Frank Lazaro vs Republic (Criminal Appeal No. 765 of 2023) [2026] TZCA 180 (27 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: KEREFU, J.A.. KAIRO, 3.A. And NANGELA. J.A.^ CRIMINAL APPEAL NO. 765 OF 2023 FRANK LAZARO.......................................... ............................. APPELLANT VERSUS THE REPUBLIC......................................................................RESPONDENT (Appeal from the Decision of the Resident Magistrates' Court of Songwe at Vwawa) (Maqezi, PRM-Ext. Jur.^ dated the 09thday of June, 2023 in DC. Ext. Jur. Criminal Appeal No. 04 of 2023 JUDGMENT OF THE COURT 23th& 27th February, 2026 NANGELA, J.A. FRANK LAZARO, the appellant herein, was arraigned before the District Court of Mbozi, at Vwawa. His arraignment was in respect of a charge of rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap. 16 of the Revised Laws, (the Penal Code). The particulars of the offence were that, on diverse dates between January, 2021 to 06th June, 2021, the appellant, while at Ichenjezya area, within Mbozi District in Songwe Region, did have unlawful sexual intercourse with "PW5", a girl aged 15 years. When the charge was read over and explained to the appellant, who was thereafter, called upon to plead to the same, the appellant denied the charge. Consequently, the case proceeded to a full trial. In establishing its case, the prosecution relied on six witnesses and two exhibits. The witnesses for the prosecution were: Salome Clement Mwanduma (PW1), MG. 412232 Celetus Bangulos Sikamzube (PW2), WP. 11157 D/C Joy Queen (PW3), Ahmad Ramadhani (PW4), the Victim (PW5) and Salvatory Mgalla (PW6). The exhibits relied on were an attendance register (admitted into evidence as exhibit PI) and a PF3 (admitted into evidence as exhibit P2). For his part, the appellant testified as DW1 and called one witness, Elisha Esau Mkami, who testified as DW2. For a proper appreciation of this appeal, it is necessary to set out briefly the relevant facts as disclosed by the record of appeal. The evidence shows that, in January, 2021, PW5, a student at Vwawa Secondary School, commenced a romantic relationship with the appellant. It is common ground that, she subsequently absconded from both school and home. PW1, a teacher at the school, testified that, PW5 had been absent since April, 2021. An attendance register, tendered through PW1, was admitted in evidence as exhibit PI. PW1 stated that, 2 she informed PW6 of PW5's continued absence, and PW6 indicated that PW5's whereabouts were unknown. He was advised to report the matter to the police, which he did, although, the exact date of the report was not clearly established. PW6 testified that he continued searching for her. According to PW5, after leaving home and school in February, 2021, she went to live with the appellant. She alleged that, during the period of cohabitation, which lasted until 06th June, 2021, they engaged in sexual intercourse on several occasions. She further testified that, on 5th June, 2021, they went for a pregnancy test, which yielded a negative result. Following this, the relationship deteriorated, and on 06th June, 2021, the appellant allegedly asked her to leave on the ground that, she had falsely claimed to be pregnant. PW5 stated that, on the day she was expelled by the appellant (i.e., 06th June, 2021), she contacted PW6 by telephone and informed him of the circumstances. However, PW6 testified that she informed him on 08th June, 2021 and, thereafter PW6 reported the matter to the police and was accompanied by an auxiliary police officer (PW2) to effect the appellant's arrest. The appellant was subsequently taken to Vwawa Police Station, where an investigation file was opened and, PW3 commenced investigations into the alleged offence. In the course of her investigation, PW3 recorded a cautioned statement from the appellant, although it was not tendered in evidence. She testified that, among the persons she interviewed was PW4, a medical doctor who examined PW5. PW4 stated that, on 6th June, 2021, he examined PW5 upon receipt of a PF3. After conducting the examination, he completed the PF3, which was admitted in evidence as exhibit P2. His findings were that, PW5 had no bruises on her genitalia, but her hymen was not intact, indicating that she was no longer a virgin. Upon consideration of the testimonies of PW1, PW2, PW3, PW4, PW5, and PW6, together with exhibits PI and P2, the trial court found that the appellant had a case to answer. In his defence, the appellant testified as