Alex Jeremia Madole vs Republic (Criminal Appeal No. 936 of 2023) [2026] TZCA 174 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA ( CORAM: GALEBA. J.A.. MASOUD. J-A. And FELESHI, J.A.J CRIM INAL APPEAL NO. 936 OF 2023 ALEX JEREM IA M AD O LE ................................ ...................................... APPELLANT VERSUS REPUBLIC............................................................ ............................ RESPONDENT (Appeal from the decision of the Court of Resident Magistrate o f Singida exercising Extended Jurisdiction at Singida) (Massawe, SRM. Ext. Jur.) dated the 30th day of July, 2021 in DC. Criminal Appeal No. 11 of 2021 JUDGMENT OF THE COURT 12th February & 2n d March, 2026 FELESHI. 3.A.; Alex Jeremia Madole, the appellant, has appealed against the decision of the Court of the Resident Magistrate of Singida Region exercising Extended Jurisdiction (first appellate court) which upheld his conviction and the sentence of 30 years' imprisonment imposed by the District Court of Manyoni (the trial court) for the offence of rape, contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code, Chapter 16. Before the trial court, it was alleged that, on 14th November, 2018, at Maweni Village within Manyoni District in Singida Region, the appellant unlawfully had carnal knowledge of RF (the victim), a girl aged four years. He had entered a plea of not guilty. During the trial, the prosecution called five witnesses: Francis Saverine, the victim's father (PW1); Victim Yohana, the victim's mother (PW2); the victim (PW3); F. 7111 CPL Ally (PW4); and Limbu Mondoka, Assistant Medical Officer at Kintinku Health Centre (PW5). The prosecution also tendered two exhibits, namely, the appellants cautioned statement (Exhibit PI) and a Police Form No. 3, PF3 (Exhibit P2). However, it is worth noting at the outset that, the first appellate court expunged the victim's evidence (PW3) and her PF3 (Exhibit P2) from the record on the ground that they were improperly received. The remaining prosecution evidence formed a chronological sequence of events. That, on the evening of the fateful date, that is, 14 November, 2018, at approximately 20:00 hours, the appellant visited the residence of PW1 and PW2, the victim's parents. While PW2 was engaged in domestic chores in the kitchen, the appellant arrived. She gave him a chair, and he sat near the kitchen area and held the victim in his arms. According to PW2, she suddenly noticed a distinct change in the appellant's tone of voice, which prompted her to ask him to release the child so that she could bathe her. Upon inspection, PW2 discovered that the victim was not wearing underpants and observed a discharge mixed with blood (red in colour) emanating from her private parts. The victim immediately implicated the appellant to have removed her pants. Notably, PW2 remained quiet but distressed, until PW1 arrived from church that evening and found the appellant outside waiting for dinner, while PW2 and the victim were inside the house. Upon entering, PW1 found PW2 crying and the victim was in the washbasin. After serving him dinner, PW2 informed him what the appellant had done to their daughter. According to PW1, the appellant, who appeared abnormal at the time, promptly admitted the offence and apologized, and PW1 pardoned him. Although the appellant offered a second apology to PW1 the following day, 15th November, 2018, they reported the matter to the police, where they were issued with a Police Form No. 3 (PF3). Thereafter, they took the victim to hospital, where PW5 examined her and observed vagina! lacerations and bloody discharge, leading to a definitive medical conclusion of rape. PW5's findings were recorded but, by a different person, in the victim's PF3 (Exhibit P2). This led to the appellant's apprehension by PW4, who recorded his cautioned statement (Exhibit PI) on 15th November, 2018, in which he allegedly voluntarily admitted to the commission of the offence. In his defence, the appellant (DW1) raised an slib i, contending that, during the material time, between 19:00 and 21:30 hours on 14th November, 2018, he was at the residence of DW2, who appeared and testified to corroborate his defence. DW1 further alleged that, his signature on the cautioned statement (Exhibit PI) was obtained through duress on 16th November, 2018. At the end of the trial, the trial court found that the prosecution had proved its case to the hilt and accordingly convicted the appellant, sentencing him to 30 years" imprisonment. On its part, having expunged PW3's evidence and her PF3 (Exhibit P2), as reflected at pages 107 and 1 1 2 of the record of appeal respectively, the first appellate court (Masawe, SRM, Ext. Jur.) basing on the remaining evidence of PW1, PW2, PW4 and Exhibit PI upheld the appellant's conviction and sentence, and consequently dismissed his appeal. However, it did not address the appropriateness of the sentence imposed by the trial court. In his second appeal to this Court, the appellant, who was unrepresented at the hearing, advanced thirteen grounds of appeal. The respondent, Republic, represented by Ms. Elizabeth Barabara, learned Senior State Attorney, assisted by Mr. Nehemia Kilimuhana, learned State Attorney, readily supported the appeal on two grounds set out as the first and tenth grounds in the memorandum of appeal. These were: first, that, the prosecution failed to prove its case beyond reasonable doubt; and second, that, Exhibit PI was admitted in contravention of the requirements of the Criminal Procedure Act, Chapter 20 (the CPA). With our leave, and after reserving his right to rejoin, if necessary, the appellant elected to rely on the respondent's submissions in support of those two grounds and abandoned the remaining grounds of appeal. Mr. Kilimuhana addressed the two complaints conjointly and began by underscoring the legal requirements for proving the offence of rape. He submitted that, in the instant case, the prosecution bore the duty of establishing that at the time