grounds of appeal which, he argued, demonstrates his 3 discontentment on the conviction and sentence meted out to him. He however reserved his right for a rejoinder, should a need to do so arise. As we stated above, the respondent Republic resisted the appeal. Ms. Kihwelo submitted in reply on some procedural matters in respect of the complaint of the appellant that, the learned trial Resident Magistrate did not sign the witnesses' evidence as required by the law. In her stance, the record of appeal shows that, witnesses' evidence was signed. She thus asked us to dismiss this complaint. We also went through the record of appeal and found that, all witnesses' evidence were endorsed with the signature of the presiding trial Resident Magistrate. This complaint is accordingly dismissed as urged by Ms. Kihwelo. Regarding noncompliance with section 248 (1) of the Criminal Procedure Act, Cap. 20 on a ruling that the appellant has a case to answer, it was replied that, the said ruling contains all elements of a case to answer as legally required by law. What needs to be shown in the ruling, according to the learned State Attorney, is not that the accused is guilty, but rather that, given the totality of the prosecution case, a prim afacie case was made sufficiently enough calling upon the accused person to make a defence. On our part, we find no substance in the appellant's complaint because, looking at the ruling in the manner composed by the learned trial Resident Magistrate, it is clear to us that, the ruling informed the appellant that the evidence from the prosecution witnesses established a prim afacie case and on that basis, he had a case to answer. Later, the appellant was informed on the manner which his defence may be received and he replied to defend on oath and elected to call three other witnesses. This duty, in our respective view, was in line with the spirit envisaged under section 248 (1) of the CPA which reads as hereunder: "S. 248, - (1) A t the dose o f the evidence in support o f the charge, if it appears to the court that a case is made against the accused person sufficiently to require him to make a defence either in relation to the offence with which he is charged or in relation to any other offence o f which, under the provisions o f sections 319 to 328 o f this Act, he is liable to be convicted, the court shall again explain the substance o f the charge to the accused and inform him o f his right- (a) to give evidence whether or not on oath or affirmation, on his own behalf; and (b) to call witness in his defence, and shall then ask the accused person or his advocate if it is intended to exercise any o f the above rights and shall record the answer; and the court shall then call on the accused person to enter on his defence 5 save where the accused person does not wish to exercise any o f those rights." On that account, we find nothing wrong in the ruling of a case to answer in the manner composed by the trial magistrate, accordingly, this ground of complaint is dismissed as well. Turning to the complaints of the appellant in the 1st, 2nd, 3rd and 4th grounds of appeal, at the center of it, is the question whether the appellant is the one who raped the victim. To this end, the record is obvious that, on 4th March, 2021 the appellant was arrested at his residence. It is also clear from the record of appeal that the victim, prosecution witnesses and the appellant were familiar to each other. On that account, the glaring issue is whether the appellant was recognized by PW1, PW3 and PW4 to be the ravisher. Ms. Kihwelo submitted that, this being a statutory rape, it was proved by PW2, the victim's mother that, the victim was born in 2006, thus she was 15 years of age at the time of rape. She cited to us the case of Issaya Renatus v. Republic (Criminal Appeal No. 542 of 2015) [2016] TZCA 218 (29 April 2016; TanzLII) cementing to be the requirement of law that, a mother, among others, is eligible to prove the age of her child. On our part, it is obvious in the evidence of PW2 that, the victim is her daughter and was born in the year 2006. As argued by 6 Ms. Kihwelo, she was 15 years old when the offence was committed. On that regard, complaint of the appellant that the age of the victim was not proved, is unfounded and we proceed to dismiss it. Turning to the evidence of identification by recognition offered by PW1, PW3 and PW4, Ms. Kihwelo was of the argument that, the said evidence is watertight and points a finger to the appellant. In her stance, the offence was committed at 18:00 hours before sunset and that, the appellant was seen by PW3 and PW4 raping the victim. According to her, the said witnesses also described the appellant being a co-villager. She therefore urged us to take the position in Tabu Sitta v. Republic (Criminal Appeal No. 297 of 2019) [2022] TZCA 702 (10 December 2022;TanzLII) and hold that, the appellant was recognized to be the one who raped the victim. In determining this complaint, the best way is to look at the complaints of the appellant that the prosecution evidence is endowed with contradictions and inconsistencies. Ms. Kihwelo considered contradictions such as; the attire of the appellant or that the appellant was arrested in bathroom while bathing but other witnesses said that he was not, to be minor ones. Our approach will be considered along with other contradictions which the learned State Attorney did not mention. We go this way: 7 First, throughout her evidence, the victim described the appellant as a co-villager. The attire was described by PW3 who said the appellant was in black jeans while PW4, besides mentioning black jeans, he added a black t-shirt. Second, the manner the alleged rape happened. According to PW1, the appellant requested her for conversation which eventually turned out to be rape and that, she was prevented to scream as the appellant covered her mouth. At page 9 of the record of appeal, PW1 testified that: "Sumaku went about 10 steps, Boniface Mtanga pushed me to the Cassava farm, at the time, he did not te ll me anything thereafter he [ undressed] my underpant A t that time he push/lay me down, thereafter he took his male organ and penetrated into my vagina. A t that time he co vere d m y m outh w ith h is h a n d a n d I fa ile d to ra ise an a la rm and came two people, Cosmas and Sospeter. Boniface took stones and thrown to them. Thereafter Boniface [started to] run away and Sospeter chased him. I went to the house o f Boniface Mtanga together with Cosmas and found Boniface taking shower. We raised alarm; a lo t o f people came, arrested him and sent him to the VEO Office o f Ilekanilo . " 8 On the other hand, PW3 testified that, the victim raised an alarm before the rape incident and he (PW3) raised alarm when he saw the appellant raping the victim. However, it is PW3's alarm which alerted PW4 and others. Third, PW4 heard both alarms, first, from