Assa Alex Samwel vs Republic (Criminal Appeal No. 612 of 2022) [2026] TZCA 298 (11 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MKUYE. J.A.. RUMANYIKA. 3.A. And AGATHO, J.A.) CRIMINAL APPEAL N0.612 OF 2022 ASSA ALEX SAMWEL..................................................................... APPELLANT VERSUS THE REPUBLIC........................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Nqunvale, J.) dated the 12th day of November, 2021 in Criminal Appeal No. 67 OF 2021 JUDGMENT OF THE COURT 26th February & 11th March, 2026 RUMANYIKA. J.A. In the District Court of Rungwe, the appellant, Assa Alex Samwel, was charged with the offence of rape contrary to sections 130(1), (2)(e) and 131(1) of the Penal Code. It was alleged that on 3rd November 2018, at Igalamu Village within Rungwe District, Mbeya Region, the appellant had unlawful carnal knowledge of a thirteen-years-old girl. She was in Standard IV at Lutengano Primary School. To conceal her identity and in order to protect her dignity, we shall refer to her as the "victim" or "PW1". That, on the material date, she encountered the appellant whom she was familiar with, at a stream fetching water, 1

where he proposed a sexual relationship, vainly. Thereafter, he forcefully took her to his home, despite her cries for help, which went unanswered. Then he had a forced sexual intercourse with her. It was further alleged that the appellant remained with PW1 in his house for three consecutive days consummating her on daily basis, promising to marry her. Meanwhile, PWl's mother (PW2), upon realizing that the young girl is missing from home, she kept on looking for her. That it was not until on the third day of her missing, when the victim was found at the appellant's residence. PW3, the Village Executive Officer (VEO), supported the PW2's story. Then the appellant was arrested and charged as such. In his defence, testifying as DW1, the appellant did not deny to have engaged himself in the alleged sexual intercourse with the victim. Instead, he stated that she had consented to it. DW2, the appellant's younger brother, stated that indeed the appellant had cohabited with the victim for those three days. Upon full trial, the court found the charged offence proved to the hilt. Consequently, the appellant was convicted and sentenced to a thirty years term of imprisonment. His first appeal to the High Court was unsuccessful. 2

Still dissatisfied, the appellant has now preferred this second appeal. He fronted five grounds in the substantive memorandum of appeal and three grounds in the supplementary memorandum of appeal. They were filed on 21st June 2022 and on 24th February 2026, respectively. However, for ease of reference and convenience, we shall paraphrase those eight points of grievance, to read as follows; One, variance between the charge and the evidence, with respect to when was the charged offence committed; two, voire dire test on the victim was conducted contrary to section 127 (2) of the Evidence Act. Three, failure of the victim to show that she resisted the sexual intercourse; four, failure of the prosecution to tender PF3 for proof of penetration, five, failure of PW2 and PW3 to prove themselves as eye witnesses. Six, improper evaluation of his petition of appeal; and seven, the prosecution case was not proved beyond reasonable doubt. At the hearing of appeal, the appellant appeared in person unrepresented while Mses. Naomi Mollel and Hannarose Kasambala, learned Senior State Attorneys teamed up with Mr. Rajab Msemo, learned State Attorney, representing the respondent Republic.

The appellant preferred to the learned State Counsel responding to the grounds of appeal first, while reserving his right to rejoin, should the need arise. Regarding point number one, on the variance between the charge and the evidence, in Ms. Kasambala's view, it is misconceived. She quickly agreed, however, that none of the prosecution witnesses stated the material date to be 3rd November 2018 at 11:00 hours, as alleged in the charge sheet. However, Ms. Kasambala contended that, counting the undisputed three days from 6th November 2018 when the victim was found cohabited by the appellant, backwards, it would take one to 3rd November 2018, by necessary implication. Further, it was asserted, whether or not the charged offence was committed at 11:00 am of 3rd November 2018 it counts nothing. That, material is only proof of existence of the three essential ingredients of rape. Ms. Kasambala cited our decision in Muhsin Issa Ali v. The Director of Public Prosecutions, Criminal Appeal No. 909 of 2023 [2025] TZCA 486 to reinforce her point. Therefore, she urged us to find the complaint to be lacking and to dismiss it. With respect to complaint number two, on the alleged flawed procedure on receiving evidence of the child victim, voire dire test, Ms. 4