of the commission of the offence: the victim was a girl below eighteen years of age; she was sexually penetrated; and the appellant was the perpetrator. He cited Meedrage Mohamed Naheka v. Republic [2024] TZCA 481 to fortify his submission on the aforesaid prerequisites in proving the offence of rape. According to him, PW2 proved that the victim had been penetrated, as she examined her and observed discharge from her private parts, a fact which was later confirmed by PW4, the medical practitioner. He further contended that the victim's age was duly established as being under 18 years. Nonetheless, on the question whether the appellant was the perpetrator, he argued that, the prosecution's evidence remained flawed and the two courts below erred in sustaining the appellant's conviction basing on the appellant's cautioned statement (Exhibit PI) and the alleged oral confession made to PW1 and PW2. That is because, exhibit PI contravened the mandatory requirements of section 58 (4), now section 59 (4), of the CPA, which obliges the investigating officer to ensure that, the suspect is made to know and certify the contents of his statement before appending his signature. As this requirement was not complied with, Mr.Kilimuhana was of the view that, Exhibit PI ought to have not been admitted. In support of his submission, he relied on Mbuzi Lushona @ Mwangaiki and 2 Others v. Republic, [2024] TZCA 964 and urged us to expunge exhibit PI from the record. He observed that, once exhibit PI is expunged, it would be doubtful whether the remaining evidence would suffice to sustain the appellant's conviction. As to the alleged oral confession made by the appellant to PW1 and PW2, the learned State Attorney contended that, the same was tainted with contradictions which diminish its value. He referred us to page 14, line 10 of the record of appeal, where PW1 was quoted testifying that, the appellant confessed in the presence of PW2, however, PW2 had a different version of evidence that, on the material date, the appellant denied committing the offence. Again, he directed us to the PW l's evidence in which he said that after the appellant admitted committing the offence, he did not take any action against him because he (PW1) remained in doubt until the PF3 revealed the victim's rape. Mr. Kilimuhana, therefore, urged the Court to allow the appeal because the case was not proved beyond reasonable doubt. On his side, when the appellant was invited to exercise his reserved right of rejoining, he expressed to have nothing to add as the respondent supported his appeal. We have dispassionately considered the grounds of appeal, the submissions by the learned State Attorney in support of the appeal, the record, and the law. We find the grounds of appeal have been condensed to require us to determine one issue of whether the charge against the appellant was proved beyond reasonable doubt. We will be guided by the cardinal principle that in criminal cases, the duty of proving the charge is shouldered by the prosecution and does not shift. And the standard had never been changed, so it should be beyond reasonable doubt. We shall also be mindful of the common ground that a second appellate court would not easily disturb or interfere and undo the concurrent findings of two lower courts unless the two courts completely misapprehended the substance, nature, and quality of the evidence, resulting in an unfair conviction, or where there was misdirection on evidence. The guidance that has been cherished time and again, the example is found in cases such as Salum Mhando v. The Republic [1993] T.L.R. 170 and Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 143. Having paid regard to the record of appeal and parties' submission and heard the parties, we are satisfied that, this is a proper case for the invocation of the powers vested in this Court under rule 36 (1) (a) of the Tanzania Court of Appeal Rules, 2009. We entirely concur with the learned State Attorney that exhibit PI, the cautioned statement, was legally inadmissible in evidence, and that its wrongful admission fatally undermined the prosecution's case, rendering the charged offence unproved. It is clear to us that, the dictates of section 58 (4), now section 59 (4), of the CPA mandatorily required PW5, the investigating officer assigned to record the appellant's statement, to ensure that exhibit PI was shown to him (its maker), and that he was either allowed to read it himself, or that it was read over or caused to be read to him. Thereafter, PW5 was required to inquire whether the appellant wished to add or correct anything before certifying his statement and appending his signature. We have carefully gone through the record and, as rightly submitted by Mr. Kilimuhana, we find that exhibit PI lacks the requisite certification indicating that, the appellant, who purportedly authored it, either read it himself or that it was read over or caused to be read over to him. In Mbuzi Lushona @ Mwangaiki and 2 Others (supra), the Court held that, non-compliance with that mandatory requirement is fatal. The rationale is that, the provision is couched in mandatory terms, and its breach vitiates the statement altogether. In the circumstances, and in line with the stated position of the law, we have no option but to expunge exhibit PI from the record, as we hereby do. With regard to the oral confession that was allegedly made before PW1 in the presence of PW2, we have revisited the evidence on the record. Indeed, there is PW l's evidence, which states that the appellant confessed twice to him and PW2. That is on the fateful date and the next day. We let the pertinent part of the evidence speak for itself. PW1 on page 1 2 of the record of appeal said: "... I decided to ca ll the one A lex and asked him to com e to our hom e place, he cam e an d I asked him if he raped m y daughter, h e a d m itte d a n d a p o lo g ize d \ I to id him that I forgive him , on th e n e x t d a y ... one A/ex cam e fo r th e se co n d tim e to a p o lo g ize , I rep ly (sic) back th at I forgive (sic) him ,... "[Emphasis added]. On her part, PW2 at page 14 of the record of appeal was recorded testifying: "... m y husband decided to c a ll the accused, the accused person cam e to our hom e place, he was asked if he raped m y daughter, h e le ft fro m hom e, on the second day early in the m orning the accused came to apologize..." [Emphasis added]. 