Emmanuel Jumanne vs Republic (Criminal Appeal No. 244 of 2024) [2026] TZCA 198 (3 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LEVIRA, J.A.. MDEMU. 3.A. And ISSA. J. A.^ CRIMINAL APPEAL NO. 244 OF 2024 EMMANUEL JU M A N N E....................................................................... APPELLANT VERSUS THE REPU BLIC................................................................................RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Geita, at Geita) (Tenawa. SRM-Ext. Jurs.^ Dated the 30th day of May, 2023 in RM Criminal Appeal No. 21 of 2023 JUDGMENT OF THE COURT 18th February & 3rd March, 2026 MDEMU, J.A.: The District Court of Nyang'hwale convicted Emmanuel Jumanne for the rape of PW1, a girl of 12 years of age. She was in her grade three at Busolwa Primary School. Following that conviction, a sentence of thirty (30) years prison term was passed upon the appellant. He appealed to the High Court whereby, through Tengwa, Senior Resident Magistrate in the exercise of extended jurisdiction (SRM-Ext. Juris.), the said conviction and sentence was confirmed. According to the charge, it was on 30th January, 2022 in Busolwa Village within Nyang'hwale District, when the appellant went to the i

residence of PW2 Salome Charles and found PW1 in the kitchen cooking. By then, PW1 was alone because PW2 had left for shamba work. Taking the loneliness of PW1, the appellant undressed her and also took off his black trousers while commanding PW1 to lie down facing up. He then went on top and in the words of PW1, he inserted his circumcised penis into PWl's vagina. PW1 did not raise any alarm because the appellant had covered her mouth using his fore limbs. Suddenly, Neema Mashaka Kulwa (PW3) from a neighboring residence, went there, called PW1 from a distance, then pushed the door which alerted the two, thereby compelling the appellant to hide behind the door. By then, PW1 was dressing up her clothes. As per PW1, PW3 saw the appellant at that hiding moment when she was about to collect firewood in the kitchen. The appellant then took to his heels. The record seems to be silent if PW1 told PW3 what had befallen her. However, it was until 11:00 hours upon the arrival of PW2 from shamba, is when the victim disclosed what was up, naming the appellant to be a man who raped her. PW2 then reported the matter to the police station and was issued with a PF3. It is stated that, PW1 was taken to Nyangulukulu Hospital for clinical examination which, according to PW2, it was conducted by a medical practitioner whose name she did not disclose. The filled PF3 was taken back to the issuing Police Station.

When the investigation commenced, PW5 WP 9792 Detective Constable Merciana Mwita John of Kharumwa Police Station, interrogated the victim and issued another PF3 directing the re-examination of PW1 by Kharumwa Medical Center following her dissatisfaction with clinical results of the former hospital. It was Rodgers Joseph Madeni (PW7), a clinical officer who re-examined PW1 and found absence of hymen with white fungal and bacterial discharge. The PF3 was accordingly filled and tendered in the trial court as exhibit P3. On being arrested, the appellant disassociated himself from the rape incident alleging that it was a framed-up matter. He testified to have left Busolwa on 29th January, 2022 to attend burial proceedings at Bukumbi and returned on 8th February, 2022. Notwithstanding the appellant's alibi, the trial court trusted the prosecution case and convicted him as forestated. Since he was unsuccessful in the first appeal, he lodged this second appeal comprising of 8 grounds; 5 grounds in a memorandum of appeal lodged on 29th April, 2024 and the rest 3 grounds in a supplementary memorandum of appeal lodged on 16th February, 2026. In the circumstances of this case, we will not reproduce the grounds of appeal in the manner they appear in the two memoranda and instead, our approach hinges on raising some points which, in the course of

analysis, will resolve the issue whether the prosecution case was proved beyond reasonable doubt. At the hearing of the appeal on 18th February, 2026, the appellant appeared in person unrepresented. The respondent Republic was represented by Ms. Marther Mwandenga, learned Senior State Attorney assisted by Mr. Liberatus Rwabuhanga, learned State Attorney. They resisted the appeal. When he was invited to argue the appeal, the appellant urged us to consider the contents of the two memoranda being sufficient to explain the reasons of his discontentment of the findings of the two courts below. He however promised to rejoin, should the need to do so arise after hearing a reply submission from the respondent Republic. Submitting on whether the prosecution case was proved, Ms. Mwandenya began with the evidence of identification by recognition of PW1 which was trusted by the trial court. She stated that, the appellant was recognized committing the alleged rape as it was in the morning and her evidence is also corroborated by that of PW3 who found the victim dressing up while the appellant hidden at the back of the door. She added that, the appellant is familiar to her as a neighbor who, on the material date, was in black trousers and a short sleeved red shirt. This description of the appellant, according to Ms. Mwandenya, was shared to PW2

