Peter Phinias vs Republic (Criminal Appeal No. 500 of 2024) [2026] TZCA 425 (17 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LEVIRA. J.A.. MDEMU, J.A. And ISSA, J. A.) CRIMINAL APPEAL NO. 500 OF 2024 PETER PHINIAS .................... . ........... . .....................................APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Mwanza at Mwanza) rshao. PRM-Ext. Juris.) Dated the 1s t day of March, 2024 in RM Criminal Appeal No. 52 of 2023 JUDGMENT OF THE COURT 26th February & 17th April, 2026 MDEMU. J.A.: Peter Phinias was convicted and sentenced to thirty (30) years prison term by the District Court of Magu for the rape of a fourteen (14) years old girl and a form two student of Kitumba Secondary School. The appellant was also ordered to reimburse all medical expenses for treatment as a result of rape injuries sustained at the tune of TZS. 1,000,000.00, The alleged rape was committed on 26th January, 2023 at Kisesa Village within Magu District. On the night of the incident day, the victim (PW2) and Faustine Ramadhan (PW3) were at home. The appellant went there and forceful, i

kicked PW3 out of the house. By then, PW2 had already retired to the bedroom. Seizing the advantage of remaining two in the house, the appellant dragged PW2 into the bed, strangled and undressed her, dressed off his trousers and then inserted his manhood into her private parts. PW3 heard a helping scream from the victim through a window. He then decided to seek a help from neighboring residences. Upon his return to the crime scene, he found Rebeca Charles (PW1) with the victim outside the house. By that time, the victim was crying while naming the appellant to be her ravisher. As the appellant was still inside the house, PW1 locked the door from outside and called a few neighbors who took the appellant to the Police Station while the victim and her mother (PW1) went to Kisesa Hospital where Charles Nyanda (PW4) attended her and as per the PF3 (exhibit PI), the victim was raped following bruises and sperms noted in her vagina. According to WP 6772 Detective Corporal Dafroza (PW5), the appellant confessed in his cautioned statement (exhibit P2) to have raped the victim. In his defence, the appellant admitted to be in the residence of PW1 on the incident day, but denied completely to have taken part in the rape of the victim. That besides, the trial court found the prosecution case proven, convicted and ultimately, sentenced him as forestated. The basis 2

of conviction of the trial court is contained in the following single paragraph of the judgment appearing at page 28 through 29 of the record of appeal as follows: "Zaidi muhanga aliiambia Mahakama jinsi tukio iiiivyotokea na zaidi kumtaja mshitakiwa kwamba ndiye muhusika wa tukio ia yeye kubakwa. Ushahidi wa daktari ambaye aiijaza PF3 aliieieza Mahakama ya kwamba, muhanga a/ikuwa ameingiiiwa. Mahakama hii imeridhika ya kwamba shtaka /a kubaka kinyume na kifungu cha 130 (2) (e) cha Kanuniya Adhabu, Sura ya 16 iimethibitika na kwamba Mahakama hii inamtia hatiani mshtakiwa kwa shataka hiii." Aggrieved by the said findings of the trial court, the appellant appealed to the High Court. The appeal was transferred to the Principal Resident Magistrate with Extended Jurisdiction (PRM-Ext. Juris.) who dismissed it for want of merits. Before dismissing it, the learned PRM- Ext. Juris, made the following remarks at page 44 of the record of appeal: " The main complaint o f the appefiant in his appeai is that, the evidence adduced by the prosecution witnesses before triai court are weak, contradictory, and fabricated. The triai court ought not to considerit in convicting and sentencing him. On his orai submission, the appeiiant did not point out how the prosecution case was weak; he did

not mention the witnesses who their evidences are contradicting and which evidence is fabricated.” Again, the appellant was displeased with the first appellate court's decision, thus approached the Court by lodging a memorandum of appeal comprising of 6 grounds paraphrased as follows:

1. The cautioned statement (exhibit PI) was wrongiy used to ground conviction because it was recorded out of time.
2. PW3 being a Muslim, his evidence was received without affirmation.
3. The age o f the victim was not proved.
4. The evidence o f identification by recognition is weak on account that, PW2 and PW3 did not describe the source o f aiders o f that identification.
5. The prosecution case was not proved beyond reasonable doubt. The totality of the above paraphrased grounds of appeal intends to explore if the conviction of the appellant based on sound evidential criteria. We thus heard the appeal on 26th February, 2026 in which, the appellant appeared in person, unrepresented, whereas Ms. Lilian Meli, learned Senior State Attorney, assisted by Mr. Adam Murusuli and Ms. Stella Minja, learned State Attorneys, represented the respondent Republic. They resisted the appeal through Ms. Minja who argued it.

