Jabir Chapakazi vs Republic (Criminal Appeal No. 615 of 2022) [2026] TZCA 342 (24 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA fCORAM: MKUYE. J.A., RUMANYIKA. J.A. And AGATHO. J.A.^ CRIMINAL APPEAL NO 615 OF 2022 JABIR CHAPAKAZI...................................................... .....................APPELLANT VERSUS THE REPUBLIC ............................ .......................... ............ ....... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) fKaravemaha, J.) dated the 24th day of October, 2022 in Criminal Appeal No. 135 of 2021 JUDGMENT OF THE COURT 2n d & 24th March, 2026 AGATHO, J.A.: The genesis of this matter traces back to an incident that occurred on the 27thday of September, 2020, at or about 17:00 hours, at Ndandalo area within Kyela District in Mbeya Region. PW1 or the victim (name concealed for privacy reasons), a girl then aged 12 years and a Standard III pupil at Mbogela Primary School, was playing with her friend Leah. The appellant, Jabir s/o Chapakazi, 25 yrs a bodaboda (motorcycle) rider and shoe seller residing in the same Ndandalo street and known to the victim as a frequent visitor to her family’s home, approached her while riding his motorcycle. He called her by name and informed her that her father had sent him to fetch her so that she could collect money to buy vegetables. The victim boarded the appellant's motorcycle. Instead of taking her to her father, the appellant rode to a remote area near Kiwira River, specifically at a spot known as Kiteputepu (a locally made bridge). There, he parked the motorcycle beneath a tree and instructed the victim to accompany him to a nearby maize farm. Upon reaching the maize farm, the appellant ordered the victim to undress, assisted in removing her clothes including her underwear, and undressed himself. He then commanded her to lie down, covered her mouth, inserted his male organ into her vagina, and had unlawful carnal knowledge of her. The victim testified that she felt severe pain, cried, and lamented during the act. After completing the act, the appellant warned the victim not to disclose the incident to anyone, threatening to slaughter her if she did. He gave her Tanzanian Shillings One Thousand (TZS 1,000.00) and instructed her to return to where the motorcycle was parked. The victim went home, where her sister noticed the money and questioned her about its source. The victim initially claimed she found it on the road but, upon further interrogation by her mother, PW2, she told them the truth. PW2, reported the matter to the local ten-celI leader, who convened a meeting with street members ( wajumbe ). At this meeting, the appellant was summoned and allegedly admitted to the unlawful carnal knowledge. The matter was then escalated to Kyela Police Station on the 29th September, 2020, where the victim was issued with Police Form No. 3 (PF3) and escorted to Kyela District Hospital. At the hospital, Dr. David Anyingisye Mwaipopo (PW3), examined the victim on the same day. He found her with bruises in her vagina, no hymen (indicating perforation by a blunt object), and no signs of HIV or any sexually transmitted diseases. A PF3 was filled and later tendered as Exhibit PI in court. Its contents were explained in court not read, as is visible on page 28 of the record of appeal. TTie investigation was handled by G. 8589 DC Sunday (PW4). He testified that the appellant's cautioned statement was recorded by WP Stella. Later, he was arraigned in court where he was charged for rape. The appellant, in his sworn defence testifying as DW1, denied the allegations, claiming the TZS 1,000.00 issue was a misunderstanding and that he contributed TZS 25,000.00 for the victim's medical examination out of goodwill. He disputed the prosecution evidence as uncorroborated and suggested it was fabricated due to suspicions of superstition linked to his bodaboda occupation. The trial court found the prosecution case proved beyond reasonable doubt. The appellant was thus convicted as charged and sentenced to life imprisonment. Aggrieved, the appellant appealed to the High Court on 12 grounds. The High Court dismissed the appeal on conviction. However, it allowed the appeal on sentence, reducing it to 30 years' imprisonment because the victim was aged 12 years. The appellant has now appealed to this Court lodging two memoranda of appeal: main and supplementary. Former containing two grounds and the latter containing four grounds of appeal. These grounds of appeal can be paraphrased as follows: one, that, the appellant's petition was not evaluated; two, that, the appellant's defence was disregarded; three, that, the case was not proved beyond reasonable doubt; four, that, the prosecution failed to summon material witnesses Hilda d/o Osward, Leah, wajumbe (members of the street) and a ten-cell- leader; and five, that, there is a material contradiction in the evidence adduced by the prosecution witnesses. When the appeal was called on for hearing, Mses. Naomi Mollel and Hannarose Kasambala, learned Senior State Attorneys teaming up with Ms. Veneranda Masai and Mr. Rajabu Msemo, learned State Attorneys appeared representing the respondent Republic whereas the appellant was in attendance and without representation. Upon being invited to expound his grounds of appeal, the appellant opted for