DW1. He denied having raped PW5 and raised a defence of alibi, stating that at the material time he was at Ilembo in Vwawa. He further stated that, at the time of his arrest, he was not found in the company of PW5. During cross- examination, he admitted knowing PW5 but denied knowing where she resided. He denied having cohabited with her or having accompanied her for a pregnancy test. He stated that, he had been informed that PW5 was married to a man whose identity he did not know. He maintained that, at the place where he was residing, there were other occupants, including his landlord. He also admitted that, It was PW5's father (PW6) who came to effect his arrest. DW2 testified that, the appellant was his tenant and that the tenancy commenced on 3r d February, 2021. He stated that, the appellant's room was situated behind his own and that anyone accessing it would have to pass by his residence. He further testified that, although, he travelled to Sumbawanga and later to Tukuyu for work-related matters, during the period in question, he was present he never observed the appellant cohabiting with any woman. Under cross-examination, DW2 stated that, he later learned that the appellant had been arrested on allegations of impregnating a schoolgirl. He further stated that, he knew the girl to be the wife of another man. He maintained that anyone entering the premises would first pass by his house and that, he would occasionally enter the appellant's room to wake him, as he had a tendency to oversleep. On none of those occasions, he said, did he find PW5 there. According to him, the only regular visitor to the appellant's room was the appellant's brother. At the close of the trial, the trial court evaluated the evidence and found that the prosecution had proved its case to the requisite standard. The appellant was accordingly convicted and sentenced to 30 years' imprisonment. Dissatisfied with both conviction and sentence, the appellant appealed to the High Court, but his appeal was dismissed. He has now appealed to this Court. The primary memorandum of appeal, filed on 3r d November, 2023, raised three grounds of appeal. A supplementary memorandum, filed on 4th February, 2026 raised two additional grounds. In total, therefore, the appellant raised five grounds of appeal. The appellant's five grounds of appeal may be conveniently summarized as here under: 1. The first appellate court failed to properly consider and evaluate the appellant's grounds o f appeal, thereby wrongly dismissing the appeal. 2. The first appellate court erred in law in upholding the conviction despite the prosecution's failure to prove its case beyond reasonable doubt, in that: (a) The evidence o f PW5 was uncorroborated, and no neighbour or relative was called to establish that the appellant and PW5 were ever seen cohabiting. (b) PW4's medical evidence did not establish penetration, as hymenal perforation alone does not constitute proof o f rape. 6 (c) The medical officer (Hosea) who allegedly examined PW5 was not called to testify. (d) PW6 did not tender the relevant Police Report Book (RB) extract (e) PW5's grandmother was not called to testify regarding PW5's alleged absconding from home and cohabitation with the appellant. 3. The first appellate court failed to properly consider and evaluate the appellant's defence. 4. The courts below erred in relying on the testimony of PW5, who was not a credible witness, particularly in view o f her delay in reporting the alleged offence. 5. The charge was defective for failure to specify the exact date o f the alleged offence, thereby prejudicing the appellants right to prepare his defence, including his alibi. When the appeal was called on for hearing, the appellant appeared in person. For the respondent Republic, it was Mr. Joseph Mwakasege, learned State Attorney, who appeared in Court. When invited, the appellant adopted his grounds of appeal and requested Mr. Mwakasege to first respond to them, reserving his right to furnish a rejoinder, if need be. Before we proceed any further, we find it apposite to restate that this being a second appeal, the Court should rarely interfere with concurrent findings of fact by the lower courts unless there is a misapprehension of the substance, nature and quality of the evidence occasioning a miscarriage of justice or resulting in an unfair decision. The above noted principle has been restated by the Court in a number of decisions. See, for instance: Director of Public Prosecution v. Jaffari Mfaume Kawawa [1981] T.L.R. 