When the appellant was invited to address the Court, he simply banked on the grounds of appeal which to him suffices to demonstrate his discontentment on the conviction and sentence meted out to him. He however reserved his right for a rejoinder submission, should a need to do so arise, Ms. Minja conceded in the 1s t ground that, the cautioned statement (exhibit PI) was recorded out of the four hours prescribed by the law. She urged us to expunge it from the record. On our part, we entirely agree with both the appellant and the learned State Attorney that, as exhibit PI was recorded out of the four hours prescribed under section 51 (1) of the Criminal Procedure Act, Cap. 20 (the CPA), the said evidence be expunged from the record, as we hereby do. We allow this ground of appeal. Regarding the 2n d ground, we again agree with Ms. Minja that PW3's evidence was received on oath and he, being a Muslim, his testimony was supposed to be under affirmation. However, as Ms, Minja argued, such an irregularity is not fata! in terms of section 9 of the Oaths and Statutory Declarations Act, Cap. 34, which reads: "Where in any judicial proceedings an oath or affirmation has been administered and taken, such oath or affirmation shaii be deemed to have been properly administered or taken , , notwithstanding any irregularity in the

administration or the taking thereof, or any substitution o f an oath for an affirmation, or o fan affirmation for an oath, or of one form o f affirmation for another." See also Shomari Athuman @ Mwanja & Another v. Republic (Criminal Appeal No. 650 of 2021) [2024] TZCA 46 (16 February 2024; TanzLII). We therefore hold that, the appellant was not prejudiced by the omission. The 2n d ground is thus dismissed. Replying in the 3r dground that the age of the victim was not proved, Ms. Minja attached no weight to this ground because, the victim (PW2), her mother (PW3) and the clinical officer (PW4) proved that the victim was fourteen (14) years old. She thus concluded that, the alleged difference in the age between and among the witnesses remain unfounded. We also went through the record of appeal and could not comprehend the differences regarding the age of the victim in the manner complained by the appellant. This ground is dismissed as well. In a complaint relating to identification by recognition, we think this ground should not detain us more than necessary. PW1, PW2 and PW3 all testified that, the appellant was at the residence of PW1 on the material date. This fact is also in the evidence of the appellant. What the appellant disputed so far in his defence is accusation stood in the charge that on

that fateful night, he raped PW2. This ground is therefore devoid of substance and we proceed to dismiss it. We now turn to the 5th ground of appeal that, the prosecution case was not proved beyond reasonable doubt. We underscore the law that, this being a criminal case, the duty lies on the prosecution to prove the case, and the standard of proof casted upon them is beyond reasonable doubt. This is the spirit behind the enactment of section 3 (2) (a) of the Evidence Act, Cap. 6 and in many decisions of the Court. As we stated above, the conviction of the appellant in this case owe its basis in the evidence of the victim which, according to the findings of the two courts below, that evidence was also corroborated by PW3 who was kicked out of the house and that while outside, he heard the victim vowing for help. The two courts further relied on the evidence that the victim reported to PW1 naming the appellant to have raped her. Ms. Minja franked this evidence and insisted that, as the appellant failed to cross examine all the prosecution witnesses, then that is evidence of admission such that, on the fateful day, he raped PW2. She implored us to hold so basing on principles held in Martin Misara v. Republic (Criminal Appeal No. 428 of 2016) [2018] TZCA 218 (13 December 2018; TanzLII). The other evidence relied upon to ground conviction was the confession of the appellant in the cautioned statement. However, as demonstrated above,

