Said Jumanne @ Tembo vs Republic (Criminal Appeal No. 169 of 2023) [2025] TZCA 1166 (24 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: SEHEL. 3.A.. MAKUNGU. 3.A. And FELESHI. J.A.^ CRIMINAL APPEAL NO. 169 OF 2023 SAID JUMANNE @ TEMBO .................... ......... ........ ................ APPELLANT VERSUS THE REPUBLIC.............. ....................... ................... ............ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) ( lig a n g a i) dated the 26th day of August, 2022 in DC Criminal Appeal No. 145 of 2021 JUDGMENT OF THE COURT 3rd & 24th October, 2025 MAKUNGU, J.A.: In the District Court of Monduli, the appellant, Said Jumanne @ Tembo, was charged with the offence of rape contrary to sections 130(1) (2) (e) and 131(1) of the Penal Code. It was alleged by the prosecution that, on 3r d April, 2017 at Mlimani area, within Monduli District in Arusha Region, the appellant had carnal knowledge of a girl aged fourteen (14) years. For the sake of protecting the alleged victim's privacy we shall refer to her as "victim" or X PW1'. The appellant denied the charge and as a result, the case proceeded to a full trial. In proving the charge, the prosecution relied on the evidence of six witnesses and three documentary exhibits. The victim who testified as PW1 gave an account of how it all started. She testified that, on 3r d April, 2017 she boarded a minibus in Arusha to Monduli. She was unfamiliar with the area and asked the appellant to drop her off at Waya. However, the bus returned to Arusha after stopping at Duka bovu. The appellant and the driver left PW1 alone in the locked bus for several hours after all other passengers had left. Later that evening, they returned and travelled to Monduli with new passengers. Upon arrival, the appellant convinced PW1 that it was too late to take her home and offered to let her stay at his mother's house. Instead of taking her to his mother's house, the appellant led her to a Playground where he threatened to strangle her if she screamed. He then raped her. The victim escaped and sought refuge at a nearby house belonging to one Shose Maleo (PW5). PW5, who found the victim distressed, dirty and bleeding, sheltered her and reported the incident to the Village Executive Officer (VEO) and her brother in-law (PW2). The VEO then took the victim to the police the next morning. A medical examination was conducted by Dr. Yona Senzota (PW4) on 5th April, 2017 who detected bruises in PWl's vagina and found out that she had lost her virginity. PW4 tendered the PF3 which was admitted in evidence as exhibit P2. In his defence, the appellant admitted that the driver, Micheal Elias, left PW1 with him on the fateful day. However, he claimed that the victim run away while he was shopping. He denied any involvement in the commission of the offence. He thus prayed the trial court to dismiss the charge laid against him. In convicting the appellant, the trial court relied on the testimony of PW1 whose evidence was corroborated by PW2, PW3, PW4, PW5 and PW6. It found that the prosecution proved the charge against the appellant to the hilt. Hence, the appellant was found guilty, convicted and sentenced to imprisonment term of thirty years. Aggrieved, the appellant unsuccessfully appealed to the High Court where the trial court's conviction and sentence were upheld. Still aggrieved, the appellant has preferred this second appeal. In the memorandum of appeal, the appellant raised fifteen (15) grounds and essentially, they raise the following issues; 1. That, the identification evidence was not watertight. 2. That, the prosecution witnesses were incredible and unreliable. 3. That, the cautioned statement, exhibit P3, was wrongly relied to base the conviction. 3 4. That, the evidence in exhibit P5 was admitted in violation of section 34B (2) f) of the Evidence Act. 5. That, the persecution did not establish its case to the required standard. Ahead of the date of hearing, the appellant had presented written arguments to support some grounds in the memorandum of appeal, which he adopted. The appellant appeared in person and had no legal representation. On the other hand, Mses. Janeth Sekule and Janeth Masonu, both learned Senior State Attorneys teamed up to represent the respondent, Republic. When given an opportunity to argue his appeal, the appellant adopted his grounds of appeal as well as his written arguments and prayed to be considered and the appeal be allowed. On taking the floor, Ms. Masonu from the outset, declared their stance that they were opposing the appeal. Nonetheless, before starting to respond to the grounds of appeal, she first pointed out some of the grounds which she termed to be new ones on account that, they concern factual matters which did not feature in the first appeal and hence, not deliberated and determined by the first appellate court. She pointed out ground 3. It was her argument that, since the said ground was not deliberated and decided upon by the first appellate court, it was improperly before the Court as it lacked the requisite jurisdiction to handle it. She thus urged us not to entertain it because, as a principle, matters which were not dealt with in the first appeal, cannot be canvased in a second appeal unless they