Boniface Kisinza vs Republic (Criminal Appeal No. 558 of 2022) [2026] TZCA 378 (31 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA CORAM: MKUYE. J.A.. RUMANYIKA, J.A. And AGATHO, J.A-i CRIMINAL APPEAL NO. 558 OF 2022 BONIFACE KISINZA.................................. ............................ APPELLANT VERSUS THE REPUBLIC ........................................ ................. ...... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) fMonaella. J.l dated the 11th day of July, 2022 in Criminal Appeal No. 35 of 2018 JUDGMENT OF THE COURT 24th February & 31st March, 2026 RUMANYIKA, 3.A.: The appellant, Boniface Kisinza, was charged and convicted before the District Court of Chunya with and for the offence of rape contrary to sections 130(1), (2)(e) and 131(1) of the Penal Code. The particulars of the charged offence tell that, on or about the 10th day of May 2017 at Chokaa Village within Chunya District and Mbeya Region, the appellant had carnal knowledge of a fourteen-years old girl. We will refer to her as the victim, PW1 or the complainant, in order to conceal her identity and to protect her dignity. i The complainant (PW2) who resided with her aunt (PW3) at Chokaa Village was engaged in selling buns mdsndazi allegedly raising money for a tailoring short course. However, she was unfortunate on the material date around 10:00 hours. While busy in the street, she came across the appellant who purchased some buns but then lured her on a pretense for her to accompany him to a nearby gold mining area, Mwasyeba. Before getting far, the appellant led her into a bushy gulley. He grabbed and fell her on the ground, undressed and had her carnal knowledge. The victim screamed tirelessly for a help until one Lucas Muweve (PW1), appeared in rescue of her. He found the appellant lying on top of PW2, half naked. Upon seeing PW1, the appellant dressed and fled from the crime scene, however, PW1 chased him while shouting against a "rapist", until the appellant was apprehended by some villagers. They presented him to the local Acting Village Executive Officer one Baraka Kijalo (PW4) and later on, the police, including WP. 9673 DC Veronica (PW5) arrived and re arrested the appellant. The victim also arrived and identified the appellant to be the perpetrator of the act. She was issued a PF3 (exhibit P2) and later on examined at Chunya District Hospital by Moris Mdoe (PW6), Assistant Medical Officer, who noticed the victim's private parts to be bruised and oozing some blood. Meaning that, the victim was found penetrated by a blunt object and her hymen raptured. 2 In his defence, testifying as DW1, the appellant denied any involvement in charged offence. He testified that he was only arrested on 10th May, 2017 at about 14:00 hours on his way from Kibaoni to Godima Village gold mines for no reasons at all. That, if anything, he was mistakenly identified. He also alleged that the police tortured him to confess, vainly. He attacked the prosecution evidence for being hearsay, denying also to have possessed exhibits P2, P3 and P4 tendered by PW5. In the end, the trial court convicted the appellant and sentenced him, as alluded to before. His first appeal to the High court bore no fruit, and thus, this second appeal, on four grounds. Two grounds in the substantive memorandum of appeal, and the other two grounds in the supplementary memorandum of appeal. They are the ones filed on 14th December, 2022 and on 16th February, 2026, respectively. Paraphrased, the complaints would conveniently go as follows; One, failure of the first appellate court to evaluate the petition of appeal properly; two, contradictions in the testimony of PW1, PW2, PW4 and PW5, three, the victim's age was not proved; and four, the PF3 (exhibit P2) unlike the victim's oral account did not disclose the date the charged offence was alleged committed. At the scheduled hearing of the appeal, the appellant appeared in person unrepresented whereas for the respondent Republic, there were Mses. Naomi Mollel and Hannarose Kasambala, learned Senior State 3 Attorneys, together with Mr. Rajab Hassan Msemo, learned State Attorney. The appellant let the State Counsel to first respond to the grounds of appeal while reserving his right to rejoin, if need be. On the first complaint, Ms. Mollel contended that it is inconsistent with the record. He referred us to page 69 of the record of appeal showing that in fact the learned Judge, in his judgment addressed all the grounds and concluded them accordingly. That, the victim's age was proved by the medical doctor (PW6), among others. She also contended that, the issue of mistaken identity of the appellant cannot arise because he was apprehended by PW1 in hot pursuit of him and that PW2 and PW4 supported this evidence. She cited our decision in Joseph Munene & Ally Hassani v. R [2005] T.L.R 141 to bolster her contention that proof of visual identification of the appellant was uncalled for under the circumstances. As regards the alleged contradictions in the evidence of PW1, PW2, PW4 and PW5, to Ms. Mollel the complaint is unmerited. She urged us to discount it because the appellant did not put it clear, what it is all about. If anything, she argued, the contradictions are minor not going to the root of the case. That, after all, the said witnesses are at one that, immediately 4 after committing the charged offence, the appellant was successfully pursued, without one losing the track. For the complaint on PF3, being prompted by the Court on its admissibility and its evidential value, Ms, Mollel quickly admitted that, it was flawed. That, upon being admitted in evidence the PF3 was not read out, as is exhibited on page 20 of the record of appeal. It was improperly admitted in evidence. We were urged to expunge that exhibit from the record. Nonetheless, Ms. Mollel implored us, in that regard to consider the victim's oral account which the trial court found vital reliable, that she was raped by the appellant. To fortify her point, Ms. Mollel cited the Court decision in Selemani Makumba v. R [2006] T.L.R. 379 for a contention that, in sexual offences true evidence comes from the credible victims. Similarly, it was contended that, gone is PF3, but the respective doctor's oral account is intact, supporting the victim's evidence. On the appellant's defence evidence, allegedly not being considered, Ms. Mollel contended that, it was actually considered by the trial court but not accepted. That, the defence evidence nonetheless did not cast any doubt, denting the prosecution case, howsoever. She urged us to dismiss this complaint also for lacking merit. 