Mohamed Mshamu Mohamed vs Republic (Criminal Appeal No. 179 of 2024) [2026] TZCA 397 (10 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: SEHEL. 3.A.. MGONYA, 3.A. And KHAMIS, J.A.^ CRIMINAL APPEAL NO. 179 OF 2024 MOHAMED MSHAMU MOHAMED ........................................... APPELLANT VERSUS THE REPUBLIC......................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) ( Kafanabo, 3J dated the 14th day of November, 2023 in Criminal Appeal No. 151 of 2023 JUDGEMENT OF THE COURT 16th February, & 10th April, 2026 SEHEL. 3.A.: The appellant, Mohamed Mshamu Mohamed, was arraigned before the District Court of Kibaha at Kibaha (the trial court) facing a two-count charge. The first count was Rape, contrary to sections 130 (1), (2) (e) and 131 (3) of the Penal Code. The particulars of offence alleged that, on 6th October 2022, at Madina-Msangani area within Kibaha District, the appellant had sexual intercourse with a girl aged five years. For the purpose of this judgment, we shall refer to her as the victim or PW4. The second count was for trafficking of Narcotic Drugs, contrary to section 15A (1) and (2) (c) of the Drug Control and Enforcement Act. It was alleged that on the same date and place/ the appellant was in unlawful possession of 427.60 grams of Cannabis Sativa commonly known as "bhangi". The prosecution case, as narrated by sixteen witnesses, was as follows; on the fateful day, at around 4:00 p.m., the victim, PW4 was playing with her friends, among them was PW1, aged 11. Whilst playing, a strange man approached them and asked for a direction to the village chairman's house. The victim volunteered to take him. Instead of going to the chairman's house, the man led the victim into a bushy area at Madina. There, he removed her underpants, unzipped his trousers, and inserted his penis into her vagina. He also smoked weed and blew the smoke into her face. As times passed by without seeing PW4 returning, PW1 became suspicious. She decided to raise an alarm. At the same time, it happened that, a neighbour, Zaina Musa (PW6), saw a man loitering in the bushes with a child. She also became suspicious and decided to 2 alert hamlet chairperson, one, Mshamu Rashid (PW5), who, together with an auxiliary police officer, John Yohanes (PW7), went to investigate. They found the appellant seated on the ground, legs stretched out and the chiid was on his lap. The child's upper body was covered by the appellant's shirt, and her legs were covered by a sulphate bag. They apprehended the appellant and took the sulphate bag which had in it dried leaves suspected to be bhangi to the village chairman and then to the Kibaha Police Station. The information was relayed to the victim's grandmother, Susana George (PW8), and her mother, Happy John (PW2), who, upon receipt of the information, went straight to the police station. At the police station, the victim was issued with a PF3 and taken to Mkoani Health Centre where she was examined by Dr. Leonard Miovela (PW9). His findings were that the victim's private part was reddish, with bruises and blood. He therefore concluded that there was penetration. The PF3 was tendered and admitted in evidence as Exhibit P4. As regards the sulphate bag and its contents, G.2346 Detective Corporal Peter (PW3) said that he received the items on 6th October, 2022 while at his office from the auxiliary police officer. He prepared the Certificate of Seizure (Exhibit P3) which was signed by himself, the appellant and PW5, On the same day, the exhibit was received and stored by PP 9599 Corporal Stela (PW10) until 10th October, 2022, when she handed over to E.9830 Detective Sargent Sahel (PW11), the Exhibits Keeper who labelled them and stored them in strong room. On 20th October, 2022, G.1810 Detective Corporal Godfrey (PW15) took and transported the suspected substance to the Government Chemist Laboratory Authority (the GCLA) for forensic examination. At GCLA, Faustine Gololi (PW13) examined the suspected substance and confirmed to be cannabis sativa weighing 427.60 grams. He transmitted his findings in the report which was admitted in evidence as Exhibit P6, and the sulphate bag containing the drugs was also admitted in evidence as Exhibit P7. On 14th November 2022, an identification parade was conducted by Assistant Inspector Asha (PW12) where both the victim and PW1 identified the appellant. The parade register was admitted in evidence as Exhibit PI. The appellant's cautioned statement which was recorded by G.8451 Detective Corporal Gabriel (PW16) was also admitted in evidence as Exhibit P9. 