Yohana Jason vs Republic (Criminal Appeal No. 614 of 2022) [2026] TZCA 297 (11 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MKUYE. J.A.. RUMANYIKA. J.A. And AGATHO, J.A.) CRIMINAL APPEAL NO. 614 OF 2022 YOHANA JA SO N ..............................................................................APPELLANT VERSUS THE REPUBLIC...........................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Karavemaha. J.) dated the 24th day of October, 2022 in Criminal Appeal No. 53 of 2022 JUDGMENT OF THE COURT 2n d & 11th March, 2026 RUMANYIKA. J.A. The appellant, Yohana Jason, was charged with the offence of rape contrary to sections 130 (1) and (2) (e) and 131 (1) of the Penal Code in Criminal Case No. 71 of 2018 before the Resident Magistrate's Court of Mbeya at Mbeya, It was alleged that on the 27th March, 2018 at Ikuti-Iyunga area within Mbeya City, the appellant had carnal knowledge of a girl aged 13 years. We i shall refer to her as the victim or PW1, concealing and protecting her identity and dignity. At the trial, the prosecution lined up four witnesses. PW1 testified that on her way back home from school around noon, the appellant approached and dragged her into a nearby maize plot and he had carnal knowledge of her without her consent. She could not endure the pains she got as she also bled in her private parts. That, upon quenching his sexual desire, the appellant abandoned her there. She reported the ordeal to the police, describing the culprit as having a scar around his eye, his attire (a short- sleeved shirt with white and black strips, a red pull over and maroon coloured trouser). PW2, the victim's father, proved her age to be thirteen years, as it reads in the corresponding birth certificate (exhibit PI). PW3 was the investigating officer who visited the scene, drew a sketch map, and recorded the appellant's cautioned statement, confessing (exhibit P3) to have committed the charged offence. PW4, the medical doctor, examined the victim establishing penetration, as per PF3 (exhibit P4). The appellant who testified as DW1 denied the charge, alleging fabrication and there being contradictions in the prosecution evidence. He lost the war and battle. 2 Initially, however, for some reasons the judgment was annulled by the High Court in Criminal Appeal No. 27 of 2021 for want of conviction of the appellant. The file was remitted to the trial court for compliance of the order. Upon remittal, and things put in order, the appellant was dully convicted and sentenced. Being aggrieved, he appealed to the High Court of Tanzania at Mbeya vainly. He is now before this Court, challenging that decision with a total of three main points of grievance. Two in the main memorandum and one in the supplementary memorandum of appeal filed on 23/03/2023 and 16/02/2026, respectively. They may conveniently be paraphrased, thus; One, he was not identified, two, improper evaluation of the evidence and three, non- consideration of his petition of appeal. At the hearing of appeal, the appellant appeared personally and unrepresented while the respondent Republic was represented by Mses. Naomi Mollel, Hannarose Kasambala and Veneranda Massai, learned Senior State Attorneys, together with Mr. Rajabu Msemo, learned State Attorney. The appellant asked for the learned State Counsel to respond to the grounds of appeal while reserving a right to respond later, if need be. Contesting the appeal, on the first complaint on identification, Ms. Kasambala asserted that it is unmerited. She contended that the charged offence was committed in broad day light, enabling the victim to identify the 3 appellant without any mistakes, as she ably described him through attire and complexion. Let alone the time he remained under the victim's observation, a fairly enough moment in conversation and the proximity between them during the sexual act. With regard to the complaint concerning evaluation of the evidence, Ms. Kasambala urged us to dismiss it, also for being misconceived and unmerited. She did so while referring to pages 85 to 88 of the record of appeal, mindful of the three common essentials for proof of statutory rape, as is this case. She contended that, the victim's age was established by her to be thirteen years, and in fact supported and proved by her father (PW2). However, Ms. Kasambala quickly admitted that the reception of the corresponding birth certificate (exhibit PI) was irregular, and thus, from the word go inadmissible for being uncleared on its admission in evidence. She, on that account urged us to expunge it from the record. About penetration, Ms. Kasambala contended that this was also proved. Explaining, she referred us to the victim's evidence, considering it, principally, to be the best of it all in any sexual offences, as is the case here, which was not challenged by the appellant sufficiently. That the appellant grabbed and have carnal knowledge of the victim in a maize plot, on her way back home, during day light. Mr. Kasambala cited, among others, our decision in Selemani Makumba v. R [2006] T.L.R 379 to fortify her point 4 and