149, Jacob Mayani v. Republic [2020] TZCA 1744 (24 August 2020; TANZLII), to mention but a few. We shall, thus, be guided by that principle. In his submissions in response to the appellant's grounds of appeal, Mr. Mwakasege made it known that he was opposing the appeal. He addressed grounds one and three jointly and the remaining ones separately. Submitting on the first and third grounds, he maintained that they were devoid of merit. According to him, apart from addressing the grounds raised before it, the first appellate court also considered and analysed the appellant's defence. He maintained that, having done so, the first appellate court found that the appellant's defence was incapable of raising reasonable doubt in the prosecution's case, hence the dismissal of the appeal in its entirety. Finally, he invited us to examine pages 53 to 54 and 86 of the record of appeal and, relying on the decision of the Court in Marko Kivamba v. Republic [2025] TZCA 191 (13 March 2025: TANZLII), submitted that considering the defence and agreeing with it are two different things. We have, indeed, examined the record of appeal. The first and third grounds, which Mr. Mwakasege argued conjointly, raise two principal complaints: first, that the appellant's defence was not considered; and second, that the first appellate court did not address all the grounds of appeal raised by the appellant. We shall begin by examining whether the appellant's defence was ignored by the first appellate court, or even by the trial court. In essence, failure to properly consider the defence case, or focusing solely on the prosecution's evidence, constitutes a serious legal error. In Simon Aron v. Republic [2016] TZCA 939 (18 April 2016-TANZLII), the Court, relying on its earlier decision in Yustin Adam Mkamla v. R. Criminal Appeal No. 206 of 2011 (unreported), noted that: "...the failure by courts below to consider objectively the evidence o f prosecution and that of defence entitles this Court to interfere with resulting concurrent findings of fact We emphasized that the law is settled on the proposition that failure to consider the defence case is fatal and usually vitiates the conviction" The question, therefore, is whether such failure occurred in the present appeal as the appellant contends. We do not think so. In our view, as correctly asserted by Mr. Mwakasege, both courts had occasion to examine the appellant's defence. It is shown, at pages 53 to 54 of the record of appeal, for instance, that the trial court considered the appellant's defence. On those pages, the trial court observed that, the fact that PW5, when examined, was not found with bruises or pregnancy, as suggested by the appellant in his defence, did not negate the offence charged. Moreover, at page 88 of the same record of appeal, it is clear that the first appellate court noted and concurred with the trial court's evaluation of the appellant's defence. In Marko Kivamba v. Republic (supra), relying on its previous decision in David Gamata & Another v. Republic [2015] TZCA 362 (7 December 2015: TANZLII), the Court was emphatic that it is one thing to consider the defence case and quite another to accept it. We find that observation apt even in the circumstances of this appeal. We hold, therefore, that the appellant's defence was appropriately considered by both courts below. As earlier stated, the second limb of Mr. Mwakasege's submission, arising from grounds one and three, concerns whether the first appellate 10 court adequately addressed the appellant's grounds of appeal. Mr. Mwakasege argued that the first appellate court sufficiently dealt with the grounds contained in the petition of appeal found at page 57 of the record of appeal. He referred us to page 86 of the same record, in support of that contention. We have closely examined page 86 of the record of appeal. Essentially, when an appellate court receives an appellant's grounds of appeal, it is required to carefully consider and evaluate the findings of the lower court in light of the specific issues raised in each ground. See: Bahati Ludoviko v. Republic [2025] TZCA 76 (25 February 2025: TANZLII), relying on Nyakwama s/o Ondare @ Okware v. Republic [2021] TZCA 592 (21 October 2021: TANZLII) and Mwajuma Bakari v. Julita Semgeni & Another (Civil Appeal 71 of 2022) [2022] TZCA 266 (12 May 2022: TANZLII). In Bahati Ludoviko v. Republic (supra) the Court noted that: "... the appellate court is bound to consider the grounds o f appeal presented before it and in so