Stephano Mussa vs Republic (Criminal Appeal No. 505 of 2024) [2026] TZCA 430 (22 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: LEVIRA, 3.A.. MDEMU, J.A. And ISSA. 3. A.^ CRIMINAL APPEAL NO. 505 OF 2024 STEPHANO MUSSA .............................. .......................................APPELLANT VERSUS THE REPUBLIC ....................................... ...........................RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Mwanza at Mwanza) fShao, PRM-Ext. Jurist Dated the 1st day of March, 2024 in RM Criminal Appeal No. 48 of 2023 JUDGMENT OF THE COURT 2n d March & 22n d April, 2026 MDEMU, 3.A.: In this second appeal, the appellant is challenging the judgment of the first appellate court which sustained conviction and sentence of the trial court for contravening section 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap. 16 (the Penal Code). It was a rape incident committed to a 3 years old child on 23rd February, 2023 at Katunguru Village in Sengerema District. The said child, whom we shall refer to as the victim, was not summoned in the trial court to testify.

In the fateful night, PW1, a child of 12 years, was in her bed room with the victim sleeping. She was awakened by a feeling touch of a human arm and upon looking up, she saw the appellant aided by solar light, being on top of the victim. PW1 screamed for help, thus alerting her mother Jesca Antony (PW2) and her father. The duo found the door broken and the victim had her underwear dressed off. They further observed some sperms in her private parts and in the mattress. When inquired, PW1 named the appellant to be responsible. With such information, PW2 and her husband went straight to the appellant's residence and when inquired, he denied to have raped the victim. The matter was thus reported at Katunguru Police Station which issued a PF3 referring the victim to Katunguru Health Center where, upon examination by PW4 Joseph Atanas, the victim was found virgin. In the PF3 (exhibit PW4A), minor laceration and bruises were noted with intact hymen and there were no sperms observed. The appellant was accordingly arrested, charged and upon a full trial, he was convicted and sentenced to thirty (30) years imprisonment. Being aggrieved by that conviction and sentence, the appellant appealed unsuccessful to the first appellate court. Further aggrieved, he is now before the Court armed with the following grounds of appeal;

1. That, the tower courts erred in law and/or fact to convict the appellant by acting upon unfavorable identification circumstances, worse enough, PW1 failed to explain the fight intensity , , size o f the room, distance from where the victim was, source of light positioning and the attire put on by the appellant during commission o f an offence.
2. That, the lower courts unreasonably failed to consider defence of alibi, which vitiated the conviction.
3. That, [two courts below] acted upon discrepancy and inconsistency evidence, once you mirror PW4 evidence, it contradicts itself, PW4 asserted that "did find bruises on LABIA MAJORA while exhibit PW4"A" indicates bruises on LABIA MANORA. That contradictions goes to the root o f the case considering the victim's virginity was still intact.
4. That, the prosecution side failed to prove the offence beyond reasonable doubt. On 2n d March, 2026 when the appeal came for hearing, the appellant appeared in person, unrepresented whereas Ms. Mwanahawa Changale, learned Senior State Attorney, assisted by Ms. Matha Mtiti and Mr. John Simon Joss, both learned State Attorneys, represented the respondent Republic. When the appellant was called upon to address the Court, he straightly relied on the grounds of appeal which to him explains his 3

dissatisfaction on the conviction and sentence meted out to him by the trial court. He therefore prayed to be released from custody forthwith. In reply, Ms. Changale supported the appeal on two grounds. One that, the victim was not called in the appellant's trial to testify and two, that, the defence case was not considered in determining the appellant's criminal responsibility. In the two grounds, her main argument was that, the offence of rape was not proved beyond reasonable doubt. Beginning with the evidence of the victim which was not received by the trial court, Ms. Changale referred us to page 31 of the record of appeal arguing that, the trial court was legally bound to make a decision as to whether or not the victim was unable to give evidence due to her tender age. She argued further that, section 135 (1) of the Evidence Act, Cap. 6 was not complied with. Besides that infraction, the evidence of the medical practitioner (PW4) is self contradictory regarding penetration in that, in the PF3 (exhibit PW4A) he opined in the negative, unlike in his oral testimony where he testified that, the victim was raped. Regarding the defence case, Ms. Changale submitted that, the same was not considered in determining criminal liability of the appellant. She thus argued that, both courts below relied on the evidence of the

prosecution alone to ground conviction. This, to her, was improper, thus urged us to allow the appeal. The appellant in his brief rejoinder submitted that, he did not commit the alleged rape and that, the victim's parents were looking for one Maneno. Regarding his alibi ; he argued that, he was at Kahama and it was the day he arrived in that early morning when he was arrested and informed of the rape accusations. Now that we have heard from both the appellant and the respondent Republic, the task before us is to determine the appeal in the manner argued by the learned Senior State Attorney. The question is whether the prosecution case was proved beyond reasonable doubt in the absence of the evidence of the victim of rape. It has been held by the Court in several occasions after the court's decision in Selemani Makumba v. Republic [2006] T.L.R. 379 that, in sexual offences, the true evidence comes from the victim. However, in the instant appeal, conviction based on other evidence because the victim was not called to testify. In fact, this is what we are going to determine if conviction, may sail through without the evidence of the victim. She was not called at all. As we ask ourselves why was it so, the record of appeal bears the following revelation at page 8 through 9 as follows: 5