learned State Attorneys to respond first to the grounds, and he reserved his right to rejoin if need be. Ms. Masai opposed the appeal by submitting on the grounds stated above and urged the Court to dismiss the appeal in its entirety for lacking merit. In his brief rejoinder, the appellant said that he did not provide TZS 25,000.00 to confess commission of crime. He submitted that he gave the money so that the victim could undergo medical examination to prove if she was raped. However, the appellant contended that ten-cell-leader was not called to testify. He beseeched the Court to allow the appeal and set him free. The Court is thus invited to determine the five grounds of appeal: we shall do so by raising five issues: first, whether the High Court failed to evaluate the appellant's petition of appeal; second, whether the lower courts disregarded the appellant's defence; third, whether the case was not proved beyond reasonable doubt; fourth, whether the prosecution failed to summon material witnesses, namely, Hilda d/o Osward, Leah, wajumbe (ten-celI-residents) and a ten-cell- leader; and lastly, whether there is a material contradiction in the evidence adduced by the prosecution witnesses. As preliminary, the learned State Attorney outrightly pointed that they are not supporting the appeal. Thereafter, she reminded the Court that the High Court lowered the appellant's sentence from life imprisonment to 30 years. On the substance of appeal, Ms. Masai began by resisting the appellant's complaint that the petition of appeal at the High Court was not properly evaluated. She submitted that the High Court properly evaluated the petition (seen at pages 78-79 of the record of appeal). It evaluated all 12 grounds in the petition of appeal which for convenience the High Court Judge divided into two sets, one on substance of evidence (5,6,7,8,9,10 and 12, combined grounds), and two on technicalities (separately examined 1, 2, 3, and 4) and ground 11 was about the sentence which was found to have merit and the sentence was lowered to 30 years imprisonment. See- pages 100 -107 of the record of appeal. As for complaint that the appellant's defence was not considered, Ms. Masai submitted that the defence was considered by both trial court and the High Court. She cited pages 67-68 of the record of appeal where the trial court found the defence to be an afterthought, and it was satisfied with the evidence of the prosecution while finding unshaken by the appellant's defence. Regarding the High Court, the learned State Attorney referred us to first appellate court's judgment as seen on pages 103-104 of the record of appeal where it held that the defence was substantially considered by the trial court. The High Court in dismissing the appellant's complaint that Leah was material witness that ought to be summoned to testify to corroborate PWl's testimony that she left with the appellant ruled that the law under section 143 now section 152 of the Evidence Act [Cap 6 R.E. 2023], (the TEA) does not specify number of witness to proof a fact what matters is the quality of evidence. Moreover, the High Court Judge added that the best evidence in sexual offence cases comes from the victim. It was his view that Leah did not witness the incident. Selemani Makumba v. Republic [2006] TLR 379 was cited to back up the stance taken. On the allegation that the case was not proved beyond reasonable doubt, the learned State Attorney submitted that in rape charges the proof is required for: penetration, age and that the appellant is the one who penetrated the victim's genitalia. Both lower courts were satisfied that these were proved. As for penetration, PW1 (the victim) then aged 12 years, on page 18 of the record of appeal testified that she was playing at her friend Leah's home and the appellant took her on the Boda Boda to maize farm and raped her. Thereafter, her sister Hilda told her mother who informed ten-cell-leader who reported to the police. The police in turn gave them PF3. At the hospital, the doctor (PW3) examined PW1 and 7 found that her vagina was perforated, and she had bruises as seen in the PF3 (exhibit PI). Ms. Masai stressed that the testimony of PW1 proved that she was penetrated, a fact which was supported by the doctor's evidence and the PF3. That evidence was believed by both the trial court and the High Court. As to who raped the victim, Ms. Masai submitted while referring to the testimony of PW1 that it was the appellant who raped her as the incident occurred at 17:00 where there was day light and the PW1 knew the appellant before the incident and as he stays nearby, used to go to her home to sell shoes and he is a Boda-boda rider. The latter was confirmed by the appellant himself in his testimony that he was a Boda- boda rider in Kyela town. The learned State Attorney contended that the appellant also in his defence on page 41 of the record of appeal showed that he knew the victim because he even gave suburb leader TZS 25,000.00 for her to be medically examined. As regarding proof of age of the victim, which is another ingredient of statutory rape, Ms. Masai contended that PW2 testified that the victim was born on 20/10/2007. Moreover, PW4 - police investigator, testified and tendered in evidence the school register indicating that the victim was born on 