Paul Bahati vs Republic (Criminal Appeal No. 434 of 2023) [2026] TZCA 208 (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. 434 OF 2023 PAUL BAHATI ........................................................................... APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Shinyanga) (Massam, J.) dated the 26th day of May, 2023 in Criminal Appeal No. 112 of 2022 JUDGMENT OF THE COURT 240 1 February & 3rd March, 2026 MAIGE. J.A.: The appellant was prosecuted at the District Court of Bariadi for three counts namely: abduction contrary to section 133 of the Penal Code; rape contrary to section 130(1) and (2) (e) and 131 (1) of the same Act; and impregnating a school girl contrary to section 60A of the Education Act. He was after full trial, convicted with each of them. As a result, he was sentenced to seven years' imprisonment in respect of the first count and thirty years' imprisonment in each of the last two counts. Notwithstanding his appeal to the High Court, the position remained the same. Still determined to protect his innocence, the appellant has attempted this second appeal. i To appreciate the basis of the appellant's conviction and sentence whose correctness or otherwise is the main theme of this appeal, exposition of the brief factual background of the case is sine qua non. As can be gathered from the record, the appellant who was then 23 years old , was a resident of Mwanza. The victim (PW2) who was allegedly 16 years old, was a resident of Majengo Village in Dutwa Ward within the District of Bariadi in Simiyu Region. She was living with her father Kisaba Masunga (PW1) and her mother whose name was not disclosed. She was a form one student at Igaganulwa Secondary School. She revealed that on 22n d August, 2021, the appellant contacted her on a phone expressing his desire to have marital relation with her, the proposal which she accepted. Afterwards, the appellant came to Dutwa and took her to Mwanza where they stayed together from 22n d October 2021 to 29th October, 2021. She testified that, during her stay, she engaged in sexual intercourse with the appellant for three consecutive days without condom. PW1 testified that after noticing, on 22n d August, 2021 that, the victim was missing, he reported to the Village Executive Officer and then to the police. That, after being notified by his cousin Mayunga Juma that, the victim was at Masanza Area in Mwanza, he asked him to search for her. Mayunga Juma traced her whereabouts and established that she was at Masanza Area with the appellant at his residence. With that 2 information, the said Mayunga Juma went to the appellant's residence, on 29th October, 2021. Upon finding the two together, he took them to Nyashimo Police Station, from where they were subsequently conveyed to Dutwa Police Station. The victim was, on the next day, taken to the hospital where she was examined by Dr. Silas Deniel Man'gwiwa (PW3) and found with a one week pregnancy, the findings which were recorded in a PF3 accordingly as per exhibit PI. WP 4579 D/Sgt Upendo (PW5) recorded, on the same day, the appellant's cautioned statement who admitted to committing the offence. In his testimony in defense, the appellant totally denied the offence. That aside, the learned trial magistrate found that the prosecution evidence outweighed the appellant's defence and proved the case beyond reasonable doubt. He thus, convicted and sentenced him as afore said, the convictions and sentences of which, were subsequently blessed by the High Court on appeal, henceforth this appeal. The appellant has raised four grounds which can be conveniently reduced into the following two complaints: 1. The proceedings o f the trial court had serious irregularities which rendered the whole proceedings irregular. 2. The case against the appellant was notproved beyond reasonable doubt. At the hearing, the appellant appeared in person and without representation. In support of his appeal, he adopted his grounds of appeal and urged us to allow it. Ms. Sophia Fidelis Mgassa and Ms. Nancy Medard Mushumbusi, both learned Senior State Attoneys, appeared for the respondent Republic. It was Ms. Mgassa who addressed the Court on the appeal. In address of the first ground, Ms. Mgassa conceded, to the extent of the first count that, the proceedings of the trial court were seriously irregular. She submitted that, the provision of section 133 of the Penal Code under which the appellant was charged was inapplicable in the current case. She clarified that, while the offence under the respective section is committed where the victim is detained without her own consent, in the particulars of the offence in the charge sheet it is asserted that, she was taken against the will of her parents, which is a different offence created under section 134 of the same Act. As the charge sheet was defective, she submitted, the case against the appellant in respect to the first count remained unproved. She prayed therefore that, his conviction and sentence in relation to the first count be quashed and set aside. We have considered the submission by the learned counsel in respect to the first complaint. In the first place, we agree with her that, the provision under which the appellant was charged with the first count does not tally with the particulars of the offence and the evidence adduced. This is because, while the offence in the respective provision is committed when a person takes away or detain a woman of any age against her will, with intent to marry or caused to be married; or with intent to have sexual intercourse or caused to have sexual intercourse with any other person; the particulars of the offence in the charge sheet and the evidence suggests that the appellant took the victim and stayed with her for about a week with her own will. The provisions of section 133 read: " 33-A person who with intent to marry or have sexual intercourse with a woman o f any age, or cause her to be married or to have sexuai intercourse with any other person, takes her away, or detains her, against her will, commits an offence and shall be liable to imprisonment for seven years." Ms. Mgassa has suggested that the appellant should have been charged under section 134 of the Penal Code. With respect, we cannot agree with her for the main reason that, the offence in the respective provision is committed if the victim thereof is unmarried girl under 16 years old while in this case, the victim is above 16 years old. For clarity, the respective provision is reproduced hereunder: 5 " 33-A person who unlawfully takes an unmarried girl under the age o f sixteen years out o f the custody or protection o f her parents or other person having lawful care or charge o f her and against the will o f the parent or o f that person commits an offence." Having said that, we find that the charge against the appellant was, to the extent of the first count, not proved beyond reasonable doubt. We proceed with the second complaint. The issue here is whether the charge against the appellant in respect to the count of