Cleophace Tiluganilwa vs Republic (Criminal Appeal No. 253 of 2024) [2026] TZCA 253 (5 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LEVIRA, J.A., MDEMU. J.A. And ISSA. J. A." ) CRIMINAL APPEAL NO. 253 OF 2024 CLEOPHACE TILUGANILWA...............................................................APPELLANT VERSUS THE REPUBLIC ................................................................................ RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Mwanza at Mwanza) (Ndvekobora, PRM-Ext Ju rist Dated the 24th day of July, 2023 in RM-Criminal Appeal No. 5 of 2023^ JUDGMENT OF THE COURT 23rd February & 5th March, 2026 MDEMU, J.A.: In the exercise of extended jurisdiction conferred upon her, Ndyekobora, Principal Resident Magistrate (PRM-ExtJuris.), sustained conviction and sentence for the offence of rape and impregnating a school girl as meted out to the appellant by the District Court of Ukerewe. Initially, the appellant and one Busimba Deus, the then 2n d accused person, who is not a party to this appeal, were arraigned In the District Court of Ukerewe for three counts. The 1st count was conspiracy to commit rape for both the appellant and the then 2n d accused person. The 2n d and 3rd counts of rape and impregnating a school girl, respectively, were in respect of the appellant. i It was on unknown date of September, 2021 in Namilembe Village, Ukerewe District when the appellant and his wife the then second accused person, conspired that, for the victim of rape (PW2) to get rid of demons which she acquired since June, 2021, she should either engage in sexual intercourse with her brother or him (the appellant) as treatment. Before she could respond to the request, the appellant, who was her stepfather, took hold of her to his bedroom, undressed her and he also dressed off and held tightly his penis, then entered it into the victim's vagina. Thereafter, they both dressed up and went back to normal. A month that followed, the victim did not see her menstruation period. The then 2n d accused directed her for the pregnancy test. It was positive. However, the appellant who received the clinical results concealed it and informed the then second accused person that the pregnant test yielded negative results. According to PW4, in January 2022, the victim stopped attending her classes. It was Sospeter Magessa (PW3), who, in March, 2022, opined in his clinical examination that, the victim had 21 weeks pregnancy. The appellant and his wife were accordingly arrested. In his cautioned statement tendered as exhibit P4, he confessed taking part in the commission of the offence. As stated above, they were charged and to the conclusion of trial, the offence of conspiracy to commit rape, in the 2 first count, was unproven leading to acquittal of the appellant and the then 2n d accused person. On his part, the appellant was found guilty of the offence of rape and impregnating a school girl. He appealed to the High Court which transferred the appeal to be determined by Ndyekobora, PRM-Ext. Juris. In the course, she found the prosecution case proven basing on the evidence of the victim and the cautioned statement of the appellant which was admitted without objection. He further appealed to the Court by lodging two memoranda of appeal, one on 22n d April, 2022 for the main memorandum and on 19th February, 2026, for the other supplementary one. The main areas of complaints in the two memoranda may be summarized as follows: First, that, the prosecution case was not proved beyond reasonable doubt and second that, DNA evidence was relevant to establish pregnancy. We heard the parties on 23rd February, 2026 in which, the appellant appeared in person, unrepresented whereas the respondent Republic had the services of Ms. Gisela Alex Banturaki, learned Principal State Attorney, assisted by Mr. Mahembega Elias Mtiro and Ms. Brenda Elisha Mayalla, both learned State Attorneys. In arguing his appeal, the appellant opted to stand by the contents of all the grounds of appeal which he found to be sufficient to present his 3 dissatisfaction regarding the conviction and sentence meted out to him in the two counts. The respondent did not support the appeal. Submitting in support of that stance, Ms. Banturaki stated that, the prosecution proved the charge of rape beyond reasonable doubt because, first, PW2, who was the victim, explained that the appellant took her to the bed room, undressed her and also, he dressed off before he inserted his penis into the victim's vagina. The evidence of PW2, according to the learned Principal State Attorney, was corroborated by the medical evidence of PW3 who examined the victim and opined in his report that, she was penetrated and by then, she had a 21 week's pregnancy. She therefore argued that, penetration, being an important ingredient in rape cases, was indeed proved. She urged us to consider our decision in Meclino Michel @ Msechu v. Republic (Criminal Appeal No. 107 of 2021) [2024] TZCA 756 (16 August 2024; TanzLII). This being a statutory rape, Ms. Banturaki argued further that, the victim was proved to be 14 years of age through the