Jackson Isack Batoni vs Republic (Criminal Appeal No 542 of 2023) [2026] TZCA 235 (4 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA CCQRAM; LILA, J.A., MAIGE, J.A. And MANSOOR, J.A.) CRIMINAL APPEAL NO 542 OF 2023 JACKSON ISACK BATONI ................................................. APPELLANT VERSUS THE REPUBLIC.............................................................RESPONDENT (Appeal from the judgment of the High Court of Tanzania, at Shinyanga) ( Kulita, J.) dated the 26th day of July, 2023 in Criminal Appeal No, 27 of 2022 JUDGMENT OF THE COURT 26th February & 4th March, 2026 MAIGE. J.A.: At the District Court of Kahama (the trial court), the appellant was charged with rape contrary to section 130(1) and (2) (e)of the Penal Code. The charge sheet asserted that on the 16th day of July, 2021, at Kagongwa Area within Kahama District in Shinyanga Region, the appellant had sexual intercourse with a two years old girl (the victim".

To prove their case, the prosecution called four witnesses. The victim's mother (PW1) testified that on the date of the incident, she returned home from work and found the victim lying down and crying. Upon inquiry, the victim disclosed that the appellant was responsible for her vaginal injuries. She, therefore, inspected her vagina and found some bruises. She complained thereabouts to the ten cell leader Zakaria Mtawa (PW3) who reported the episode to the police and the appellant was arrested in the process. On the other hand, the victim was rushed to the hospital where she was examined by Dr. John Maroon (PW4) and the result posted in the PF3 (exhibit PI). In her testimony, the victim (PW2) named the appellant to be responsible for her vaginal injuries and added that she was with Amina when the incident was happening. Testifying under oath, the appellant vigorously denied involvement in the crime. The trial court was impressed by the prosecution evidence and found that it was not shaken by the testimony in defence. It, therefore, convicted the appellant with the offence and sentenced him to life imprisonment. On appeal, the High Court also seemed impressed by the prosecution evidence. It was of the opinion, however that, such evidence was sufficient to prove a lesser offence of attempted rape. In

consequence thereof, the High Court substituted the appellant's conviction from the offence rape to that of attempted rape and reduced the sentence thereof to 30 years imprisonment. Still aggrieved, the appellant has brought this appeal. In the memorandum of appeal, the appellant enumerated five grounds which in our careful reading, raise one issue namely; whether the case for the prosecution has been proved beyond reasonable doubt. At the hearing, the appellant appeared in person without representation. Ms. Mwamini Fyregete, learned Senior State Attorney assisted by Ms. Satuninus Kamala, learned State Attorney, appeared for the respondent Republic. It was Mr. Satininus Kamala who addressed the Court on the substance of the appeal. She attacked, in her submission, the evidence of the victim to be incredible. He submitted that, her evidence was not coherent, consistent and logical in material respects. He clarified that, while the witness asserts at page 28 of the record that, she was with Amina when the incident was taking place, yet in another place and in the same page, she alleged that she was alone. He contended further that, the testimony of PW1 which was based on what she was told by the victim, does not suggest 3

that the victim was with someone else. That fact was material because had she revealed to her mother that she was with Amina, the latter would have been called to give more insights on the validity of the claim. Short of that, he submitted, the testimony of PW1 remains as nothing but a mere hearsay. He submitted further that while the testimony of PW1 would suggest that the victim was raped, exhibit PI indicates that there was no penetration. With those serious inconsistencies, the learned State Attorney concluded while citing the case of Mwita Cornel Philimon @ Caucho v. R, Criminal Appeal No. 306 of 2020., that the prosecution evidence was so incredible that it was dangerous to be relied upon in sustaining conviction. We have considered the submission by the learned State Attorney and reviewed very carefully the evidence on the record. We are satisfied in our mind that, the case was not proved beyond reasonable doubt. In doing so, we have it in mind of the settled principle of law that, although the evidence of the victim of rape is the best in sexual offences related case, for such evidence to be reliable, it must be credible and probable enough as to leave no reasonable doubt. See for instance, in Mohamed Said v. R (Criminal Appeal No.

145 of 2017) [2019] TZCA 252, TANZLII and Reham Said Nyamila v. R, Criminal Appeal No. 222 of 2019 [2021] TZCA 301, TANZLII. As rightly submitted by Mr. Kamala, aside from the evidence of demeanor which is the domain of the trial court, the case law has been set out both internal and external factors which can be used in determining credibility of a witness. For instance, in Philimon @ Caucho v. R, cited by Ms. Kamala, we said: "There are however, two more common approaches that the trial court and even the appellate court may deploy in determining the reliability o f evidence. These according to this Court's decisions in Shabani Daud v. R, Criminal Appeal No. 28 o f 2001 and Nyakuboga Boniface v. R, Criminal Appeal No. 434 o f 2016 (both unreported) are; one, to determine whether the witness was coherent, consistent and logical by evaluating his evidence; two, to assess the coherence and inconsistence o f one witness with the evidence o f others . " In this case, PW2 did not witness the incident. She just found the victim crying and when she asked her what was up, she revealed to her that she had been raped by the appellant. She did not at all 5

her mother that she was with Amina when the offence was being committed. Neither did the said Amina who is also her daughter, disclose that fact to her. In her testimony, however, she initially claimed that she was with Amina but subsequently, she said that she was alone. That should have been reconciled by the prosecution which was not. The discrepancy may sound minor but in the nature of this case it cannot. The reason being that, the presence of Amina would, unless otherwise, oblige the prosecution to call her as a witness. As that may not be enough, the testimony of the doctor (PW4) is materially contradictory and thus unreliable. For instance, in his oral testimony, PW4 stated that during the vaginal examination, the victim experienced pain. However, his medical report in exhibit PI indicates that, there was no vaginal discharge or blood, but the genital area appeared enlarged and was not painful. In our view, this inconsistency between the doctor's oral evidence and his own official report on the presence or absence of pain, raises a reasonable doubt about the credibility and the sanctity of the evidence, which ought to have been cleared by the prosecution before the conclusion of the trial. It is for the foregoing reasons that; we agree with the learned State Attorney that the case against the appellant was not proved 6

beyond reasonable doubt. The appeal is, therefore allowed. In consequence thereof, we quash the conviction and set aside the sentence imposed against the appellant. We order that the appellant be released forthwith from prison custody unless he is held for some other lawful cause. DATED at SHINYANGA this 3rd 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 4th day of March, 2026 in the presence of Appellant appeared in person, and Ms. Mboneke Ndimubenya, learned Senior State Attorney for the respondent/Republic by virtual Court and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original. 7