10 As correctly submitted by the learned State Attorney, the testimonies of these two witnesses, who alleged that they were together at the material time, materially diverged. While one testified that he heard the appellant in two different days admitting the offence, apologizing, and was forgiven, the other did not hear any such admission or apology and forgiveness on the first day but merely saw the appellant leaving the premises. Given that both witnesses claimed to have been present when PW1 called the appellant to his home to ask him about the alleged rape of his daughter, one would have expected consistent and coherent accounts regarding the appellant's response. In the circumstances, we are constrained to hold that these discrepancies amount to material contradictions. Moreover, PW1 is quoted, during cross-examination at page 13 of the record of appeal, as stating that: "I decided n o t show any reaction when you cam e in to our house... I d id n o t ta k e a n y a c tio n b e fo re b e ca u se I w as in d o u b t a n d w hen th e P F 3 re v e a le d th a t m y d a u g h te r w as ra p e d 1 sa tisfied m yself that you raped m y daughter when I w ent to the hospital you were n ot around y o u u se d to ta k e m y d a u g h te r fro m hom e, w e tru s t you, m y daughter was /w f/ 70 /m?/. "[Emphasis added]. We discern from the foregoing paragraph that, the appellant used to take the victim from her parents' home to his own residence, and that, he was, at the material time, a person trusted by the family. We further gather that, PW l did not readily believe the account relayed to him, apparently by PW2 (his wife), until he took the victim to hospital for medical examination. Be that as it may, we find it difficult to reconcile PW l's alleged doubt with the assertion that the appellant had already admitted the offence and apologized. Had such an admission truly been made, one would reasonably expect PW l to have acted upon it without hesitation. The persistence of doubt, in the face of an alleged confession, renders the prosecution narrative doubtful. Under the circumstances, we are persuaded to concur with Mr. Kilimuhana's submission that the purported oral confession appears not to have taken place. In addition, we also observed another unusual aspect in PW2's testimony. She stated that, she noticed a change in the appellant's tone of voice while he was carrying the victim, which prompted her to demand that he release the child. Upon taking the victim, she found her 12 without underpants and, on inspection, observed discharge, redness, and bruises in her private parts. Improbably, PW2 took no immediate action. She neither informed anyone nor sought assistance. Instead, she remained at home crying while waiting for her husband (PW1) to return. When PW1 came back and inquired why they appeared distressed, PW2 calmed him down and even served him dinner before disclosing what had allegedly happened to their four-year-old daughter at the hands of a person they trusted. At the outset, we wish to make it clear that we do not suggest that PW2 was obliged to react in any particular emotional manner, nor do we discount the fact that individuals respond differently to traumatic events. However, applying ordinary logic and common sense to the circumstances of this case, it is difficult to reconcile the degree of composure she exhibited, particularly her act of calming PW1 (her husband) and serving him food, with the gravity of the shocking discovery she claimed to have made moments earlier. Furthermore, PW2 testified that when she took the victim from the appellant, she found her without pants. She did not, however, state whether, prior to the appellant's arrival and his carrying of the victim, the child had been wearing pants. In the absence of such clarification, 13 the evidentiary link between the appellant's conduct and the alleged state in which the victim was found remains tenuous. Taken cumulatively, these circumstances considerably diminish the probative value of PW2's assertions and cast doubt on the reliability of her account. In view of the foreQoing, and in light of the inadequacies manifested in the evidence of PW1 and PW2, we are unable to agree with Mr. Kilimuhana's submission that the essential ingredients of the offence namely, age and penetration were duly proved. This is particularly so bearing in mind that the evidence of PW3, the victim s PF3 form (Exhibit P2) and the appellant's cautioned statement (Exhibit PI) have all been expunged from the record and we have further discounted the reliability and credibility the courts below had attached to PW1 and PW2. We therefore hold that the prosecution failed to prove the offence of rape against the appellant beyond reasonable doubt Having so found, it becomes unnecessary for us, in the course of reappraising the record, to consider whether the sentence of thirty years' imprisonment was properly imposed for the charged offence, as that issue has been overtaken by our determination on conviction above. 14 Consequently, the appeal is hereby allowed. The conviction is quashed, the sentence of thirty years' imprisonment is set aside, and we order the appellant's immediate release from prison custody unless he is otherwise lawfully held. DATED at DODOMA this 2n d day of March, 2026. Z. N. GALEBA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 2n d day of March, 2026 in the presence of the appellant in person, Ms. Caren Rwebangila, learned State Attorney for the respondent and Mr. Oscar Msaki, Court Clerk via virtual Court; is hereby certified as a true copy of the original. 15