Hassan Daniel Mabruki vs Republic (Criminal Appeal No. 240 of 2024) [2026] TZCA 197 (3 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LEVIRA. J.A., MPEMU. J.A. And ISSA. J.A.T CRIMINAL APPEAL NO. 240 OF 2024 HASSAN DANIEL M ABRUKI ............................................................. APPELLANT VERSUS THE REPUBLIC............................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Itemba, J.^ dated the 11thday of September, 2023 in Criminal Appeal No. 83 of 2023 JUDGMENT OF THE COURT 17th February & 3rd March, 2026 LEVIRA, J.A.: This appeal is against conviction and sentence meted out to the appellant by the District Court of Ilemela at Ilemela, where he was charged with rape contrary to sections 130 (1) & (2) (e) and 131 (1) of the Penal Code Cap 16. When the charge was read over to him, the appellant denied it. As a result, the prosecution had to call five witnesses and tender one exhibit to prove their case against the appellant. i Brief facts giving rise to this appeal are to the following effect: The prosecution alleged that on 22n d March, 2022 at Gedeli area within Ilemela District in Mwanza Region, the appellant had unlawful sexual intercourse with one HR (name withheld to protect her dignity) (PW1), a girl aged (7) years. In her testimony, PW1 stated that she was studying at Ibeshi Primary School located at Gedeli and that she knew the appellant as she saw him at school. PW1 recollected that while at school and alone in class, the appellant went there, slapped her on her chick, covered her mouth with his hands, removed her clothes and inserted his penis in her vagina. PW1 raised an alarm and one lady came to her rescue and took her to the class two teacher, one Pendo Mussa Bullango (PW2). Thereafter, PWl's mother was called at school; she took her to the Police Station and later, to the hospital. Again, on a different day, PW1 saw the appellant for the other time at school. She went home to call her mother and showed her a person who raped her, by then the appellant was under arrest. During trial, PW1 identified the appellant at the dock. In her testimony PW2 stated that on 22n d March, 2022 at around 15:00 hours while in class teaching, one girl entered the class while holding the hand of the victim. She told her that the victim (PW1) was injured and when 2 she asked PW1 how did she get injured, she told her that, she was injured by a nail on a desk. PW2 took PW1 to the head teacher and notified him about the incident. They agreed to call PWl's parents so as to notify them about the incident. Since those parents leave nearby, they arrived at the school immediately and they agreed with teachers to inspect PW1. Upon inspection, they found blood in her under wear. The parents took the victim home. On the next day, PWl's parents went to the school claiming that the victim was raped. They wanted to satisfy themselves and see if their daughter was really injured by the nail. They went together to the area where the victim claimed that she was injured, but they neither saw the nail nor any blood on the desk. Nevertheless, the said parents insisted that she was raped and thus took her for medical examination. The evidence of PW2 was confirmed by Gilian Wilfred Kaliho (PW3), the Head Teacher to whom the incident was reported by PW2. In addition, PW3 testified that, on 25th May, 2022 while in the staff room with fellow staff members, a certain man entered while holding a bottle of beer and he was looking for a head teacher. PW3 ordered him to get out, but he resisted, the Police Officers were notified and they instructed the teachers to tied up the accused with a rope. As they were waiting for the Police to come, civilians came including the parents of the victim who claimed that the victim told them that, the person who was arrested is the one who raped her. The Police arrived and took that person who happened to be the appellant. Another prosecution witness was Meak Naftari (PW4), the aunt of the PW1. She was among the people who went to school to see the place where PW1 was injured by nail but she did not see any nail having seen the place. She only saw clotted blood on the floor. PW4 took PW1 to Nyakato Police Station and she was issued with a PF3. Thereafter, they went to Buzuruga Hospital where PW1 was examined by Aneth Baitwa (PW5), a medical doctor. In her examination, PW5 found bruises in PWl's labia majora and manora and her inner part of female organ was penetrated; meaning, the victim was raped. The prosecution closed its case and the appellant was called upon to enter his defence. In his defence, the appellant was very brief stating that he was not involved in committing the alleged offence. According to him, the case was unfounded and never happened. The trial court having weighed the