we expunged that evidence for non-compliance with section 51 (1) of the CPA. For that matter, the remaining basis of conviction of the appellant as stated in the judgment of the 1s t appellate court at page 46 of the record of appeal goes in the following version: "Ijoin hands with the submission o fState Attorney Evans Kaizer and John Simon Josh that, they managed to prove their case beyond reasonable doubt First the appellant did not cross examine the witness on material facts, secondly, there Isproofofpenetration In the vagina o f PW2 proved that, she was raped and her evidence is the best evidence in sexual offence cases as stated in the case o f Selemani Makumba (Supra). I find no contradicting evidence, and no fabricated evidence. The evidence ofPW l, PW2, PW3, PW4 and PW5 narrates how the appefiant committed the offence. " [emphasis supplied] Our interpretation of the above passage is a revelation to us that, the appellant was convicted basing on: one, the evidence of the victim, being the true evidence in sexual offences and two, failure of the appellant to cross examine the prosecution witnesses. The first appellant court discredited the complaint of the appellant that the case against him was fabricated. We considered this position of the first appellate court 8

along with the stance of Ms. Minja regarding failure of the appellant to cross examine, together with the credibility of the prosecution witnesses and probed her to comment on a total failure of the two courts below to consider the defence of the appellant. We were prompted so on account that, among the raised grounds, one ground related to fabrication of the prosecution case against the appellant. Ms. Minja conceded that there was a total failure to consider the appellant's defence and invited us to reevaluate it, though, on her part, the appellant's defence did not shake the prosecution evidence. She did not however cite to us any authority on that stance. Given the invitation, we asked ourselves if we have the requisite mandate being the second appellate court. In one of the decisions of the Court in Mathayo Laurence William Mollel v. Republic (Criminal Appeal No. 53 of 2020) [2023] TZCA 52 (20 February 2023; TanzLII), being faced with a similar situation; we said: "The first appellate court slipped Into the same error. As a first appellate court, it was incumbent upon it to subject the evidence adduced at the trial to that scrutiny as if it was rehearing the case. That was not done and as we held in Mzee AUy Mwinyimkuu @ Badu Seya v. Republic, CriminalAppeal No. 499 o f2017 (unreported), the second appellate court may step into the shoes o f the first appellate court and do what it did not do."

Before we embark on that duty, we find it apposite to reproduce the whole defence of the appellant for ease of reference as hereunder: " Ilikuwa tarehe 25/1/2023 nffienda Kisesa na sikumkuta mama mwenye mji niiiambiwa na watoto ameenda kazini. Nilienda kujilaza na sikuia sikuhiyo. Mida ya saa 4 usiku wafikuja watu nisio wafahamu mmoja akiwa na panga na alinijeruhi. Nifichukua kiti na nikagombana nao. Mwenye mji alifika na kuingffia. Alikuja mtu na kuamuiia ugomvi. NHikuwa nimekatwa panga kichwani, mgongoni najino. Nifienda k/tuo cha Pofisi - Magu sikujijua kwa siku tatu na baadaye ku/etwa mahakamani. Muhanga m mpwa wangu na wote wananifahamu. Daktari alimpima muhanga tu. Mpeielezi wa kest alidai nilikiri Ha ukweli sikuhojiwa. Hata kwa mtu alidai sikubaka bali ninasumbua. Niiituma vijana wanipige. Miango ulikuwa umefungwa kwa ndani na Ester afifungua na akarudi ku/afa bila ya shida yoyote. Mama Bhoke alidai kuwa aiituma mesaji ya utani. Hayo tu." [emphasis supplied] We note from the appellant's defence that, the appellant does not dispute to be in the house of PW1 on the incident day. He also indicated in his defence that, the victim and PW3 were present but PW1, the 10

proprietor, was absent. What therefore he denied was the contents of the charge that he raped PW2. As we alluded to above, both courts below did not consider that defence. We were invited by the prosecution to do so and we held to have the requisite mandate. As we embark on this task, we also need to determine along with whether the first appellate court duly considered the complaint of the appellant that the case against him was fabricated. The said complaint as seen at page 31 of the record of appeal goes that: " That the trial court magistrate erred in law and fact to hear and determine the case basing on fabricated evidence." We see this to be pertinent because, doing it, will resolve several issues, one being the credence of the prosecution witnesses, two relates to non-consideration of the appellant's defence and probably, three, what really happened in the residence of PW1 during the fateful night. On this approach, the appellant's complaint that the prosecution case was not proved to the hilt will be resolved. We begin with non-consideration of the defence case. In the adversarial legal system like ours, a judgment that considers both the prosecution and the accused's case is a cornerstone which ensures fair trial and the operationalization of the principles of the burden of proof in

