Juma Rajabu vs Republic (Criminal Appeal No. 937 of 2023) [2026] TZCA 140 (26 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA ( CORAM: GALEBA, J.A.. MASOUP, 3.A. And FELESHI, 3. A.) CRIMINAL APPEAL NO. 937 OF 2023 JUMA RAJABU ................ .............. ..................... ......... .....APPELLANT VERSUS THE REPUBLIC .................. ............... ...... ............... ..RESPONDENT (Appeal from the Decision of the High Court of Tanzania, at Dodoma) ( Khalfan, J.1 dated 28th day of November, 2023 in DC Criminal Appeal No. 89 of 2022 JUDGMENT OF THE COURT Iff* & 2ffh February, 2026 MASOUP. J.A.: The appellant was aggrieved by the decision of the High Court which upheld his conviction for the offence of rape contrary to sections 130 (1), (2) (e), and 131 (1) of the Penal Code, Cap. 16 and the offence of impregnating a school girl contrary to section 60 A (3) of the Education Act, Cap. 353, and the sentence of 30 years imprisonment for each count imposed on him which were ordered to run concurrently. He raised six grounds which in their totality boiled down to the issue whether the prosecution proved the case against the appellant beyond reasonable doubt. 1 At the hearing of this appeal, the appellant appeared in person unrepresented, whereas Ms. Elizabeth Barabara, learned Senior State Attorney assisted by Mr. Nehemia Kilimuhana, learned State Attorney represented the respondent Republic. At the outset, the appellant informed the Court that, he has nothing to elaborate on his grounds which he adopted as his submission, but would rejoin, if need be, after the submission by the respondent. Ms. Barabara and Mr. Kilimuhana's submissions were brief and focused on the issue whether the prosecution evidence proved the offences committed by the appellant on the required standard. Mr. Kilimuhana, on reflection, outrightly admitted that, the DNA report, exhibit PW5A, was wrongly admitted in evidence as there is no evidence showing that, the samples involved were all taken and conveyed to the Government Chemist in accordance with the law. Further that, the one who collected the samples from the appellant, the victim and the victim's baby girl was not called as a witness. In the absence of the evidence which would have been given by such a witness, it meant that, one cannot be sure that all procedural requirements of extracting, collecting and conveying the samples for 2 analysis were adhered to in accordance with the law. He, thus, called upon the Court to expunge such exhibit from record. Ms. Barabara in particular argued that, notwithstanding the expungement of the DNA report, exhibit PW5A, the remaining evidence of PW1, the victim, then aged 16 years, the best evidence in rape cases, at pages 29 to 31 of the record of appeal, which is corroborated by the evidence of PW2, Happy Kijugu, the victim's mother at page 32 through 33 of the same record; PW3, Aminiel Kalambani Philipo, the victim's school teacher, at pages 34 through 36 who tendered attendance register, exhibit PW3A; and PW4 Prinde Wilfred Mrema, the medical doctor, at page 37 through 38 of the same record who tendered PF3, exhibit PW4A, establishes that, the victim was raped and impregnated by the appellant. Going by the particulars of the charge with a view to showing how they were proved by the prosecution, Ms. Barabara pinpointed the allegation that the appellant was faced with; in the first count, that on unknown date of September, 2020, at Ilongero village, Ilongero ward, within the district and region of Singida, according to Ms. Barabara, the appellant, then a tenant in the house where the victim resided with her parents, did have carnal knowledge of PW1, 3 the victim, then a girl aged 15 years and a standard seven pupil at Ilongero Primary School. She added that, in respect of the second count, the allegation was that, on unknown date of September, 2020, at the same place as shown above, the appellant did impregnate the said victim who was then a standard seven pupil. In relation to the above allegation, Ms. Barabara contended that, PW1 was loud and clear as to how the appellant, then a tenant in their house, and boasting to be a traditional healer, used to carnally know her in his room on the pretext that he was treating her as she had chest and stomach complications and how he threatened to bewitch her and his mother if she dared tell anybody about the incident. It was, as testified by PW1, towards the end of September, 2020. PW1 also testified, according to the learned Senior State Attorney, that she, thereafter, on 15th October, 2020 missed her menstruation period, and was, eventually, on 3r d December, 2020 clinically tested, and was proved to be pregnant. Consequently, the matter was reported to Police whereby PF3 was issued and the related processes followed. PW1 testified to have given birth on 21s t June, 2021 to a baby girl. In Ms. Barabara's viewpoint, the foregoing 4 testimony of PW1 is, in all fours, corroborated by the evidence of PW1, PW3, and PW4. Clarifying her viewpoint on the corroboration of the testimony of PW1, Ms. Barabara had it that, PW2 confirmed that PW1 was then a minor aged 15 years, as she was born on 18th February, 2005. PW2 added that, PW1 was then a standard seven school girl, as was equally confirmed by PW3, the victim's teacher, and the attendance register, exhibit PW3A. PW2, further, confirmed the testimony of PW1 that, the appellant, known as a witch doctor, was their tenant in their house between February and November, 2020 which is within the period of the commission of the two offences. PW2 also testified on her suspicion that PW1 was pregnant, how she took her for clinical test and found to be pregnant as was also proved by PW4 and PF3, exhibit PW4 A. Upon being probed by PW2, PW1 disclosed that the appellant was responsible for the pregnancy, but she was afraid to disclose what had happened because of his scary threats of killing her and her mother by witchcrafts. Besides the testimony of PW2, the testimony of PW4 and exhibit PW4A, Ms. Barabara added, proved that the victim had been raped and was, when clinically tested by PW4, found to be 3 5 months pregnant. She added that, the complained delay in reporting the incidence of rape does not affect the credibility of the victim in view of her immaturity, and the appellant's death threats. In support of the latter argument, she relied on Mwita Isombe @ Sam v. Republic [2024] TZCA 1239. Winding up her submissions, Ms. Barabara, referred us to the case of Juma Panduji v. Republic [2024] TZCA 1146 with respect to elements that must be established to prove the offence of statutory rape. She mentioned them as, firstly, the victim was under 18 years of age; secondly, the victim was sexually penetrated; and thirdly, the offender is the one responsible. With respect to the case at hand, Ms. Barabara concluded that, all elements of rape and impregnating a school girl were proved to the hilt. She invited us to find that the appeal is devoid of merit. She, additionally, cited to us, Juma Juma v. Republic [2025] TZCA 389. On his part, the appellant maintained that, he was innocent. He contended that, the age of the victim was not proved as a clinic card of PW1 was not tendered in evidence. In addition to that, he complained of the evidence of DNA. Specifically, he stated that the DNA report which was relied on by the two lower courts had nothing 6 to do with him as the name of the alleged culprit in that report is not his. He urged the Court to find merit in his appeal and set him free. In resolving the issue on whether the prosecution proved the case beyond reasonable doubt, we examined the concurrent findings of the two lower courts against the backdrop of the evidence on record and the rival submissions by both sides. Since this Court is a second appellate Court which should not interfere with the concurrent findings of facts by the lower courts unless it is proved that there are misapprehension of evidence, misdirection or non-direction, violation of law or procedure and miscarriage of justice, the question is whether there is anything raised by the appellant entitling us to disturb the concurrent finding by the two lower courts that the prosecution case was proved to the required standard. As regards the DNA test results, we are satisfied that the report is not supported by any evidence showing how the law was complied with regarding extraction and collection of samples and conveying of the same to the Chief Government Chemist Laboratory for analysis. With this anomaly which amounted to a violation of law, we agree that the evidence relating to the DNA and the relevant exhibit was wrongly admitted in evidence and ought not to have been relied upon 7 by the two lower courts. We, accordingly, expunge exhibit PW5 A from the record. While the appellant seemed to suggest that the remaining evidence could not be said to have proved the case against him beyond reasonable doubt, Ms. Barabara is of a different position. She is convinced that, the remaining evidence, after the expungement of exhibit PW5A, sufficiently prove the case against the appellant on the required standard. Starting with the age, we find from the evidence of PW1, the victim that, she was 15 years when the incident occurred and was a standard seven pupil. This piece of evidence is supported by the evidence of PW2 who is the victim's mother and PW4, the doctor who clinically examined the victim and filled exhibit PW4A. The evidence emerging coherently from all these witnesses has it that the victim was born on 18th August, 2005, and was a school girl aged 15 years old when he was raped sometime in September, 2020. In spite of the above evidence, there is no any other evidence on record suggesting otherwise. We took effort, for example, to examine the testimony of the appellant at the trial on whether he raised in his defence anything that raised doubts on the age of the victim. We did not, however, find anything of relevance. In the circumstances, the victim's clinic card, which the appellant complained about, was not, in the circumstances, needed to prove the victim's age. Be that as it may, the age of the victim was amongst facts which were not disputed if we are to go by the memorandum of agreed facts found at page 12 of the record of appeal. We, forthwith, dismiss the complaint that, the victim's age was not proved to the required standard. See for instance, Juma Juma (supra)relied on by Ms. Barabara, as well as, Yusuf Akandu v. Republic [2024] TZCA 485; and Mwalimu Jumanne v. Republic [2021] TZCA 193. On whether the victim, then aged 15 years, was raped by the appellant, the evidence is from the victim herself found at pages 29 through 31 of the record of appeal. The evidence graphically narrates how the incident happened, right from when and how the appellant, then a tenant in their house, used to lure her into having sexual intercourse with him in the pretext of treating her and why she found it hard to disclose the incident to PW2 or anyone else. In relation to how the victim was lured and how the incident was done and the victim threatened not to disclose the incident to any one let alone her mother, PW1 testified thus: 9 "When I return home, [the appellant] took me to his room and told me "twende- nikakupe dawa nyingineWe entered his room. ... he told