Kasambala found it to be misplaced. She contended that it is inconsistent with the current position under section 135(2), (formerly section 127 of the Evidence). She asserted, therefore, that, voire dire examination was no longer a legal requirement ever since. Much as, she said, from the outset the victim promised to tell the truth and not to tell lies, as appearing on page 4 of the record of appeal, which is now the requirement. Thirdly, is on the petition of appeal, allegedly being evaluated improperly, also being raised as a complaint. It was Ms. Kasambala's contention that the complaint is against the record. Referring to pages 28 to 29 of the record of appeal, she argued that the learned Judge dealt all nine grounds of appeal presented, only that, after due consideration he found them all unmerited. We were implored also to dismiss this ground. As regards the appellant's complaint on failure of the prosecution to present PF3 to prove that indeed, the victim was penetrated, Ms. Kasambala contended that this is also misconceived. She asserted that such medical evidence was quite unnecessary under the circumstances, as long as the victim's evidence passed the test, unshaken, being the best of it all. Cited was the Court's decision in Selemani Makumba v. 5

R [2006] T.L.R. 379 to bolster Ms. Kasambala's contention. She asked for dismissal of the complaint for being misconceived. Lastly, Ms. Kasambala's asserted that, all put together, the prosecution case was proved beyond reasonable doubt against the appellant. In his rejoinder, the appellant did not tell much. He only urged the Court to agree with him on the grounds of appeal presented, as all being merited, to allow the appeal and to order his immediate release from prison. Upon hearing the parties' submissions, examining the entire record of appeal and also considering the authorities cited, the issue for our determination is whether the prosecution case was proved beyond reasonable doubt, against the appellant. First for our consideration is the appellant's complaint that the charge sheet and the evidence adduced are at variance. Namely, the allegations in the charge sheet, that the offence was committed on 3rd November 2018 at 11:00 hours, was not substantiated by any one's oral evidence, rendering the charged offence unproven to the hilt. It is clear to us that the adduced evidence did not go to those specifics to match with the charge sheet. However, on that one, PW3, remotely 6

though, was positive in his testimony that on 6th November, 2018 it transpired to him that the victim had been staying with the appellant for three good days at the latter's residence. Similarly, the victim in her evidence did not indicate the material date and time (the first encounter) from when she started cohabiting with the appellant, under the same roof. Ordinarily, the said omission would have created a significant gap in the prosecution's evidence. Much as the charge sheet alleged, specifically that the offence was committed on 3rd November 2018 at 11:00 hours, while the evidence did not. As a general rule, the said mishap renders the charged offence unproved. However, the instant case has peculiar circumstances of its own. We shall explain shortly herein after. As such, we agree with Ms. Kasambala's contention that the said flaw did not undermine the credibility of the prosecution's case, rendering the conviction unsafe. It is so because the victim is on record, undisputed to have stated that the appellant successfully seduced and took her to his residence, where they lived together as husband and wife for three consecutive days. That, she enjoyed the affair until such time when they were interrupted and forced to withdraw from it. With regard to the period of their stay under one and the same roof, as lovers, this evidence was supported 7

