Yahaya Jumanne @ Ngeni vs Republic (Criminal Appeal No. 86 of 2024) [2026] TZCA 349 (26 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: KOROSSO, J.A., MASHAKA. 3.A., And NGWEMBE. J.A.^ CRIMINAL APPEAL NO. 86 OF 2024 YAHAYA JUMANNE @ N G E N I.......................... ............................. APPELLANT VERSUS THE REPUBLIC ............................ ............................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Arusha) (Kiwonde, J) dated 16thday of November, 2023 in Criminal Appeal No, 77 of 2023 JUDGMENT OF THE COURT 25th February & 26th March, 2026 NGWEMBE. J.A.: This is a second appeal preferred by Yahaya Jumanne @ Ngeni (hereinafter referred to as the appellant). The appellant was charged before the District Court of Arusha (the trial court) with unnatural offence contrary to section 154 (1) (a) of the Penal Code Cap 16 R.E. 2019 (the Penal Code). The particulars of the charge indicated that on the night of 22n d April, 2021, at Ilboru area within the city of Arusha, the appellant had l carnal knowledge of Lucia Michael @ Mushi against the order of nature. Following a full trial in which the prosecution lined up five witnesses and tendered the PF3 as exhibit PI, the trial court was satisfied that the appellant was guilty as charged, convicted and sentenced him to thirty (30) years imprisonment. He unsuccessfully, appealed to the High Court of Tanzania at Arusha (the first appellate court). Still dissatisfied and determined to demonstrate his innocence, he has appealed to the Court. A brief account of the prosecution case indicates that on the night of 22n d April, 2021, at Ilboru area within the City of Arusha, Lucia Michael Mushi (PW2), spent the early evening at a local pub commonly known as Grocery owned by Hillary Nathan Mollel (PW5). After drinking beer with the appellant and others, she asked PW5 to escort her home. PW5 accompanied her up to a place very near to her gate, about 15 paces and left her at around 9:45 PM. It was at that moment, as she prepared to enter her home, when she was suddenly attacked. From the victim's testimony, the appellant attacked her while armed with a knife and threatened to kill her if she screamed. PW2 further testified that she offered him her mobile phone but the culprit refused and explicitly stated that his intent was to sodomize her. He then grabbed her, threw her down and tore her clothes then inserted his 2 manhood into her anus. After the assault, her child opened the gate from inside and the culprit fled. In that moment, PW2 managed to grab the appellant's knife and stabbed him in his lower back. However, that night she did not disclose the ordeal to any one including her family members. She further testified that the following morning, she called PW5 and told him what had happened after he had escorted and left her near her gate. She then reported the incident to the street chairman one Emanuel Lazaro Moltel (PW4), who advised her to report the incident to the police station. However, she did not heed to the advice for the reason that she felt ashamed as the incident was traumatic. She therefore avoided the police ending up at a pharmacy where she bought some medicines to relieve her pain. When her condition worsened, she returned to the pharmacy where she was advised to report to the police. Finally, on 26th April, 2021 she reported the incident at the police station and a PF3 was issued so she could proceed for medical examination, but she did not go to hospital until on 27th April, 2021 when she went to Mount Meru Hospital. Dr. Antipas Ngowi (PW1) of Mount Meru Hospital examined her and found bruises on her anus and 3 concluded that she was penetrated by a blunt object. The PF3 was tendered and admitted in evidence as exhibit PI. It is also in record that the appellant was arrested on 26th April, 2021 by local leaders, including a Ten-cell leader Mathayo Jonas Molies (PW3) who led the police to the residence of the appellant where they found him hiding under his bed. On 28th May, 2021 the appellant was arraigned in court for the offence charged and when the charge was read over and explained to him, he pleaded not guilty. Having been found to have a case to answer, he defended himself by offering a different account. He admitted being at the pub store on the night in question and that he was drinking with PW2, PW5 and one Joseph. In the course, PW2 invited him for a glass of Konyagi because he was feeling down. Later he testified that he left the pub with one Baraka at around 9:00 pm leaving behind the victim and others. He testified further that from 23 to 25 April 2021, he was attending a burial ceremony