involve points of law. With regard to the first issue, Ms. Masonu disputed the complaint by the appellant that he was not properly identified. She referred us to the testimony of PW1 found at pages 59 to 60 of the record of appeal and argued that the appellant was properly identified as he was familiar to PW1 because they both were together the whole day of the incident. She added that the evidence of PW1 was corroborated by the evidence of PW2, PW3 and PW4. It was her further argument that, since the appellant did not cross-examine the said witnesses on that aspect, it was an assurance that he was properly identified. As such, she submitted that PW1 was credible and reliable. She thus urged us to dismiss this issue for lack of merit. On the second issue, Ms. Masonu briefly submitted that the prosecution witnesses were credible and reliable and thus, their evidence managed to sustain the appellant's conviction for rape. On the third issue, the learned Senior State Attorney submitted that the record of appeal shows that the appellant's statement was made well within the legal timeframe. However, it was liable for expungement due 5 to its defective certification and also was taken in the presence of two other police officers which made it inadmissible in evidence. Therefore, she supported the move taken by the first appellate court to expunge it on the record. On the fourth issue, Ms. Masonu submitted that the prayer to rely on the statement of Micheal Elias who could not have been traced was made in accordance with the law as seen in the record of appeal that there was sufficient notice. She referred us to page 96 of the record of appeal where PW6 testified that he went to find him but was told by the ten-cell leader that the witness is no longer residing in that village. Therefore, the effort was made, she added. She prayed this issue to be dismissed. On the last issue, the learned Senior State Attorney replied that the prosecution proved the offence beyond reasonable doubt. She supported the findings of both two lower courts that the prosecution proved its case against the appellant to the required standard. She argued that, in convicting the appellant, the trial court relied on the testimony of PW1 which was corroborated by the evidence of PW2, PW3, PW4, PW5 and PW6. She submitted that the prosecution had to prove first the age of PW1 which was proved by PW3 that PW1 was born on 15th February, 2004 as shown in her clinic card which was admitted as exhibit PI. PW1 proved penetration which was supported by the evidence of PW4 as shown in the PF3 which was admitted as exhibit P2. Although the appellant claimed that the said exhibit P2 was issued two days after the incident but that delay did not affect the strength of the evidence. The appellant raised the issue of contradiction in the testimonies of the prosecution witnesses that PW1 and PW2 told the trial court that the victim was taken to the hospital on 4th April 2017, while PW5 stated that he received the victim at the hospital on 5th April 2017. The contradiction of dates, she said, is due to the recollection of this witness PW5. Therefore, the contradiction does not go to the root of the case. In that regard, Ms. Masonu stressed that the prosecution case was proved beyond reasonable doubt and urged us to dismiss the appeal in its entirety. In rejoinder submission, the appellant did not have much to say other than urging us to consider his grounds, allow the appeal and set him at liberty. On our part, having carefully considered the grounds of appeal, the submissions made by the parties and the record before us, the main issue for our determination is whether the appellant's conviction was based on strong prosecution case. Since this is a second appeal, we take cognizance of the settled law that the Court should not interfere with the concurrent findings of facts, unless the courts below have misapprehended the substance, nature and quality of such evidence which resulted into unfair conviction-see Director of Public Prosecutions v. Jaffari Mfaume Kawawa, [1981] T.L.R. 149; Mussa Mwaikunda v. The Republic, [2006] T.L.R. 387 and Wankuru Mwita v. Republic, [2011] TZCA 483. Specifically, in Wankuru Mwita (supra) the Court stated that: - "... The law is well-settled that on second appeal\ the Court will not readily disturb concurrent findings o f facts by the trial court and first appellate court unless it can be shown that they are perverse, demonstrably wrong or dearly unreasonable or are a result o f a complete misapprehension o f the substance , nature or non direction on the evidence; a violation o f some principle o f law or procedure or have occasioned a miscarriage o fjustice ." We shall be guided by the above principle in disposing this appeal. Moving to the merit of the appeal, we wish to begin with the point raised by Ms. Masonu pertaining to ground 3 of appeal that the same is new as it was not canvassed by the first appellate court. Having examined the said ground, we are in agreement with her that the said ground is new and should not have been raised at this stage. There is a long list of authorities on this point, some of them include, Abdul Athuman v. Republic [2004] T.L.R. 151, and Sadick Marwa Kisase v. Republic, (Criminal