evidence by both sides was satisfied that, the prosecution proved its case against the appellant beyond reasonable doubt. It convicted and sentenced him to life imprisonment. Aggrieved, the appellant appealed to the High Court. Nevertheless, his appeal was found devoid of merit and it was dismissed. Again, the appellant was not satisfied by the decision of the first appellate court; hence, the present second appeal. On 8th May, 2024, the appellant filed in Court a memorandum of appeal comprising of seven grounds. We note, the 2n d and 7th grounds are similar and thus, in essence the presented grounds are 6 as paraphrased hereunder: 1. That, the evidence o f PW1 and PW2 was contradictory on how the victim was injured. 2. That, the evidence o f PW4 was recorded without oath. 3. That, the evidence o f the appellant was unsworn. 4. That ; the charge was defective for not stating the time on which the offence was committed. 5. That, the lower courts erred in relying on the evidence o f the victim to convict the appellant under the principle o f best evidence rule in sexual offences while the victim's PF3 showed that there was no penetration. 6. That, the charge against the appellant was not proved beyond reasonable doubt At the hearing of appeal, the appellant appeared in person, unpresented whereas, the respondent Republic had the services of Mr. Benedict Kivuma Kapela, learned Senior State Attorney assisted by Mr. Sileo Leonce Mazullah, learned State Attorney. Understandably, since the appellant appeared unrepresented, he opted to adopt his grounds of appeal and written submissions to form part of his oral account before the Court as he reserved his right to rejoinder. On the part of the respondent, it was Mr. Mazullah who addressed the Court. Initially, Mr. Mazullah opposed the appeal, however, upon reflection, he supported it on two grounds; to wit, that he appellant's evidence was taken without oath and that there was poor identification of the appellant at the scene of crime by the victim. Regarding failure of the trial court to take the evidence of the appellant upon oath, the learned counsel submitted that, it is apparent on the record of appeal that appellant's evidence was taken without oath contrary to the requirements of the law. He referred us to page 37 of the record of appeal, where, on 9th January, 2023, the appellant appeared before Kabuja, Resident Magistrate to defend his case. The trial Magistrate inquired his name, age, tribe, occupation, residence and religion. Thereafter, he allowed him to testify straight away without requiring him to take oath. According to Mr. Mazullah, failure to swear in the appellant, was a fatal irregularity which rendered the appellant's defence as good as no defence. However, he argued, the trial court misdirected itself in its judgment for treating the evidence of the appellant as sworn evidence. He referred us to page 56 of the record of appeal where the trial court indicated; " Hassan Daniel (the accused) while an oath, denied to have committed the offence o f rape againstSHR." He argued further that, the trial court ought not to have relied upon such unsworn evidence while determining guiltiness or otherwise of the appellant. According to him, the purported defence evidence of the appellant had no evidential value before the eyes of the law. He thus urged us to expunge it from the record. On so doing, he added, it remains that the appellant did not defend his case; hence, unfair trial. In the circumstances, according to Mr. Mazullah, the remedy, is for the Court to exercise its revisional powers under section 6 (2) of the Appellate Jurisdiction Act, Cap. 141 to nullify the proceedings from defence case, quash conviction, set aside the sentence meted out to the appellant and remit the case file to the trial court for the appellant's defence to be recorded on oath; as it was decided in Lawrent Msabila v. Republic [2016] TZCR 251 (24 October 2016). However, Mr. Mazullah was reluctant to pray for remittance of the case file to the trial court on account of the appellant's complaint that the charge against him was not proved beyond reasonable doubt. Particularly, he submitted, that the first appellate court wrongly relied and acted upon unreliable visual identification of the appellant by the victim who failed to describe the appellant's physique, clothes types which he put on at the material time and even to state unique mark(s) which enabled her to identify him that he was the one and nobody else committed the offence. Mr. Mazullah concurred with the appellant that, indeed, the prosecution key witness, the victim (PW1), only stated that she saw the appellant at her school. The appellant slapped her on her chick, covered her mouth with his hand, removed his clothes and inserted