doing, need not to discuss all o f them where only a few will be sufficient to dispose o f the appeal but it is bound to address and resolve the complaints of the appellant either li separately or jointly depending on the circumstances of each cas, e //[Emphasis added]. Two things are clear from the above excerpt. First, while an appellate court is bound to address the grounds of appeal laid before it, it is not obliged to address each of them if one is sufficient to dispose of the appeal. Second, an appellate court is not bound to address such grounds seriatim; it may do so either separately or conjointly. In the present appeal, it is the second approach which was adopted by the first appellate court, as it addressed the grounds conjointly. As such, we are in agreement with Mr. Mwakasege that, the appellant's grounds one and three are devoid of merit. We accordingly dismiss them. Next is ground five (5), which carries a complaint that the charge was defective for failure to disclose the specific date on which the alleged incident occurred. In his submissions, Mr. Mwakasege urged us to summarily dismiss this ground. He invited us to rely on the decision of this Court in Omary Amanzi v. Republic [2024] TZCA 1240 (11 December 2024: TANZLII). In the above-cited decision, a ground of appeal similar to the one under consideration was raised. In addressing it, the Court stated as follows: 12 "Our observation on this ground o f complaint is that, according to the particulars o f the offence, PW1 was allegedly raped on diverse dates 9 between July, 2019 and 02.02.2020. In her evidence PW1, is on record testifying that, she was raped by the appellant not once but on several occasions. That, the first time to be raped was in July, 2019 while the last time was in August, 2019. In that regard, it is our considered view that, since no certain date was mentioned when the rape in question was allegedly committed in the particulars o f the offence then, the statement that the rape was committed on diverse dates between July, 2019 and 02.02.2019 cannot be said to be in variance with PWl's evidence which was to the effect that, she was lastly raped in August, 2019. It is obvious that August 2019 is within the period between July, 2019 and 02.02.2020 stated in the particulars o f the charge". Based on the above excerpt from the previous decision of the Court, we think this ground of appeal need not detain us for long. We are in full agreement with Mr. Mwakasege's submission that the alleged defects were not defects in law. In the present appeal, PW5 was alleged to have been raped on diverse dates between January, 2021 and 6th June, 2021. As indicated in Omary Amanzi v. Republic (supra), framing the statement 13 of the offence in that manner cannot be regarded as a defect. We therefore find that the fifth ground of appeal is devoid of merit and we dismiss it. Next for our consideration is ground four of the appeal. The complaint therein is that PW5 was not a witness worthy of belief, her credibility being questionable. As may be discerned from the ground itself, the appellant's concern is that, PW5's testimony was dented by her failure to report the alleged rape at the earliest opportunity. In response, Mr. Mwakasege was emphatic that PW5, like the other prosecution witnesses, was credible. He submitted that, PW5 cohabited with the appellant for approximately six months, during which period PW6 had reported her as missing. He further contended that her failure to report the incident earlier did not negate the occurrence of rape. In support of his submission, he relied on the decision of this Court in Mahamudu Ally @ Muddy Chaga v. Director of Public Prosecutions [2026] TZCA 23 (3 February 2026: TANZLII), where, relying on Selemani Hassani v. Republic [2022] TZCA 127 (22 March 2022: TANZLII), the Court stated as follows: "However, we must hasten to say that the above principle must not be made to apply reflexively without having due regard to the particular 14 circumstances o f the case concerned. We think that while it can apply fairly unrestrictedly in respect of, say, cases involving property offences, it will not apply with equal force in cases concerning sexual offences where immaturity of the victim, death threats or shame associated with such offences may dissuade the victim from reporting the matter with promptitude". Based on the above excerpt, Mr. Mwakasege urged us to dismiss the fourth ground of appeal. We are in agreement with Mr. Mwakasege's submission that, the mere