also, Goodluck Kiyando v. R [2006] 367 for the contention that, like any other witnesses, the victim, credible as was in the present case is entitled to credence and she has to be believed. Considering the evidence on record and her submission, Ms. Kasambala added, the perpetrator of that act, subject of the appeal is none other than the appellant. Expounding on her point, Ms. Kasambala made three main observations; One, that the victim did not mistake the appellant's identity as her assailant; two, that although the police officer who supervised the respective identification parade did not show up in court and that the identification parade process was flawed, rendering the register inadmissible, still oral accounts of the witnesses remained unshaken; and three, that the appellant's defence evidence was considered and all issues resolved by courts below, as it is exhibited on page 50 of the record of appeal. It was also contended that, the alleged contradictions in evidence, if any, are negligible, not going to the root of the case. Prompted by the Court on the validity or otherwise of the appellant's cautioned statement (exhibit P3), Ms. Kasambala was generous enough imploring us to discount it. She reasoned that the statement was improperly procured, in the presence of three other police men, against the will of the appellant. That, it has to be expunged from the record. Nevertheless, it was contended, still the remaining evidence was good enough to found the 5 appellant's conviction. Still being prompted on the strength or otherwise of the prosecution case, Ms. Kasambala readily admitted that the evidence of PW2 (other than on the victim's age), was hearsay thus, inconsequential. She also admitted the materiality and reliability of the evidence of one Mussa Kabuje to whom the incident is alleged to have been reported at the earliest opportunity, but not called. In conclusion, the learned Senior State Attorney urged us to hold that the appeal is lacking and to dismiss it entirely. On his part, the appellant had nothing material in rejoinder. Rather, he pressed reliance on the grounds of appeal, only asking the Court to allow the appeal and to set him free, without more. Upon hearing the submissions of the parties and reviewing the record, we are actually called upon to answer one pertinent issue; whether the prosecution case was proved to the hilt against the appellant. Another complaint of the appellant concerns the learned Judge's failure to consider his petition of appeal. We have scrutinized the respective record including the impugned judgment. It is apparent to us that the complaint is against the record, of which we are unable to allow its casual impeachment. The learned Judge, in fact did address the five grounds of appeal presented before him, fairly, as it is patently appearing on pages 95 to 96 of the record of appeal, all in one issue; whether the case against the appellant was proved beyond reasonable doubt As such, he dealt with that issue and resolved all grounds. His findings are not farfetched, running from pages 113 to 121 of the record of appeal. To make ourselves clear, from page 122 of the record of appeal we have observed the following; "... On the totality of the evidence and the discussion above, I agree with the trial court...that the victim was raped and the rapist is the appellant". In the premises, we find no merit in this ground of appeal. Another complaint is about evaluation of the evidence. As such, the appellant wondered whether the first appellate court had discharged its duty, subjecting the evidence to a fresh and exhaustive scrutiny and of drawing its own independent conclusion. We remember to have stressed on this requirement in Registered Trustees of Joy in The Harvest v. Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA139. However, having carefully examined the impugned judgment, it is evident that the learned Judge did evaluate the prosecution evidence fairly enough, particularly, with the view to seeing if the essential ingredients of the charged offence were proved. In doing so, reliance was placed on the testimony of the victim and that of the medical doctor (PW4) who examined her. Indeed, he found her to have been penetrated. However, our close 7 reading of the judgment reveals that the evidence of PW2 was not evaluated. Ordinarily, the father's evidence could be crucial for establishing age of the victim, but this was cleared by the victim, being one of the mandated people. See- Shani Chamwela Suleiman v. R (Criminal Appeal No. 48 Of 2021) [2022] TZCA 592. Similarly, the impugned judgment is silent on the evidential value expected of the testimony of PW3 versus the appellant's cautioned statement (exhibit P3). However, for the reason of being improperly procured, thus, incredible and unreliable, as alluded to before, this point shall not take much of our energy, as we shall not address it further. As such, the cautioned statement is hereby expunged from the record, as it was wisely and correctly asked by Ms. Kasambala. Therefore, the issue of failure or improper evaluation of