me "dawa nyingine napaka kwenye uume wangu" .... He told me to come so as he can put that medicine in my vagina "njoo nikuweke huko". I refused but he forced me and he threatened me. .... I refused but he held me and removed my clothes, tight, and underwear. I was wearing a gown,....he pulled it up. .... he put me on the wall and held me there. He took his penis and inserted in my vagina. I felt bad and "majimaji meupe yakatoka"in my vagina. He then told me to go. I took my clothes and went to my room and slept ..... On 15/10/20201 did not see my days." The above evidence is corroborated by that of PW2. It is clearly in her evidence that, upon being found to be pregnant, PW1 told her that it is the appellant who had raped her. It is also in the evidence of PW2 that she went as far as telling her how the appellant used to lure her in the pretext of treating her. She also told PW2 that, the appellant threatened to kill her and PW2 by using witchcraft if she dared tell her what he had done to her. The evidence of PW4, the 10 medical doctor, also proved the fact that the victim was carnally known and that she was then three months pregnant when the clinical examination was conducted on 3r d December, 2020. Having looked at the above evidence in light of the testimony of the appellant, we could not, we must admit, find anything raising doubts on the evidence of the prosecution witnesses. It is, particularly so, with the testimony of PW1, which is, in the circumstances, the best evidence. PW1 was a credible and reliable witness and was coherent and consistent in what she was testifying about which did not conflict with what emerged from the other witnesses. The delay in disclosing the ordeal she went through, which is now being complained about by the appellant, cannot, in view of her age and the threats by the appellant, negatively affect her credibility and reliability as the best witness. Similarly, we did not find anything in the appellant's defence that dents the corroborative effect of the testimonies of PW2, and PW4. We are thus satisfied that, the evidence of PW1, PW2 and PW4 in particular, established that, the victim was indeed raped and that the appellant was the perpetrator. On whether it is the appellant who impregnated PW1, the two lower courts in their concurrent finding relied heavily on the DNA 11 report, exhibit PW5 A which we have herein expunged. Thus, the only evidence left is from PW1, the victim; PW2, the victim's mother; PW3, the victim's school teacher and attendance register, exhibit PW3A; and PW4, the medical doctor and PF3, exhibit PW4A. The cumulative effect of the evidence of such witnesses and exhibits establish only that, the victim was, indeed, a school girl; that, she was impregnated; and that she took a pregnancy test on 3r d December, 2020 whose result was positive for a three months pregnancy. The lingering question is whether it is the appellant who impregnated PW1 after having sexual intercourse with her on unknown date of September, 2020. In relation to this question, we found that, PW1 did not testify that she had not been with any other man other than the appellant around that period. The latter is, in the circumstances of the case, consistent with the fact that it is not in the PWl's evidence that, her encounter with the appellant was the only experience of being sexually harassed by a man because even her PF3, exhibit PW4A did not disclose what PW4 observed on her vagina. It is equally not certain from the prosecution that, after the incident of rape on unknown date of September, 2020, PW1 had her pregnancy test at school just before she completed school on 8th 12 October, 2020. This evidence was crucial in determining whether it was the appellant who impregnated PW1. Whereas PW1, when cross- examined, said that she had a pregnancy test at school and tested negative, PW3 denied that such a test was taken. The obvious contradiction arising from the testimonies of those witnesses in cross- examination, regarding the issue of whether the victim took a pregnancy test which is relevant to the allegation that the appellant impregnated PW1, was not cleared up by the prosecution during re examination. In so far as such a contradiction related to an important piece of evidence which was not in the examination in chief of the prosecution witnesses, it raises doubts in the prosecution's case. Since the contradiction was not cleared up by the prosecution during re examination, it must, we think, be concluded that the prosecution failed to prove that it is the appellant who impregnated PW1. For the above reasons, we partly allow the appeal by quashing the conviction in relation to impregnating a school girl contrary to section 60 A (3) of the Education Act (supra), and setting aside the relevant sentence of 30 years imprisonment imposed on the appellant. On the other hand, we find that, the appeal against the conviction of rape contrary to sections 130 (1), (2) (e), and 131 (1) of the Penal 13 Code (supra) and the relevant sentence of 30 years imprisonment imposed on the appellant is devoid of merit and we dismiss it in it is entirety. We, thus, uphold the conviction and the sentence of 30 years imprisonment imposed on the appellant in respect of the offence of rape. DATED at DODOMA this 25thday of February, 2026. Z. N. GALEBA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 26th day of February, 2026 via virtual Court, in the presence of Appellant in person, Mr. Nehemia Kilimuhana, learned State Attorney for the Respondent/Republic and Mr. Oscar Msaki, Court Clerk; is hereby certified as a true copy of the original. [NYWAFU ■ PUTY REGISTRAR COURT OF APPEAL 14