of his relative and was arrested upon his return to his home. The trial court found PW2 a credible witness who had testified reliable evidence which was supported by the medical evidence of PW1 that she was sodomized. Moreover, the trial court found the evidence of 4 PW5 placed the appellant at the crime scene shortly before the occurrence of the crime. More so, the trial court found the appellant was properly identified given the prior acquaintance of the parties, the alleged lighting at the gate where the offence was committed and the extended interaction prior and during the assault. The appellant was dissatisfied and appealed to the High Court raising nine grounds of appeal, including the validity of the charge and the credibility of the victim, delay in reporting the crime; and the sufficiency of the medical evidence. He also argued on procedural errors and suggested that the case was fabricated. However, the High Court was satisfied that the offence was established and proved by the prosecution to the hilt. Hence, dismissed it entirely. Despite the unsuccessful appeal to the High Court, the appellant preferred the instant appeal resisting his conviction and sentence. He lodged eight grounds of appeal which may conveniently be summarized into the following complaints: first, there was inordinate delay to report the incident and name the appellant at the earliest opportunity; second\ the two courts below failed to consider the contradictory evidence of PW1 and PW2 which tarnished their credibility; and three , that the offence was not proved beyond reasonable doubt. 5 At the hearing, the appellant was present in person, unrepresented. He adopted the grounds of complaint and statement of arguments lodged in Court on 20th February, 2026. In his statement of arguments, he lamented that at the scene of crime the victim failed to properly identify the culprit in terms of intensity of light, description of the dressing code of the culprit and his appearance. Also, he lamented that the victim was not a credible witness for failure to report the incident to the police or any other authority for five (5) days from the date of the alleged incident. On this point the appellant cited the cases of Bahati Makeja v. Republic (Criminal Appeal 118 of 2006) [2011] T7CA 31 (28 February 2011) and Festo Mawata v. Republic, Criminal Appeal No. 229 of 2007 (unreported). On contradictions of evidence, the appellant referred to the testimony of PW1 and PW2 on the date when the victim was medically examined. While the victim alleged to have reported to the hospital for the first time on 27th April 2021, PW1 alleged to have examined her on 26th April 2021. The two are key witnesses in this case, but in such contradictions, it is not known when the victim was examined in hospital, he argued. Finally, he complained that despite reporting the incident to the police and a PF3 being issued there was no evidence 6 related to investigation of the offence charged, to reveal the truth of the matter. He referred the Court to our decision in Yohana Chibwingu v. Republic (Criminal Appeal No. 117 of 2015) [2015] TZCA 447 (5th June 2015). Thus, he implored the Court to allow the appeal and set him at liberty. The respondent Republic had the services of Ms. Neema Mbwana, learned Senior State Attorney who teamed up with Ms. Marietha Maguta, and Mr. Abdon Bundala, learned State Attorneys. It is Mr. Bundala who addressed us at the hearing of the appeal. He demonstrated the stance of the Republic to oppose the appeal and implored the Court to dismiss it because the offence was proved beyond reasonable doubt. Mr. Bundala narrated the elements of unnatural offence that there must be penetration against the order of nature and the perpetrator must be identified properly. On the first element, Mr. Bundala insisted that PW2 at pages 11 to 12 of the record of appeal proved to have been penetrated by the appellant. He also referred the Court to section 135 of the Evidence Act that true evidence on sexual related offences comes from the victim. Thus, he insisted that the evidence of PW2 was corroborated by PW1 who proved penetration after conducting medical examination. 