Deogratius Brendan Ndewingia vs Republic (Criminal Appeal No. 399 of 2024) [2026] TZCA 407 (13 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: SEHEL. 3,A.. MGONYA. J.A. And KHAMIS. J.A/> CRIMINAL APPEAL NO. 399 OF 2024 DEOGRATIUS BRENDAN NDEWINGIA.,... ................. ........... APPELLANT VERSU5 THE REPUBLIC........................................ .................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es salaam) fNkwabi. J.1 dated the 28th day of March, 2024 in Criminal Appeal No. 145 of 2023 JUDGMENT OF THE COURT 2(fh February, & 13t hApril, 2026 MGONYA. 3.A.: Before the District Court of Temeke (the trial court) in Criminal Case No. 78 of 2022, Deogratius Brendan Ndewingia, the appellant, was charged with rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code. It was alleged by the prosecution that, on diverse dates between 21s t July, 2021 and 26th August, 2021 at Buza Abiola area within Temeke District in Dar es Salaam Region, the appellant did have carnal knowledge of the victim, a girl of fifteen years. Therefore, having due regard to the fact that the nature of the offence was sexual, for purposes of protecting and preserving the victim's dignity, we will i

conceal her real name in this judgment and refer to her as the victim or PW3. The prosecution's case, as can be gathered from the evidence on record, is as follows: The victim (PW3) testified that the appellant seduced her by promising to take her to school and assist her family, Those promises led her to accept and eventually become his lover. That the first sexual encounter occurred at a guest house known as Kwa Mama Kibonge, after which they continued to meet at the appellant's residence. It was her evidence that on 26th August, 2021 after failing to attend school as she did not have a bus fare, the appellant called her to his room, where they again engaged in sexual intercourse. Shortly thereafter, there was a knock on the door, and upon the appellant opening it, police officers accompanied by her mother entered and found her already dressed and preparing to leave. They were thereafter taken to Chang'ombe Police Station. She added that she was later issued documents for medical examination and taken to Malawi Hospital at Yombo Vituka where she was examined. (PW1), the victim's mother, testified that, the appellant had developed a close relationship with her daughters, which initially did not raise suspicion as he claimed to be teaching them good habits. 2

However, she later found him with her daughter at Makangarawe grounds at about 23:00 hours in July 2021. Upon inquiry, the child informed her that the appellant was assisting her with school subjects. This prompted PW1 to monitor the appellant and PW3 more closely. According to PW1, it was on 26th August, 2021 while she was at Kariakoo, PW1 received information from neighbors directing her to go to the appellant's residence, where her daughter had been seen. PW1 reported the matter at Makangarawe Police Station and proceeded with police officers to the appellant's house. Upon knocking, the appellant opened the door, and the police officers entered his room, where they found the victim inside while the appellant was dressed in a towel. PW1 also entered and witnessed the same. Thereafter, the appellant was arrested and taken to the police station. PW1 testified further that she was issued a PF3 to facilitate the medical examination of the victim. She stated that they went to Malawi Hospital during night hours of the same day, but they were not attended to. On the following day, on 28th August, 2021, they returned to the same hospital where PW3 was examined, though the results were available on 1s t September, 2021. The PF3 was tendered by PW5 and admitted as Exh. P2.

Another witness was E6227 Sgt. Phocus (PW2), who testified that on 27th August, 2021 he interrogated the appellant, where he admitted that he knew the victim and that he had been in a sexual relationship with her for approximately one month. The matter was investigated by WP 6046 D/CPL. Nuni (PW4), who visited the appellant's home while accompanied by the victim, who showed her the appellant's room, the place where they had sexual intercourse. In his defence, the appellant denied the commission of the offence and contended that the allegations against him were fabricated, asserting that there existed prior animosity between himself and the family of the victim. The trial court considered the evidence tendered and concluded that the case was proved beyond a reasonable doubt. It found the appellant guilty and convicted as charged. He was therefore sentenced to serve 30 years' imprisonment. The appellant was aggrieved and lodged Criminal Appeal No. 145 of 2023 before the High Court at Dar es Salaam. However, his appeal was fruitless as the first appellate court dismissed it and upheld both the conviction and the sentence. Still aggrieved, the appellant filed this

appeal as a second appeal. The memorandum of appeal comprises five grounds, which we paraphrase as follows:

1. That the lower courts relied on the contradictory, unreliable, and incredible evidence of PW1 and PW3 to ground his conviction;
2. The first appellate court erred in its failure to draw an adverse inference against theprosecution on their failure to bring into trial court the guest house attendant from Kwa Mama Kibonge where the first incident occurred;
3. That the first appellate court grossly erred by misdirecting itself in law by not cogitating and analyzing the issue ofpenetration;
4. That the lower courts wrongly relied on the contradictory, unreliable, and incredible evidence on PF3 (Exh. P2) to ground the conviction; and
5. That the prosecution's case was not proved to the required standard. At the hearing, the appellant appeared in person, unrepresented, whereas the respondent Republic was represented by Ms. Mwanahamisi Kilongo, assisted by Ms. Shamimu Mruma, both learned State Attorneys.

