Mandashi Marwa Mwita @ Marwa vs Republic (Criminal Appeal No. 680 of 2023) [2026] TZCA 389 (8 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: NDIKA, J.A.. FIKIRINI. J.A. And ISMAIL. J.A.^ CRIMINAL APPEAL NO. 680 OF 2023 MANDASHI MARWA MWITA @ MARWA ................................. APPELLANT VERSUS THE REPUBLIC.................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) fKomba. J.) dated the 28th day of July, 2023 in Criminal Appeal No. 34 of 2022 JUDGMENT OF THE COURT 13t h Feb & 8th April ,' 2026. FIKIRINI, J.A.: The appellant, Mandashi Marwa Mwita @ Marwa, was charged at the District Court of Tarime in Criminal Case No. 231 of 2021 with the offence of rape contrary to sections 130(1), (2)(e), and 131(3) of the Penal Code [Cap. 16 R.E. 2019]. The particulars alleged that on unknown dates between June 2021 and 11th August 2021 at Rembirwi Street within Tarime District in Mara Region, the appellant unlawfully had carnal knowledge of a girl aged 8 years old (the victim). The appellant entered a plea of not guilty, and the case proceeded to a full trial. The prosecution's case is to the effect that the victim (p w i) lived with the appellant (her uncle), his wife Upendo (her aunt), and their young son God. On one night in June 2021, while her aunt was at a wedding ceremony, the appellant instructed her to sleep on the marital bed, undressed her, spread her legs, and inserted his penis into her vagina, causing pain and bleeding. He threatened to beat her up if she told anyone. The next day, the victim went to school late and walked with difficulty due to pain. Her teacher (PW2) noticed, and upon enquiry, she initially said her aunt beat her, but she later disclosed the rape incident. She was taken to the police and hospital, leading to the appellant's arrest. The evidence reveals further that, on 12th August 2021, the victim arrived late, had injuries on her face, walked abnormally, and emitted a bad smell from her private parts. Upon inspection by the social welfare teacher, the victim admitted being raped by her uncle (the appellant). PW2 Nyobasi Joel Mrimi reported the matter, leading to police involvement. On the same day, she was medically examined by PW3, Masiga Joseph Chacha, who found no hymen, bruises on the labia majora, a bad smell, and dirt from the vagina, indicating repeated penetration. PW3's medical findings, including the victim's estimated age of 7-8 years and evidence of rape, were recorded in the PF3 (Exhibit Pi) which recorded. In defence, the appellant (DW1) gave sworn testimony denying the offence, stating thet the victim was his sister's daughter and questioning how he could commit such an act, with no eyewitness evidence. DW2, Pendo Marvva (the appellant's wife), testified that on 12th August 2021, the victim went to school normally but did not return home. Police arrived that evening with the victim and arrested the appellant. She claimed that the victim walked normally the next day at the police station and that the family (including the victim's grandfather) shared the house but slept in separate arrangements. Upon full trial, the trial court found the prosecution had proved the case beyond a reasonable doubt. It relied on the consistent and credible testimony of PW1 (the victim), corroborated by PW2's observations and PW3's medical evidence in Exhibit PI. The defence was rejected as weak and uncorroborated. The appellant was convicted and sentenced to 30 years' imprisonment. Aggrieved by both the conviction and sentence, the appellant unsuccessfully appealed to the High Court, hence the present appeal based on the following paraphrased grounds:- 1) That,, the prosecution failed to prove the charge again st the appellant beyond reasonable ground. 2) That, the defence evidence was not considered. At the hearing of the appeal Mr. Emmanuel Paul Mng'arwe, learned counsel appeared for the appellant. On the respondent's side Ms. Grace Michael Madikenya, learned Principal State Attorney, Ms. Beatrice Mgumba and Mr. Zarubabel Ngowi, both learned State Attorneys teamed up to argue the appeal on behalf of the respondent. In addressing the Court on the grounds of appeal, Mr. Mng'arwe, focused on two areas namely: (i) failure to call material witnesses and (ii) questioned PW1 and PW2's credibility. Besides, his areas of focus, the Court also invited him to address it on the legality of the sentence for a person convicted under section 130 (1) (2) (e) and 131 (3) of the Penal Code. Beginning with failure to call material witnesses, it was the counsel's contention that the record showed that investigation was complete prior to the commencement of the hearing of case. Nevertheless, the investigator was never summoned to appear and testify in court or any officer from the gender desk who usually handle such issues. The summoning of the investigator, according to the counsel would have confirmed if DW2 was truly at the wedding on June, 2020, as stated by PW1. Besides, this investigator who was left out would have informed the court how and when PW1 was taken to Police and under which condition. Fortifying his position, he referred the Court to the case of Meshack James @ Lubisila v. R, [2025] TZCA 1142, in which the Court stressed on calling of an investigator in serious offences, rape being one of such cases. Relating to the holding in the above cited decision, and failure to summon an investigator in the present appeal, the counsel contended that it was not known when PW1 was taken to hospital for examination. This, according to him, would have been an area to be covered by the investigator. Furthering his submission, the counsel cited to the Court the case of