18/12/2007. See- pages 31 and 41 of the record of appeal. Notably, the learned State Attorney conceded that there is contradiction on the date and month the victim was born. But she was of the view that the contradiction is minor because the year is the same. It was her argument that when the incident occurred the victim was 12 years and when testifying in court, she was 13 years. Ms. Masai submitted that the ingredients of the offence were proved. She thus urged us to dismiss this ground of appeal. We have considered the learned State Attorney submission, and we agree with her that although the victim's birth dates are different in terms of a date and month, the year is the same. In our view, such difference did not affect the year of birth and hence the victim's age was proved. In the end the complaint is dismissed. In respect of the appellant's faulting the lower courts' failure to consider that the key witnesses (Leah, Hilda as well as local leaders especially ten-cell-leader) were not called to testify, Ms. Masai countered that the prosecution is not bound to bring a particular number of witnesses to prove the charge as per section 152 of the TEA. She contended that the four witnesses (PW1, PW2, PW3 and PW4) brought by prosecution proved the charge. Nevertheless, the learned State Attorney admitted that the victim mentioned Leah as the child she was playing with when the appellant took her. Revisiting the record, Ms. Masai submitted that after the incident the victim (PW1) was seen by her sister (Hilda) with TZS 1000.00 alleged to have been given to her by the 9 appellant. Then Hilda told their mother (PW2) who afterward went to report to the ten-cell-leader. The learned State Attorney submitted that although these individuals were not called to testify, the court can convict the culprit by relying on evidence of the victim if she is found to be credible witness as seen on page 64 of the record of appeal. She buttressed her submission with the case of Omary Kijuu v. Republic [2007] TZCA 9 at page 10. Ms. Masai also referred us to page 19 of the record of appeal, where PW1 testified that the appellant threated to kill her if she tells anyone about the incident. The learned State Attorney went on submitting that in the memorandum of agreed facts on page 8 of the record of appeal, the appellant did not dispute that he took the victim to Kiteputepu bridge. She thus urged the Court to dismiss this ground of appeal. Briefly, and as much as we agree about the principle in section 152 of the TEA, that the prosecution is not bound to parade a particular number of witnesses to prove their case, we do not think that applies to all situations. In our firm view, we hold that the above principle does not apply where material witnesses such Leah, Hilda and ten-cell-leader in this case were not called to testify. Leah is the only witness who could have explained or confirmed circumstances under which the victim was taken by the culprit. As for Hilda, her testimony could have corroborated the victim's story that TZS 1000.00 came from the culprit. Further, she 10 could have cleared the contradiction as to whether she is the one who informed their mother (PW2) about the incident or the latter heard it from someone else. That was crucial because PW1 said the mother overheard them (PW1 and Hilda) conversing about the incident. The ten-cell-leader on his side could have cemented the claim that the appellant made an oral confession before him and that he paid TZS 25,000.00 to silence the matter. We thus reject Ms. Masai's urge that the said individuals not called to testify were immaterial witnesses. Instead, we are inclined to draw adverse inference on the prosecution for failure to summons these material witnesses. This Court has held in several of its decisions that failure to call material witness is fatal and the court is entitled to draw adverse inference. See- the cases of Milanzi v. Republic [2009[ TZCA 10; and Lazaro Kalonga v. Republic [2012] TZCA 201. Consequently, we find the ground of appeal to have merit. In terms of the appellant's claim that the prosecution witnesses contradicted themselves, and as alluded to earlier PW1 did not tell PW2 about the incident, it is unclear to us how PW2 got information about the incident. PW1 said that PW2 overheard her and Hilda talking about the incident. In contrast, PW2 testified that she was told by Hilda (PWl's sister) about the ordeal. Ms. Masai conceded that contradiction. However, relying on our decisions in Director of Public Prosecutions v. Daniel ii Wasonga [2022] T7CA 418 referring to the case of Said Ally Ismail v. Republic, Criminal Appeal No. 242 of 2010 (unreported), she submitted that the contradiction is minor, as it did not go to the root of the matter. She thus urged us to dismiss this ground and entire appeal for lacking merit. We firstly should reiterate the principle that contradictions in witnesses' evidence undermines the credibility of the said witnesses as well as their evidence and hence eroding the foundation of the case. Nonetheless, not all contradictions go to the root of the matter. Besides as held in Said Ally Ismail's case (supra) that "Contradictions by a witness or between witnesses is something that cannot be avoided in any particular case.'1 We support the above standpoint, that is