I by the appellant himself, and also supported by his young brother, who testified as DW2, as observed earlier on. Second, is the appellant's complaint that voire dire examination was not conducted with respect to the child victim (PW1), under section 127(2) of the Evidence Act. This ground is devoid of merit straight away. It is recalled that the appellant was charged on 3rd November 2018 for statutory rape. By that time, already the said section 127(2) was amended vide Act No. 4 of 2016, removing the requirement of voire dire examination for the evidence of a tender-aged witness. Then such a witness would testify on oath/affirmation, as the case may be, if he appreciates the nature of the oath, if he does not, upon promising to tell the truth and not to tell lies. See- Meclino Michel @ Msechu v. R (Criminal Appeal No. 167 of 2021) [2024] TZCA 756. It is on record in this case that PW1 testified after she had made such a promise, as it is appearing on page 4 of the record. Therefore, the requirements of section 127(2) (now section 135(2) of the Evidence Act were fully complied with. Therefore, the complaint also crumbles. The appellant's third point of grievance, we recall, is where he faults the victim for having not screamed for a help, if at all the appellant raped her. It is our finding, outright, that this complaint is 8

purely factual and new, as it was not raised before the first appellate court for consideration. Therefore, we agree with Ms. Kasambala on a contention that, the complaint is misplaced. It contravenes a long- established legal principle that this Court has no jurisdiction to determine new matters, as it is the case before us. See- Halid Maulid v. R (Criminal Appeal No. 94 of 2011) [2021] TZCA 225. Consequently, we decline to entertain the complaint at this stage for being unmaintainable. On the fourth complaint, regarding failure of the prosecution to tender the respective medical report, PF3 or any report by a medical doctor for proof of penetration, too, we find it to be devoid of merit. We agree with Ms. Kasambala that, for a charge of rape under sections 130(1), 130(2)(e), and 131(1) of the Penal Code to be proved, there are three common ingredients that always have to be established; One, that the victim was of minority age, two, penetration, and three, that the perpetrator is the accused, in this case the appellant. We want to re-state a cherished legal principle that in sexual offence cases, evidence of a medical doctor is not a "by hook and crooks" requirement for proof of penetration. What counts most, as best evidence is the one which comes from the victim, where 9

considered credible. See- Selemani Yahaya @ Zinga v. R (Criminal Appeal No. 533 of 2019) [2021] TZCA 568, from unbroken chain of authorities. Fortunately, in the present case, at least the victim did coherently establish all the ingredients required for proof of the charged offence. That at the material time she was twelve years old but penetrated by the appellant, as appearing on pages 4 to 5 of the record of appeal. Therefore, under the circumstances, to call a medical doctor who may have examined the victim and perhaps establish penetration, it was uncalled for. Let alone non-production of the corresponding PF3. As such, the alleged omission could not shake the prosecution case in any way, in the circumstances of the case. We have reiterated this view several times, such as in Masalu Kayeye v. R (Criminal Appeal No. 120 of 2017) [2020] TZCA 302. The fifth complaint, concerns the alleged failure of the High Court to find that PW2 and PW3 were not eye witnesses. Too, this ground is lacking. We note, essentially, that the impugned decision was basically founded on the testimony of the victim, as a witness of truth, the irrelevance of consent of a child victim to the sexual intercourse, and that the victim was of minority age. Also, that medical evidence to prove 10

penetration was uncalled for under the circumstances of the case. Let alone the irrelevance of the number of witnesses required to prove a criminal offence. It is stressed, that an offence of rape is established where an adult woman is penetrated by a man other than her husband, without her consent or, in any other case that the victim is not of majority age, where consent is immaterial. Based on the foregoing, the follow up issue, therefore, is whether or not in the present case, rape was proved against the appellant. With regard to the ingredient of age, PW2, the victim's mother, testified that her daughter was thirteen years old, then (born on 20th May 2005). This evidence was not impeached, let alone an attempt to. We need not stress that PW2 was amongst the people having such mandate to prove the age. Moreover, the corresponding clinic card (exhibit PI) which appears at pages 11 to 12 of the record of appeal could not prove the victim's age. It fell short of evidential value, as it was not read out after being admitted in evidence. As such, we agree with Ms. Kasambala's mature assertion that the flawed procedure renders the document inadmissible. Therefore, it is hereby expunged from the record. We have taken a similar stance once and again in akin 11

