Ambokile Asafisye vs Republic (Criminal Appeal No. 73 of 2023) [2026] TZCA 347 (26 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA fCORAM: MKUYE. J.A.. RUMANYIKA. 3.A. And AGATHO. J.A.l CRIMINAL APPEAL NO. NO. 73 OF 2023 AMBOKILE ASAFISYE .............................................. ...................APPELLANT VERSUS THE REPUBLIC......................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Monqella. 3,) dated the 20th day of December, 2022 in Criminal Appeal No. 137 of 2022 JUDGMENT OF THE COURT 23rd February & 26th March, 2026. MKUYE. J.A.: The appellant, Ambokile Asafisye, was charged in the District Court of Rungwe at Tukuyu with the offence of rape contrary to sections 130(l)(2)(e) and 131(3) of the Penal Code, Cap 16 R.E. 2019. The particulars of the offence alleged that on the 6th day of April 2022 at about 1800 hours at Kilasi village within Rungwe District in Mbeya Region, the appellant unlawfully had sexual intercourse with a child aged six (6) years. To conceal the victim's identity, we shall henceforth refer to her as "the victim" or "PW2". The facts of the case leading to this appeal, in brief, are as follows: i

The victim (PW2), a standard one pupil aged about six years, was living with her grandmother (PW1) at Luteba, Kilasi village. On the material day at about 11.00 a.m., the appellant, who was known to the victim went into the victim's grandmother's house. He found the victim alone as her grandmother had gone to attend funeral ceremony nearby. The appellant undressed her skirt and underpant then raped her on a mat inside the house, threatening to slaughter her in case of any resistance. When PW1 returned home later, she found the victim unwell and unable to walk. Upon inquiry, the victim informed her that the appellant had raped her. PW1 inspected the victim and observed injuries on her private parts. PW1 informed the victim's uncle (PW3) about the ordeal who then reported the incident to the local leaders leading to the appellant's apprehension on the same day. At the village office, the victim identified the appellant as her assailant. The victim was taken to Luteba Health Centre and later to Busokelo District Council Hospital. PW4, a medical doctor, examined the victim on 8th April 2022 and found bruises and blood oozing from her private parts. He concluded that a blunt object had penetrated her vagina and he filled a PF3 (Exhibit P2). In his defence, the appellant denied the offence. It was his testimony that on 7th April 2022, he was at a barber shop when he was

arrested by militiamen and taken to the village office where he was beaten and forced to admit the offence. At the conclusion of the trial, the learned Resident Magistrate found that the charge against the appellant was proved to the hilt. Thus, the appellant was found guilty, convicted and sentenced to life imprisonment and twelve strokes of the cane. The appellant's first appeal to the High Court was partly successful as the conviction and sentence of life imprisonment were upheld, but the sentence of twelve strokes of the cane was set aside for being illegal. Still aggrieved, the appellant has preferred the present appeal presenting two memoranda (substantive and supplementary), fronting a total of seven (7) grounds. In his substantive memorandum of appeal lodged on 4th April, 2023, the appellant raised three (3) grounds of appeal as hereunder:

1. That, the first appellate court erred in taw when dism issed the appellant appeal w ithout evaluating and regarding petition o f appeal file d by the appellant with its subm ission.
2. That, the first appellate court erred in law when dism issed the appellant's appeal without regarding that the prosecution failed to prove its case as per law as follow s: a. As the High Court Judge pronounced in herjudgm ent page 60 that the appellant confessed in an open a ir as per case o f Rashid Roman Nyerere v. Republic, 3

Crim inal Appeal No. 105 o f 2014 she erred in law since the one who testified as PW3 was not a leader o r a police officer. b. To sh ift a burden o fp ro of by failing to cross examine is not fa ir as the duty to the prosecution is to p roof its case not otherwise. c. No any birth certificate was tendered to prove the true age o f PW2 as even in these proceedings this docum ent was not attached to prove her age to avoid an excessive sentence. 3. That, the first appellate court erred in law when dism issed the appellant's appeal w ithout regarding h is defence. In his supplementary memorandum of appeal lodged on 4th February, 2026, the appellant presented four (4) grounds as follows:

1. That the firs t appellant court erred in law p oint and fact in upholding the decision o f the tria l court w ithout taking into consideration that penetration as the essential elem ent in sexual offence was not proved, in fact there is nowhere the victim testified that the appellant took the penis and inserted into her vagina ; as the words "AHniwekea dudu lake" is not enough to prove penetration. In conform ing to above point vide the case o f BU RTO N M W IPA B ILEG E V. R EP U B LIC \ CRIMINAL APPEAL NO. 200 OF 2009 CA T (UNREPORTED).
2. That,-f the first appellate court erred in law p oin t and fact in upholding the decision o f the tria l court w ithout taking into 4

consideration that the conviction o f the appellant based on the contradictory evidence which goes to the root o f the m atter where as: a) The charge sheet indicates that the victim was raped around 18:00hrs, the victim (PW2) testified that she was raped around 11:00am. b) The memorandum o f fact reads that the appellant was arrested on 8/04/2022, PW1 said that the appellant was arrested on 6/4/2022 and PW3 said that the appellant was arrested on 7/4/2022. c) The charge sheet reads that the offence was com m itted on 06/04/2022 and PW1 said that the offence was com m itted on 05/04/2022, In conform ity with the above point vide the case o f ND ALAH AW A SH ILAN G A VS. R EPU B LIC \ CRIMINAL APPEAL NO. 247 OF 2008 CAT (UNREPORTED). 3. That the two courts below wrongly acted on the evidence o f PW3 that the appellant confessed before village leaders and wrote the statem ent w ithout taking into consideration that: a) No any village leader came before the court to prove the same. b) The said written statem ent was not brought before the court fo r authenticity. c) A s long as the village leaders were not called there is no assurance on its voluntariness. 5

4. That the first appellate court erred in la w point and fact in upholding the decision o f the tria l court w ithout taking into consideration that from the record an adverse inference should have been drawn out to the prosecution for om ission to summon m aterial witnesses such as village leaders and one called Mate m entioned by PW1 as one who took the victim to H ospital as w ell the police officer who interrogated the appellant. Please refer the case o f JA F F A R Y N D ABITA @ NKOLANIGW A V. R E P U B LIC CRIMINAL APPEAL NO. 270 OF 2016 CAT (UNREPORTED). At the hearing of the appeal, the appellant appeared in person whereas the respondent Republic was represented by Mr. Alex Mwita, Ms. Naomi Mollel and Ms. Hannarose Kasambala, learned Senior State Attorneys, together with Mr. Domnick Mushi, learned State Attorney. When given an opportunity to amplify on his grounds of appeal, the appellant adopted them and preferred to let the learned State Attorneys to respond first, but he reserved his right to rejoin later, if need to do so would arise. From the outset, Mr. Mwita declared the respondent stance of opposing the appeal and Ms. Naomi Mollel took the floor to argue the grounds of appeal. Ground number 1 of the substantive memorandum of appeal was argued separately while grounds number 2 and 3 of the 6

substantive memorandum of appeal were argued co-jointly with grounds number 1, 2, 3 and 4 of the supplementary grounds. Starting with the 1st ground of the substantive memorandum premised on whether the appellants grounds were considered, Ms. Mollel contended that, the appellant raised seven grounds of appeal before the High court and that all the seven grounds were discussed at page 74 to 84 of the record of appeal. On 2n d and 3rd grounds in the substantive memorandum and the 1st, 2nd, 3rd and 4th of the supplementary memorandum, the appellant's complaint is that the case was not proved against him. His contention is premised on confession made before PW3; shifting the burden of proof to the appellant; failure to prove the victim's age; contradiction on time and date of the commission of the offence; contradictions on date of arrest; and failure to call a material witness. Submitting on the said grounds, Ms. Mollel argued that the charge was proved to the hilt as all the three ingredients of the offence were proved; that is penetration, age of the victim and the identity of the perpetrator. It was her contention that in proving rape cases, the best evidence is that of the victim. She referred us to page 19 of the record of appeal where the victim proved that the appellant raped her. She further 7

argued that the victim's evidence was corroborated by PW4, the doctor who examined the victim. Regarding the age of the victim, Ms. Mollel submitted that it was proved by the victim's uncle (PW3) who stated that the victim was 6 years old as she was born on 16/9/2015. As to who penetrated the victim, Ms. Mollel referred us to the case of Selemani Makumba v. Republic [2006] T.L.R. 379 to amplify that the best evidence is that of the victim. She argued that PW2 testified to have known the appellant by his name a fact which was not contested by the appellant. PW1 also testified knowing the appellant as she once hired him to fix a solar panel at her home. She went on arguing that, the victim informed her grandmother about the ordeal and named the appellant as the perpetrator. It was her stance that the evidence of the appellant is to be believed to implicate the appellant with the offence. Regarding the contradiction on the time mentioned in the charge sheet and the evidence of the victim, Ms. Mollel readily conceded to the existence of the contradiction. She, however, argued that under section