rape and impregnating a school girl was proved beyond reasonable doubt. On this, Ms. Mgassa submitted that the same was proved beyond reasonable doubt. The offence of rape, she submitted, was proved by the victim herself who testified as PW2 and stated that, she had sexual intercourse with the appellant for three successive days, the evidence which was validated by PW3, the doctor and the medical report in exhibit PI. It was, she submitted, further corroborated by victim's father (PW1) who testified that, upon establishing that the victim was missing, he reported the incident to the Village Executive Chairman and to the police. She submitted that, the testimony of the victim was credible and it is in law the best evidence in rape cases as per famous case of Suleman Makumbaa v. R. [2006] TLR 374. Regarding the third count, she 6 submitted that, the fact that the victim was a student, was proved by her teacher (PW4); while the fact that she was pregnant, was proved by the testimony of PW3 and the report in exhibit PI. While conceding that, the appellant's cautioned statement which was also relied by the two courts below should be excluded from evidence as it was recorded out of time, she submitted that, the testimonial evidence of the four witnesses plus the documentary evidence in exhibit PI, sufficiently proved the case. She concluded, therefore that, the two last counts were proved against the appellant beyond reasonable doubt. We shall first consider the complaint in relation to the offence of rape. Aside from the testimonial evidence of the victim as supported by other three witnesses, the prosecution also relied on the appellant's cautioned statement allegedly recorded by PW5. The statement was recorded on 1s t day of November, 2021 at 10:00 hours. Though the arresting police did not testify, PW5 claimed that the appellant was arrested on 29th October, 2021 and detained at Nyashimo police station before he was transferred to Dutwa police station on 30th October, 2021. His testimony is silent on time. As we said, the cautioned statement was recorded on the 1s t day of October, 2021. Ms. Mgassa has conceded in her submission that, the statement was procured out of time and should be excluded from evidence. We entirely agree with her. We say so because, 7 as per section 50(1) of the Criminal Procedure Act, the time available for recording a confession of a person under police restraint is four hours from the date when he was put under restraints. In this matter, the appellant was put under police restraint since on 29th October, 2021 when he was, arrested in Mwanza and detained at Nyashimo police station after which he was, on 30th October conveyed to Dutwa at the time which is not in evidence. In our view, while the period from 29th October 2021 to 30th October, 2021 could be excluded as the period spent to convey the appellant from Mwanza to Dutwa, Bariadi, the period therefrom up to the 1s t day of November, 2021 at 10:00 hours when his statement was recorded, are not countable. As the evidence of the prosecution is silent as to what particular time the appellant arrived at Dutwa, the recording of the statement on the next day is deemed out of time. We took a similar approach in, among others, Manoja Masalu and Another Bupomi v. R (Criminal Appeal No. 143 of 2020) [2024] TZCA 409, TANZLII. That said, we exclude the confession in exhibit PI from evidence. With the exclusion of the cautioned statement from evidence, and the appellant having denied being found together with the victim, the only direct evidence which would establish this fact is that of the victim. The testimony of Mayunga Juma who alleged to have found them together would have been relevant to prove such fact too. However, for the reason s not in evidence, he was not called. Perhaps, the police officer who arrested the appellant would have given an insight on this. He does not feature out in evidence, however. In our view, the two persons or either of them were material witnesses in establishing the disputed claim that the appellant was found with the appellant on the alleged date. Therefore, in line with our principle in Joseph Charles v. R (Criminal Appeal No. 524 of 2020) [2024] TZCA 1113, TANZLII, we draw an adverse inference against the failure of the prosecution to call either of the two witnesses. We agree, in the first place with Ms. Mgassa on the settled principle of law that, the evidence of the victim is the best evidence in rape cases and if believed, can solely be relied upon to sustain conviction. However, it is also settled that, for such evidence to be relied upon, it must be credible and probable enough to leave no reasonable doubt. See for instance, Mohamed Said v. R (Criminal Appeal No. 145 of 2017) [2019] TZCA 252, TANZLII and Rehani Said Nyamila v. R, Criminal Appeal No. 222 of 2019 [2021] TZCA 301, TANZLII. Besides, in judging whether such evidence is credible, the trial judge or magistrate is expected to weigh such evidence in line with other pieces of evidence, including that of the defence. We said that in, among others, the case of Shabani Daud v. R, Criminal Appeal No. 28 of 2000 (unreported). 9 The evidence of the victim (PW2) does not suggest that the appellant was known to her before the incident That aside, her story suggests that, on the same day when the appellant called her on phone and proposed to have marrying her, she accepted. It equally suggests that on the very day, the appellant took her to Mwanza where they stayed for a week. This is unusual for persons who are strangers to each other. Much more should have been said so as to make the story probable. Perhaps, PW4 tried to fill the gap when he suggested to have been told by the victim that it was on 15th October, 2021 when the appellant approached her for the first time. That could have made sense. It is, however, a mere hearsay evidence which is not supported by the alleged author of the statement. It can in law not be relied upon. In addition, the doctor's oral evidence suggests that the victim was produced to him with a PF3 for pregnancy and HIV tests. That is also reflected in exhibit PI. Express in exhibit PI was also the fact that the appellant was brought to PW3 for this test because he had stayed with the appellant for a week. The question here is, why was the instructions to the doctor limited to a pregnancy test, given that there was no evidence or claim from the victim that she had been impregnated? The discrepancies pointed out above in their totality affect the credibility of not only PW2 (the victim) but the whole prosecution story. 10 For the foregoing reasons, therefore, we find the appeal with merit and it is allowed. As a result, we quash the conviction and set aside the sentence, and order the immediate release of the appellant from custody unless held for any other lawful cause. DATED at SHINYANGA this 3r 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 Mr. Abdulkarim Salim, learned 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 DEPUTY REGISTRAR COURT OF APPEAL li