situations such as in Joseph Mganga Mlezi & Another v. R (Criminal Appeal 536 of 2015) [2019] TZCA 361. As regards the ingredient of penetration and proof, PW3, the Village Executive Officer (VEO) to whom the victim was reported missing for three good days, confirmed the story. That the victim was found at the appellant's residence, both staying as wife and husband. This fact is actually consistent with the victim's testimony, the evidence of PW2 and that of the appellant and DW2. All presuppose that, indeed the victim was penetrated by the appellant. It is recalled that the sixth complaint in the list is on the alleged failure of the first appellate court to evaluate the petition of appeal properly, whatever is meant by the appellant. Here, the bottom line is, the court has to dutifully consider and determine each ground of appeal placed before it and resolve it. See- our decision in France Michael Nyoni v. R (Criminal Appeal 505 of 2020) [2022] TZCA 679. For the present appeal, upon examining the record and considering what we gather from the impugned judgment, it is clear to us that this complaint is lacking. This is so because the learned Judge addressed all nine grounds of appeal and resolved them, upon making such a substantial evaluation. Importantly, the appellant did not demonstrate how could 12

such a self-telling record of the court be impeached, so casually. This ground therefore fails. Lastly, it is on whether the prosecution case was proved. We are aware of the cardinal principle which imposes that duty to the prosecution. Fortunately, in the instant case, and this one will explain its peculiarity, as promised earlier on, the appellant in his defence evidence made the task of the prosecution easier. He, in blacks and whites advanced it by saying that the victim had consented to the sexual intercourse. He added that, the victim threatened to commit suicide had she been separated from the appellant, for whatever reason. For ease of reference, we quote the operative part of the appellant's evidence, as verbatim as it is appearing on pages 8 to 9 of the record of appeal. It reads thus: "...I met with the [ victim] and seduced her and she agreed... we went in my home...she entered in and went direct to my bedroom... [the victim] told me to sit on bed and took offmy shirt and my trouser. She took o ff her clothes and we made love and not rape she stayed there till the next day and when I asked her to go back home she threatened me she w ill k ill herself. I was scared .../ decided to leave her to stay. She was free in a ll those days I stayed with her...." 13

From the excerpt above, therefore, It is dear to us that with respect to ingredients of the charged offence, the appellant left no stone unturned. In other words, the victim's evidence that she is twelve years or thirteen years as, her mother (PW2) put it, passed the test unchallenged. As such, whether or not the victim's age ranged between 12 and 13 years is immaterial under the circumstances. What counts most is that she had not attained eighteen years, which is the cutoff point age, and that the appellant penetrated her. We are guided yet by another legal principle that in any judicial proceedings the best witness ever is an accused who confesses his guilty. It is even more critical, as it is the case before us, that the appellant's confession came at a later stage, in his own sworn evidence, having heard the substance of the prosecution case, with sobriety, It is very unfortunate to all men, that all girls under eighteen years generally are considered to be of irrational self-awareness and personalities. That is to say that, however cooperative, consensual and strongly seducing sexual intercourse the girl may be, it is of no any assistance to the accused. As such, statutory rape, Is such a strict liability offence.

In sum, therefore, we accede to the learned Judge's finding that the prosecution case was proved beyond reasonable doubt against the appellant. On the basis of the foregoing, therefore, the appeal is lacking merit. It is hereby dismissed. DATED at MBEYA this 10th 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 11th day of March, 2026 in the presence of the Appellant in person, Ms. Imelda Aluko, learned State Attorney representing the respondent/Republic and Ms. Jasmin Kazi, Court Clerk, is hereby certified as a true copy of the original. £ COURT OF APPEAL C. M. MAGESA DEPUTY REGISTRAR 15