251(3) of the CPA, variance between the charge and the evidence in respect to time is immaterial to warrant amendment of the charge sheet. On contradictions relating to the date when the appellant was arrested, Ms. Mollel also conceded that it is true that PW1 testified that the appellant was arrested on 06/4/2022 while PW3 said it was on 7/4/2022. She, however, argued that the contradiction was minor as it did not go into the root of the matter. She referred us to the case of Alex Ndendya v. Republic [2020] TZCA 1954 at pages 16-17. On the aspect of failure to call a material witnesses, the learned Senior State Attorney conceded that it is true that the village chairperson and the police officer did not testify in court. However, she countered that they were not material witnesses as the material witness was the victim whose evidence, if believable, can be relied upon without corroboration as per section 135(6) of the Evidence Act. She went on arguing that under section 252(1), there is no specific number of witnesses to prove a fact in issue. It was, therefore, her contention that both courts below convicted the appellant on the evidence of the victim and not that of the confession before the hamlet chairperson. It was her submission that the credibility of the victim was discussed before the trial court finding her firm and trustworthy. The High Court

Judge also looked into her credibility noting that she was credible for naming the appellant at the earliest opportunity. Thus, the chairperson was not at all a material witness. Further, she submitted that the police officer who recorded the cautioned statement was equally not a material witness, as the appellant was not convicted on the cautioned statement which was not even tendered in court. Submitting on the issue of failure to consider the defence case, Ms. Mollel argued that, this ground was not raised before the High Court. She, however, submitted that the trial court considered his defence evidence finding that the appellant gave a general denial not shaking the prosecution case. She ultimately pleaded this Court to dismiss the appeal, sustain the conviction and sentence meted. In his brief rejoinder, the appellant contended that the prosecution failed to prove the case as the victim said "afiniwekea dudu /< ?/re"without amplifying further the actual penetration. To amplify his argument, he referred us to the case of Burton Mwapabilege v. Republic [2011] TZCA. The appellant, therefore, prayed the Court to allow the appeal and set him free. 10

Having heard the contending arguments by the parties, we shall deliberate on the grounds of appeal in the manner submitted by the learned Senior State Attorney. On the first ground of the substantive memorandum of appeal, it is the appellant's contention that the first appellate court never considered his petition of appeal. However, having perused the record and considered the submission by the parties, we agree with Ms. Mollel that the appellant's complaint on this ground is not supported by the record of appeal. At page 74-84 of the record, it is evident that all grounds were adequately considered by the first appellate court. The learned High Court Judge commenced determining grounds 2, 3, 4, 5 and 6 as to whether the charge was proved beyond reasonable doubt. The learned Judge finally determined the 7th ground on issue of sentence. On that basis, we find the first ground devoid of merit. Regarding to ground numbers 2 and 3 of the substantive and ground number 1, 2, 3 and 4 of the supplementary memoranda, the appellant's complaint is that the case was not proved against him. The respondent hold a different view that the case was proved to the hilt. It is undisputed that, the appellant was charged with statutory rape under section 130 (1) (2) (e) of the Penal Code. The issue of the age of li

the victim was therefore an essential ingredient. The other two elements to be proved are penetration and the identity of the perpetrator. Starting with the element of penetration, we wish to refer to page 19 of the record of appeal, where the victim while testifying, stated as follows: "AmbokHe raped me. AHniwekea dudu lake (pointing a t her private parts). He rem oved m y sk irt and p a n t " It is the appellant's argument that the victim never proved penetration. He relied upon the case of Burton Mwapabilege (supra) to insist that the mere words AHniwekea dudu lake are not sufficient to prove penetration. It was his stance that the victim ought to have gone further and state where the dudu penetrated her. In the said case of Burton Mwapabilege (supra), the Court stated that it is not enough for the victim of rape to say that she was raped. She must always go further and allege that there was penetration however slight. We are aware that in proving the offence of rape it is of utmost importance to lead evidence of penetration and not simply to give a general statement alleging that rape was committed without elaborating what actually took place. See Mathayo Ngalya @ Shabani v. Republic [2008] TZCA 140 12