why, in our view, it is incumbent upon the court to determine whether the contradiction is minor or goes to the root of the matter. In this case, there is no doubt that PW2 and PW1 contradicted themselves as to who informed PW2. The latter is the one who blew the whistle regarding the incident. As visibly seen on page 24 of the record of appeal, after receiving the news about the incident, PW2 went to report it to the ten-cell-leader who in turn called and informed the ten-celI-residents. It is vital to be certain as to where she got that information. Therefore, it was necessary to resolve that contradiction. We cannot tell with certainty who was telling the truth between PW1 and PW2. See- Jackson Simon Daudi v. Republic [2024] TZCA 415. In the premise, we hold that the contradiction went to the root of the matter as it affects the credibility of the witnesses. We thus find the ground to have merit. We allow it. Probed by the Court as to the credibility of PW1 on how she was taken from the crime scene, Ms. Masai was of the view that PW1 was a credible witness. To support her argument, she referred us to the case of Goodluck Kyando v. Republic [2006] TLR 367 where it was held that every witness is entitled to credence unless there is reason to disbelieve her. Along with that if the victim-witness is credible then her testimony is the best evidence as held in Selemani Makumba (supra) that in sexual offences cases the best evidence is that of the victim. She beseeched the Court to find PW1 to be credible as held by the lower courts. Besides that, we have read Omary Kijuu's case (supra) particularly on the page Ms. Masai referred to us which covers a general principle that a court can convict a culprit based on uncorroborated evidence of a tender aged victim of sexual offence. We are mindful, however, that the said principle applies where the witness is credible. We decline Mr. Masai's suggestion because in this case, we cannot bluntly say PW1 is a credible witness. We shall explain why. In our firm view, PW1 was incredible for she was not 13 ready to disclose the incident until when pressed by her sister after the latter had seen her in possession of the TZS 1000.00. She was not ready to disclose that fact. Although PW1 testified that she was threatened by the assailant, we think she could have confided it to her sister at earliest opportunity to increase her credibility. See- Marwa Wangiti Mwita v. Republic [2002] TLR 379. Adding to the above deficiency the victim's failed to explain as to who helped her from the crime scene to her home considering that after the ordeal she felt pain. On page 19 of the record of appeal, PW1 says she went back home while on pages 18-19 of the same record she stated that after sexual intercourse she felt pain and cried. With that kind of testimony should we assume that the appellant ferried her home or he left her somewhere and then got help from another person. We think the ability of the victim to name the culprit early goes hand in hand with naming of individual(s) who assisted her if any or at least clarify if she helped herself. The prosecution evidence on record, especially the evidence of PW1 is silent as to how and who helped or took her from the crime scene to home. That in our view shakes her credibility. We, thus, differ with the lower court's stance on this issue. More troubling is PW2's testimony that she was told by her elder daughter (Hilda), but PW1 in her testimony said, PW2 overhead them (the 14 victim and Hilda) talking about the incident. It is therefore unclear how did PW2 got the news about the incident. While the learned State Attorney conceded to this contradiction but insisted that it is a minor contradiction, we find it going to the root of the matter as it shakes the credibility of the prosecution witnesses and raises doubt. We are mindful of the principle that the Court cannot interfere with concurrent findings of the lower courts unless there is misdirection, non direction or misapprehension of evidence. In this case, we are firm that there was misapprehension of evidence by the lower courts which justifies our intervention as held in Jilala Justine v. Republic [2021] TZCA 421; and Idd Musa Ramadhan v. Republic [2026] TZCA 151. Shortly, in the instant appeal, and in accordance with above analysis of the grounds of appeal, submissions and the evidence on record, the prosecution failed to parade key witnesses (Leah, Hilda and the ten-cell-leader); that PW1 is incredible witness and that there is material contradiction between PW1 and PW2 as to how the latter got information about the incident. We find these to be critical. Hence, it cannot be said that the charge was proved beyond reasonable doubt. In the upshot, the appeal is allowed, the conviction is quashed and the sentence imposed upon the appellant is set aside. We order his 15 immediate release from prison unless continue to be held for other lawful reason(s). DATED at DODOMA this 23rd day of March, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. 1 AGATHO JUSTICE OF APPEAL Judgement delivered this 24thday of March, 2026 in the presence of the Appellant in person, Ms. Imelda Aluko, learned State Attorney, for the respondent/Republic, via virtual court and Mr. Shafii Kassim, Court Clerk; is hereby certified as true copy of the original.