Sadick Thomson @ Baba Sashi @ Baba Angela vs Republic (Criminal Appeal No. 273 of 2023) [2026] TZCA 294 (11 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MKUYE. J.A.. RUMANYIKA. J.A. And AGATHO. J.A.1 CRIMINAL APPEAL NO. 273 OF 2023 SADICK THOMSON @BABA SASHI @BABA ANGELA .................APPELLANT VERSUS THE REPUBLIC..........................................................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Ndunquru, J.) dated the 12th day of December, 2023 in Criminal Appeal No. 85 of 2023 JUDGMENT OF THE COURT 4th & 11th March, 2026. MKUYE. J.A.: This appeal arises from the conviction and sentence of the appellant, Sadick Thomas @ Baba Sashi @ Baba Angela for the offence of rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap 16 R. E. 2022. It was alleged in the particulars of offence that the appellant, on 11th day of April 2022, at Muvwa Village in the District and Region of Mbeya, did unlawful have carnal knowledge of a female child aged six (6) i years (name withheld to conceal her identity). When the charge was read over and explained to him, the appellant entered a plea of not guilty. In order to prove the case, the prosecution marshalled three (3) witnesses and produced one (1) exhibit. For the defence, the appellant was the only witness. PW1, the victim testified that while returning home from kindergarten school, she was blocked by the appellant and taken to a nearby coffee farm where he raped her. She further testified that she felt very painful and was bleeding from her private parts. She said, she was rescued later by one Mama Rostina. PW2, the victim's father testified that, while at his work, he was informed of the incident that happened at his home. He took steps to ensure that the child received medical attention and reported the matter to the police station. PW3, examined the victim at Mbalizi Hospital on the same day of incident. He testified to the effect that he observed physical injuries consistent with sexual penetration. He filled the PF3 which was tendered and admitted in evidence as Exhibit PI. He also testified that laboratory 2 examination findings supported the conclusion that the victim's private parts had been penetrated. In defence, the appellant (DW1) admitted knowing victim who was attending school but he gave a general denial to have committed the offence. After the conclusion of the trial, the trial court was satisfied that the prosecution had proved its case beyond reasonable doubt. Consequently, the appellant was convicted and sentenced to life imprisonment. Dissatisfied with the trial court's decision, the appellant appealed to the High Court challenging both the conviction and sentence but his appeal was not successful. Still aggrieved by the High Court decision, he has lodged an appeal to this Court on two (2) sets of grounds of appeal, substantive memorandum of appeal and supplementary memorandum of appeal, comprising a total of seven (7) grounds of appeal which for the reason to be apparent shortly, we shall not reproduce them. At the hearing of the appeal, the appellant was represented by Mr. Mathayo Mbilinyi, learned advocate whereas the respondent Republic had the services of Mr. Alex Mwita and Mses. Naomi Mollel and Hannarose 3 Kasambala, all learned Senior State Attorneys teaming up with Mr. Dominick Mushi, learned State Attorney. On being called upon to expound on the ground of appeal. Mr. Mbilinyi, intimated to the Court that he was abandoning all grounds of appeal in the substantive and supplementary memoranda of appeal save for ground no. 1 of the substantive memorandum of appeal to the effect that: "The first appellate court erred in law when dismissed the appellant's appeal without having regard to the petition o f appeal with its submission filed by the appellant" To substantiate his complaint, Mr. Mbilinyi argued that before the High Court, three grounds of appeal were raised, among others, concerning failure to prove the victim's age as it also determined the punishment to be imposed to the appellant. He pointed out that, the offence to which the appellant was charged with was a statutory rape as per section 130 (1) (2) (e) and 131 (1) of the Penal Code in which the age ought to be proved if the victim was under eighteen (18) years in which consent was immaterial and that the punishment could change if the victim was under ten (10) years old. 4 Mr. Mbilinyi argued that, according to the charge the victim (PW1) was six years old. In her evidence, the victim testified to be 6 years old. Also, PW2 and PW3 testified that the victim was aged six (6) years. However, the learned advocate contended that, all the witnesses just mentioned the victim's age without explaining or bringing tangible evidence to substantiate such age. To bolster his argument, he referred us to the case of Joshua Kwolesya @ Adam v. Republic, [2024] TZCA 410 in which it was held that there should be tangible evidence to prove the victim's age. Mr. Mbilinyi lamented further that, despite the fact that this ground featured at the High Court, it's determination on the issue was by inference that "so long as the child was in kindergarten it was sufficient." He was of the view that, that was not sufficient as there is no specific age of a person to be enrolled in a kindergarten and that the High Court had no chance to see the victim. He, therefore, argued that since there was no tangible evidence to prove the victim's age, the case against the appellant was not proved beyond reasonable doubt. He, thus, urged the Court to allow the appeal, quash the conviction, set aside the sentence and release the appellant unless held for other lawful reasons. 5 In reply, Mr. Mwita resisted the appeal. However, as preliminary, he conceded to the fact that the appellant was charged with statutory rape and that in order for such offence to be proved age must be proved because it has impact on punishment. The learned Senior State Attorney went on arguing that, it was true that the prosecution ought to prove age of the victim. According to him, age of the victim was proved to be six (6) years as per testimonies of PW1, PW2 and PW3. To support his argument, he referred us to the case of Genes Arisen Tarimo @ Kaputi v. Republic, [2023] TZCA 17423 page 14. He argued further that the High Court Judge discussed this issue and that apart from appreciating the persons who could prove age (parent, victim, relative etc.) he made inference to the other factor that the victim was in kindergarten. In his view, mentioning the age can be equated to proving it. He, therefore, urged the Court to find that the appeal has no merit and dismiss it. In rejoinder, Mr. Mbilinyi insisted that, though PW1, PW2 and PW3 are persons allowed to prove the victims age, they did not prove it as required. He, therefore, reiterated his earlier stance that the offence was not proved beyond reasonable doubt. 