Alex Victor @ Gasper vs Republic (Criminal Appeal No. 642 of 2023) [2026] TZCA 312 (13 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA fCORAM: LILA. J.A.. MAIGE. J.A. And MANSOOR. J.A.^ CRIMINAL APPEAL NO 642 OF 2023 ALEX VICTOR @ GASPER ............................................................ APPELLANT VERSUS THE REPUBLIC......................................................... .............. RESPONDENT (Appeal from the judgment of the High Court of Tanzania, at Shinyanga) (Massam J.^ dated the 4th day of August, 2023 in Criminal Appeal No. 97 of 2022 JUDGMENT OF THE COURT 27" February & 13th March, 2026 MAIGE J.A.: The appellant was arraigned at the District Court of Shinyanga (the trial court) with two counts namely; rape contrary to sections 130(1) (2) (e) and 131 of the Penal Code and unnatural offence contrary to section 154(1) (a) and (2) of the same Act. On the fateful date, the victim (PW1) was a fifteen-year-old Form Two student at Ngokolo Secondary School, residing with her aunt, Mariam Samweli (PW2). The victim testified that the appellant was a well-known neighbour and close friend with whom she had entered a romantic relationship. She testified that, the appellant approached her in November 2021 to express his feelings and a desire for marriage. Though she did not respond immediately, she eventually accepted his proposal, leading to a sexual relationship. According to the testimony, the parties met regularly at the appellant's home, where the appellant reportedly engaged in acts of both vaginal and anal intercourse with the victim. During this time, the victim contracted sexual disease and did not initially inform her aunt (PW2) of the situation. The matter was discovered after her aunt noticed physical symptoms and stains on the victim's clothing, which eventually led to the victim disclosing the details of their interactions. On April 30, 2022, around 21:00 hours, an incident occurred at the appellant's home where, upon hearing a knock at the door, the appellant removed the victim from the premises. A female police officer arrived and spoke with the victim, who explained that she had been cast out by the appellant. The officer subsequently entered the residence and collected evidence in the presence of the street chairman, Erick Elias Joseph (PW3). A medical examination conducted by Dr. Hamis Machibya (PW5) identified bruises and blood clots on the victim's face and bruising on her right elbow. While the physical examination of the vagina did not show bruises, nodes were noted, and laboratory tests confirmed the presence of a veneral disease. In his defence, the appellant denied the charges, maintaining that he was arrested at his home on 30th April 2022 in the presence of his family. He claimed that when he enquired as to the reasons for his arrest, he was informed that the details would be disclosed oniy upon arrival at the police station. Despite this defence, the trial court found the prosecution's evidence sufficient to establish guilt beyond reasonable doubt. As a result, the appellant was convicted and sentenced to 30 years' imprisonment for the first count and life imprisonment for the second, alongside an order to pay the victim TZS 100,000 in compensation. This conviction was subsequently upheld by the High Court on appeal. Now before this Court in a final bid to assert his innocence, the appellant has raised five grounds of appeal in the initial memorandum of appeal and six more grounds in the supplementary one, challenging the findings of the two courts below and arguing that the convictions and sentences are unsustainable at law. The respective grounds can conveniently be reduced into the following complaints. One, the charge is defective for not indicating the actual date of the commission of the offence. Two, the requirements under sections 192(3) of the Criminal Procedure Act were not complied. Three, the case against the appellant was not proved beyond reasonable doubt. At the hearing, the appellant appeared in person and was unrepresented, while the Respondent Republic was represented by Mr. Jukael Reuben Jairo, learned Senior State Attorney, and Mr. Satuninus A. Kamala, learned State Attorney. When called upon to present his arguments, the appellant adopted his memorandum of appeal in its entirety and prayed for the appeal to be allowed. For the respondent Republic, it was Mr. Jairo who submitted in rebuttal. We have carefully considered the counsel's submission in conjunction with the grievances set out in the appellant's memorandum and shall address them in our determination of the grounds of appeal. We start with the first complaint that the charge sheet is defective for failing to specify the exact date of the offence. On this point, Mr. Jairo submitted that the period of commission of the offence was clearly defined in both the charge sheet and the supporting evidence. We find that this complaint does not warrant extensive deliberation. Our examination of the record reveals no material variance. While the charge sheet asserts that the offences occurred on diverse dates between November 2021 and April 2022, the victim's testimony found at page 9 confirms the same timeframe. As the evidence aligns squarely with the particulars of the charge, we find no discrepancy. We, therefore, dismiss the first complaint. Regarding the second complaint, the appellant contends that the court failed to comply with Section 192(3) of the Criminal Procedure Act. We find that the record does not support this assertion, as the preliminary hearing procedure was substantially followed as correctly submitted by Mr. Jairo. Furthermore, even if a procedural