Having examined the evidence of the victim, PW1 and that of PW4 we are at per that the prosecution proved that victim was penetrated. It is the testimony of the victim that the perpetrator undressed her then inserted his manhood into her private part. To be precise PW2 stated; "Ambokile raped me. AHniwekea dudu fake (pointing a t her private p arts)." In the recent jurisprudence, we have consistently held that the focus of a witness's testimony is on the substance of the act rather than the specific vocabulary used. Further in Hassan Kamunyu vs Republic [2018] TZCA 259, we emphatically stated that: "The current position is that in proving that there was penetration in a rape case, it is not alw ays expected the victim w ill graphically describe how the penis was inserted into the victim 's vagina . " See also in Joseph Leko v. Republic [2013] TZCA 327 where we observed that: "Recent decisions o f the Court show that what the court has to look a t is the circum stances o f each case including cultural background, upbringing, religious feelings, the audience listening, and the age o f the person giving the evidence. The reason is obvious. There are instances, and they are not few, where a witness and even the court would avoid using direct 13

words o f the penis penetrating the vagina. This is because o f cultural restrictions m entioned and other related m atters. The cases o f M IN A N IE V A R IS T I v. R. Crim inal Appeal No. 124 o f 2007 and H A S S A N I B A K A R IV R. Crim inal Appeal No. 103 o f 2012 (both unreported) decided by this Court in February and June 2012 respectively are som e o f the recent developm ents in the interpretation o f section 130(4) (a) o f the Penal Code." Much as we have considered the argument by the appellant, we are not inclined to buy his approach. The testimony of the victim that "aliniwekea dudu lake"vjh\e pointing at her private parts meant that the perpetrator inserted his manhood into her vagina. The evidence of PW1 and PW4 corroborated the victim's testimony. At page 16 of the record of appeal, while PW1 was examining the victim, she noticed wounds in her private parts. PW4, a medical doctor, who examined the victim on 8th April 2022, found bruises and blood coming from her private parts, concluding that a blunt object had penetrated her vagina. The appellant's contrary argument is therefore unfounded. As to the victim's age, we are in agreement with Ms. Mollel that the victim's uncle (PW3) proved the age of the victim. It was his testimony that the victim was six years born on 16th September 2015. It is settled 14

law that proof of age may be given by the victim, relative, parent, medical practitioner or, where available, by the productions of a birth certificate or by inferring to the existence of any fact under the dictates of section 130 of Evidence Act Cap 6 R.E. 2023. See Issaya Renatus v. Republic [2016] TZCA 218 and Bashiri John v. Republic [2019] TZCA 89. The complaint is therefore unsubstantiated. On the element of the identity of the perpetrator, we are also in line with the learned Senior State Attorney that, it was the appellant. As correctly stated by Ms. Mollel, true evidence in sexual offence comes from the victim if credible. See Michael Kyando v. Republic [2023] TZCA 141. The record indicates that the victim knew the appellant before, a fact which was not objected by the appellant. PW1 also testified knowing the appellant as she once hired him to fix a solar panel at her home. Her credibility was weighed and passed the test of truthfulness. She coherently narrated how the appellant ravished her and named the appellant at the earliest opportunity. The law is settled that the ability to disclose the name of the perpetrator of a crime at the earliest time adds credence. See: Jaribu Abdulla v. Republic [2003] T.LR. 271 and Marwa Wangiti and Another v. Republic [2002] T.L.R. 39. 15

