Japharai Mwile Tuta vs Republic (Criminal Appeal No. 602 of 2022) [2026] TZCA 381 (31 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA CORAM: MKUYE, J.A.. RUMANYIKA, J.A. And AGATHO, J.A. CRIMINAL APPEAL NO. 602 OF 2022 JAPHARAI MWILE T U T A .................................................... ......... APPELLANT VERSUS THE REPUBLIC ................................................................... ......... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) fMonqella, J.1 dated the 7th day of June, 2022 in Criminal Appeal No. 44 of 2022 JUDGMENT OF THE COURT 25th February & 31st March, 2026 RUMANYIKA, J.A The appellant was arraigned before the District Court of Rungwe at Tukuyu on a charge of rape contrary to sections 130(1), (2)(e) and 131(1) of the Penal Code. The particulars of the charged offence have it, that on 30th November 2019 at about 13:00 hours, at Goye village in Rungwe District and Mbeya Region, the appellant had carnal knowledge of a 15- years-old girl. She is herein after referred to as the "victim" or "PW1", in order to conceal her identity. That, on the fateful day, the victim was together with four fellows, including Sarafina (PW2). On their way back home from picking vegetables in shambas, they met the appellant who accused them of stealing the same from his plot. He sent PW2 to fetch sticks for him to punish them as thieves, unsuccessfully, as she took advantage of it and escaped. Then the appellant asked another fellow Anganile to look for the missing PW2, also vainly. She also disappeared. Then the appellant tied up those remaining with a rope, while threatening to have carnal knowledge of them, each in turn. The girls attempted to flee, but he managed to catch the victim whom he raped, while threatening to cut her with a machete, if she resisted. Further, it was testified that, upon being raped and released, the victim later met her friends and parents, searching for the missing girls. They pursued and arrested the appellant as the latter was attempting to escape. They presented him to the Ward Executive Officer, and later to the police. A clinical examination conducted by Justine Malecela (PW3) established penetration as it revealed some bruises on the victim's genitalia. The appellant, in his defence testifying as DW1 denied to have committed the charged offence. That, he was fixed and therefore, the prosecution case and evidence were fabricated against him, without more. 2 However, he was, at the end of the day convicted and sentenced to 30 years' imprisonment. He was also ordered to compensate the victim with TZS. 1,000,000.00. Dissatisfied with the that decision, the appellant approached the High Court, on first appeal, but also, he lost the battle. Aggrieved, he is before this Court, on four grounds which may boil down to three. They are paraphrased, thus; One, he was not identified as PW1 and PW2 did not describe him at the earliest, two, penetration was not proved and; three, his defence evidence was not considered. At the scheduled hearing of the appeal, the appellant appeared in person, unrepresented. The respondent Republic had the services of Mses. Naomi Mollel and Hannarose Kasambala, learned Senior State Attorneys, together with Mr. Rajabu Msemo, learned State Attorney. The appellant, while reserving his right to rejoin later, he opted to let the respondent's counsel to respond to the grounds of appeal first. Ms. Kasambala resisted the appeal with moderate force. For the first complaint, on the issue of visual identification, she contended that, nothing has been said to discredit the victim whose evidence is the best of all. That, it was supported by the evidence of PW2. As both consistently narrated the material encounter, and how PW2 managed to escape from the appellant. Ms. Kasambala cited our decision in Daffa Mbwana Kedi v. R (Criminal Appeal No. 65 of 2017) [2019] TZCA 364 to fortify her point, that the issue of visual identification should have not been raised in the circumstances of the case. About the second complaint, it was contended that the victim's testimony consistently revealed that, she was penetrated. It was stressed that, this evidence cannot be underrated, because in the cases of this nature, the victims offer the best evidence. Cited by Ms. Kasambala was the Court's decision in Edward Nzabuga v. R (Criminal Appeal No. 136 of 2008) [2010] TZCA 364 to fortify her argument. As regards the complaint on the defence evidence not being considered, it was Ms. Kasambala's view that this claim is misconceived, as the defence evidence was actually dealt with, as it appears on pages 58 to 60 of the record of appeal. That, it casted no single doubt on the prosecution case, which was proved beyond reasonable doubt. In rejoinder, on the issue of visual identification, the appellant faults the evidence of PW1 and PW2 for being unreliable. That, the two young girls could have not identified him, being a stranger to them and they did not describe him at the earliest possible time. It is a settled law that evidence of visual identification of a stranger has to be approached sparingly, with a greatest caution. It is so, because prior description of the suspect by the witness is a crucial safeguard against any probable mistaken identity. See- Frank Christopher @ Malya v. R (Criminal Appeal No. 182 of 2017) [2018] TZCA 63. It is true, in the present case that, PW1 and PW2 did not seem to have described the appellant prior to his being traced and ultimately arrested. For instance, none of them had described the appellant's attire, physical features, height, complexion or any other distinguishing marks. Therefore, the alleged visual identity of the appellant was an afterthought, which has to be discounted. See- Ambwene Lusajo v. The DPP (Criminal Appeal 461 of 2018) [2021] TZCA 508. Clearly, the evidence of PW4 indicates that, indeed no prior description of the appellant was given. That, the appellant was only identified after he was arrested, as is appearing at page 15 of the record of appeal. Under the circumstances, therefore, it cannot be said that the appellant was properly identified, as hinted before. Moreover, PW2 was not an eye witness capable to identify the appellant, if believed that she had fled, leaving the victim behind held tight by the appellant. Much as, one Leila, a material witness was not 5 I called in court, if at all she had remained back with the victim being held tight by the appellant, as alleged. Stil! on the credibility of the three young girls, the evidence of PW1, PW2 and PW4 have highly tasked our