omission had occurred, it is well-established that failure to strictly comply with preliminary hearing requirements is not fatal to the case. This principle was affirmed in Brayson s/o Katawa v. R (Criminal Appeal No. 259 of 2011) [2012] TZCA 31. Accordingly, the second ground of appeal is dismissed. We now wind up with the last complaint which raises an issue whether the case against the appellant was proved beyond reasonable doubt. We subscribe to Mr. Jairo that, in cases relating to sexual offences, the evidence of the victim, if believed, can solely be used to ground conviction. Nevertheless, before placing reliance on such evidence, the triai court must satisfy itself that the respective evidence if weighed in the circumstances of the case as whole, is credible and probable. See for instance, Mohamed Said v. R (Criminal Appeal No. 145 of 2017) [2019] TZCA 252, TANZLII and Rehani Said Nyamila v. R, Criminal Appeal No. 222 of 2019 [2021] TZCA 301, TANZLII. We shall hereunder examine the credibility of the victim's evidence in line with the evidence of others. The victim testified that it was her sister, Bertha, who first noticed her physical symptoms, more specifically faecal incontinence and subsequently reported the matter to a teacher. In her evidence in chief, PW2 initially appeared to support this version of events, when she said that for the reason of her sickness, she had instructed Bertha to take the victim to the school on her behalf. However, this account is directly contradicted by PW2's own testimony at page 28 of the record where she suggested that she herself was present at the school and witnessed the victim revealing the ordeal after being subjected to a beating by her teacher. This inconsistency would have perhaps been resolved had the prosecution called either the teacher or Bertha as witnesses, which was not the case. As a result, there is no clear evidence as to when or to whom the victim first revealed the incident, leaving this material fact entirely unestablished. Furthermore, there are irreconcilable discrepancies in the medical evidence and the circumstances surrounding the victim's medical examination. We shall explain. PW2 testified at page 14 of the record that the victim was taken to the hospital because she was complaining of stomach pains. Conversely, the doctor's testimony claimed that the 6 examination was for alleged rape and sodomy. Most strikingly, the official police request for the medical report (exhibit PI) cited a completely different cause to wit assistace in treating injuries sustained from being pushed into a latrine pit. Insofar as the formal police request specifically mentioned physical injuries from a fall, it was logically unexpected for the doctor to expand the examination into a search for sexual assault or veneral diseases. Indeed, the medical report's focus on these areas appears disconnected from the initial report of injury. That aside, there is another significant contradiction as to when the medical examination occurred. While PW2 insisted that the victim was taken to the hospital in April 2022, both the doctor's testimony and the medical report (exhibit PI) suggest that the victim was medically examined in May, 2022. The victim's own testimony fails to resolve these discrepancies. Quite unusually, her evidence-in-chief is entirely silent on these critical details. She merely asserted that after she had contracted the infection, her sister, Bertha, used to take her to the hospital, yet she failed to specify when these visits occurred. Worse still, the said Bertha who could have provided an insight, was not called as a witness and the reasons therefor have not been explained in evidence. Still on the same point, aithough the victim was allegedly found to have a veneral disease, the prosecution failed to provide any scientific link to the appellant. The appellant was never tested for the infection and found positive. Therefore, the allegation that he was the source of the disease, remains a mere assumption rather than a proven fact. In light of the unresolved discrepancies as afore exposed, the victim's five-month delay in reporting the alleged abuse also creates significant evidentiary doubt. While the fifteen-year-old victim claimed that her silence was rooted in a fear of being beaten by her aunt (PW2), this explanation lacks logical consistency under the specific circumstances of this case. In proceedings of this nature, such a prolonged delay especially when paired with the above significant discrepancies, casts a substantial shadow over the credibility of the victim's testimony. In our view, the prosecution failed to reconcile why a victim experiencing such severe physical distress would remain silent for nearly half a year, only to have the circumstances of her eventual confession described in conflicting terms by the primary witnesses. This discrepancy suggests that the narrative is not a consistent account of facts, but rather a fragmented story that fails to meet the requisite standard of evidentiary certainty. 8 For the foregoing reasons, therefore and to the extent as afore stated, the appeal is hereby allowed. We quash the conviction and set aside the sentence imposed on the appellant. We, therefore, order that the appellant be set free unless he is so held for any other lawful cause. DATED at DODOMA this 12th day of March, 2026. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered this 13th day of March, 2026 via virtual court, in the presence of appellant present in person, Ms. Mboneke Ndimubenya, learned State Attorney for the Respondent/Republic and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original. 9