immediately upon her return from shamba work. With that evidence, Ms. Mwandenya argued that, contradiction on the occurrence of the incident to be at 06:00 hours by PW1 and or 07:00 hours by PW2, is minor and was resolved by the first appellate court at page 74 of the record of appeal. Me cited the case of Wallenstein Alvaves Santillan v. Republic (Criminal Appeal No. 68 of 2019) [2022] TZCA 516 (22 August 2022; TanzLII) on the effects of minor discrepancies in the prosecution evidence. When probed regarding discrepancies between PW1 who claimed to have been raped on 30th January, 2022 while PW3 met them at the crime scene on 31st January, 2022; Ms. Mwandenya conceded and argued that, in the circumstances, the evidence of PW3 cannot corroborate that of PW1. Replying on the manner the victim received treatment in different clinics, Ms. Mwandenya conceded and argued that, the victim was first taken to Nyang'hwale Health Center before her clinical re-examination at Kharumwa Medical Center. The reason which she advanced was due to the dissatisfaction of PW5 on the clinical results from Nyang'hwale Health Center. She however submitted by citing the case of Said Majaliwa v. Republic (Criminal Appeal No. 2 of 2020) [2021] TZCA 526 (2 July 2021; TanzLII) that, since the true evidence in sexual offences is offered by the victim, the absence of PF3 does not connote that the case was not proved. 5

She thus argued that, in law, rape may be proved without clinical examination evidence in the PF3. In this, she sought reference in Hatari Masharubu @ Baba Ayubu v. Republic (Criminal Appeal No. 590 of 2017) [2021] TZCA 41 (26 February 2021; TanzLII). Regarding failure to evaluate evidence, she submitted that, the main complaint of the appellant hinges on failure to consider his defence. It was her argument that, the appellant's defence of a lib i was duly considered, only that, it was not given more weight. She thus ended by urging us to find the appeal without substance and dismiss it. The appellant submitted in rejoinder that, contradiction between the evidence of PW1 and PW3 that the offence was committed on 30th or 31st January, 2022, is not a minor one and, in fact, it goes to the substance of the charge which is categorical that, the offence was committed on 30th January, 2022. His other concern was on the name of the victim being used interchangeably as Dianna Reuben Mathias and or Dianna Reuben Peter. He therefore concluded that, such contradiction has the effect of making variation between the charge and evidence. This to him, along with other complained deficiencies, renders the prosecution case unproven. He urged us to allow the appeal. From what we have heard the counsel and the appellant submitting, and as we alluded earlier on, the issue is whether the prosecution case

was proved beyond reasonable doubt. According to the record of appeal, the basis of conviction of the trial court which was affirmed by the first appellate court at page 72 of the record of appeal, is as follows: " / am aware o f the recent court decisions that, the word o f a victim o f sexual offence should not be taken as the g o s p e lit should pass through the test o f truthfulness. However, having heard the testim ony o f PW1 which was very w ell corroborated by PW3 and also read their demeanors and given the circum stances o f this case, I am fu lly satisfied that ■ the little g irls were telling nothing but the whole truth. A s I stated earlier, a t their ages, the little gir/s wouldn't be so straight in explaining what transpired if a t a ll they were taught to speak lie s in co u rt” The reproduced passage has two elements. First is the evidence of PW1 which was found to be credible and two, that it is corroborated by PW3 who was the first person to arrive at the crime scene. Is there any justification for the trust? Our stance is that, the following go against that trust and the credence attached to PW1: First, PW1 told the trial court that on 30th January, 2022, PW3 met her dressing up in the kitchen while the appellant was at the back of the door before his disappearance. To the contrary, PW3 said, it was on

31st January, 2022. Second, it is in the evidence of PW1 that, the first person to be informed regarding the incidence was PW2. The latter also has a similar version. This evidence is against the evidence of PW5 who interrogated the victim and told her that, after the rape incident, PW3 informed one Magreth and it was Magreth who informed their grandmother PW3. It is not known where Magreth is and importantly is that, PW1 did not inform PW3 that the appellant raped her. The fact that PW3 met PW1 dressing up, while the appellant was at the back of the door, if at all he was there, does not, in our view, suggest that PW3 saw the appellant raping the victim. Third, after the incident, PW1 testified that, she and PW2 reported to Nyang'hwale Police Station. However, a police constable PW5 stated that PW2 took both the victim and PW3 to the Village Executive Officer (PW6), who in turn, said to have received a woman and her daughter. It is not clear if that woman is PW2. It is categorical in the evidence of PW6 at pages 32 to 33 of the record of appeal on this fact that: "O n 30/01/2022 around 13 hours, I was a t my office when a ce rta in w om an cam e co m p la in in g th a t h e r d au g h te r w as ra p e d b y one E m m anuel Jum anne. I told her to bring the girl. The g irl's name is Diana and when I asked,