4 In his defence, the appellant (DW1) denied the charges. He claimed that on the fateful day, he was arrested for unknown reason. He alleged that at the police station, he was beaten and tortured by PW5 and PW7 and forced him to confess and signed a document which he did. At the end of the trial, the trial court found the appellant guilty on both counts. Accordingly, for the first count, he was sentenced to life imprisonment, ordered to pay compensation of TZS 1,000,000.00 to the victim, and to receive 12 strokes of the cane. For second count, he was sentenced to twenty years' imprisonment. The sentences were ordered to run concurrently. Aggrieved, the appellant appealed to the High Court of Tanzania at Dar es Salaam (the first appellate court). His appeal was partly allowed that the conviction for drug trafficking was quashed and the twenty years' sentence was set aside on account that the chain of custody of the Exhibit P7 was broken from the moment its seizure by the civilians. It found that the civilians did not explain how the exhibit was handled up to the moment it reached at the police station. Nonetheless, it dismissed the appeal against the conviction for rape and upheld the life sentence. 5 Still dissatisfied, the appellant has come to this Court on a secondappeal. In his Memorandum of Appeal, the appellant raised eight grounds of appeal, which we reproduce verbatim as follows: "1. That, the tria l and 1st appellate court erred in law and fact by convicting the appellant while they had no jurisdiction. 2. That the tria l and 1st appellate court erred in law and fact by convicting and upholding the appellant's conviction while the Prelim inary Hearing was conducted contrary to section 198 (1) (2) o f the Crim inal Procedure A ct (the CPA). 3. That the tria l and 1st appellate court erred in law and fact by convicting the appellant on the basis o f the PW1 f s evidence while his com petency and com pellability were not established before his evidence was adm itted in the court. 4. That the tria l and 1st appellate court erred in law and fact by convicting the appellant on the prosecution evidence that was tainted with discrepancy which go to the root o f the case. 6 5. That the tria l and 1st appellate court erred in law and fact by convicting the appellant on the identification parade that contravenes Regulation 2 o f the Police General Orders (the P.G.O.) No.232. 6. That the tria l and 1st appellate court erred in law and fact by convicting the appellant on exhibit P9 which was procured illegally. 7. That the tria l and 1st appellate court erred in law and fact by convicting the appellant w ithout considering the delay on the arraignm ent o f the appellant tantam ounted to reasonable doubt 8. That the tria l and 1st appellate court erred in law and fact by convicting the appellant while the prosecution failed to prove their case beyond reasonable d o u b t" At the hearing of the appeal on 16th February 2026, the appellant appeared in person, unrepresented. He adopted his Memorandum of Appeal and his written submissions to form part of his oral arguments. The respondent Republic was represented by Ms. Janeth Magoho, learned Principal State Attorney, who teamed up with 7 Mses. Bonasia Mollel and Caroline Kigembe, both learned State Attorneys. In his written submissions, the appellant condensed the eight grounds of appeal into one omnibus ground that the prosecution failed to prove its case beyond reasonable doubt. Specifically^ he complained that; first, the trial court failed to consider his defence. He referred us to his testimony at page 50 of the record where he testified that he was beaten and tortured and forced him to confess. He submitted that such evidence of torture created doubts in the prosecution's case. He further argued that PW4 corroborated his claim of being beaten, as she testified at page 21 of the record that "they were caning that m a n He cited the cases of John Mandata v. Republic [2020] TZCA 154 and Wambura Kiginga v. Republic [2022] TZCA 283 for the proposition that failure to consider defence evidence is an exceptional circumstance warranting this Court's interference. Secondly, the failure by the trial court to conduct an inquiry into the voluntariness of his cautioned statement (Exhibit P9) which was illegally procured through torture, To support his submission, he cited the case of Tano John v. The Republic [2015] TZCA 168 where the Court held that failure by the trial court to conduct an inquiry into the voluntariness of the statement after the appellant had alleged torture amounted to a substantial irregularity. Thirdly, the identification parade contravened Regulation 2 of P.G.O. No. 232. He argued that the victim had already seen him at the police station before the parade, rendering the identification parade a nullity. He cited the case of Francis Majaliwa Deus & 2 Others v. The Republic [2009] TZCA 92 to emphasize the importance of following the rules governing identification parades. With such a submission, he urged the Court to the appeal, quash the conviction, set aside the sentence and he be set free. Ms. Magoho supported