Ndulu Ng'hinda vs Republic (Criminal Appeal No. 645 of 2023) [2026] TZCA 214 (3 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: LILA. J.A., MAIGE. J.A. And MANSOOR. J.A.^ CRIMINAL APPEAL NO. 645 OF 2023 NDULU NG'HINDA....................................................................APPELLANT VERSUS THE REPUBLIC...................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Shinyanga) (Massam, J.1 dated the 1st day of September, 2023 in Criminal Appeal No. 34 of 2023 JUDGMENT OF THE COURT 27th February, & J d March, 2026 MANSOOR. 3.A.: The appeal arises from the conviction and a 30-years sentence imposed on the appellant, Ndulu Ng'hinda, for the offence of rape of a 10-year-old girl contrary to sections 130(l)(2)(e) and 131(1) of the Penal Code, Cap. 16 R.E. 2019. The appellant was arraigned before Bariadi District Court in Criminal Case No. 70 of 2022, and after a full trial, he was found guilty of the offence charged, convicted and sentenced. i The particulars of the offence stated that, on 26th July 2022 at about 7:00 p.m. in Jisesa Village, Busega District, in Simiyu Region, the appellant had carnal knowledge of a 10 years' old girl. The prosecution had lined up three witnesses who are Njile Mabanza, the mother of the victim as PW1, the victim as PW2, and Jerald Charles, a medical doctor who examined the victim as PW3. The medical report was produced as exhibit PI. The prosecution case was that, the victim was heading home from fetching water and the appellant followed her until she reached her mother's home. The appellant entered the house and took the girl to the bedroom. He then removed her underwear, laid her on the floor and inserted his penis into her vagina. The victim's mother Njile Mabanza (PW1) returned home and found the appellant hiding behind the sacks of rice. She called for help ("mwano"), the neighbors who heard the mwano rushed to the scene. They apprehended the appellant and called the police, who took him to Ngasamo Police Station. The following day, the victim was taken to Ngasamo Health Centre and was examined by the medical doctor (PW3). The report revealed that the girl's private parts were penetrated by a blunt object. 2 The appellant in his defense denied committing the offence. He claimed that he was the lover of PW1, the victim's mother. He claimed also that, on the material date and time, they were in the house of PW1, they made love and he gave her TZS 15,000. He said that PW1 demanded more money but the appellant refused to give her, resulting in a fight. Then, suddenly PW1 raised her voice calling for help, and he was apprehended and taken to the police station. He was then arraigned for the offence of raping his lover's young daughter. The trial court rejected his defense, and found the prosecution case proved beyond reasonable doubt. It convicted the appellant and sentenced him as aforesaid. His first appeal before the High Court was dismissed, hence this is the second appeal. In his memorandum of appeal, he raised four grounds of appeal which shall be paraphrased as follows: 1. The trial court and first appellate court wrongly misapprehended the nature and quality of the prosecution evidence. 2. The trial court erred in relying on the evidence of the prosecution witnesses which were not credible and reliable. 3. The 30-year sentence is excessive. 3 4. The prosecution' case was not proved beyond reasonable doubt. At the hearing, the appellant fended for himself and simply adopted his grounds of appeal, and prayed for his acquittal. The respondent, Republic was represented by Ms. Nancy Medard Mushumbusi who expressed before the court that, the respondent does not oppose the appeal. She stated that, the prosecution did not prove the case beyond reasonable doubt. She argued that, the prosecution failed to call the material witnesses especially those neighbors who responded to a call for help from PW1. She further submitted that, neither the arresting officer who arrested the appellant from the house of PW1 nor the neighbors who were said to be present at the scene were called to testify. She thus urged us to draw an adverse inference against the prosecution and the doubts created should favor the appellant. She further submitted that, PW1 did not say in her testimony, the reasons of the appellant's arrest. The record shows that PW1, came to know of her daughter being penetrated after the appellant was already arrested and taken to the police. That, PW1 came to know about her daughter's condition only after the victim was examined by the doctor revealing that the girl's hymen was perforated, and this was a day after the appellant's arrest. The doctor also did not say whether the 4 perforation of a hymen was a result of a recent penetration. She thus argued that, there was no proof of participation of the appellant in the commission of the offence and that, the case was not proved beyond reasonable doubt. Ms. Mushumbusi prayed for the appeal to be allowed, quash the conviction and sentence, and free the appellant. The appellant in his rejoinder, supported the submissions of the respondent. We have considered the submissions by Ms. Mushumbusi in support of the appeal and the issue for determination is whether the charge herein was proved to the required threshold in law. It is the requirement of law that for the charge of statutory rape to stand, the prosecution must prove the age of the victim to establish that the victim is a minor, there must be penetration, and that it was the accused person who had penetrated the victim. These requirements are anchored in section 130 (1) (e) of the Penal Code, Cap 16. In the present case, age of the victim was not at issue, also penetration was proved by the medical doctor and a PF3 was produced. The issue therefore that required proof from the prosecution is whether it was the appellant herein who had penetrated the victim on the date of occurrence. 