Appeal No. 83 of 2012) [2013] TZCA 420. In Sadick Marwa Kisase (supra) the Court emphasized that: - "The Court has repeatedly held that matters not raised in the first appeal cannot be raised in a second appellate court." In this regard, this Court will not entertain the said ground of appeal for lack of jurisdiction. With regards to the first issue, having gone through the evidence on the record and the submissions made by both parties, we are settled that the appellant was properly identified by PW1 as the person who committed the depraved sexual act on her. To arrive to this conclusion, we have taken into account that PW1 and the appellant were familiar with each other as they were together the whole day of the incident. This fact was also admitted by the appellant himself at page 107 of the record of appeal. It was on the record that, there was no dispute that the appellant met PW1 in a minibus that she had taken, took her to Monduti instead of Waya where she was going. On arriving at Monduli since it was night, the appellant took her around teacher's collage street where he raped her. There is also no doubt that before the commission of the said offence, PW1 managed to know the appellant with his nick name of Tembo thus allowing PW1 to know the appellant properly. It is most significant that PWl's evidence of identification was not controverted as the appellant shielded away from cross-examining her on that aspect. It is trite law that failure to cross-examine a witness on an important matter implies the acceptance of the truthfulness of the witness's evidence-see Ismail Seleman Nole v. Republic/ [2014] TZCA 285. We are however, mindful of the principle in the celebrated decision of the Court in Waziri Amani v, Republic [1980] T.L.R. 250 that visual identification should only be acted upon after all possibilities of mistaken identity have been eliminated. In the instant case, we are satisfied, based on the circumstances, that there was no possibility of a mistaken identification because PW1 and the appellant knew each other prior to the commission of the offence. As such, we agree with Ms. Masonu that the appellant was properly recognized by PW1 as the person who raped her. On the second issue on credibility of prosecution witnesses, in particular PW1, it is on record that, immediately after the incident, PW1 narrated the incident to PW5 naming the appellant as an offender. The fact that PW1 named the appellant at the earliest, lends credibility to her 10 testimony assuring a positive visual identification consistent with our previous decisions including Marwa Wang'iti Mwita and Another v. Republic [2002] T.L.R. 39 where we stated that: 'The ability o f a witness to name a suspect at the earliest opportunity is an important assurance o f his reliability f in the same way as unexplained delay or complete failure to do so should put a prudent court to enquiry . "[Emphasis added]. Being guided by the above authority, it is our considered view that the two lower courts were correct to find that PW1 was a truthful and credible witness. Thus, we find no cause of interfering with the concurrent finding of the courts below on this matter. We therefore find the second issue unmerited and we hereby dismiss it. On the cautioned statement, which is the third issue, the appellant submitted that it was wrongly relied upon to base the conviction. Ms. Masonu supported this issue adding that the said exhibit was expunged by the first appellate court for being defective. It is clear from the record that the appellant's statement was made well within the legal timeframe. However, it was liable for expungement due to its defective certification. It is also clear that, the appellant did not sign at the foot of the statement to certify that he had read it or that it had been read to him, which is essential for its authenticity. Furthermore, the record reveals that the cautioned statement was taken in the presence of two other police officers, which makes it inadmissible in evidence. See: Friday Mbwiga @ Kameta v. Republic, [2022] TZCA 627. Therefore, in our view, the first appellate court was right to expunge it from the record. This issue has merit. The fourth issue challenges the admissibility of exhibit P5. The appellant claimed that the said exhibit was recorded by H. 908 DC Haruna but it was tendered by PW6. He submitted that the contention that the witness could not be found to testify, was not supported by proof of the effort made by the prosecution to procure him. On the opposite side by the Republic, Ms. Masonu submitted that the prayer to rely on the statement was made early enough as seen at page 96 of the record of appeal showing that there was sufficient notice. She submitted further that the statement contained the necessary particulars of the makers and declarations by the recorder. Section 34B (now s.36) of the Evidence Act allows the prosecution to tender a statement of a witness who is dead or who, for some other reason, is unable to attend physically to testify. It provides: "34B. -(1) In any criminal proceedings where direct orai evidence o f a relevant fact wouid be 12 admissible, a written statement by any person who is, or may be, a witness shall subject to the following provisions o