When invited to elaborate on the grounds of appeal, the appellant prayed us to consider the grounds of appeal and the written submissions in support thereof and set him free. In his written submission, the appellant argued the first, fourth, and fifth grounds conjointly. He stated that the prosecution failed to prove its case beyond a reasonable doubt. Elaborating on that, he reiterated the legal principle that he who alleges has a burden to prove the allegations as provided under sections 3 (2) (a) and 110 (1) and (2) of the Evidence Act, Cap. 6 R. E. 2019, and in Jonas Nkize v. Republic (1992) T.L.R. 2013. He stated that, the credibility of PW3 is highly questionable, specifically on the date she was examined. The appellant submitted that, it is on record at page 33 of the record of appeal, PW3 testified that upon arrival at the police station, which was on 26th August,2021, they were given a PF3, and they went to Malawi Hospital at Yombo Vituka, where she was medically examined. According to the appellant, the fact that PW3 does not state that she was examined on 28th August 2021, as testified by PW1, reveals that PW1 is a liar. According to the appellant, it was unsafe to convict him based on such evidence and sentence him. He therefore prayed us to allow the 1s t, 4th and 5th grounds of appeal. 6

Regarding the second ground of appeal, the appellant argued that, it is on record that the appellant was raped at Kwa Mama Kibonge guest house. Therefore, the prosecution was supposed to summon the guest attendant(s) from Kwa Mama Kibonge, as these were material witnesses to prove that the appellant hired a room. Likewise, the appellant challenged the lower courts by failing to draw an adverse inference to the prosecution's case for failure to summon the arresting officer. According to the appellant, those witnesses were within reach, but they were not summoned without sufficient reason being shown. In his view, by the failure of the prosecution to summon the guest attendant and the arresting officer(s), the court was supposed to draw an adverse inference for unreasonable failure to summon material witnesses. To bolster his submission, he cited the cases of Aziz Abdallah v. Republic (1991) T.LR. 71 and Charles Kassim @ Katobe v. Republic, (Criminal Appeal No. 546 of (2021) [2022] TZCA 581. Arguing further, the appellant submitted that the police officer from Makangarawe who allegedly accompanied PW1 to the scene of the crime and arrested the appellant was also a material witness. In his

firm argument, the appellant stated that this witness could have cleared the doubt as to whether the appellant was arrested while he was inside the room with PW3. He contended that he was never arrested by the police but by the street boys. The appellant stressed that the failure to summon the police officer was fatal. Based on what he submitted, the appellant urged us to allow the second ground of appeal. On the third ground, the appellant claims that the prosecution evidence did not prove the penetration of the male organ into PW3's female organ. He argued that the testimony of PW3 to the court did not support the offence of rape as per section 130(4) of the Penal Code. That the testimony of PW3 did not indicate whether the appellant's penis penetrated her vagina. To fortify his submission, the cases of Petro Andrea v. Republic, (Criminal Appeal No. 108 of 2009), [2011] TZCA 168, Mathayo Ngalya @ Shaban v. Republic, (Criminal Appeal No. 170 of 2006) [2008] TZCA 140, and Hassan Bacho Nassoro v. Republic, (Criminal Appeal No. 15 of 2020) [2020] TZCA 2093 were referred to. On the other hand, the learned Ms. Kilongo at the onset declared that the respondent supports the appellant's conviction and sentence. She went on to reply on the first, fourth, and fifth grounds that it is on 8

record of this appeal at pages 6 and 7 that PW1 told the trial court how the appellant had a relationship with the victim and that they were lovers. She also narrated how she got the information about the presence of her daughter at the appellant's room on 26th August, 2021 where he took the police and went to arrest the appellant in the presence of the victim. The learned State Attorney further submitted that, the victim testified as to when she started the relationship with the appellant and all the events thereafter. To bolster her proposition, the case of Selemani Makumba v. Republic TLR 1976, which states that the best evidence is that of the victim, as the act is done in privacy, was referred to. The learned State Attorney further contended that PW1 and PW3 explained everything, including the facts that they went to the police station and later to the hospital. According to Ms. Kilongo, the testimony of PW3 corroborated with Exh. P2, which showed that the same was filed on 1st September, 2021. It was her stance that PW1, PW3, and Exh. P2, proved the prosecution's case beyond a reasonable doubt since all elements that establish statutory rape were proved. This submission was supported with the case of Daniel Abdul v. Republic (Criminal Appeal No. 42 of 2015) [2015] TZCA 32.