Chacha Matiko @ Magige v. R, [2022] TZCA 414. In this case the Court was not amused when it found no investigator was summoned even though the case was thoroughly investigated. Other witnesses not summoned were the head teacher to whom PW2 reported, the Ward Executive Officer (WEO) and the Education 5 Officer in the area. Summoning of the head teacher and WEO, in his view would have boosted the case. His Second aspect is on the credibility of witnesses particularly PWl and PW2. The counsel premised his submission mainly on the dates in the charge sheet, where it was indicated dates were unknown, and PWl's account on page 13 of the record referred to June, 2022, her aunt (DW2) went to a wedding and it was on that night that the appellant ravished her. From PWl's account there was no evidence that the incident occurred more than once to reasonably bring into picture June and August, 2021, when the appellant was arrested at night. The gap between June and August has not been explained about and it has created variance between the charge sheet and the evidence. Finally, addressing us on the deserving sentence upon conviction, the counsel that admitted the sentence of thirty years imprisonment meted was illegal, arguing that life imprisonment as the appropriate sentence. On the strength of his submission the counsel prayed for the appeal be allowed, conviction quashed, sentence set aside and the appellant be released from prison. 6 Mr. Ngowi, reacting to the submissions, stated that the prosecution fielded their material witnesses. Those suggested by the appellant's counsel were not important to the prosecution case compared to pw i, PW2 and PW3 who were summoned. Giving an example of their respective testimonies, he argued that PWI clearly explained what befell her and PW2 who discovered what had happened to PWI. In his contention, failure to call the investigator had in no way impacted the prosecution as there were no gaps to be filled like those that were pointed out in the cited cases, which the learned State Attorney found them distinguishable. The learned State Attorney, insisted that, after PWI revealed the information, she was right away taken to the Police station and later hospital and the appellant was arrested the same day, which is different from what transpired in Meshack James @ Lubisila (supra). This is unlike the Chacha's case (supra) wherein it was necessary to summon the investigator who had thoroughly investigated the case, maintained the learned State Attorney. On the variance between the charge sheet and the evidence, on page 13 regarding the dates on which the incident occurred, the learned State Attorney, submitted that to have been a slip of the pen, citing the case of Osward Mokiwa @ Sudi v. R, [2019] TZCA 169. He further submitted that the appellant did not discount PWl's testimony that they were together on the material day and that her testimony was not challenged at all. Therefore, even the variance imputed had not shaken the prosecution case. Winding up, he urged the Court to disallow the appeal and enhance the sentence to life imprisonment provided under section 131 (3) of the Penal Code. Rejoining, Mr. Mng'arwe submitted that in the Osward case, cited the variation was on the date of incident in the charge sheet and the evidence availed to the court, which was different from the complaint in the present appeal. The counsel's main concern was the existing gap between June and August, 2021, when the appellant was arrested while nowhere PW1 indicated the incident occurred twice or PW2's account that she discovered PW1 predicament on 12th August, 2021. Therefore, had the investigator been summoned he would have resolved that gap. With his submission, he maintained that the case against the appellant was not proved beyond reasonable doubt, hence prayed for the appeal to be allowed. 8 We are invited to determine the merit of this appeal premised on the assertion that the prosecution case was not proved beyond reasonable doubt, mainly answering if there was a failure to call material witnesses and its impact on the prosecution case. In addition, we are also asked to consider the complaint on the credibility of PW1 and PW2. It is a trite law that appellate courts do not re-evaluate evidence but intervene only if the lower court failed to properly assess it, leading to a miscarriage of justice. See: Pandya v. R [1957] E.A. 336. Likewise, it is a well-settled principle in criminal law that the burden of proof rests squarely on the prosecution, which must establish the guilt of the accused beyond reasonable doubt. This standard is constant and never shifts. In offences of a sexual nature, particularly rape, the central element to be proved is penetration of the victim's vagina by the accused's penis. Where the victim is a child under the age of eighteen, the question of consent is immaterial. Section 130(2)(e) of the Penal Code expressly provides that carnal knowledge of a minor constitutes statutory rape, regardless of any purported agreement or acquiescence. 