7 In respect of proper identification, Mr. Bundala responded that despite the fact that it was at night, yet the appellant and the victim knew each other prior to the event and there was enough light at the gate of the victim's house, as testified by witnesses and relied on by both trial and first appellate courts. Therefore, the identification was by recognition, he argued and implored the Court to dismiss the appeal in its entirety. In a brief rejoinder the appellant lamented that the case was not investigated, thus the prosecution failed to prove the allegations of the victim throwing a knife at him and that he had no scar or sign of being injured by that knife. Hence the appeal be allowed, he insisted. We have critically examined the arguments of both parties and we find the second complaint on credibility of the victim's evidence is pivotal to the whole matter before us. Undisputedly, the victim was married, had her family and one member managed to open the gate after the alleged incident of unnatural offence. It is also undisputed that the incident occurred at night of 22n d April, 2021 outside the gate of her house. According to her testimony she did not report that incident on the same night. The first person to report to, was PW5 on the following day of 23rd April, 2021. She called PW5 and narrated to him what 8 transpired after he left her close to the gate. The second person to whom the victim reported was PW4 who advised her to report to the police station. According to her evidence, she did not heed to the advice until on 26th April, 2021 when she reported the offence to police station and obtained PF3, but still, she did not go to hospital until on 27th April, 2021 thus, leading to a delay of 5 days from the date of the alleged offence. It is also an undisputed fact that the victim did not report the incident on that night saying she felt ashamed. The appellant argues that the delay of five-days to report the incident to police was inordinate and fatal. However, both courts below discussed this point and were satisfied that the delay was explained as the victim stated the reason for the delay was due to feelings of being ashamed and thus, she initially sought treatment at a pharmacy store, only went to the police when her condition worsened. We have a settled position of the law that delay to report an offence and name the victim at the earliest opportunity affects the credibility of the victim. In this appeal, it is evident as alluded to above, that the incident of sodomy occurred at night of 22n d April 2021 and it is on record that the victim was married but her husband was on safari. 9 Yet she did not report to her husband instead she reported the incident to PW5, a pub owner where, prior to the event, she was drinking beer. PW5 advised the victim to report to the local authorities and hence she reported to PW4 who also advised her to report the matter to the Police station. She did not heed to the advice until on 26th April, 2021. Moreover, the victim testified firmly that she went to the Police station on 26th April, 2021 and was given PF3 but she went to the Mount Meru Hospital on the following day of 27th April, 2021. At the same time, PW1 who examined her, testified at page 8 of the record of appeal that he examined the victim on 26th April, 2021. It was PW l's observation that he found bruises in the victim's anus. However, he filled in the PF3 on 28th April, 2021. In cross examination, PW1 insisted that he examined the victim on 26th April, 2021 but exhibit PI (PF3) at page 23 of the record of appeal, indicates that he recorded the PF3 on 28th April, 2021. Such contradictions are not minor because it is unknown when the victim was actually examined. In this case, whether the bruises appeared to be fresh or were sustained on the alleged day would be relevant. Failure to ascertain the date of medical examination when considered together with the inordinate delay to report the incident to the police, leaves a shadow of doubt. 10 We are alive to the rule that assessing credibility of witnesses is primarily the domain of the trial court, which has the exclusive advantage of observing the demeanour of witnesses firsthand. See, Shani Chamwela Suleiman v. Republic (Criminal Appeal 481 of 2021) [2022] TZCA 592 (28 September 2022). However, on appeal the credibility of a witness can be gauged through coherence and consistence of his/her testimony. We view that, the law is now settled on this legal point that the court must satisfy itself on credibility of the witness. Tine test is purely about what the witness says and how she presents herself in the witness box as well as on consistent chronological narration of the events. The test has been used in our decisions without number including in the case of Shaban Daud v. Republic, Criminal Appeal No. 28 of 2000 (unreported), where we observed that: "The credibility o f a witness can also be determ ined in two ways; One, when assessing the coherence o f the testim ony o f that witness; Two , when the testim ony o f that witness is considered in relation with the evidence o f other w itnesses including