his penis in her vagina. She did not describe him to anybody. Mr. Mazullah concluded by stating that, although the appellant did not swear before giving his evidence and his defence could not be considered, the prosecution failed to prove its case to the required standard. Therefore, he urged us that we should not remit the case file to the trial for it to take the evidence of the appellant afresh upon oath, instead, we should allow the appeal, quash conviction and set the appellant free. The appellant was very brief in his rejoinder; he only urged us to consider his appeal and set him free. The record of appeal is clear at page 37 and there is no dispute that on 9th January, 2023, the appellant's evidence was recorded without oath as demonstrated by the counsel for the respondent. Therefore, the issue turns from whether the said evidence was recorded upon oath and becomes whether the unsworn evidence had any value in the determination of the case. This issue need not detain us. Taking oath before one adduces evidence is a matter of law. Section 212 of the Criminal Procedure Act, Cap. 20, requires evidence of a witness to be examined upon oath. It reads: "212.- (1) A witness in a criminal cause or matter shall, subject to the provisions o f any other written law to the contrary, be examined upon oath or affirmation in accordance with the provisions o f the Oaths and Statutory Declarations A c t " In terms of section 4 of the Oaths and Statutory Declarations Act, Cap. 34, any person giving evidence before the court is required to take oath. This section provides as hereunder: 4. Subject to any provision to the contrary contained in any written law, an oath shall be made by (a) any person who may lawfully be examined upon oath or give or be required to give evidence upon oath by or before a court; or (b) any person acting as interpreter o f questions put to and evidence given by a person being examined by or giving evidence before a court: Provided that ; where any person who is required to make an oath professes any faith other than the Christian faith or objects to being sworn , stating, as the ground o f such objection, either that he has no religious belief or that the making o f an oath is contrary to his religious belief, such person shall be permitted to make his solemn affirmation instead o f making an oath and such affirmation shall be o f the same effect as if he had made an oath. As it can be observed from the cited laws, every competent witness must testify on oath or affirmation unless there are some exceptions as 10 expressed by the law. Equally, it is settled principle that the testimony of a witness given without an oath or affirmation has no value before any court of law and therefore cannot be relied upon by the court. See for instance: Mawazo Mohamed Nyoni @ Pengo & Others v. Republic [2021] TZCA 483 (16 September 2021). Being guided by the established principle as above, the case at hand is and cannot be, at any rate, an exceptional. The appellant, an adult person was competent witness whose evidence ought to have been taken upon oath or affirmation, but that was not the case as we observe from page 37 of the record of appeal. As a result, it must suffer the consequences stated above. Without much ado, we agree with the learned Sate Attorney and find such evidence valueless and proceed to expunge it from the record. Ordinarily, in a fit case we would remit the case file to the trial court for it to take afresh the appellant's evidence, but we do not think that, in the circumstances of this case, it will be possible to do so without encroaching into the justice of the case. This, we say, is due to the fact that the burden of proof in criminal cases lies on the prosecution. The appellant was charged with rape of a seven (7) years old girl. Basically, the prosecution had to prove age of the victim, penetration and that it was the appellant who committed ii that offence. Since the offence under consideration falls squarely under sexual offences, the best evidence rule considers the evidence of the victim to be true and the best. The victim (PW1) testified on how she was raped by the appellant who was a stranger to her on the material day while at school. It is glaring in the record of appeal that, her testimony against the appellant remained to be a mere allegation because she said, she only knew the appellant because he went to her school for another time after the incident. She only narrated what the person who entered her class did to her but failed to describe him to anyone. She further alleged that when she saw that man who raped her for another time at school, rushed to call her mother and showed her that person who happened to be the appellant. The record of appeal is silent on how she identified him