Consequently, she urged us to find the 1st, 4th , and 5th grounds of appeal meritless. Responding to the second ground of appeal, where the appellant faulted the lower courts for failure to summon a guesthouse attendant from Kwa Mama Kibonge and the police officers who allegedly arrested him at the crime scene, the learned counsel argued that the guesthouse attendant was not a material witness in this case to prove the charge. By referring to section 152 of the Tanzania Evidence Act, Cap. 6 R. E. 2023 (the TEA), she contended that no particular number of witnesses shall in any case be required for the proof of any fact. According to Ms. Kilongo, the evidence of PW1 and PW2 was enough to prove the case. The learned State Attorney stressed that the relevant testimony was of the day when the appellant was arrested. Responding to the third ground of appeal, where the appellant faulted the evidence regarding penetration, Ms. Kilongo referred us to page 33 of the record and argued that PW3 revealed that she had sex with the appellant for the first time at Kwa Mama Kibonge's guest house. That the appellant inserted his male organ into her private parts. That PW3 further testified that the next time, they met at the appellant's home, where they made love. According to Ms. Kilongo this a o

testimony establishes that PW3 was penetrated. To bolster her submission, the case of Nebson Tete v. Republic (Criminal Appeal No. 419 of 2013) [2015] TZCA 237 was cited. From the foregoing, she urged us to find the appeal meritiess. Having carefully re-evaluated the record of appeal, the proceedings in the trial court, the judgment of the High Court, and the rival submissions by both parties, we find the main issue for our determination is whether the appeal has merit. At the outset, it is imperative to restate the settled position of the law that in a second appeal, this Court is warned to interfere with the concurrent findings of the lower courts. However, where it is apparent that the findings of fact by the lower courts were based on misapprehension of evidence, non-direction, or wrong application of legal principles, this Court is entitled to interfere. See - Rashid Ally Kimage v. Republic (Criminal Appeal No. 107 of 2022) [2024] TZCA 490, Raymond Mwinuka v. Republic (Criminal Appeal 366 of 2017) [2019] TZCA 315 and Daniel Matiku v. Republic (Criminal Appeal No. 450 of 2016) [2019] TZCA 582. As alluded to above, the appellant has filed five grounds of complaint. However, in our considered view, those five grounds ii

centered on a single complaint that the prosecution's case was not proved beyond a reasonable doubt. Basically, on the 1s t, 4th , and 5th grounds of appeal, the appellant has strongly challenged the credibility and consistency of PW1 and PW3 and Exh. P2. His arguments were particularly based on the timeline relating to the medical examination. It is on record that PW3 told the court that she was taken to the hospital on 26th August, 2021 immediately after the report was made, whereas PW1 stated that they were not attended to on that date, and eventually the victim was examined on 28th August 2021, with results being issued on 1s t September 2021. According to the appellant, this contradiction is not minor and renders the evidence of PW1, PW3, and Exh. P2 not credible and reliable. When it comes to the contradiction and inconsistency of the prosecution witnesses, the law is settled that, where contradictions are material and remain unexplained, they weaken the prosecution's case. See. Yohana Paulo Tega & Others v. Republic (Criminal Appeal No. 641 of 2023) [2026] TZCA 252 (5 March 2026); Jumanne Pingu @ Memo Banebe v, Republic (Criminal Appeal No. 84 of 2023) [2025] 12