that o f the accused person " As aptly above illustrated, consistence, coherence of testimony of the witness, reporting the incident at the earliest possible time and naming the perpetrator at the earliest, indicates truthfulness and li reliability of the testimony of the witness. The stance of this Court is well established that a victim who cannot inform anyone at the earliest on the alleged offence his/her credibility is questioned. See; Al-jabir Juma Mwakyoma v. Republic (Criminal Appeal 463 of 2018) [2021] TZCA 527 (27 September 2021); Simon Gabriel & Another v. Republic (Criminal Appeal No. 487 of 2020) [2024] TZCA 610 (23 July 2024); Hashim Amasha v. Republic, (Criminal Appeal No. 28 of 2017) [2019] TZCA 267 and Juma Antoni v. Republic, (Criminal Appeal No. 571 of 2020) [2022] TZCA 250. In the latter case, the Court held: "In the prem ises, although the best evidence o f rape is that which com es from the victim , however, that is not a w aiver on the court assessing the credibility in order to satisfy its e lf that the w itness is telling nothing but the truth" In the present appeal, not only that the coherence and truthfulness of the victim was missing, but also there are apparent contradictions of the prosecution evidence. While PW1 testified to have examined the victim on 26th April, 2021, the victim testified to have attended Mount Meru Hospital on 27th April, 2021. Worse still the victim being a matured married person, failed to report the incident to her family members including her husband or to police as was advised by 12 PW4, but defayed for five days to report the incident without providing any plausible reason. Moreover, the reason advanced for her failure to report that she felt ashamed, creates another dilemma and unanswered questions. Linder normal circumstances, she would feel more ashamed to report to a pub owner (PW5) than to her husband and the police. In normal circumstances, spreading the alleged shameful act as she did to a pub owner and to the street chairman ought to have been the last resort. We find that it is not safe to uphold the conviction of the trial court without assessing her credibility. Basing on what we have observed above, particularly unexplained failure to report the incident rendered the credibility of the victim highly questionable. We are of the view that the courts below would have reached the same finding had they directed their minds on that aspect. What Sir William Blackstone stated in his book Commentaries on the Laws of England, 16th edition (1825) is relevant here that, before convicting a man for sexual offence, it must be assured that the evidence laid before it proves all the ingredients and sufficiently establishes that the accused is the true offender in respect of the particular victim. 13 In the instant appeal, the possibilities of another person like PW5 to have been involved in the offence of sodomy could not be ignored because PW2 and PW5 were together that night until 15 steps from the gate, and PW2 alleged that she was invaded immediately after PW5 had left. She testified as follows: "when I was opening the gate\ I was robbed by a person identified as Ng'eni. Know him w eii because he is a bodaboda driver around our piace. I scream ed but he threatened me with a knife and toid me he w iii k ill me if I scream. "Since it was night, under normal circumstances, it was expected that PW5 would hear the screaming of the victim and provide assistance. On this, we wish to associate ourselves with what was said by the High Court in the case of Jonas Nkize v. Republic [1992] TLR 214 that: "The general rule in crim inal prosecution that the onus o f proving the charge against the accused beyond reasonable doubt lie s on the prosecution, is p art o f our law, and forgetting or ignoring it is unforgivable , and is a p e ril not worth taking " Likewise in this appeal, it was the obligation of the prosecution to prove the offence beyond reasonable doubt. But with all the weaknesses pointed out, we find that the prosecution failed to prove the offence. 14 Consequently, we allow the appeal based on the single ground of appeal, we quash the conviction and set aside the sentence. We further order that the appellant be released from prison custody unless lawfully held for other causes. DATED at DODOMA this 25th day of March, 2026. W. B. KOROSSO JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered virtually this 26th day of March 2026 in the presence of the Appellant in person - unrepresented, Mr. Abdon Bundala, learned State Attorney for the Respondent and Mr. Musa Amry, Court clerk, is hereby certified as a true copy of the original. 15