5 Rejoining, the appellant urged us to discount Ms. Mollei's submission for being untrue, instead, he added, the Court be pleased to re-evaluate the evidence and arrive at its own just decision, without more. We have considered the contending submissions by both sides and scanned the entire record of appeal. The pivotal issue is whether the prosecution case was proved beyond reasonable doubt. We want to preface our deliberation by restating the essential ingredients of the charged offence, statutory rape. They are; (i) the victim is proven to be of the minority age, (ii) her private parts were penetrated and (iii) the perpetrator is the accused. Reading it from the impugned judgment which is appearing on pages 81 to 93 of the record of appeal, we find complaint number one to be unmerited. Much as it is inconsistent with the record. It is clear to us that the learned Judge discharged her duty by determining all the grounds of appeal placed before her, as required by the law. For instance, see- Nyakwama s/o Ondare @ Okware v. R (Criminal Appeal No. 507 of 2019) [2021] TZCA 592. If anything, the grounds were conveniently dealt with, some individually and some combined, without missing a point. As such, it cannot be said that the grouping of the grounds of appeal by the learned Judge occasioned any injustice. As a matter of fact, all were substantively canvassed and accordingly resolved against the appellant, 6 based on the evidence on record. This approach was also stressed in France Michael Nyoni v, R (Criminal Appeal No. 505 of 2020) [2022] TZCA 679. Therefore, the issue of the said grounds of appeal being ignored cannot arise under the circumstances. On the second complaint that the courts bellow failed to consider the appellant's defence case, our careful perusal of the record showed equally, that this also is devoid of merits. It is so because the appellant raised this issue as ground seven before the High Court and, it was accordingly dealt with, versus the prosecution evidence. This is clearly reflected at page 91 of the record of appeal. As such, the learned Judge addressed all the material aspects of the defence raised by the appellant, including the issue of any probable mistaken identity. Others were that the evidence of PW3, PW4, PW6 and PW7, being hearsay and that the evidence of PW2 was not corroborated. In the circumstances, therefore, the record does not support the appellant's assertion that his defence evidence was ignored or inadequately evaluated. Therefore, the complaint lacks merit. Next for our consideration is the complaint that the first appellate court failed to appreciate and examine the contradictions and inconsistencies in the evidence of PW1, PW2, PW4, and PW5. We have examined the corresponding evidence and noted that the complaint is 7 misplaced. PW2, for instance coherently and consistently narrated how did the appellant have her carnal knowledge. PW1 supported the evidence of PW2, as he caught the appellant flagrante deiicto with the victim, how he arrested and presented him to the village office instantly. PW4 credibly testified in his capacity as Acting Village Executive Officer that, on being arrested, the appellant was taken to him before, the latter conveyed the information to the police. PW5 who conducted the respective police investigation and recorded the accused's statement, among others cannot not be faulted. Therefore, the issue of discrepancies in evidence is neither here nor there. Another complaint is on the alleged failure of the learned Judge to examine the inconsistency between the medical doctors' findings in the PF3 (exhibit P5) and the evidence of PW2 (victim). As such, the time when the alleged rape was committed is without any essence in the circumstances of the case. What counts is that the victim's private parts were penetrated, which was proved. In other words, we find this complaint significantly misconceived. After ali, it needs not detain us than is necessary. It is overtaken by events, as the respective PF3 was improperly taken in evidence, the applicable procedure having been incurably flawed, as rightly conceded by Ms. Mollel. Therefore, in line with our various decisions, such as in Anna Moises Chissano v. R (Criminal s Appeal 273 of 2019) [2021] TZCA 468 ), exhibit P5 is expunged from the record. Regarding the issue of the appellant not being identified by the victim, as the perpetrator of the act, we agree with Ms, Mollel that this complaint is also devoid of merit This is so because it is evident that the appellant was apprehended almost red handed, in semi- hot pursuit, which renders the issue of visual identification redundant. Essentially, the central issue would be whether the prosecution case was proved to the hilt. For the third complaint that the victim's age was not proved, we are settled in our minds that this is misconceived. The victim herself actually proved her age and PW3, her guardian also did. That, she was born on 14/08/2003 and therefore, molested while 14 years old, a Class VII leaver of Mafyekeo Primary School. For who is the perpetrator of the act, which is equally an essential ingredient, we have considered the appellant's claim that the medical doctor's report did not implicate him. However, as a matter of fact, primarily, a PF3 is not intended to establish who is the perpetrator of the act in the proceedings of this nature. It only records clinical findings relating to the status of the victim's private parts at the time of clinical examination. Therefore, a PF3 has nothing to do with the real-time of the 9 commission of the charged offence. Nonetheless, suffices, in the present case to say that the alleged discrepancies in the PF3 (exhibit P5), which nevertheless has been expunged from the record, neither went to the root of the case nor did it cast any shadow of doubt to the prosecution case. Therefore, this ground of appeal is also without merit. In the upshot, the appeal is devoid of merit. It is dismissed to the extent above. DATED at DODOMA this 30th day of March, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL The judgment delivered this 31s t day of March, 2026 in the presence of the Appellant in person, Ntegwa Mpinyagwa, learned State Attorney representing the respondent/Republic, through Virtual Court and Mr. Shafii Kassim, the Court Clerk, is hereby certified as a true copy of the DEPUTY REGISTRAR COURT OF APPEAL