the victim and second from PW3 but decided to respond first from PW3 and not the victim. We ask ourselves why? The answer is not easy and we need not speculate. Fourth, both PW3 and PW4 eye witnessed the appellant when on top of the victim and dressed up. They differ in one aspect regarding the apology by the appellant which PW3 is silent on this. It is stated at page 15 of the record of appeal by PW4 regarding this fact that: "/ told a man what are you doing, he [stoodup] and dressed his trousers. He started to apologize and asked for forgiveness." Fifth, PW3 testified at page 12 of the record of appeal that, when they chased the appellant, they were with PW4 while the victim was left in the custody of Cosmas. It is this way: "He released Shija and wears his trouser, he was wearing black jeans. Thereafter Boniface started running and we started chasing Boniface with Sospeter. We left Shija and Cosm as” 9 That version of PW3 differs substantially with PW1 (the victim) who stated at page 9 of the record of appeal that, Sospeter is the one who chased away the appellant to the mountain side while her together with Cosmas decided to go to the appellant's house. It is not known if PW4 also chased the appellant in the company of PW3 as claimed or which role he played. Unfortunately, Cosmas did not testify. Sixth, PW4 contradicts his earlier version that, he, together with PW3, chased the appellant to the mountain. It was during cross examination at page 17 of the record of appeal where it is provided that, they followed footmarks of the appellant to his house and arrested him. Seventh, in eye witnessing the rape and also be it through footmarks or chasing, PW3 did that job with PW4 and Cosmas, but PW4 said, besides PW3 and Cosmas, another person going by the name of Constantine also witnessed. Both Cosmas and Constantine did not have their way in evidence. The above contradiction and inconsistencies to Ms. Kihwelo were minor and did not go to the root of the matter. We will come to this later. It is in the record that, initially, the appellant lodged a complaint in the first appellate court regarding the alleged contradictions in the prosecution case. In resolving the contradictions, the first appellate court had this to say at page 95 of the record of appeal: 10 '"'Having carefully gone through the trial court's evidence, this court is satisfied with the evidence adduced by the prosecution side and has failed to locate the contradictions, fabricated evidence, and hearsay evidence alleged by the appellant. I hold so due to the fact that the witnesses who testified during the trial were eyewitnesses, especially PW1, PW3 and PW4, who witnessed the appellant committing the alleged offence." In our considered view, the passage above hints some difficulties to hold that the first appellate court retrieved, resolved and weighed the forestated contradictions if they went to the root of the matter within the principles stated in Mohamed Said Matula v. Republic [1995] T.L.R 3 that: "Where the testimonies by witnesses contain inconsistencies and contradictions, the court has a duty to address the inconsistencies and try to resolve them where possible; else the court has to decide whether the inconsistences and contradictions are only minor, or whether they go to the root o f the matter . " In the circumstances of this case, we do not agree with Ms. Kihwelo that such contradictions, as stated above, were minor. They were indeed grave and potentially went to the substance of the case. 11 Next is the complaint of the appellant that the defense case was not considered, particularly the appellant's alibi. The trial court at page 69 through 70 of the record of appeal considered the appellant's alibi\r\ the following version: "On the other hand, the defence side raised defence o f a lib i. However, it was baseless as the evidence adduced by Prosecution witnesses proved that the accused was present when [the] crime was committed and in fact, he is the one [ who] raped the victim." In the first appellate court, the said alibi was not considered at all though it was raised as ground 4 of the appeal appearing at page 76 of the record of appeal that: 4. That, the conviction was not based on the weight o f evidence and the trial court did not consider and put into consideration the defence raised by the appellant and how the court arrived a t that decision. In the circumstances, we note that, both courts below did not consider the appellant's defence. The trial court brushed it aside because the prosecution evidence proved that the appellant is the one who raped the victim. On its part, the first appellate court did not even construct a sentence on the appellant's alib i for no apparent reason. That means, it was only the prosecution evidence which was duly considered to ground 12 the appellant's conviction. We stated in Fikiri Katunge v. Republic (Criminal Appeal No. 552 of 2016) [2020] TZCA 229 (14 May 2020; TanzLII) that, since it is only the prosecution case which was given prominence in determining the charge against the appellant, the irregularity was fatal and vitiates the basis of conviction. In the instant case, we stated above that the appellant's "alibi" was not taken into account. In the circumstances, we hold that the infraction is fatal and vitiates the appellant's conviction. Furthermore, we note in both the prosecution and defence evidence that, the appellant was arrested at his residence by villagers who responded to the alarm. None of those villagers who participated in the arrest appeared in the trial court. It is also not within the senses of realities that, it is only PW3 and PW4 who chased the appellant in that daylight crossing various residences to the appellant's premises. We need not speculate, but at least those who also participated in the arrest of the appellant would have corroborated the story of PW3 and PW4 that the man who was found raping the victim, was the very same man they recognized, chased, and ultimately arrested at his residence. In the absence of that evidence, and given the contradictions noted in the evidence of PW1, PW3 and PW4, it becomes quite clear that, the prosecution case was not proved beyond reasonable doubt. We hold so 13 and allow the appeal in light of what we have demonstrated above. In the end, the conviction is thus quashed and the thirty (30) years sentence imposed to the appellant is accordingly set aside. We finally order release of the appellant from custody, unless, he is otherwise held for other grounds. DATED at DODOMA this 17th day of April, 2026. M. C. LEVIRA JUSTICE OF APPEAL G. 1 MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered virtually this 22n d day of April, 2026 in the presence of Appellant in person, Mr. Prince Massawe, learned State Attorney for the Respondent and Ms. Mariam Kivuma, Court Clerk; is hereby certified as a true copy of the original. 14