she to/d me she was raped by one Emmanuel Jum anne who also live in Busolwa Kona village with h is parents. I gave the m other o f the victim an introduction letter to go to the police sta tio n /' [emphasis supplied] Fourth, there is nowhere in the record of appeal PW1 was clinically examined in any other clinic, save for Nyang'hwale Health Center. However, PW2 stated to have referred the Victim to Nyangulukulu hospital. So as of now, there are three hospitals which examined the victim. They are; Nyang'hwale (PW1); Nyangulukulu (PW2) and Kharuhwa (PW5). Fifth, the reasons for issuing another PF3 directing the re examination of the victim to another clinic, raises unanswered questions. Let the record of appeal at page 29 speaks by itself as follows: " The PF3 which was filed in the police case file was fille d at Kharumwa Health Center. We did not believe/trust the results from Nyang'hwale hospital because it is a sm all hospital. I saw some irregularities that is why I asked fo r leave to recheck the victim a t Kharumwa Health Center. The PF3 from Nyang'hwale had some irregularities. As an investigator I am allow ed to ask perm ission to take the victim fo r m edical re-exam ination if I fin d som e defect in the PF3." 9

The five evidential points we discussed above reveal that there was misapprehension of the evidence by the two courts below. Circumstances such that; one, three hospitals examining the victim, which, in our view, is not normal in the ordinary cause of business in the instant matter. Two, the victim states that she was referred to Nyang'hwale Health Center. However, PW2 who escorted her refers to Nyangulukulu hospital. Three, yet the PF3 (exhibit P3) tendered by PW7 was from Kharumwa. What happened to the two hospitals? Which clinical results PW5 wanted to be included in the PF3 as to require the re examination? What clinical results were contained in the previous issued PF3? Where is the previous issued PF3? Was PW5, a police constable competent to refer the victim to another hospital for second opinion? Why the hospital and police station of the area (Nyang'hwale) where the incident occurred were not trusted as to require another police station to issue another PF3 directing another hospital to examine the victim? Definitely, we have no answers to any of those questions. A prudent court would have closely evaluate and examine those facts and perhaps closely examine and analyze the a lib i raised by the appellant instead of shifting the burden to him to prove his alibi, and more so, alleging that the appellant escaped. In fact, there is no evidence that the appellant escaped. What PW6 testified at pages 33 through 34 of the 10

record of appeal during cross examination, is an opinion and not evidence. He said: "The issue was reported to me on 30/01/2022 and the incident occurred on the same date then the accu se d le ft a s h e w as now here to b e fo u n d la te r. I t ap p ears th a t he escap ed a fte r the in c id e n t H e cam e b a ck on 0 9 /0 2 /2 0 2 2 /' [Emphasis supplied] As we stated above, there is no evidence that the appellant escaped. PW6 appears to have asked a militiaman who was not called to testify to arrest the appellant. He does not state when was it. PW5, the only police detective, is silent if there was any information that the appellant escaped and his arrest was underway. All these are lacking. It is difficult under the circumstances to believe that there was any rape committed. If at all there was one, then the appellant is not connected. Had the two courts below scrutinized the evidence critically, they would have not arrived at the findings of guilty. What however we observe in the end is the misapprehension of the evidence by the two courts below. We are aware that, a concurrent finding of facts by the two courts below should not be interfered unless it is clearly shown the existence of misapprehension of facts leading to miscarriage of justice. See for instance Jamal Ally @ Salum v. Republic (Criminal Appeal No. 52 of 2017) ii

[2019] TZCA 32 (28 February 2019; TanzLII). We are thus mindful to interfere the concurrent findings and hold that, the prosecution case was not proved beyond reasonable doubt. On that account, the appeal before us is hereby allowed, conviction and sentence are thus set aside. The appellant be released from prison, unless, his continued stay is on other lawful grounds. DATED at MWANZA this 27th day of February, 2026. M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 3rd day of March, 2026 in the presence of appellant in person, Ms. Happiness Mayunga, learned Senior State Attorney for the respondent/Republic and Ms. Gloria Masige, Court Clerk, is hereby certified as a true copy of the original.