evidence of PW3 as contained in the PF3 (exhibit PI). Equally, it is in the victim's evidence that, she was 14 years of age at the time the offence was committed. The case of Mathayo Lawrance William Mollel v. Republic (Criminal Appeal No. 53 of 2020) [2023] TZCA 52 (20 February 2023; TanzLII) was cited by Ms. Banturaki when emphasizing that, age of the victim in sexual offence may be proved by among others, the victim or medical evidence, as was in the instant case. With the evidence of PW1 which proved both how the appellant inserted his manhood in her private parts and that she was below 18 years, her evidence was trusted by the court to be true evidence within the principles stated in Selemani Makumba v. Republic [2006] T.L.R. 379. The other evidence deployed by the two courts below to ground conviction was the cautioned statement of the appellant. In this evidence, Ms. Banturaki argued that, the said cautioned statement (exhibit P4) was admitted in evidence without objection from the appellant. This, to her, being evidence from the appellant, was credible and she did not comprehend any reason for nondeployment to ground conviction. Regarding the offence of impregnating a school girl, Ms. Banturaki briefly submitted that, the appellant was not convicted with that offence, as such, he was not supposed to complain. When we probed her to reread properly the judgment of the two courts below, she pleaded an oversight on her part as the appellant was convicted for both counts of rape and impregnating a school girl. That besides, she was quick to point out that, the count of impregnating a school girl was not proved. In all, she therefore concluded that, the appeal lacks merit in its totality and urged us to dismiss it. On his part, the appellant had a general rejoinder arguing that, there is no evidence on record to sustain conviction in both counts. It is on that account; he reiterated on the contents of his grounds of appeal which he sees being sufficient to persuade his innocence and urged for his release from custody. As we stated above, the main complaint of the appellant in this appeal lies on one issue, that is, whether there is evidence on record to prove the offence of rape and impregnating a school girl. As argued by Ms. Banturaki, this being a statutory rape, section 130 (1) (2) (e) of the Penal Code requires proof of; one, penetration of a penis into the vagina, two, that penetration must be of a male person and three, the victim of sexual offence has to be below the age of 18 years. This is the law. In the instant case, PW2 who was sexually abused by the appellant (her stepfather) testified how the appellant on that day raped her in what she explained as receiving treatment for the demons she previously contracted. According to her, the treatment was administered through sexual intercourse, though there was no any medicinal administered through that process. It seems, as per her evidence, sexual intercourse was the sole medicinal prescription. At page 18 of the record of appeal, the victim testified in this regard that: 6 "/ know the accused person. The 1st accused is Cleophace Tiluganilwa and the 2nd accused is my mother. I was a student at Busangumungu secondary sc h o o lfo rm 1. On 09/2021 at 08:00pm at Namiiembe village the 1st accused called me inside and had sexual intercourse with me. Before calling me I was outside warming myself. He told me that he wanted to treat me demons. I was possessed with demons since 6/2021. He told me that in order to treat my demons [I should] sleep with him or my brother. I did not respond anything, I remained silent. He held my hand, I resisted and he pulled me. He took me to the room where he sleeps. Upon arriving to the room , I refused, he kicked me and fe ll into the mattress. He removed me underpants and he also removed his doth. Then slept over me. He took his penis and inserted into my vagina. I cried and he toid me to keep quite. After finishing ; I saw semen into my vagina. He told me to dress and I dressed and went to sleep. My mother was not present; she had gone to the burial ceremony.” The first appellate court considered the above quote evidence of the victim and came to a finding at page 100 of the record of appeal that: " Looking at PW2's evidence, this court is satisfied that the victim successfully proved that the appellant penetrated her and caused her to become pregnant The victim 's evidence has been believed and trusted by this court to be true because the true evidence o f rape has to come from the victim herself, and since the victim clearly stated that nobody other than the appellant had sexual intercourse with her, it is therefore believed and trusted that the appellant was the one who caused her to become pregnant” PW2 was also consistent in her statement at the police station on how, through demons cleansing, the appellant raped her. It is in the evidence of PW5, a police detective, at page 30 of the record of appeal that: "7776? victim told me that on 05/2021 she was possessed with demons. She continued with the problem until 09/2021 when the 1st accused told her that he