both the conviction and sentence meted against the appellant. She began her submission by addressing us on the complaints that the identification parade was improperly conducted and the cautioned statement was illegally procured. She submitted that the complaints were an afterthought because they were not raised during the trial. Elaborating, she referred us to page 40 of the record, where the appellant did not object for PW16 to tender the cautioned statement (Exhibit P9). In that respect, she contended that since the appellant did not object for it tendering, he 9 is barred to bring the claim on the appeal. To fortify her submission, she cited the case of Nyerere Nyague v. Republic [2012] TZCA 103 where the Court held that failure to object the admissibility of a cautioned statement at the trial court bars a party from raising the issue on appeal. On the identification parade, she reiterated that it was an afterthought since at the preliminary hearing, the identification parade was not disputed. Accordingly, the parade register was admitted in evidence as Exhibit PI without objection. Submitting on proof beyond reasonable doubt, Ms. Magoho argued that the prosecution proved the charged offence against the appellant to the hilt. She contended, for the offence of statutory rape to stand, the prosecution is required to prove three ingredients; one, penetration, two, the accused person committed the offence, and three, age of the victim. She argued, in the present appeal, the offence of rape was proved by the victim herself (PW4) who testified that she was five years old and that the appellant took his "dudiS and kept it in her vagina. Her evidence was corroborated by PW9 who examined her and found bruises, reddish and blood in the victim's lady part and when touching her, she felt pain. PW9 also tendered 10 and it was admitted in evidence the PF3 (Exhibit P4) which established that there was penetration. The learned Principal State Attorney stressed that the appellant did not cross-examine these witnesses to challenge their testimony, which implies acceptance of their evidence. As regards whether it was the appellant who committed the offence, Ms. Magoho submitted that the appellant was arrested at the scene of crime, red-handed with the victim by PW5, PW6 and PW7 rendering the issue of identification inconsequential. She cited the case of Felix Majuga v. Republic [2022] TZCA 695, which itself cited Daffa Mbwana Kedi v. Republic [2019] TZCA 5, for the proposition that where an accused is caught red-handed at the scene, the issue of identification is irrelevant. On the complaint that the appellant's defence was not considered, she submitted that this ground was without merit. Both lower courts considered his defence but rejected it. She pointed to page 85 of the record, where the trial court explicitly considered and rejected the defence. She prayed that this Court uphold the trial court's finding that the prosecution witnesses were credible and reliable, citing the case of Goodluck Kyando v. Republic [2006] n T.L.R. 363. She also noted that at page 259 of the record, the first appellate court had partly allowed the appeal after a thorough re- evaluation of the evidence, which demonstrated a proper exercise of its mandate. Any failure by the High Court to specifically mention the defence again was curable under section 411 of the CPA. In his brief rejoinder, the appellant simply reiterated his prayer for the Court to consider his grounds of appeal and submissions and to show leniency so that he could be reunited with his family. Having heard the submissions by the learned State Attorney, we revisited the grounds of appeal and appraised ourselves on the entire evidence found in the record of appeal. From the outset, we wish to state that in disposing the appeal, we shall be mindful of the position of the law that the Court rarely interferes with the concurrent findings of fact by the courts below unless it is found that there were mis directions, non-directions on the evidence, a miscarriage of justice or a violation of some principle of law or practice - see the cases of The Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 149 and Musa Mwaikunda v. The Republic [2006] T.L.R. 387. In the present appeal we shall be mindful of that position of the law. 12 The grounds of appeal will be determined in the manner submitted by the learned Principal State Attorney. We start with the appellant's complaint that the cautioned statement was procured illegally through torture. Having examined the two lower courts decisions, we observed that the conviction for rape was not based on the confessional statement. Rather on the evidence of the victim evidence (PW4), the doctor (PW9) who examined the victim and found bruises on her vagina and the fact that the appellant was caught red handed with the victim