the evidence is respectfully out of place. We dismiss the complaint for being unmerited. Next for our discussion is the appellant's complaint concerning failure of the learned Judge to consider his defence evidence. It is trite law that defence case has to be weighed alongside the prosecution evidence to determine whether it casts any reasonable doubt on it, as the bottom line. See- Kaimu Said v. R (Criminal Appeal No. 391 of 2019) [2021] TZCA 273. To address this complaint, we need not repeat ourselves. As such, we have reviewed the evidence on record and the parties' submissions, as critical as 8 it is demonstrated from pages 110 to 113 of the record of appeal. We have revisited the way the grounds of appeal were addressed. As such, they were discussed conjointly but all resolved. Therefore, in line with the evidence on record, we decline to fault the learned Judge for the alleged failure to evaluate the evidence. Too, this complaint crumbles. The preceding observations apart, the follow up issue is whether the charged offence was proved to the hilt. We have carefully re-examined the entire record. The remaining question would be who is the perpetrator of the act of sexual intercourse, subject of the appeal. We propose to address this aspect along with the victim's evidence that she identified the appellant as her assailant. In doing so, we are mindful of the settled legal principle that in sexual offence cases the best evidence comes from the victim. See- for instance, Thomas Petro v. R (Criminal Appeal No. 303 of 2023) [2025] TZCA 1156. The appellant's detailed physical description made by the victim apart, we also take cognizance of her evidence that she reported the incident to the police and to PW3, without undue delay. Also worth noting is the evidence of PW3 to whom the incident is said to have been reported. All things being equal, this would lend significant credence to the alleged identification of the appellant. And, if so, minimizing chances of any mistaken identity or alleged fabrication. However, the foregoing will be looked into along with the appellant's defence evidence mainly, that he was not identified, let alone improper identification. We recall, the appellant contended that his description was not made to the police, rendering the purported identification too unsafe to found a conviction. Nonetheless, and for the reasons that will come to light shortly, before us, it is by any parity of the reasoning a different scenario all together. As such, we are persuaded by the appellant's defence evidence for three main reasons; One, the appellant's alleged facial identification, as described by the victim, that he had a scar around an eye could not be substantiated without also stating which eye and side. It is common ground, generally, that every human being has a pair of eyes. Unlike is the case for fore head, nose, chin and mouth. To mention a few, These organs are always one for every human being. Two, to show that the evidence of identification is lacking hence, need to be supplemented, a police identification parade was mounted for that purpose. It is unfortunate that for the reasons of procedural flaw, all flopped. Needless to say, therefore, the parade was mounted in contravention of the prescribed legal requirements and procedure. Therefore, the victim did not properly identify the appellant at the scene crime, as alleged. 10 Similarly, the evidence of PW3 on the appellant's cautioned statement (exhibit P3) remains to be hearsay and inconsequential. It is also expunged from the record, as asked by Ms. Kasambala. Three, the alleged appellant's confession in the memorandum of undisputed matters, appearing on page 4 of the record of appeal could not be real. It is so because, the prosecution would not have lined up the four witnesses for proof of the case. Rather, after the appellant had accepted the fact that the victim identified him on the police parade as a man who raped her, if at all, the trial court should have stopped the whole exercise. As such, the appellant should have been considered to have revoked the previous plea and recorded as such, which was not done. Lastly, we want to stress that neither identification parade nor dock identification, constitute substantive evidence on their own. They only play a corroborative role the same way other pieces of evidence may do. We reiterated this preposition in Zilam Hamis v. R (Criminal Appeal No. 489 of 2022) [2024] TZCA 504. In other words, some favorable conditions for visual identification may provide a firm basis for relying on the evidence of an eye witness even in the absence of the identification parade and dock identification. See-Adolfu Philenus Mapunda & 3 Others v. R (Criminal Appeal No. 113 of 2007) [2007] TZCA 299. li In view of the foregoing, we find merit in the appeal. It is hereby allowed in its entirety. Consequently, we order immediate release of the appellant from prison custody unless held for some other lawful causes. 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. C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL 12