knows the treatment for her problem. The 1st accused told her that she must have sexual intercourse with her father or her brother. The victim refused but the 1st accused used force. He took the victim to the room. He pushed her down on mattress, undressed her , he removed his doth and had sexual intercourse with her. He inserted his male organ to the victim 's vagina." In essence, what PW2 testified and informed PW5 during interrogation, is similar to the evidence in the confessions of the appellant which was admitted unopposed from the appellant's side. The appellant did not object. He reserved questions to the witness who tendered it. However, the questions he asked during cross examination did not discredit at all the contents of the confession. The record of appeal at page 32 through 33 is categorical regarding the appellant's reservation to object the cautioned statement, that: "PW 5: This is a cautioned statem ent o f the 1st accused. There is accused name Cieophace Tiiuganilwa, my signature WP 9874 and the accused signature Geo. I pray the 1st accused person cautioned statem ent to be adm itted as Exhibit Sgd. L A. Nyahega - RM 13/04/2022 A ccu se d p erso n s; 1st accu se d p erso n ; I have no objection. I have only questions to the witness. C ou rt: the cautioned statem ent o f the 1st accused is adm itted as Exhibit P4. Sgd. L A. Nyahega - RM 13/4/2022." That is what the appellant reserved for not objecting to the cautioned statement. However, when his time for cross examination came at page 33 through 34 of the record of appeal, he queried as hereunder: 9 "XXD b y A ccu se d Person s: 1st A ccu se d P erson ; I inform ed your rights. I told you that I came from the hospital with the victim. I took her for examination. The hospital was not the place for the crime. During the event, her mother was not present. The victim told me that when you told her about the treatment ■ her mother had attended the burial ceremony. The victim had no wound. According to her age, she was raped. I am not the doctor. I do not know if she had pain. While interrogating the victim ; her mother was not present The 2nd accused consented according to her statem ent and your statement. Neighbors did not know what was going on. The court w ill decide. The question is good for the victim. " We note in the above excerpt that, what the appellant asked neither shaken the evidence of the victim nor that of PW5 who recorded his cautioned statement. On that account, the prosecution evidence, particularly of the victim, the PF3 and the cautioned statement of the appellant was trusted by both courts below that the appellant is the one who raped the victim on that material date. It was further proved through the victim and exhibit PI that, the victim was under 18 years of age. He was also aware as testified by him (the appellant) that, the victim had demons and he once assisted, as a stepfather, to locate local treatment 10 from traditional healers. We have no reason to disturb the findings of the two courts below that, the evidence that it is the appellant who raped the victim is indeed watertight. The prosecution case therefore was proved to that extent. As to the count of impregnating a school girl, we entirely agree with the learned Principal State Attorney that it was not proved. Looking at the evidence of PW1, he said to have had met with the appellant for sexual intercourse only once in her life time. The PF3 (exhibit PI), besides the positive results on pregnancy test, did not go further to state if the victim was used to sexual intercourse or not. Yet, the victim also testified that in her clinic card, the name of the appellant is inserted as the father of the would be newly born twins. The said clinic card does not form part of the evidence on record. In his defence which the appellant claimed to have not been taken into account, he alleged that, a young boy going by the name of Jackson, was also in sexual relations with the victim. Taking all these into account, and in the circumstances of this case, the evidence available is doubtful if the appellant is the one responsible for the pregnancy. As legally required, in criminal law, any doubt created in a case should be used in favour of the accused person. We therefore agree with Ms. Banturaki that the count relating to impregnating a school girl, was not proved. Accordingly, the appellant is 11 acquitted. We have not considered the complaint of the appellant regarding DNA evidence because he raised it in the Court for the first time. The first appellate court did not pronounce itself on this. Having said all, we sustain the conviction and sentence meted out to the appellant in respect of the count of rape on the reasons demonstrated above. The appeal is thus dismissed. DATED at MWANZA this 4th day of March, 2026. M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 5th day of March, 2026 in the presence of the Appellant in person, Mr. John Saimon Joss, learned State Attorney for the Respondent/Republic and Ms. Gloria Masige, Court Clerk; is hereby certified of the original. . S. ChbGULU TY REGISTRAR URT OF APPEAL 12