f this section, be admissible in evidence as proof o f the relevant fact contained in it in lieu o f direct oral evidence. (2) A written statement may only be admissible under this section- (a) where its maker is not called as a witness, if he is dead or unfit by reason o f bodily or mental condition to attend as a witness, or if he is outside Tanzania and it is not reasonably practicable to call him as a witness, or if all reasonable steps have been taken to procure his attendance but he cannot be found or he cannot attend because he is not identifiable or by operation o f any law he cannot attend; (b) if the statement is, or purports to be, signed by the person who made it; (c) if it contains a declaration by the person making it to the effect that it is true to the best o f his knowledge and belief and that he made the statement knowing that if it were tendered in evidence, he would be liable to prosecution for perjury if he wilfully stated in it anything which he knew to be false or did not believe to be true; 13 (d) if, before the hearing at which the statement is to be tendered in evidence\ a copy o f the statement is served, by or on behaif o f the party proposing to tender it, on each o f the other parties to the proceedings; (e) if none o f the other parties, within ten days from the service o f the copy o f the statement, serves a notice on the party proposing or objecting to the statement being so tendered in evidence; (f) if, where the statement is made by a person who cannot read it, it is read to him before he signs it and it is accompanied by a declaration by the person who read it to the effect that it was so read". [Emphasis added]. In the case of Mhina Hamisi v. Republic, [2007] T. L.R. 299 the Court stressed that; "... AH the provisions o f s. 34B o f the Evidence Act, 1967 are cumulative and all the paragraphs have to be satisfied and none can stand on its own." In the appeal before us, the appellant complained that paragraph (2) (e) of section 34B was not complied with. 14 On our part, we have gone through the record of appeal and observed, as correctly submitted by Ms. Masonu, that the notice was issued within the prescribed time often days. According to the record of appeal, the notice was issued on 18 t h December, 2020 and it was admitted in the proceedings on 15th January, 2021. Further, section 34B (now s.36) of the Evidence Act requires the prosecution to make reasonable efforts to procure attendance of the witnesses under discussion. In the instant appeal, the evidence of PW6 demonstrates the efforts that were made. In the end we do not fault the finding that the statement was admissible because all the conditions of section 34B (1) (2) of the Evidence Act were met including the reasonable steps to procure the attendance of the witness and the issuance of notice within the prescribed ten-days. Considering that pieces of evidence, we are satisfied that in this case the prosecution fulfilled the reasonable legal standard. Therefore, this issue is unmerited. As regards the last issue, it is clear that the appellant's complaint is to the effect that the prosecution case was not proved to the required standard. To ascertain this complaint, we have scanned the entire record of appeal and we agree with Ms. Masuno that the first appellate court 15 properly re-evaluated the evidence and was satisfied with the finding of the trial court. We have also revisited the testimonies of PW1 and there is no doubt that she clearly explained the whole incident. PW1 in particular at pages 59 to 60 of the record of appeal testified on how the appellant raped her. Likewise, PW5 at pages 70 to 71 of the same record, testified on how she was informed by PW1 of the ordeal and reported the same to the village authority and to her relative PW2. On his part, PW4 explained on how he examined PWl's vagina and found that she was raped. There is no doubt that PW4's evidence corroborated the evidence of PW1 that she was raped. PW1 the best witness in this case, testified that she was raped by none other than the appellant. As for the exhibit P3 (cautioned statement), we agree with the parties the same was unprocedurally admitted in evidence for lack of its authenticity. We thus find that, the said exhibit P3 is not good evidence and is hereby upheld the 1s t appellate court decision on it. It is therefore, our settled view that there is no fault in the factual findings of the two courts below on this issue for this Court to interfere. In the circumstances, we also find that this issue has no merit. 16 In conclusion, we do not find any cogent reasons to disturb the concurrent findings of the lower courts, as we are satisfied that the evidence taken as a whole establishes that the prosecution's case against the appellant was proved beyond reasonable doubt. Accordingly, we find the appeal devoid of merit and hereby dismissed it in its entirety. DATED at DODOMA this 24th day of October, 2025. B. M. A. SEHEL JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 24th day of October 2025 in the presence of the appellant in person, Mr. Philbert Msuya, learned State Attorney for the respondent/Republic and Mr. Musa Amry, Court Clerk; via Visual Court is hereby certified as a true copy of the original. 17