"PW2, JESCA ANTONY, 30 years, Sukuma, Katongoro, Peasant , Christian: Sworn and states that: DX 23/2/2023 around 03:00 hours at night, I was at home and our child screamed and we woke up, me and my husband. The child named "O". We went to their room where they used to sleep, "O", Elizabeth and W'. We did find the door broken. We asked ”0 " what happened, she replied that there was a person inside but he ran away, he was on top o f "M". I examined the children and find "O" and Elizabeth were good but "M" (victim) was not. PP: - We pray to show this court the victim who is the child o f 3 years old [and] who can't explain herseif. Court: - 1 have seen the victim physically. Sdg E. E. Kisoka, SRM 12 / 04 / 2023 " Our reading of the above excerpt gives us an impression that, it is PW2, the mother of the victim who made a decision that the victim cannot express herself due to her tender age. Is that what the law requires? The 6

answer to that question is provided for under section 135 (1) of the Evidence Act, which reads: "S. 135(1) Every person shall be competent to testify unless the court considers that he is incapable o f understanding the questions put to him or o f giving rational answers to those questions by reason o f tender age, extreme old age, disease (whether o f body or mind) or any other similar cause." The above section envisages two scenarios. One, a requirement as to who may testify in a court of law. According to the section, all persons are competent to testify save for where they are incapable of understanding questions or giving rational answers due to tender age, extreme old age, diseases or any other similar causes which may prevent a witness from self-expression. Two, the trial court is vested with the requisite mandate to determine if the witness is incompetent to testify. In the instant appeal, the District Court of Sengerema did not determine if the victim was incapable of understanding questions as there was no any question put to her nor did it satisfy itself that the victim was incapable of giving rational answers. In fact, going by the record, it is the mother of the victim (PW2) who testified under oath that the victim cannot express herself because she was three years of age. In our respective

view, the phrase I have seen the victim physically recorded by the learned trial Resident Magistrate is not a determination that the said victim was incapable of testifying. We stated in Henry Jovin v. Republic (Criminal Appeal No. 496 of 2024) [2026] TZCA 259 (5 March 2026; TanzLII) when faced with a similar scenario that: "The wording o f the provision referred to above does not provide this exception as an automatic right, but it is subject to the assessment by the court, this means, it is only the court which is mandated to rule out whether a person is competent to testify or otherwise and not a party to a case, relative, prosecution, advocate, guardian or any other person. For that reason, any person (the victim inclusive) must appear before the court for it to make an assessment, as far as his competency to testify is concerned, not otherwise." The conclusion we make is that, the prosecution failed to procure the victim to testify in the trial court regarding the rape incident. The reason for the inaction is not apparent on record. From what we demonstrated above, in the absence of the evidence of the victim, the remaining evidence cannot establish that it was the appellant who raped the victim, if at all any offence of rape was ever committed. We are saying 8

so because, besides the age of the victim, the other element of rape, that is penetration as provided for under section 130 (4) (a) of the Penal Code, was unproven in twofold. First, that the victim who would have explained how she was penetrated was not called to testify. Second, PW4 who examined the victim, his oral testimony under oath is inconsistent and contradicts the same oral testimony and that in the PF3. In the oral testimony, PW4 concluded that, the victim was raped by a blunt object, meaning that, there was penetration. However, in the same oral testimony and the PF3 which he tendered as exhibit PW4A, the evidence is such that, the victim was virgin with nor bleeding, discharge, leakage and the vaginal swab lacked sperms. Again, this evidence contradicts the version of the victim's mother who testified to have checked the victim and discovered some sperms in her vagina. It defeats the conclusion made to the effect that the victim was raped. In the absence of penetration, which is an essential ingredient, we hold that, the offence of rape stood at the door of the appellant was unproven. See Cleophace Tiluganilwa v. Republic (Criminal Appeal No. 253 of 2024) [2026] TZCA 253 (5 March 2026; TanzLII). This ground alone suffices to dispose of the entire appeal; thus, a compelling need to deliberate on the remaining grounds of appeal does not arise any more. 9

In light of what we have demonstrated above, we find substance in the appeal as urged by Ms. Changale, accordingly, it is allowed. The conviction is quashed and the sentence is set aside forthwith. We, in the end, order the immediate release of the appellant unless, there are other reasons for his stay in custody. 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. 10