by PW5, PW6 and PW7. In that respect, we see no reason to fault the concurrent findings of the two lower courts. We entirely agree with the correct findings of the first appellate court that the appellant neither objected nor cross examined the witness on the voluntariness of the cautioned statement thus, he was barred to raise on the appeal - see the case of Nyerere Nyague v. The Republic (supra). Therefore, we proceed to dismiss this complaint. Regarding the identification parade, as rightly submitted by Ms. Magoho, during the conduct of the preliminary hearing, the appellant admitted that, on 14th November, 2022, Assistant Inspector Asha conducted an identification parade where the appellant was identified 13 by the victim in the said parade and that the appellant signed the Identification Parade Register. Therefore, the Identification Parade Register was admitted in evidence as Exhibit PI. In terms of section 198 (4) of the CPA, the facts admitted during the Preliminary Hearing are deemed to have been proved, thus, require no further proof. In addition, we entirely agree with the first appellate court that where an accused person is arrested at the scene of crime while committing the crime, the issue of identification does not arise - see the case of Joseph Safari Massay v. The Republic [2013] TZCA 326 and Daffa Mbwana Kedi v. The Republic (supra). In the same vein, we dismiss this complaint for lacking merit. With regard to the complaint that the charged offence was not proved, we are firm that the prosecution proved the case to the required standard; that is, beyond reasonable doubt. As alluded earlier, in the first count, the appellant was charged with statutory rape. The first appellate court correctly applied its mind that for this kind of rape, prosecution must prove three things, namely; penetration of a male organ, however slight; age of the victim notwithstanding her consent and the accused person committed the offence against the victim. 14 As far as proof of penetration and age is concerned, we have shown herein that they were sufficiently established and proved by the victim herself (PW4) whose evidence was found firm, coherent and credible by the two lower courts. Proof of penetration was further cemented by PW9 who examined the private parts of the victim and found bruise and blood. In the end, PW9 concluded that there was penetration as evidence by Exhibit P4. As far as whether it was the appellant who raped the victim, PW5, PW6 and PW7 caught the appellant in action while committing the offence. In an akin situation, in the case of Abdallah Ramadhani v. The Republic [2013] TZCA 501, the Court rejected the appellant's appeal after having found that he was arrested at the scene of crime. It stated that: "But in this case, apart from the evidence o f PW1, there was also the evidence o f PW2 who heard the com plainant shouting for help. When he responded to the ca ll and went to the scene o f crim e, he found the appellant in "flagrante delicto" raping the com plainant The evidence to prove the offence o f rape was therefore more than su fficie n t" 15 For similar reasons, we find that there was overwhelming against the appellant that he raped the victim. Accordingly, we see no reason to fault the concurrent findings of facts made by the two lower courts. We are satisfied that this complaint is baseless and dismiss it. Lastly, the appellant complained that the two lower courts failed to consider his defence. The evidence on record, specifically at page 85, showed that the trial magistrate considered his defence but he ruled out. Even though the first appellate court did not consider his defence as it was not complained before the first appellate court, we, the second appellate court can step in the shoes of the first appellate court and consider it. Generally, as stated earlier on, apart from admitting that he was arrested on 6th October, 2022, the appellant advanced a complete denial with which did not shaken the prosecution evidence. We have shown herein that PW5, PW6 and PW7 placed the appellant at the scene of crime and that proof of penetration to a minor was proved by PW4 and PW9. Accordingly, we find that the defence of the appellant was wanting of merit. We dismiss this complaint. In the end, we find that there we no valid grounds warranting the concurrent findings of guilty by the two courts below be faulted. More so, the sentence meted by the trial court is the statutory minimum. The appeal fails and is dismissed in its entirety. DATED at DODOMA this 8th 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 virtually this 10th day of April, 2026 in the presence of the appellant in person - unrepresented, Ms. Grace Kibaki, learned State Attorney for the Respondent/Republic and Ms. Christina Mwanandenje, Court Clerk is hereby certified as a true copy of the original. 17