fact that PW5 did not report the alleged rape at the earliest opportunity does not, by itself, negate the occurrence of rape. However, the crux of the matter, in our view, is not whether PW5 was raped, but rather who raped her, and whether her assertion that, it was the appellant can safely be relied upon, having regard to the concerns raised about her credibility. Two important points need to be observed. First, when an issue relating to a witness's credibility is raised at the appellate stage, it must be approached with caution. This is because the trial court, which had the advantage of seeing and hearing the witness, is generally better placed to assess credibility. In Dickson Elia Nsamba Shapwata and Another v. 15 The Republic, [2008] TZCA 17 (30 May 2008: TANZLII), the Court held that: - "... A trial court's finding as to credibility of witnesses is usually binding on an appeal court unless there are circumstances on the record which call for a reassessment of their credibility" Second, it is settled law that every witness is entitled to credence and his or her evidence believed unless there are convincing reasons not to believe that witness- see: Goodluck Kyando v. Republic [2006] T.L.R. 363; Theobard Nzogera v. Republic [2017] TZCA 301 (14 December 2017) and Wambura Kiginga v. Republic [2022] TZCA 283 (13 May 2022). In the present appeal, both the trial court and the first appellate court reached a concurrent finding that PW5 was a credible witness, on whose evidence the conviction was grounded, having been regarded as a key witness. However, there is an exception to the general rule that a second appellate court will not interfere with concurrent findings of fact of the two courts below. In Mohamed Said v. Republic [2019] TZCA 252 (23 August 2019: TANZLII), the Court, relying on its previous decision in Jafari Mohamed v. Republic [2013] TZCA 344 (15 March 2013: TANZLII), held that: "An appellate court, like this one, will only interfere with such concurrent findings of fact only if it is satisfied that "they are on the face of it unreasonable or perverse" leading to a miscarriage o fjustice, or there had been a misapprehension of the evidence ora violation o fsome principle o f law: see, for instance, Peters v Sunday Post Ltd. [1958] E.A. 424: Daniel Nguru and Four Others v. R., Criminal Appeal No. 178 o f 2004, (unreported); Richard Mgaya (supra), etc." . In the present appeal, it is necessary to consider whether the two courts below rightly assessed the credibility of PW5, who was regarded as a key witness in the prosecution's case. In evaluating credibility, a court considers, among other factors, the internal consistency of the witness's testimony and its consistency with the totality of the evidence, including that of other witnesses for both the prosecution and the defence. Material inconsistencies, particularly when contrasted with forthright and consistent defence evidence, may significantly undermine a witness's credibility. 17 PW5 testified that she was living with her grandmother and, that in February, 2021 she absconded and went to cohabit with DW1 (the appellant). However, PW6, her father, stated that she was brought home after he discovered that her attendance at school was irregular. Although, the exact timing is unclear, this creates a discrepancy: if PW5 absconded from school and allegedly cohabited with DW1, was she under the care of her grandmother, as she claimed, or PW6? Put otherwise, did the cohabitation begin when she was living with her grandmother or with PW6? Further, the record of appeal shows that, PW5 allegedly absconded from school and home in February, 2021 and went to cohabit with DW1 (the appellant). PW6 reported her, as missing to the police only in April, 2021, after being advised to do so by PW1, approximately two months after the alleged abscondment. PW5, however, stated that, immediately after the appellant allegedly expelled her, she informed PW6, who then promptly reported the matter to the police. This raises the question whether PW6 was aware of PW5's whereabouts earlier, and if so, why he delayed reporting her missing. This discrepancy casts doubt on the reliability of both PW5's and PW6's accounts. Of additional concern, during cross-examination (page 26 of the record of appeal), PW5 stated that, the appellant did not rape her, contradicting her chief testimony that she had had sexual intercourse with him. Moreover, her claim that she cohabited with the appellant from February to 6th June, 2021 is contradicted