minds. That, although the victim's fellows had managed to escape from the fierce criminal appellant, leaving the victim behind who later was found raped, yet the former dared to remain around the crime scene and was arrested there, as if nothing would happen to him. This, in our view, seems to be inconsistent with conduct of any criminal. It is for this reason that we highly question the credibility of the above referred three witnesses. This ground succeeds. Moreover, going by the said girls' evidence that really the appellant had tied up them with a rope, still it would have been practically impossible for some of them to flee if at all were tied up with ropes, as alleged, except PW2 and another, who managed to escape well before. It would have been a different scenario, which is not the case before us, if the appellant was arrested red-handed or just in hot pursuit of him. Therefore, the case of Daffa Mbwana (supra) cited by Ms. Kasambala is, respectfully, distinguishable from the present case. This complaint is also merited. The second point of grievance, concerns the High Court for its finding that the victim was proven penetrated and that, the perpetrator is the appellant. We note that, the clinical evidence revealed bruises in the victim's private parts, which otherwise is necessary for proof of penetration. This preposition is built on the principal, all things being equal, that penetration, however slight, is sufficient to establish the offence of rape. See-Abdallah Mohamed v. R (Criminal Appeal No. 22 of 2009) [2009] TZCA 177. In other words, the evidence and the circumstances of the present case taken as a whole, penetration was proved. This complaint lacks merit. About the complaint which faults the first appellate court for not finding that the appellant's defence evidence was not considered, we find also to be merited. As may be gleaned from page 21 of the record of appeal, the appellant testified unusually briefly, demonstrating his innocence, as hereunder: "...They invaded me while a!one/ w ithout any reason. The victim was also alone... The witnesses were false...I pray the court to exam ine carefully, the evidence tendered by both the prosecution and the defence, I d id not rape h er." In her conclusion and remarks, the learned Judge respectfully do not seem to have dealt with the appellant's defence evidence. For clarity, and for ease of reference, it's relevant part, as is appearing on pages 58 to 60 of the record of appeal, reads as follows: "...I s h a ll re-evalu ate an d re -co n sid e r th e a p p e lla n ts defence... the appellant defended th a t... he was arrested while alone without any reason....the prosecution witnesses were false witnesses.,../ fin d that the m ain defence was that he was falsely accused...,However, a s ob served b y the tr ia l M ag istrate to w hich I su b scrib e, the a p p e lla n t d id n o t sh ow the [b a se s] o f fin d in g th e p ro secu tio n w itn esses fa lse ..." Taken from the two excerpts above and the impugned judgment as a whole, therefore, it is clear to us, respectfully, that the learned Judge did not demonstrate any evaluation of the appellant's defence evidence to the expectations of any reasonable tribunal, giving it the deserving attention and consideration. We are aware that, in her findings, the learned Judge held that the appellant's defence evidence did not cast any material doubt on the prosecution's case. Nevertheless, from the extract above it appears to us that the learned Judge's finding is mainly two-fold; 8 One, she neither re-evaluated nor re-considered the appellant's defence evidence, as promised by her. She just reproduced it. Two, she was overwhelmed with the trial magistrate's findings of facts to reach the impugned decision. In other words, the appellant may have failed to substantiate his allegations that the prosecution evidence is false, and therefore fixed. However, it was incumbent upon the learned Judge, in her decision to observe the two sister-cardinal principles; One, the prosecution is duty bound, in all criminal cases to prove their case to the hilt and; two, an accused has no duty to prove his innocence. It is unfortunate, on that ground also, that the appellant's conviction was respectfully improper and premature. As such, having the principles above in mind, the learned Judge ought to have found that, the appellant's statement had casted such a reasonable doubt on the prosecution case. That, in the absence of any strong evidence to counter it, the prosecution case remained significantly shaken. Therefore, had the learned Judge given it another glance, especially on the said three witnesses, including that of the victim, critically, she would have concluded it in favor of the appellant. That, they are not credible enough to establish the appellant's guilty, despite his general-denial version of his defence evidence, which does not solely guarantee a conviction. Last but not least, it is recalled that, the victim and fellows are on record to have stated that, initially, they had carried with them some green vegetables, which the appellant accused them of stealing from his own plot. Therefore, assuming that the girls were the witnesses of truth, being truly accused of stealing the vegetables, then their evidence should have been taken with great caution because they had no clean hands, in the first place. That, their evidence possibly intended to silence the appellant. As we pen off, we wish to say a word or two in remark; One, the investigations of the case were so fast-tracked that it took the appellant hardly three days, from 30th November, 2019 when he was charged to 3rd December 2019 when he was arraigned before the trial court. He was convicted about seventy-five days later, on 18th February 2020. However, our remarks should do not be mistaken for condoning unnecessary prolonged criminal investigations. We consider this to be a case where justice was hurried and buried under the circumstances. Let alone, interesting and unusually, no investigator appeared in court to testify. All in all, had the learned Judge considered it all, she would have arrived at a different conclusion, in favor of the appellant, as observed above. In view of the above therefore, the appeal is hereby allowed. For avoidance of any doubt, we quash the decision of the first appellate court. We also order immediate release of the appellant from the prison custody, unless held for other lawful causes. 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 31st 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