6 Having examined the ground of appeal and the rival submissions, we think, the issue to be determined is whether the age of the victim was properly proved. In statutory rape cases, the prosecution is enjoined to prove three elements which are: one, age of the victim; two, that there was penetration however slight; and three, the appellant is the one who committed the offence. Also, it is trite law that in sexual offences, the best evidence must come from the victim. And, the standard of proof is beyond reasonable doubt. In this case, it would appear that the appellant has no qualms with the proof that the victim was penetrated and that it was the appellant who committed the offence. This is so because, the learned advocate for the appellant did not pursue his appeal along those aspects but in this appeal, he assailed the prosecution for failure to prove the victim's age. It is without question in such cases proof of age is very crucial. The importance of proving age is two-fold; One, prosecution must prove if the victim is below eighteen years, in which case, the issue of consent becomes immaterial. Two, if it is proved that the victim is below ten years, it attracts a severe punishment of life imprisonment. 7 As to who can prove the age of a child this Court has consistently stated that such proof may be made by the victim, relative, parent, medical practitioner, or where available by the production of a birth certificate (See: Wilson Elisa @Kiungai v. Republic, [2022] TZCA 629. It is also clear that in the case of Joshua Kwolesya @ Adam (supra) the importance of having tangible evidence to prove age of the victim was stated. In our view this would be of importance where the age is in controverse. But also in the case of Wilson Elisa @Kiungai (supra), the Court observed that the age may be deduced from other evidence and circumstances availed to the court which is permitted under section 122 of the Evidence Act, Cap to R.E. 2022. In this case, as rightly argued by both counsel, the charge sheet levied against the appellant indicated that the child to whom the offence was committed was 6 years old. PW1, PW2 and PW3 each testified that the victim by then was aged 6 years old. PW2 who was her farther explained that the victim was at kindergarten in Mshewe Primary School. The trial court was satisfied through the testimony of PW3 that the victim was six years old. At the High Court, as alluded to earlier on, the issue that the victim's age was not proved was among the complaints in the 1st ground of appeal. 8 The High Court discussed it as shown from pages 86 to 88 of the record of appeal and ruled that it was a mere view of the appellant's advocate as there was no law requiring the witness proving the age of victim to mention the date, month and the year of birth. The High Court also observed that the proof of age is not necessarily to be derived from the evidence of the victim, parent, relative but can be proved by deducing or inferring from other evidence or circumstances of the case as per section 122 of the Evidence Act, then it proceeded to infer another evidence that the victim who was a kindergarten pupil could not be above the age of 14 or 18 years. (See pages 87-88 of the recorded of appeal). This portion of evidence is the gist of the complaint. We think, there is an issue which emerges here, which is what is the implication of the 1st appellate court's inference that since the victim was in kindergarten was not above 14 or 18 years. Before embarking on the above raised issue we find it appropriate to reproduce the portion of the High Court judgment in that respect as shown at pages 87 to 88 of the record of appeal hereunder: "In the parity o f thinking, I am o fconcerted view that it is not always necessary that proof o f the victim's age must be derived from the evidence o f the victim 9 parent, relative etc. but can also be proved by deducing or infer from other evidence or circumstances of the case. This is in accordance with section 122 [now section 130] o f the Evidence Act which provides that: "122. A court may infer the existence of any fact which it thinks likely to have happened, regard being had to the common course o f natural events, human conduct and public and private business, in their relation to the facts o f the particular case. // In this case, apart from the evidence m entioning the num ber o f the victim 's age, there is another evidence that the victim was a kindergarten pupil. This evidence was not controverted. For th is evidence I do in fe r th at a kindergarten p u p il cannot be o f above the age o f 14 o r 18 years. In the premises I find the victim's age was proved. The first ground is thus dismissed." [Emphasis added] From the above excerpt, we do not fault the findings of the learned appellate Judge that in terms of section 122 now 130 of the Evidence Act, the court can determine the age of the victim by inferring to the existence of any fact likely to have happened. See also: Issaya Renatus v. Republic, [20161 TZCA 218. 10 We also agree that, much as it is not a requirement of the law that in proving the age of victim, the date and the year must be explained, we think, in the circumstances of this case where the age was in controversy, tangible evidence was required (See: Joshua Kwolesya @ Adam (supra)). In this case, as indicated in the above quotation, the learned appellate Judge while applying the provisions of section 122 of the Evidence Act, observed that since the victim was a kindergarten pupil she could not be at the age above 14 or 18 years. This connotes that, the victim was below 14 years of age. In other words, the contention by the Judge that the victim cannot be taken to be above 14 or 18 years, it meant that the victim/could be of the age up to 13 and twelve months' minus one day years old which cannot be concluded that the victim was 6 years old so as to attract a sentence of life imprisonment under section 131 (3) of the Penal Code. This is so because life imprisonment extends to a victim under the age of 10 years. However, it is not disputed that the victim was a child at the material date. Rather, the dispute is on whether she was below or above 10 years old, for the purpose of determining the deserving sentence. We are settled in our mind that the requirement has been proof of the victim's age and ii not to state it as happened in the present case. With the said uncertainty the appellant gets the benefit of doubt, that in fact, the undisputed kindergarten girl was above ten but less than fourteen years old then. Therefore, we reduce the sentence from life imprisonment to thirty years imprisonment The appeal is allowed to that extent. DATED at MBEYA this 11th day of March, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered this 11th day of March, 2026 in the presence of the appellant in person, Ms. Imelda Aluko, learned State Attorney for the Respondent/Republic and Ms. Jasmin Kazi, Court Clerk is hereby certified as a true copy of the original.