by the testimony of DW2, the appellant's landlord. DW2 testified that the tenancy he had with DW1 began on 3r d February, 2021, and that from that time until April, 2021, he never observed the appellant cohabiting with any woman. He further stated that any visitor would first pass by his main house and that he occasionally entered the appellant's room to wake him. If PW5 had indeed cohabited with the appellant, during that period, it is reasonable to expect that, she would have been seen by DW2. This raises the question of whether her claim is compatible with ordinary human experience. In essence, a court does not accept a version of events merely because it is possible. Rather, the court relies on evidence that supports a conclusion that is reasonably probable when judged against ordinary human experience and logic. As stated in R v. Hodge (1838) 2 Lewin 227, evidence must be consistent not only with possibility, but also with reasonable inference based on common experience. 19 From our assessment of PW5's testimony, considered in the context of DW2's evidence, we do not find her account to accord with any reasonable inference based on common sense and logic. We take on-board the wisdom stated by this Court in Mohamed Said v. Republic (supra) that: "Given the tricky nature o f the circumstances of this case, we have deemed it necessary to make some observations pertaining to the need to exercise care in handling cases of sexual offences. To begin with, the cautionary statement of Lord ChiefJustice Mathew Hale made in the 17th Century seems to have become a thing o f the past. The Lord ChiefJustice stated in People i/. Benson , 6 Cal 221 (1856), that rape: "is an accusation easily to be made and hard to be proved and harder to be defended by the party accused, though never so innocent'". We are alive to the fact that, in line with the holding of this Court in Selemani Makumba v. Republic [2006] T.L.R. 379, the best evidence of rape ordinarily comes from the victim. See also Magai Manyama v. Republic [2015] TZCA 374 (3 December 2015: TANZLII). However, the Court issued a word of caution in Sikujua Deogratias Makamba @ Siku v. Republic [2025] TZCA 289 (24 March 2025: TANZLII), relying on its 20 earlier decision in Abiola Mohamed @ Simba v. Republic [2021] TZCA 632 (2 November 2021: TANZLII), that: "There is a need to subject the evidence of the victim to scrutiny in order for courts to be satisfied that what they testify is nothing but the truth. The testimony o f the victim ofsexual offence should not be taken as gospel truth but has to pass the test of truthfulness. It is only through this litmus test that courts will ensure that only deserving offenders are kept behind bars". See also: Mohamed Said v. Republic (supra), Said Hamis Mchanjama v. Republic [2024] TZCA 449 (12 June 2024: TANZLII) and Salum Rabii Kilimile v. Republic [2025] TZCA 632 (26 June 2025:TANZLII). Considering the above-cited authorities, it is clear that, even if the best evidence in cases of rape comes from the victim, if such a key prosecution witness is found to be unreliable, and there is no other dependable evidence, it cannot be said to be safe to base a conviction on that evidence. In the present appeal, since PW5's testimony is found to be unreliable, and she was the key witness, the prosecution's case cannot be said to have been proved to the hilt. Where the case is not proved to the hilt, a conviction cannot be sustained. In light of the substantial doubts arising from the testimonies of PW5 and PW6, we are not satisfied that the evidence is sufficiently reliable to support a conviction. We therefore consider it unsafe to rely upon it. The fourth ground of appeal thus has merit, and we uphold it Having so held, and since this ground is sufficient to dispose of the appeal, we find no reason to address the remaining ground, namely ground two. Accordingly, we allow the appeal, quash the conviction and set aside the sentence. We order the appellant's immediate release, if he is not being held for another lawful cause. DATED at MBEYA this 27th day of February, 2026. Judgement delivered this 27th day of February, 2026 in the presence of the Appellant in person, Ms. Mwajabu Tengeneza, learned Principal State Attorney for the respondent/Republic via virtual court and Ms. Christina Mwanandenje, Court Clerk; is hereby certified as a true copy of the priglnaJL R. J. KEREFU JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL i j ■ J 1 W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL