John Robert vs Republic (Criminal Appeal No. 112 of 2021) [2026] TZCA 161 (27 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: NDIKA. J.A.. FIKIRINI. J.A. And ISMAIL, J.A.) CRIMINAL APPEAL NO. 675 OF 2023 JOHN ROBERT....................................................................... APPELLANT VERSUS THE REPUBLIC.................................................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Musoma) (Mtulva, J.) dated 13th day of April, 2023 in Criminal Appeal No. 112 of 2021 JUDGMENT OF THE COURT 13th & 27th February, 2026 ISMAIL, J.A.: The District Court of Bunda at Bunda, in which the appellant was arraigned, convicted him of rape and sentenced him to 30 years' imprisonment. His appeal against the conviction and sentence fell through as the High Court dismissed it for being barren of fruit. His quest for justice has seen him knock the doors of this Court. The prosecution's testimony, composed of five witnesses and two documentary exhibits informs that, at around 09:00 hours on 14th January, 2020, PW2, a 12-year-old girl who is a relative of the victim was at the victim's home. She walked into the kitchen where, to her utter i disbelief, she found the appellant in nudity, lying on top of the victim and having a sexual intercourse with her. The victim, who is described as a 14-year-old girl, a deaf and a dumb, had her legs lifted. Unable to sit up with what she had seen, PW2 rushed to her mother and broke the news. Subsequently, she reached out to PW3, the victim's relative, who rushed to the scene of crime. On arrival, PW3, met and confronted the appellant. The appellant confessed to the wrong doing, alleging that the devil got the better of him and induced him into committing the evil act. With the assistance of villagers, PW3 apprehended the appellant whose attempt to escape was thwarted, and conveyed him to the Village Executive Officer and later to Kibara Police Station. PW4, a police officer, testified that the victim was brought to the police station and issued a PF3 that facilitated medical examination to establish if the victim had been penetrated. As that was happening, the appellant who had since been conveyed to the police station, recorded a cautioned statement in which he allegedly confessed to the commission of the incident. The cautioned statement was admitted into evidence as exhibit PI. The medical examination was carried out by Dr. Paul Kidane, a clinician. His observations were filled in exhibit P2 which, though prepared by him, it was tendered by PW5, his colleague. 2 Noteworthy, the victim did not feature in the proceedings for what was stated by PW1, a sign language expert and teacher, that owing to her impairment, the victim, could neither speak nor hear, and that she could not communicate through a sign language or express herself in any way. The appellant's defence was largely a denial of any involvement in the alleged wrong doing. He alleged that the charges against him were trumped up, attributing the fabrication to a dispute over 11 months' unpaid wages that he was owed by an employer who he did not name. The trial court took the view that the prosecution had done enough to project the appellant's culpability. It convicted him of rape and sentenced him to the statutory custodial sentence. His seven-ground appeal to the High Court did nothing to convince the court that he was unblemished. It dismissed it and upheld the trial court's findings. His appeal before us is founded on 9 grounds of appeal. These grounds raise 4 areas of consternation. These are: 1. Legality of the cautioned statement (exhibit PI); 2. Credibility of the testimony of PW2; 3. According weight to the testimony of PW5; and 3 4. Reliance on hearsay evidence and failure to properly analyse and evaluate the evidence. The hearing before us saw the appellant, an unrepresented party, fending for himself. The respondent had a battery of attorneys in the names of Ms. Monica Hokororo, learned Principal State Attorney, along with Mr. Nico Malekela and Ms. Happiness Machage, learned State Attorneys. The appellant implored the Court to receive his grounds of appeal and consider them. He did not have anything useful to amplify on. Mr. Malekela chose to argue the grounds of appeal in clusters. Whereas grounds 1, 2 and 3 were argued in a combined fashion, ground 4 was argued separately. Grounds 5 and 8 were argued conjointly as he did in respect of grounds 7 and 9. Regarding ground 6, Mr. Malekela's plea was that the same should be disregarded as it was a new ground that raised matters of fact. Starting with the first cluster, the argument by the learned State Attorney was that, admission of the cautioned statement, exhibit PI, was flawed. He confessed that after the same had been recorded by a police officer, the recording officer did not read it out to the appellant. This, he said, was an infraction of the law. He urged us to expunge it. 4 On ground four, the contention by Mr. Malekela was that this ground is devoid of any merit. While leaping to the defence of PW2's testimony, the learned counsel argued that PW2 was an eye witness whose testimony cannot be doubted. It is why, in his contention, the appellant spurned the chance to cross examine her when she testified. That, he said, was tantamount to admitting the substance of his testimony. He considered this ground as baseless. In his submissions on grounds 5 and 8, Mr. Malekela was in concession that, looking at the circumstances of this case, PW5 was not a competent witness. He should not have testified as he did not attend the victim. He urged us to expunge the testimony of PW5. Regarding exhibit PI, the argument by the learned counsel is that this testimony was read during the preliminary hearing and that it should be spared. Finally on grounds 7 and 9, the contention by Mr. Malekela is that the argument that PW2's testimony was composed of hearsay account is hollow. He contended that, because of its failure to resonate, the trial court found it to be unmerited. With respect to his defence, the learned counsel was also of the firm contention that the defence raised nothing of substance. It is why the 1s t appellate court gave no weight to it, as manifested at page 88 of the trial proceedings. 5 He urged us to find no merit in the appeal and dismiss it. The appellant did not have anything to submit in rejoinder. He reiterated his earlier call to have his appeal allowed and set him free. We will start with a liner with respect to ground 6 of the appeal. We agree that this ground introduces matters of fact for which this Court, being the second appellate court, has not remit -see: Karim Seif @ Slim v. Republic [2019] TZCA 399. We, therefore, accede to Mr. Malekela's argument and discard this ground of appeal. Regarding the substantive matter, our starting point is on grounds 1, 2 and 3 which essentially raise the question of legality or otherwise of exhibit PI, the cautioned statement. The contention by the appellant is that the making of it compromised the requirements of the law which impose a duty on the recording office to certify that, after recording the statement, that he read it out to the appellant or that the appellant ascertained its correctness. Mr. Malekela has conceded to the procedural infraction, adding that, when that happens, the resultant consequence is to expunge it. We subscribe to the concurrent observation by the parties. Exhibit PI which appears at page 34 of the record of appeal reveals two things. One, that PW4 who recorded the statement did not certify that he read 6 the statement to the appellant or that correctness of the said exhibit was ascertained from the appellant after recording it. Two, the recording officer has purported to certify the statement under section 10 (3) of the CPA which is, in this respect, a wrong provision. We consider both of these observations to constitute a violation of the sections 58 (3) and (4) and 59 (5) and (6) of the CPA. As we held in Juma Omary v. Republic [2020] TZCA 798 the anomaly affects the authenticity of the statement and the consequence is to have it expunged. See also: Mereji Logori v. Republic [2013] TZCA 2256; and Christina Damiano v. Republic [2013] TZCA 227. We, as a result, find merit in the raised complaint and accede to the parties' unanimous prayer and expunge exhibit PI from the record. The next complaint relates to ground four of the appeal. It touches on the credibility of PW2. The contention is that the testimony of this witness ought to have been given a wide berth because there was no direct evidence to prove that the said witness saw the appellant raping the victim. We do not find any semblance of merit in this ground. PW2 has stated, quite elaborately, how she found the appellant in the middle of the act with the victim, when she stormed in the kitchen at the victim's 7 home. This testimony is found at page 13 of the record of appeal. Significantly, this testimony was not contradicted when the appellant was invited to cross-examine the witness. It is foolhardy, to expect that some other witness would be called to testify how PW2 saw the appellant committing the act. It is our firm view that PW2's testimony was an eye witness account which, in law, if not contradicted, can be sufficient basis on which to make a finding of guilt. We have accentuated this settled position in our numerous decisions. In Felician Joseph v. Republic, 2011 [TZCA] 152 we guided as follows: "It is a mundane truth that the criminal justice system relies heavily on eye witnesses to determine the facts surrounding criminal events. Eye witnesses may identify culprits, recall conversations, or remember other details. An eye witness who has no motive to He is a powerful form o f evidence for jurors, especially if the eye witness appears to be highly confident about his or her recollection. In the absence o f definitive proof to the contrary, the eye witness's account is generally accepted by the police, prosecutors, judges andjuries . " It is our conclusion that the appellant's complaint in this ground is unmerited and we dismiss it. 8 The next segment requires us to address the appellant's complaint on the regularity of adduction of the testimony by PW5 and exhibit PI that he tendered in court. Mr. Malekela has candidly conceded to the anomalous way in which the testimony of PW5 found its way into the record. The reason for his concession is that the provisions of section 257 (3) of the CPA were not conformed to. For clarity, section 257 (3) enjoins a trial court to explain to the accused person, in this case the appellant, the right that he has to summon and examine or make available for cross-examination the person who made the report that is to be tendered by a witness other than the maker of it. In the instant matter, this right, a hallmark of what a fair trial is, was not accorded to the appellant. We join hands with Mr. Malekela that PW5 had no business testifying while the appellant's right under section 257 (3) of the CPA was trampled. It follows that his testimony must and is hereby expunged. The question that follows immediately is, what of the PF3 (exhibit PI)? On this, we wish to align ourselves with our earlier decision in Rahim Isaka & Another v. Republic [2012] TZCA 290 in which we succinctly held: "To the extent that the PF3 was improperly admitted, as it were ; in contravention of the mandatory requirement o f section 240 (3) o f the Criminal Procedure Act, we are left with no other option than to discount and expunge the document from the record o f the evidence." We, in view of the foregoing, expunge exhibit PI and the ground of appeal constituting this complaint succeed. Grounds 7 and 9 raise two issues. The first criticizes admission of and reliance on PW2's testimony which he considered as hearsay evidence. This complaint was partly addressed when we dealt with ground 4 of the appeal. Our unflustered position is that the testimony of PW2 was direct and an eye witness account which is consistent with section 67 (1) (a) of the Evidence Act, Cap. 6 R.E. 2023. It is from a person who said she saw the incident. Regarding analysis and evaluation of evidence, our starting point is ascertainment of the rationale of having the evidence tendered in court analysed and evaluated. In normal parlance, analysis refers to a detailed study or examination of something in order to understand it more, while the term evaluation which comes from the verb to evaluate is the act of forming an opinion of the amount, value or quality of something about it (See: Oxford Advanced Learner's Dictionary, 7th edition). In relation to an adjudicator's duties, the two entail putting the testimony to scrutiny with a view to forming an opinion if such testimony supports the 10 contention raised either or both parties to the matter in court. In a criminal trial, this would involve ascertaining if the case for the prosecution has met the evidentiary threshold that can support the conviction. In the matter before us, the charges levelled against the appellant related to statutory rape. This offence is in contravention of section 130 (2) (e) of the Penal Code. To prove the offence, the testimony must establish two key ingredients. One, that the victim was penetrated and; two, that the victim is under eighteen years of age. The issue we are confronted with is whether the testimony adduced by the prosecution established these ingredients. While the testimony of PW2, which has emerged unscathed, has established that the appellant was found indulging in a sexual intercourse with the victim, an act which establishes penetration as one of the ingredients, this or any other surviving testimony has not said anything about the age of the victim. None of the methods through which age of the victim may proved has been called in question (See; Issaya Renatus v. Republic [2016] TZCA 218). In this case, neither the victim nor her parents, guardians, doctors or school teachers (had the victim been a student) were called to testify on the victim's age. li The necessity of proving the age of the victim has been emphasized in many of the Court's decisions and the conclusion drawn is that, failure to lead such evidence renders the prosecution's case unproven - see: Mwami Ngura v. Republic, Criminal Appeal No. 63 of 2014; Rwekaza Bernado v. Republic [2018] TZCA 478; Robert Andondile Komba v. Director of Public Prosecutions [2020] TZCA 277; and William Ntumbi v. the Director of Public Prosecutions [2022] TZCA 72. We take the view that, had the trial magistrate and the 1s t appellate court analysed and evaluated the testimony adduced by the prosecution, it would have realised that the case for the prosecution was droopily because it stood on only one limb. It would simply mean that glaring gaps existed in the testimonial account of the prosecution witnesses. But, as it were, this duty was not performed to the required perfection and we see a lot of plausibility in the appellant's contention in this complaint. Based on this, it cannot be said that his conviction was based on a solid foundation. As we move towards the conclusion, it behoves us to remind, once again, that proof of cases in criminal matters remains to be the duty of the prosecution, except where the law states otherwise. In none of any such situations would this duty be left in the hands of the courts. In Phiri 12 & Another v. The People (1973) ZR 47 the Court of Appeal of Zambia made the following incisive observation on the duty of the prosecution prove the cases that they prosecute, and the role that the courts must play: "The courts are required to act on the evidence placed before them. I f there are gaps in the evidence the courts are not permitted to fill them by making assumptions adverse to the accused. I f there is insufficient evidence to justify conviction the courts have no alternative but to acquit the accused, and when such acquittal takes place because evidence which could and should have been presented to the court was not in fact presented, a guilty man has been allowed to go free not by the courts but by the investigating officer." This is what has become of the instant matter. The prosecution, upon which the duty of proving case was bestowed, indulged in a "hit and hope affair", akin to what an ambitious footballer would do, by hitting a ball goalwards in the hope that it will elude all rival defence players and the goalkeeper and find its way into the net. This, in this trial, was done by placing evidence which was inadequate in some very essential respect. The deficiency left gaps which they expected that the trial court would fill. The inevitable consequence is to let the appellant go free. 13 It is in view thereof that we allow the appeal, quash the conviction, set aside the sentence and order the immediate release of the appellant from prison unless held for other lawful reasons. DATED at MUSOMA this 27th day of February, 2026. G. A. M. NDIKA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 27th day of February, 2026 in the presence of appellant in person and Jonas Kivuyo, learned State Attorney for the respondent via video link from Musoma Prison and NPS Office- Musoma respectively and Mr. Shabani Kanyai, Court Clerk; is hereby certified as a true copy of the original. 14