TZCA 1080 and Noel Samwel v. Republic (Criminal Appeal No. 418 of 2020) [2023] TZCA 17518. In the latter, it was held that: "It is our considered view that the contradictions by these witnesses affected their credibility. We are alive to the principle of law that the credibility of witnesses is the province of the trial court. However, the credibility of a witness, where necessary, can also be assessed by an appellate court." In this appeal, PW1 and PW3 are the material witnesses to establish that the appellant was found with the victim in his room and that PW3 was raped. Unfortunately, although they are testifying on a single matter, these witnesses have different versions of the story. PW3 told the trial court that, it was on 26th August, 2021 when she went to the hospital and was examined, while PW1 told the trial court that PW3 was examined on 28th August, 2021. Being guided by the above authorities and having considered the identified contradiction, we do not share the view taken by the first appellate trial court that the contradiction and inconsistency were minor and do not go to the root of the matter. On our part, we find that the contradiction eroded the witness's credibility; hence, we fault the first appellate court for upholding the appellant's conviction in circumstances where the 13

medical report was among the evidence relied upon by the court to enter a conviction. Thus, we find merit in the appellant's complaint on the 1st, 4th , and 5th grounds of appeal. On the complaint that the prosecution failed to summon material witnesses, the appellant faulted the prosecution for failure to call the guest house attendant from Kwa Mama Kibonge and the arresting police officer. It is correct, as argued by the respondent, that the law does not require a specific number of witnesses to prove a fact. However, in our considered view, this principle is not absolute. Where a witness is material to unfolding key aspects of the prosecution's case, and is available but not called without explanation, the court may draw an adverse inference. See Joseph Paul Andrea v. Republic (Criminal Appeal No. 198 of 2022) [2025] TZCA 107 and Aziz Abdallah v. Republic [1991] T.LR. 71. In the present case, the first incident of sexual intercourse allegedly occurred at Kwa Mama Kibonge guest house. It was PW3's testimony that, on that date, the appellant for the first time inserted his penis in her vagina. Therefore, in the circumstances where the appellant denied any involvement in the offence, we find the guest attendant was a crucial witness to establish whether the appellant and 14

the victim were indeed present there under the alleged circumstances. We have noted the learned State Attorney's contention that the guest house attendant was not crucial, as in this case, the focus was on the incident committed on 26th August, 2021, only. With due respect to the learned State Attorney, this assertion is wrong, as the charge which vindicated the appellant involves the dates from 21s t July, 2021, and 26th August, 2021. Thus, the prosecution was bound to establish and prove any allegation that falls within such a duration of time. In this regard, we wish to quote part of the charge as hereunder: "PARTICULARS OF THE OFFENCE: DEOGRA TIOUS BRENDAN NDEWINGIA on diverse dates between 21st day ofJuly, 2021 and 20* day ofAugust, 2021 at Buza Abiofa Area within Temeke District in Dar es Saiaam Region, did have canai knowledge of one ..... a girt of fifteen (15) years old. ” Similarly, the arresting officer was a material witness in clarifying the circumstances under which the appellant was found with the victim in his room and his further arrest. This is particularly important in light of the appellant's contention that he was not arrested by police officers but by street youths. Nevertheless, during re-examination at page 8 of the record of appeal, PW1 told the trial court that, the appellant said that they were 15

not on good terms because they once quarreled. In our considered view, the appellant raised that issue intending to show the trial court that PW1 fabricated the case against him, as they were in bad blood. We find that, under the circumstances, the police officers allegedly accompanied PW1, witnessed the appellant with the victim in his room, and arrested him; they were material witnesses in this case. The failure to call these witnesses, without any explanation, left gaps in the prosecution's case. The lower courts, with respect, misdirected themselves by dismissing this omission as inconsequential. Regarding the last ground of appeal, it is settled that the prosecution has a duty to prove its case beyond a reasonable doubt. That the burden of proof never shifts to the accused, and any doubt arising from the prosecution's evidence must be resolved in favour of the accused. See Issa Mwanjiku @ White v. Republic (Criminal Appeal No. 175 of 2018) [2020] TZCA 1801 and Thobias Michael Kitavi v. Republic (Criminal Appeal 31 of 2017) [2020] TZCA 1746. In this case, the noted contradictions in the prosecution's witnesses and the failure by the court to summon material witnesses create doubts on the prosecution's case. The noted doubts are not merely fanciful, as they are substantial and go to the core ingredients ie

of the offence. Thus, we find merit in the appellant's last ground of appeal. Consequently, we allow the appeal, quash the conviction, and set aside the sentence imposed on the appellant. The appellant should be released from prison forthwith unless he is otherwise lawfully held. DATED at DODOMA this 10th day of April, 2026. B. M. A. SEHEL JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL Judgment delivered this 13th day of April, 2026 via virtual Court, in the presence of the Appellant in person, Mr. Frank Rimoy, State Attorney for the Respondent/Republic and Ms. Christina Mwanandeje, Court Clerk; is hereby certified as a true copy of the original. 17