5 What is at issue is the credibility of the witnesses, as PW1, the mother of the victim testified that, when she called for help, many people rushed to her home and they found the appellant in her house. She even testified that, the appellant was arrested by the police and was taken to the police station. The pertinent issue is that the persons who arrested him were not called to testify to help the court understand as to why they arrested him. The evidence of the neighbors and the police officers who participated in the arrest was crucial in explaining why the appellant was arrested before PW1 realized that her daughter was penetrated. According to PW1, her daughter did not tell her that she was raped, but she kept pointing her finger towards the bedroom, and never told her anything. Equally, the evidence of PW2, the victim never revealed that, she told her mother that, she was raped by the appellant. She only said she was trembling and pointed her finger to where the victim was hiding. PW1 came to know that her daughter's hymen was perforated after she was examined by the Doctor, and this was the second day after the arrest of the appellant. It is true that none of the witnesses who allegedly arrested the appellant were called to testify to tell the court on what led to his arrest. We understand that under section 143 of the Evidence Act, the 6 prosecution has the liberty to select who to call to court to prove the case, that no particular number of witnesses is required to prove the fact, however, the prosecution is required to call evidence adequate to establish the guilt of the accused/appellant. When the prosecution fails to call material witnesses, the court is entitled, under the law of evidence, to draw an adverse inference that such evidence would have been unfavorable to the prosecution case. In Joseph Charles @ Nkole vs Republic (Criminal Appeal No. 524 of 2020) [2024] TZCA 1113, the Court held that, where the prosecution fails to call material witnesses in sexual offence cases, an adverse inference may be drawn, leading to insufficient proof of the charge beyond reasonable doubt. Similarly, in Bukenya & Others vs Uganda [1972] EA 549, the East African Court of Appeal emphasized that, the absence of evidence from witnesses who could shed light on key facts allows the court to presume that, such evidence would harm the prosecution's case. A look at the evidence adduced by the prosecution in the present case is barely adequate to prove the participation of the appellant in the commission of the offence. The evidence of PW1, and PW2, being shaky on the reasons of the arrest of the appellant coupled with the defense of the appellant that PW1 is his long-time lover, and that, she was demanding for more money from the appellant, and as a result, a fight ensued between them, cannot simply be brushed aside as it raises reasonable doubt on the credibility of PW1 as well as his participation in the offence charged. It also raises doubt as to whether the offence was committed at all. The only evidence that would have established the nexus of the fact that the offence was committed and it was the appellant who committed the offence was the evidence of the arresting officersand the neighbors. The question is why were they notcalled to testify, while they were all available. In Gutugu Nyanokwi vs Republic (Criminal Appeal No. 275 of 2022) [2025] TZCA 382 (30 April 2025), we stated that, the arrest of the suspect should not be grounded on suspicion, we thus said: "One more thing before we wind up is the reason for the appellant's arrest. As the evidence by PW2 stands, his arrest was grounded on suspicion. But the law is dear that, however strong the suspicions may be, it may not form a ground for conviction." On the credibility of PW1, the mother of the victim and PW2, the victim herself, we are aware of the settled position that the best evidence in sexual offences cases comes from the victim. See Selemani Makumba vs Republic (2006) TLR 374. However, we have also stated in Majaliwa Ihemo vs Republic (Criminal Appeal No. 197 of 2020) [2021] TZCA 304, that, for the principle in Selemani Makumba to apply, the assessments of the credibility of the witnesses need to be carefully determined to weigh their truthfulness. See also Elisha Edward vs Republic (Criminal Appeal 33 of 2018) [2021] TZCA 397 (24 August 2021) [2021] TZCA 397. We therefore accept the submissions of Ms. Mushubushi that, the credibility of PW1, and PW2 in the present case is doubtful, particularly on the questions raised by the appellant regarding his relationship with PW1, her failure to explain the absence of the other children in the house while she herself had testified that she has four children, and that, she lived with all of them in the same house where the crime was alleged to have been committed, and the absence of neighbors and the arresting police officer to shed light as to why the appellant was arrested. We thus agree with Ms. Mushumbusi's submissions that, the evidential burden is upon the prosecution to prove its case beyond any reasonable doubt, and in the present case, the prosecution failed 9 miserably to discharge their duty of proving the facts of this case beyond reasonable doubt. The Court of Appeal for Eastern Africa, in the celebrated case of Okethi Okale & Others vs Republic, [1965] EA 555 emphasized on the duty of the prosecution to prove the charge beyond reasonable doubt, it was held: "In every criminal trial a conviction can only be based on the weight of the actual evidence adduced and it is dangerous and inadvisable for a trial judge to put forward a theory not canvassed in evidence or in counsels'speeches. The burden of proof in criminal proceedings is throughout on the prosecution ; and it is the duty of the trialjudge to look at the evidence as a whole." Cyphering from the above case, it is the duty of the trial judge and trial magistrates to look at the evidence as a whole, that is, the evidence of the prosecution and that of defense before reaching into a conclusion. It is therefore without a flicker of doubt that, the prosecution failed to prove the charge beyond reasonable doubt, and the prosecution case is bound to fail, as it is not safe to base a conviction on the evidence of the prosecution which was barely adequate. 10 With the result, the appeal herein has merit and is allowed. Consequently, we quash the conviction and set aside the sentence and substitute thereof an order of acquitting the appellant. He is to be set at liberty forthwith unless otherwise lawfully held. DATED at SHINYANGA this 2n d 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 3rd day of March, 2026 in the presence of the Appellant appeared in person by virtual Court, and Ms. Nancy Medard Mushumbusi, learned Senior State Attorney for the respondent/Republic and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original. D. R. LYIMO B DEPUTY REGISTRAR ^ COURT OF APPEAL l i