criminal cases. The process requires evaluation of evidence from both sides, assessing the credibility of witnesses and their consistency with a view to determine whether the prosecution case was proven beyond reasonable doubt. In the instant case, there was a total ignorance in both courts below to consider the appellant's defence. Besides the admission made in respect of being present at the crime scene, the appellant raised that on the day, the residence of PW1 was invaded by the assailants whom he could not mention. In that invasion, he was also assaulted. Again, he does not say if anyone was also assaulted in that invasion. He was not cross examined by the prosecution, so do his failure to cross examine the prosecution witnesses. We need not to speculate the reason behind. That notwithstanding, the trial court did not even bother to construct a sentence in a bid to consider the appellant's defence. When the appellant raised his complaint in the first appellant court that the case was fabricated on account of weaknesses and inconsistencies in the prosecution case, he was informed in the judgment that, he has not stated the inconsistencies and how the said case was fabricated. This, we think, the court slipped into error. Besides shifting the burden of proof to the appellant, the first appellate court would have assessed, analysed and weighed both evidence of the prosecution and that of the accused and in 12

the course, we believe, it could have made a finding that the complaint of the appellant on fabrication of a case was unfounded or not. As this was not done, the appellant was denied a fair and full hearing. See Jose Mwalongo v. Republic (Criminal Appeal No. 217 of 2018) [2020] TZCA 1735 (19 August 2020; TanzLII). We note further in the evidence of the appellant that, in the residence of PW1 where PW2 is allegedly to have been raped, unidentified persons invaded the premises and injured him. There was a person who intervened, but unfortunately, the prosecution case is silent. PW1 who also intervened, was silent on this aspect. Importantly, that person whom the appellant did not mention, was not called nor did those neighbors informed by PW1 nor those who PW3 approached for help, had their way in evidence. Again, those who arrested the appellant and took him to the police station had no place in evidence at the trial. This pose some difficulties to determine if the fracas in the residence of PW1 was a result of rape manifestation to PW2, thus pointing a finger to the appellant or was what the appellant stated in his defence regarding invasion in the residence of PW1 by unknown persons. This, we think, was unavoidable phenomenon to bridge in the prosecution case. We say so because, it would have corroborated the version of PW1 that on being informed of presence of the appellant, PW1 returned home and locked the appellant 13

inside. Equally, they would have testified further that, they found the appellant locked inside, which is the prosecution case, or that they responded to the alarm following invasion in the residence of PW1 by unknown persons as claimed in the appellant's defence. The appellant further raised that he was injured. The prosecution case, including, a police detective PW5, touches nothing on this. Perhaps the investigator or those who arrested the appellant would have informed the trial court if the appellant was injured or not. Unfortunately, they were not called to testify. Accordingly, an inference adverse to the prosecution is hereby drawn for that failure. In our respective view, failure of both courts below to consider the defence case did not only denied the appellant's fair and full hearing but also preclude the trial court itself with an opportunity to determine the credence of the prosecution witnesses and the extent to which it was not shaken by the defence case as argued by Ms. Minja. 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 is fatal and vitiates the basis of conviction. On that account, the prosecution case was not proved. The appeal is hereby allowed. The appellant's conviction is accordingly 14

quashed and the sentence meted out to the appellant is set aside forthwith. The appellant be released from custody immediately save for where there are other lawful reasons for his continued incarceration. DATED at DODOMA this 27th day of March, 2026. M. C. LEVIRA JUSTICE OF APPEAL G. 1 MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered virtually this 17th day of April, 2026 in the presence of Appellant in person, Ms. Jaines Kihwelo, learned State Attorney for the Respondent and Ms. Christina Mwandenje, Court Clerk; is hereby certified as a true copy of the original. AR \L 15