and no reason given as to why she opted to call her mother while at school, instead of teachers, to show her the man who raped her. None of the prosecution witnesses testified that PW1 described the appellant by special features apart from referring him as a "certain baba" According to the record of appeal, PW4 was the first person to be told by PW1 that she was raped by the appellant; the following was part of her testimony: 12 "Your honour, I inspected her female organ and found her female (vagina) having a fresh torne. Following that she narrated to me what had happened\ when she told me that came a certain baba who slapped her and removed her clothes where he took his penis and inserted into her female organ . I asked if she understood that baba where she told me that she recalls that man by face. We went to school with her up to school where the child was injured. "[Emphasis added]. The above excerpt bears evidence that PW1 did not describe the man whom she alleged that he inserted his penis in her vagina. In Omary Idd Mbezi & Another v. Republic [2014] TZCA 2226 (1 March 2014), the Court while dealing with an akin situation, had this to say: "The witness should describe the culprit or culprits in terms o f body built \ complexion ; size, attire or any other peculiar body features, to the next person that he comes across and should repeat those descriptions at his first report to the Police on the crime, who would in turn testify to that effect to lend credence to such witness's evidence. Ideally upon 13 receiving the description o f the suspect(s) the police should mount an identification parade to test the witness's memory and then at the trial the witness should be led to identify again." In light of the settled position above, we wish to state that, in the present case, a mere reference of the person who raped PW1 as "certain baba,"\x\ our considered view, could not suffice a holding that the appellant was the one referred. As such, there was no proper identification of the person who raped PW1. It is very unfortunate that the courts below did not pay much attention on the issue of identification, which we find to be crucial in the circumstances of this case. The investigation machinery got involved in this case on arrest of the appellant not because he raped PW1, but due to the fact that he entered inside the staffroom while holding on his hand a bottle of bear looking for the head teacher as per the testimony of PW3. According to PW4, on 27th May, 2022 at around 14:00 hours while at home the victim came from the shop and told her that "mamapale shulenipana watu wengi lakini pia nimemwona yule baba aliyenifanyia kitu kibaya" . Unofficial translation means, she saw many people at school and the "father"w\\o did bad thing to her. We note at page 89 of the record of 14 appeal that, the High Court while reconsidering the issue as to whether the appellant was the culprit in this case at hand shifted the burden of proof to him and condemned him for not explaining where he was on the fateful day, that is 22n d January, 2022; and that the defence failed to clear doubts as to why the appellant on his day of arrest broke into the school compound in the daytime an act which led to being identified by PW1. The learned Judge added: "The question is, what was he doing there? As he was neither a staff nor the parent to any student' We find that it was a misdirection on the part of the first appellate Judge to shift the burden of proof to the appellant. The doubts she highlighted, with respect, were supposed to be cleared by the prosecution and not the appellant. More so, as it was incumbent upon the prosecution to lead evidence which would properly identify the so called ’tote"w ho allegedly raped PW1. Short of that, it cannot be said with certainty that the appellant was properly identified at the scene of crime by PW1 and other prosecution witnesses for want of proper description. In the circumstances, we find and hold that this is not a fit case for remittance to the trial court to retake the evidence of the appellant. Doing so, in our view, will amount to nothing but giving the prosecution an 15 opportunity to fill in evidential gaps highlighted above. Consequently, we allow the appeal, quash the conviction and set aside the appellant's sentence. The appellant be released from prison immediately unless otherwise lawfully held. DATED at MWANZA this 2n d day of March, 2026. The Judgment delivered this 3rd day of March, 2026 in the presence of the Appellant in person, Ms. Hellena Mabula, learned State Attorney for the Respondent/Republic and Ms. Gloria Masige, Court Clerk; is hereby certified as a true copy of the original. M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL A. S. CHUGULU DEPUTY REGISTRAR COURT OF APPEAL 16