Emmanuel Muna vs Republic (Criminal Appeal No. 332 of 2023) [2026] TZCA 220 (3 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MWAN DAMBO. J.A., MWAMPASHI. J.A. And MLACHA. J J U CRIMINAL APPEAL NO. 332 OF 2023 EMMANUEL MUNA...................................................................... APPELLANT VERSUS THE REPUBLIC ......................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania, Manyara Sub Registry at Babati) (Kamuzora, 3 } dated the 5th day of April, 2023 in Criminal Appeal No. 80 of 2022 JUDGMENT OF THE COURT 23rd February & 3rd March, 2026 MWANDAMBO. J.A.: The appellant appeals for the second time against his conviction and sentence on rape involving an 11 years girl after the High Court sitting at Babati had dismissed his first appeal from the District Court of Babati in Criminal Appeal No. 80 of 2022. The facts from which this appeal has emanated can be set out in brief as follows: on 4 July 2020, Nanjela Michael who testified as PW2 sent her daughter labelled by the trial court as Mdadakubwa (PW1) to buy some shop items for her tailoring business in Babati township. At i that time, PW1 who was born on 26 July 2009 was a pupil in standard VI at Oysterbay Primary School. On her way to the shop, PW1 was allegedly apprehended by an unknown man who took her to a cemetery area near lake Babati where he had sexual intercourse with her and took from her TZS 9,000.00 PW2 had given her to buy the tailoring material. According to PW1 the assailant was a blackman with a scar near his eye dressed in a red shirt and jeans trouser. After the assailant had gratified his passion, he allegedly ordered PW1 not to look at him lest he went for his bush knife. He disappeared immediately leaving behind the victim. Then PW1 left to her home where she narrated the ordeal to her mother before she was taken to the police by her mother to report the incident. At the police station, she obtained a PF3 with which PW2 along with the victim took to Mrara hospital accompanied by G 539, DCPL Tumaini (PW5); an investigative officer. PW1 is recorded to have made a description of her assailant as well as the scene of crime. Subsequently, PW5 was led to the scene of crime where he drew a sketch map which he tendered in court and admitted in evidence as exhibit PE2. Back to Mrara hospital, on 4 July 2020, Dr. Emmanuel Mkonyi (PW3) examined the victim whose age was approximately 11 years. He examined the victim's private parts and observed bruises on both of her labia and vagina with blood bleeding from it which led to him concluding that there was a forced vaginal penetration by a blunt object. PW3 posted his findings in a PF3 which he subsequently tendered in court and admitted as exhibit PEI. Although the offence was said to have been committed on 4 July 2020, it was not until 31 August 2020 at 22.00 p.m. when the appellant was arrested by G 2079 Sgt Gilbert Magara (PW4) upon being tipped by PW2 in the company of PW1. According to PW4, the appellant was arrested at Kanisa la Mungu area although PW5, the police investigator's account was that he (the appellant) was arrested at Pembaen Hotel. In his defence following a ruling that he had a case to answer, the appellant told the trial court of his arrest on 24 August 2021 at 21.00 p.m. while on his way back home. According to him, the arrest was instigated by PW2 who was seen outside the hotel where he had been getting his meals in connection with allegations that he was a thief. He distanced himself from the allegations with the charged offence. After the conclusion of the hearing, the trial court found it proved that the case against the prosecution had been proved to the required standard on all ingredients of statutory rape. By and large, the trial court relied on PWl's evidence mindful of the Court's decisions, particularly 3 the oft quoted Selemani Makumba v. Republic [2006] T.L.R 379 that, true evidence in sexual offences must come from the victim. The trial court found PWl's evidence sufficiently proved penetration supported by medical evidence through PW3. Similarly, the trial court was satisfied that, PW1 sufficiently identified the assailant and named him to her mother leading to his arrest after several abortive attempts to arrest him. It accordingly convicted and sentenced him. The appellant's appeal before the High Court (Kamuzora, J.) was upon three grounds. The first faulted the trial court for acting on the evidence of PW1; a tender age witness received in contravention of section 127 (2) of the Tanzania Evidence Act. The second faulted the trial court for acting on weak identification evidence by PW1 and the third one criticized the court for convicting the appellant by relying on evidence which did not prove the case beyond reasonable doubt. The first appellate court sustained the appellant's complaint in the first ground and, relying on the Court's decision in Wambura Kiginga v- Republic [2022] TZCA 283, it expunged PWl's evidence from the record. That notwithstanding, it found the remaining evidence through PW2, PW3, PW4 and PW5 sufficient to sustain conviction. We note from the first appellate court's judgment that even though it discarded PWl's 4 evidence for being invalid, it relied on it in its analysis of the evidence in particular, the appellant's identification and her ability to name the culprit at the earliest as assurance to her credibility consistent with the Court's decision in Marwa Wangiti & Another v. Republic [2002] T.L.R. 39. Resenting the first appellate court's decision, the appellant has preferred six grounds of appeal. At the hearing, he appeared in person, unrepresented and invited us to allow his appeal supported by the written arguments he had already lodged earlier on. Ms. Mary Lucas, learned Principal State Attorney ("the PSA") appeared for the respondent Republic. Apart from her disagreement with the appellant on the 1st, 2n d and 3rd grounds of appeal for being misconceived, the learned PSA supported the appeal on the 4th, 5th and 6th grounds which raise the issue whether the charge laid at the appellant's door was proved to the required standard. Counsel began with the