9 Embarking on the journey, we wish to start by addressing complaint on variance of dates in the charge sheet and evidence as reflected on page 13 of the record of appeal in which the year reads 2020 instead of 2021, this should not detain us. We strongly consider that to be a slip of a pen, relying on PW2's testimony and exhibit PI. The next complaint is on the credibility of PW1 and PW2. The record shows that, the complainant (PW1), gave direct and positive evidence that the appellant penetrated her vagina with his penis, causing her pain and bleeding. She narrated the events in a clear and coherent manner, and she identified the appellant as the perpetrator, both by description and by pointing him out in court. Her testimony was subjected to cross-examination, yet she remained consistent on the material aspects of the offence. Assessing the credibility of witness is the domain of the trial court, yet on appeal, the credibility of a witness can be determined by assessing the coherence and consistency of the testimony of a witness when compared to the testimony of other witnesses including that of the accused person. See: Juma Anacleth v. R, [2025] TZCA 225, in which the appeal against a life sentence for rape succeeded due to 10 inconsistencies in evidence and an unexplained delay in naming the appellant as the suspected rapist put the credibility of the witness in question, which is not the case in the present appeal. We agree that PWl's delay in naming the appellant as the rapist for two months, from an unknown date in June until 12th August, 2021, may raise questions about her credibility. However, her testimony that the appellant instructed her not to tell anyone about the act should not be underrated. Considering her tender age of 8 years at the time, and the fact that she was living under the appellant's care, we are convinced that the delay is justified. See: Wambura Kiginga v. R, [2022] TZCA 283. While naming a suspect at the earliest opportunity generally ensures reliability and credibility of the account, in this case it did not occur until PW2 intervened after noticing PW1 walking with difficulty and emitting a foul smell. Failure to report ordinarily raises serious doubts as to credibility, as observed in Marwa Wangiti & Another v. R, [2003] T.L.R. 271, but this principle is distinguishable in sexual offence cases involving victims of tender age. Such victims often face threats, manipulation, or fear of punishment from parents, guardians, or teachers. Here, PW1 was only 8 years old when she was ravished by the appellant, her uncle, a fact acknowledged by the appellant on page 22 of the record of appeal. Given that she was dependent on him, expecting her to rationalize matters as an adult is unreasonable. It was therefore not easy for her to divulge the information, especially after being warned not to tell anyone, and the truth only came to light when PW2's suspicion unveiled the unthinkable. We are without doubt in agreement with the two lower courts that found PWI a credible witness and believed her account. The appellant, apart from denying the offence, failed to provide any reason why PWI would implicate him rather than her grandfather, who also lived in the same house, or any other person. Similarly, we find PW2 to be a credible witness. Although her evidence was not direct, she was the one who uncovered what had happened to PWI. It was PWl's abnormal walking and the foul smell emanating from her vagina that aroused PW2's suspicion, leading her to physically examine PWI and discover that she had been raped. The medical evidence does not prove rape, but it can buttress the credible and reliable evidence of the victim who is better placed to explain how she was raped and who was the person responsible. See: Selemani Makumba v. R [2006] T.L.R. 379. In this case, PWI proved 12 penetration and who penetrated her and the medical report PF3 which was admitted as exhibit PI, supported her version that she was penetrated, as her hymen was broken and had bruises on her labia majora. She was also producing dirt which was accompanied with bad smell, the very smell which prompted PW2 to probe PW1 and later physically examined her. In Frank Deule @ Damas v. R, [2020] TZCA 1727, the Court upheld the first appellate court's decision relying on the victim's evidence which was corroborated by an eye witness despite there being no medical report as it had been expunged. Luckily, in our case there was medical report which buttressed PW1 and PW2's evidence. Even though the court's conviction should always be based on the strength of the prosecution case and not on the basis of the defence weakness, in this case PW2 and PW3's contemporaneous observations, weakened DW2fs claim that, the victim was walking normally. Moreover, the defence was simply dismissive, no challenge was made to the medical evidence. Against that finding, we are convinced that the High Court properly evaluated the evidence, finding no error in the trial court's rejection of the said defence evidence. See: Godson Dan Kimaro v. R, [2022] TZCA 622. 13 From the above explanation we do not support Mr. Mng'arwe's criticism on the credibility of the two witnesses. On whether, there was necessity to summon the head teacher, w e o and Education officer, is our next issue we are to determine. It is settled law that guilt is not determined by the number of witnesses but by their credibility and the weight of their evidence (see section 152 of the Evidence Act, R.E. 2023). As held in Bakari Hamis Ling'ambe v. R, [2014] TZCA 260, conviction may rest on the testimony of a single witness if the court is satisfied with their credibility, competence, and demeanor, since no specific number of witnesses is required (section 152 of the Evidence Act). After all, the prosecution retains discretion to decide which witnesses to call, as emphasized in Abdallah Kondo v. R, [2016] TZCA 836, provided they are material to establishing the accused's responsibility. We shall now address the issue on failure to call material witnesses, whether it had an impact on the prosecution case or not. Starting with the head teacher to whom PW2 reported the incident, we do not think there was an importance of calling him. This is because his evidence would have been