On the issue contradiction relating to the time mentioned in the charge sheet and the evidence of the victim, the variance is undisputable. Our reflection to the charge sheet, we noted that the alleged offence was committed at 18.00rs while the evidence of the victim at page 20 stated that she was raped at 11.00 Am. Ordinarily, where there is variance between the charge sheet and the evidence, the remedy is to amend the charge failure of which, the preferred charge remains unproved and the accused is entitled to an acquittal. See section 251(1) of the CPA R.E. 2023 and the case of Kandola Paulo @ Kadala v. Republic [2018] TZCA 625. However, as correctly argued by Ms. Mollel, this complaint is unfounded. Section 251(3) of the CPA, consider variance of time immaterial to warranty amendment of the charge sheet. For easy of refence we quote section 251(3) as hereunder: "Variance between the charge and the evidence adduced in support o f it with respect to the tim e a t which the alleged offence was com m itted is not m aterial and the charge need not be am ended fo r such variance if it is proved that the proceedings were in fact instituted within the time, if any, lim ited by law fo r the institution thereof." 16

[Also see: Issaya Renatus v. Republic (supra)]. Besides, in Alex Ndendya v. Republic [2020] TZCA 202, we subscribed to the observation by the High Court (Mnzavas, J. as he then was) in Evarist Kachembeho & Others v. Republic, (1978) L.R.T. 70 where it was observed that: "Human recollection is not infallible. A witness is not expected to be right in m inute details when retelling his story". Therefore, taking into account the age of the victim being 6 years old, we hold that her memory could not recall exactly the time when she was ravished. We thus treat the same as a mere discrepancy not affecting the root of the case. Regarding the contradictions relating to the date when the appellant was arrested, the record indicates that PW1, at page 17 of the record of appeal, stated that the appellant was arrested on 06/4/2022 while PW3, at page 24, said that he was arrested on 7/4/2022. On our part we agree with Ms. Molell that the contradiction was minor not significant enough to kill the case as it did not go into the root of the matter. As alluded early, what was to be proved are elements of statutory rape. Minor contradictions, inconsistencies, or discrepancies do 17

not affect the prosecution case. See: Lusungu Duwe v. Republic [2014] TZCA 162, On the aspect of failure to call material witnesses, the appellant contends that village chairperson and the police officer who recorded his caution statement were material witness. The appellant's contention is anchored on the evidence of PW3. While testifying at page 23 of the record, he stated that the appellant, upon arrest, confessed and apologized before the village leaders of Kilasi village and his apology reduced into writing. TTiere was also a compliant that Mate was not called to testify. However, that Mate is the victim's uncle. On page 16 of the record of appeal it is clear that he would have testified as PW3. Having examined the record of appeal, we find that the chairperson of the village and the police officer alleged were not material witness. First, as argued by Ms. Mollel, both courts below convicted the appellant on the evidence of the victim and not that of the confession before the village chairperson. Second, the document relating to the appellant's confession and the alleged caution statement recorded by the police officer was not tendered in court nor do we find the alleged recorded caution statement in the record. We therefore rule out that their absence 18

could not tilt the court to draw an adverse inference against the prosecution case. Besides, under section 252(1) of Cap 6 R.E. 2023, there is no specific number of witnesses required for the prosecution to prove any fact. What is important is the quality of the evidence and not numerical value. See: Gerson Geteni v. Republic [2024] TZCA 52. The prosecution therefore had discretion to determine the witnesses they wanted to prove their case against the appellant. This complaint is therefore without merit. Regarding the issue of failure to consider the defence case, we are in agreement with Ms. Mollel who argued that, this ground was not raised before the High court. Upon perusal of the record, we have noted the trial court considered his defence finding out that the appellant gave a general denial not casting any doubt against the prosecution case. Therefore, this ground as well fails. Lastly is the issue of shifting the burden of proof. This, complaint though not addressed by the parties, we find it apposite to determine it. Having perused the record of appeal, we find this complaint not borne out by the record. The High court findings on failure to cross examine on pertinent issue is not tantamount to shifting the burden of prove to the 19

appellant. It is trite law that failure to cross examine a witness on an important matter ordinarily implies the acceptance of the truth of the witness. See: Damian Ruhele v. Republic [2012] TZCA 269. This complaint is therefore unmerited. In the event, we find that the appeal is devoid of merit and hence, we accordingly dismiss it. Consequently, we uphold and sustain the conviction and sentence. Appeal dismissed. DATED at DODOMA this 24th day of March, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered virtually this 26th day of March, 2026 in the presence of the appellant in person, Ms. Imelda Aluko, learned State Attorney for the Respondent/Republic and Mr. Shafii Kassim, Court Clerk is her< 20