principle underscored by the Court in Selemani Makumba (supra) that is, true evidence in sexual offences must come from the victim. Ms. Lucas thus argued that, after the High Court had discarded the victim's (PWl's) evidence for being irregularly received and rendered 5 worthless, the remaining evidence could not prove the charge contrary to the decision of the High Court. Counsel argued that, there was neither evidence that the victim named the perpetrator nor describing him to her mother. Besides, she pointed out contradictions between PW2's evidence and that of PW4 (the arresting officer) on the culprit's identification resulting into the appellant's arrest. On the other hand, it was argued that, whereas PW4, acting on information from PW2 on the place at which the appellant was taking meals and arrested at Kanisa la Mungu area, PW5, the police investigator, mentioned Pembaen hotel as the place where the appellant was arrested. Ms. Lucas argued that the contradiction among three witnesses on the same thing ruined the case for the prosecution citing Nimo Samu v. The Director of Public Prosecutions (DPP) [2022] TZCA 674 and Shabani Daudi v. Republic [2004] TZCA 84 for the proposition that inconsistencies in the account by prosecution witnesses dent their credibility raising doubt which should be resolved in the accused's favour. Addressing the Court further, Ms. Lucas pointed out another weakness in the case against the appellant in relation to the delayed arrest. She argued that, whereas PW2 told the trial court that the victim 6 pointed the appellant to her on 26 July 2021, there is no explanation behind the failure to report the culprit to the police on that date which could have resulted into his arrest. On the other hand, the learned PSA criticized the first appellate court for using the same evidence from PW1 which had already been expunged in her analysis of the victim's evidence and argued that, that was a misdirection on the part of the court citing Thomas Okoth Ojwang v. Republic [2024] TZCA 1009 to reinforce her argument. She stressed that, the remaining evidence remained hearsay in particular in relation to the appellant's identification. Before winding up her submission, the Court invited Ms. Lucas for her comment on the expungement of PWl's evidence in the light of section 135 (7) of the Evidence Act. Ms. Lucas's response was that, whereas section 135 (7) of the Evidence Act saves irregularly received evidence in contravention of section 135 (2) [formerly, section 127 (2)] of the Evidence Act, she pointed out that, the amendment to section 135 of the Act introducing subs-section (7) was not in force when the offence was committed and the time the trial took place and so it could not apply to the victim's evidence. 7 In view of the stance taken by the learned PSA, the appellant did not have anything useful to add except to beseech the Court to allow his appeal and set him free. We shall begin our discussion with the obvious that is, in sexual offences involving statutory rape, the prosecution is saddled with the duty to prove, one, the victim's age; two, penetration and; three, that the accused is the perpetrator. From the evidence on record, there is hardly any dispute on the victim's age. Similarly, through PW2's and PW3's testimonies, there is no doubt that penetration was indeed proved to the required standard. The only issue for our consideration and determination is who was the culprit. It is pertinent that, PW1 whose evidence was discarded by the first appellate court, was the only person in better position to tell who the culprit was. As rightly submitted by Ms. Lucas, that evidence cannot be made good by section 135 (7) of the Evidence Act which came into force in 2023 vide section 32 of the Legal Sector Laws (Miscellaneous Amendments) Act No. 11 of 2023 after the event The learned PSA submitted and we respectfully agree with her that the remaining evidence on identification remained hearsay. To begin with, the prosecution did not account for PW2's failure to report the 8 culprit to the police when the victim in the company of PW2 allegedly saw the appellant near a market in Babati town on 26 July 2021; three weeks after the fateful incident. Neither did PW5 (the investigator) say anything in that regard. Next on the roll relates to the gaps in PW2's evidence regarding the place where the appellant was seen on 31 August 2021 and arrested. Her evidence differs with what PW4 who arrested the appellant on the material date as well as PW5 the investigator. Whereas PW2 stated that they saw the appellant taking meals at an unknown hotel, PW4 told the trial Court that he arrested the victim near Kanisa la Mungu. Yet, the investigator's account was that the appellant was arrested at Pembaen hotel. There is no evidence that Kanisa la Mungu area and Pembaen hotel are in the same location which makes that evidence doubtful. In view of the doubtful evidence of identification of the culprit and the delayed arrest we cannot, but agree with the learned PSA that the case was not proved to the required standard to warrant the first appellate court concurring with the trial court on the guilt of the appellant. We have taken that view mindful of the time-honored principle by Sir William Blackstone, an English jurist in the 18th Century who stated, it is better that ten guilty persons escape than one innocent man convicted. This principle has been applied in our courts in numerous decisions amongst others, Alphonce Michael @ Ras v. Republic, Criminal Appeal No. 622 of 2022 (unreported). The above said, we allow the appeal, quash the conviction and set aside the sentence. The appeal shall be released from custody forthwith if not held therein for any other law cause. DATED at ARUSHA this 3rd day of March, 2026. L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered virtually this 3rd day of March 2026 in the presence of the Appellant in person, Mr. Philibert Morrison Msuya, learned State Attorney for the Respondent/Republic and Mr. Fahmi Karemwa, Court clerk, is hereby certified as a true copy of the original. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL 10