hearsay. And since we find both PW1 and PW2 credible witnesses, we do not doubt the version that PW2 informed the 14 head teacher on what befell PW1. Coming to the head teacher, in our view would not advance the prosecution case any further. In other W OrdS, failure to summon the head teacher has not dented the prosecution case or left a gap which could have been filled. We share the same sentiment with the summoning of the WEO or Ward Executive Officer to whom the incident was reported. His advice was that the matter be reported to the Police. Since there was no dispute that the incident was reported to them and later to the Police Station, we find no relevancy in their attendance of these two as witnesses as suggested by Mr. Mng'arwe. This is because their evidence was mainly hearsay and that, in our view, would not have furthered the prosecution case. The last suggested person to be summoned as a witness is an investigator. It was the learned counsel's contention that failure to call the investigator and the woman police manning gender desk poked holes in the prosecution case. His argument is, the investigator would have confirmed if DW2 went to a wedding on an unknown date in June, 2021 and how the appellant was arrested and taken to the Police Station and when was PW1 taken to the hospital. Lastly, that the investigator would have answered on whether the rape occurred more than once, i.e. in June and August. 15 The learned State Attorney, contested the assertion arguing that there was no gap left in the prosecution case which needed to be filled, Which was a different scenario from the cases of M eshack Jam es @ Lubisiia and Chacha Matiko @ Magige, cited by the learned Counsel. It is true that before the trial court PW1 clearly explained what happened to her when DW2 was not at home on the fateful night Neither the appellant in cross-examination or his defence nor his wife had disputed this fact, that DW2 was not home on the fateful night. The incident was reported to the Police and he was arrested the same day. What PW1 stated in her examination in chief was consistent with what were her answers during cross-examination. It is noteworthy, to state that an investigator is the one piecing together the case by collecting the information from the victim and various people who happened to know and collect exhibits where necessary. In some cases, summoning of the investigator during trial is not necessary, but in other cases it is not only necessary but crucial, and if available but not called, certainly the court is entitled to draw an adverse inference to the prosecution. See: Azizi Abdallah v. R, [1991] T. L. R. 71. 16 Despite the credible account by PW1 and PW2, that did not negate the fact that calling of an investigator in our considered view was necessary. As propounded in Meshack James @ Lubisila (supra), calling of an investigator is crucial especially in serious offences, which includes sexual assault cases. Adding to the importance, we are mindful that usually these offences are committed in secrecy, rarely there's an eye witness, therefore fabrication of cases can easily occur. Through the investigator who pieced together the information some of gaps could be filled. In the present case we find there was an importance of calling an investigator or a police woman manning a gender desk who could answer some of the questions. We say so for the following reasons: one, reading from the charge sheet it seems the rape had been going on between June and 11th August, 2021. We reproduce the particulars of the offence as they appeared in the charge sheet: - "Particulars of Offence: Mandasha S/O Mwita Marwa on unknown dates between June, 2021 and 11th day of August\ 2021 at Rembirwi Street within Tarime District in Mara Region had carnal knowledge of 17 one Juliana D/0 Daniel a girl of 8 years old" However, this is not what was gathered from PWl's account. Her evidence was specific that she was ravished when her auntie went to attend a wedding in June, 2021. We understand from the evidence there was a delay in reporting the incident and consequently the arraignment of the appellant. As discussed above the delay could be justified as we concluded, but an explanation from the investigator would have illustrated if there was another encounter or not and the actual circumstances leading to the appellant's arrest and arraignment in court. Two, no reason or explanation was given as to why the investigator was not summoned. Considering the nature of the offence and the punishment it attracts upon conviction, it is safer having an investigator summoned rather than not. We are thus not persuaded with the learned State Attorney that the reporting and arrest of the appellant on the same day fully sufficed, hence there was no need of calling an investigator. In light of the above discussion, we find merit in the first limb of the appeal that failure to call the investigator who was a material witness 18 had left unfilled gaps and the outcome was weakening of the prosecution case. As a result, we allow the appeal, quash the conviction and set aside the sentence, and order that the appellant be released immediately from prison otherwise held for other lawful cause. DATED at DAR ES SALAAM this 1s t of April, 2026. The Judgement delivered this 8th day of April, 2026 through video conference in the presence of Appellant in person, Ms. Beatrice Mgumba, learned State Attorney for the Respondent/Republic and Mr. Stanslaus Msuba, Court Clerk, is hereby certified as a true copy of the G. A. M. NDIKA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL original J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL