Ramadhani Jabu Saad @ Anko Toga vs Republic (Criminal Appeal No. 613 of 2022) [2026] TZCA 637 (8 June 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA fCORAM: MKUYE. J.A.. RUMANYIKA. 3.A. And AGATHO. J.A/l CRIMINAL APPEAL NO. 613 OF 2022 RAMADHANI JABU SAAD @ ANKO TOGA................................... APPELLANT VERSUS THE REPUBLIC .................................. .............................. RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Ebrahim, J.l dated the 13th day of October, 2022 in Criminal Appeal No. 55 of 2022 JUDGMENT OF THE COURT 2n d March & 8th June, 2026. MKUYE, 3.A.: Before the Resident Magistrate's Court of Mbeya at Mbeya, the appellant, Ramadhani Jabu Saad @ Anko Toga, was charged with the offence of rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap 16 R.E. 2002. It was alleged in the charge sheet that, the appellant, on 2n d December 2016 at Soweto Mabuchani area within the District and Region of Mbeya did have carnal knowledge of a girl (who shall be referred to as "PW1" or "victim") aged 15 years old. i Before embarking on the appeal on merit, we find it apt to narrate albeit briefly, the facts of the case as hereunder: The appellant and the victim were residing in different rented rooms within the same premises and compound. On 2n d December 2016, PW1 was walking towards another neighbouring room (PW4) to sleep for the night as the tatter's mother had travelled. To reach her destination, PW1 had to pass by the appellant's door. As she passed, the appellant grabbed her and dragged her into his room. He shut her mouth with his black shirt to prevent her from screaming. He forcefully removed her clothes and then proceeded to rape her. After the assault, the appellant untied the victim and pushed her out of his room and threw her clothes together with his black shirt after her. The victim, while bleeding and in pain, went to the neighbours' (PW4) room while holding her underwear and narrated her ordeal. PW1 allegedly, identified her assailant as "Anko Toga". Upon hearing the victim's ordeal, PW4 informed the victim's mother (PW2) who inspected her and confirmed that she was bleeding and had sperms on her thighs. As the victim's mother was attending the victim, * the appellant entered his room. Then, the victim's mother, acting under emergency, quickly locked the appellant's room from outside and began shouting for help from neighbours. The appellant broke the window of his room and fled. The victim's mother and other community members pursued him until he was apprehended and handed over to the police. The appellant denied the charges claiming that it was dark and any other person using the community toilet could have been the culprit. He claimed to have jumped out of the window not to escape justice, but because he feared he was being attacked by bandits after realizing that his door was locked from outside. After a full trial, the trial court found that the prosecution evidence was credible. Consequently, the appellant was convicted and sentenced to thirty (30) years imprisonment. His appeal to the High Court proved futile. Still protesting his innocence, he has lodged his appeal to this Court on two memoranda of appeal (substantive and supplementary) consisting a total of ten (10) grounds of appeal together with written arguments in support of his appeal. The grounds of appeal in the substantive memorandum of appeal can be paraphrased as follows: One, the 1s t appellate court did not consider the ten grounds of appeal (pages 73-75). Two, the appellant was not seen or arrested while raping the victim. Three, no finger prints of appellant were taken under section 59 of the Criminal Procedure Act in order to corroborate evidence of a single witness. Four, no DNA test was taken in order to corroborate the evidence of a single witness. Five, the credibility of the victim is not reliable considering her age as she could have sex with another man and fabricate a case against appellant taking into account that DW2 testified on the conflict between them. As to the grounds in the supplementary memorandum of appeal, they are paraphrased as follows: One, the charge sheet is defective as it does not indicate the year in which the alleged offence was committed. Two, the age of the victim was not strictly proved. Three, the two courts below acted on incredible evidence of PW1 that there was no consensual sex. Four, the prosecution evidence was marred with discrepancies and contradictions which went to the root of the matter because, the appellant's statement was taken on 5th January 2016 (3 days) after his arraignment in court on 2n dJanuary 2016; and also there is a discrepancy in evidence showing the offence was committed at around 22:00hrs while the doctor (PW3) said he examined the victim at 20:00 hrs which was before the offence was committed. Five, the delay of thirty (30) days to arraign the appellant before the court casted reasonable doubt. When the appeal was called on for hearing, the appellant appeared in person without any representation; whereas the respondent Republic was represented by Mses. Naomi Mollel and Hannarose Kasambala, both learned Senior State Attorneys teaming up with Ms. Veneranda Masai and Mr. Rajabu Msemo, both learned State Attorneys. On being invited to elaborate his grounds of appeal, the appellant, in the first place, prayed to adopt his grounds of appeal to form part of his submission. He started by assailing the charge sheet for not indicating the year when the offence was committed. Secondly, he lamented on late arraignment of the appellant in court contending that he was arraigned on 2n d January, 2017 although he had been arrested on 2n d December 2016 and no reason was assigned for such delayed arraignment. Thirdly, PW1 was not a credible witness because the alleged offence was committed at night while the victim was under unfavorable condition and that the alleged appellant's shirt thrown to the victim was not tendered in court. Fourthly, the PF3 was not admitted in evidence as it was merely admitted for scrutiny. Fifthly, though PW1 said she saw Eva who informed her mother, the said Eva was not brought to testify in court instead, Evelina, who was a different person was called to testify. Sixthly, there is discrepancy in time as to when the offence was committed as between 20:00 hrs to 21:00 hrs mentioned by Eva and 20;00hrs the time when PW3 examined the victim which was before the commission of offence. Seventhly, the victim's age that she was 15 years old was not proved. In this regard, the appellant urged the Court to find that the appeal is meritorious and allow it with an order for his release from custodial sentence. On the other hand, Ms. Mollel prefaced her submission by declaring their stance that they were not supporting the appeal. She preferred to argue the appeal in the following arrangement. Grounds 1, 2, 3, 4 and 5 of the substantive memorandum of appeal co-jointly/ as they hinge on the proof of the case and credibility of witnesses; and grounds 1, 2, 3, 4 and 5 of the supplementary memorandum of appeal, separately. Starting with the 1s t ground in the supplementary memorandum of appeal in which, the appellant's complaint is that the charge is defective for not showing the year of the commission of the offence, Ms. Mollel conceded to it but she argued that the omission was curable under section 411 of the Criminal Procedure Act, Cap 20 R.E. 2023 (the CPA). She reasoned that, the appellant heard the year from the facts read over to him that the offence was committed on 2n d December 2016. Besides that, he heard when PW1 testified that the offence was committed on 2n d December 2016 and PW4 who also testified to the same effect. A part from that, she argued, the appellant also in his defence gave evidence in relation to the 1s t alleged incident of 1s t December 2016. While citing the case of Elibariki Naftal Mchomvu v. Republic, [2022] TZCA 606 TANZLII, the learned Senior State Attorney implored the Court to find that the omission to mention the year in the charge was cured by the testimonies of PW1, PW2 and PW4. 6 We agree that the charge sheet levied against the appellant shown at page 1 of the record of appeal does not mention the year in which the offence was committed. There is a scribbled year in handwriting "2016" without indication of a name of the person who did it and signature signifying such amendment in the charge. It is an obvious omission. However, we think, each case must be assessed in accordance to its prevailing circumstances while having in mind that failure to mention a year in the charge sheet would be different from failure to mention the date of the incident as it wouid be required to be proved. In this case, though Ms. Mollel conceded that the year to which the offence was committed was not mentioned in the charge sheet, she was convinced that it was cured by the evidence adduced by PW1, PW2 and PW4 on that aspect and that the appellant was not prejudiced. This Court has deliberated on a number of cases where the charge sheets are defective for failure to state the provision of the law contravened or the punishment section. It ruled out that so long as there was no prejudice to the appellant such omission was curable under section 388 now 411 of the CPA. See also: Republic v. Ngidipe Bin Kapirama and Others (1939) 6 EACA 118 cited in the case of Elibariki Naftal Mchomvu (supra), where it was stated that: "An illegality in the form ofa charge or information may be cured as long as the accused persons are i not prejudiced or embarrassed in their defence or there has not otherwise been a failure ofjustice". Yet, in the case of Elibariki Naftal Mchomvu (supra), where the age of the victim was omitted in the charge, the Court held that the omitted detail came out clearly in the testimonies of the complainant, his grandmother (PW1) and Medical Doctor (PW3) and that it was unveiled by exhibit PI. In this case, having perused the record of appeal we were able to see several factors which enabled the appellant to know the year when the offence was committed. The facts of the case read over to him mentioned the year 2016. Also, PW1, PW2 and PW4 testified to the effect that the offence was committed on 2n d December, 2016. We are of the view that, the anomaly was cured under section 388 now 411 of the CPA. We do not see, where the appellant could have been prejudiced or embarrassed in his defence as he testified on events that happened on 2n d December 2016 which was the date of the commission of the offence. His line of defence was an indication that he understood well the date when the offence was committed. We, thus, find no merit on this ground and we dismiss it. In relation to ground 2 of the supplementary memorandum of appeal concerning the proof of the age of the victim, the learned Senior State Attorney argued that PW1 and PW2 proved that she was 16 years old but at the time the offence was committed she was 15 years. We thinly this issue should not detain us much. We agree with Ms. Mollel that the age of the victim was sufficiently proved by PW1 and PW2 that she was 16 years old but at the time of the commission of the offence, she was 15 years as was indicated in the charge. In this regard, this ground also fails. With regard to the 3rd ground of supplementary memorandum of appeal concerning it to be a consensual sex, Ms. Mollel argued that since the appellant was charged with statutory rape the issue of consent was immaterial considering the victim was below eighteen years old. We think, this issue is partially answered when we were deliberating on the 2n d ground of appeal. As was rightly submitted by Ms. Mollel, the age of the victim was sufficiently proved by PW1 and her grandmother (PW2) that she was 15 years old when the offence was committed. Since, the age of 15 years is below 18 years as per section 130 (2) (e) of the Penal Code, the question of consent was immaterial. We find this ground to be unmerited and we dismiss it. Regarding ground 4 of the supplementary memorandum of appeal, in relation to the contradictions on the time the offence was committed and when the victim was examined by the doctor, Ms. Mollel conceded to it. While PW1 said the offence was committed at 22:00 hours and PW2 said between 21:00 to 22:00 hours, the Doctor said he received the victim at 20:00 hours meaning before the offence was committed. However, it was Ms. Moilei's argument that even if there were such contradictions they did not go to the root of the matter. To bolster her argument, she cited the case of Alex Ndendya v. Republic, [2002] TZCA 1954 pages 16-17. We agree that there were contradictions on time the alleged offence was committed. Whereas PW1, the victim said it was at 22:00 hours, PW2, to whom the incident was reported first, said it was between 21:00 to 22:00 hours. PW3, the doctor who examined the victim stated that he saw her at 20:00 hours. The issue here is whether such contradictions went to the root of the matter (See: Mohamed Saidi Matula v. Republic, [1995] T.LR3). We are aware that in the case of Alex Ndendya (supra), the Court found that the contradictions on the time when victim was raped did not corrode the prosecution evidence. However, we think, this case is distinguishable due to the fact that, the victim in that case was minor aged 10 years old unlike in this case where the victim is aged 15 years old who could comparatively recollect things better. Also in that case, there was no evidence mentioning the time when the offence was yet to 10 be committed. In this case, PW2 and PW3 mentioned the time when the alleged offence was yet to be committed. In our view, the inconsistences in this case were not minor as they went to the root of the matter. In ground 5 of the supplementary memorandum of appeal, the appellant's complaint is on late arraignment of the appellant to the court. According to the appellant, he was arraigned in court on 2/1/2017 after being arrested on 2/12/2016, and that there was no explanation for such delay. On the other hand, Ms. Mollel conceded that there was a delay of thirty days in arraigning appellant in court on 2n d January 2017 and that no explanation was given for delay. She said, he was interrogated on 5th January, 2017. However, she argued that, such delay did not prejudice the appellant as he was given all the rights of hearing the witnesses, cross-examining them and defended himself. To support her argument, she cited to us the case of Eliapenda Zephania Zakaria @ Kicheche v. Republic, [2024] TZCA 728, where the Court ruled out that a delay of 29 days in arraigning the appellant in court did not prejudice the appellant. The law is settled that under section 32 (1) of the CPA that, where any person is taken into custody for an offence other than an offence punishable with death, the said person has to be brought before the court within 24 hours after he was taken into custody. Deducing from the ii complaint, we ask ourselves if the delay of almost 30 days vitiated the trial. In our understanding, there are divided opinions. One, that hold the view that it vitiates the trial; and the other which hold that it does not. In the case of Eliapenda Zephania Zakaria (supra) cited by Ms. Mollel, the Court held a view that such omission did not vitiate the trial and the resultant conviction as the complainant by raising it at that stage was misplaced and ought to have been raised at the trial court or the High Court. However, we think, the cited case is distinguishable to the case at hand. We are of the view that, in this case, the trial was vitiated since there was no explanation for such delay. Thus, this ground has merit and we allow it. In relation to proof of the case, the learned State Attorney contended that penetration; the age of victim and that the appellant committed the offence were all proved. In relation to penetration, she insisted that the best evidence comes from the victim if found to be truthful. See: Selemani Makumba v. Republic, [2006] TZCA 96. She went on submitting that, PW1 explained on how the appellant grabbed and dragged her into his room where he raped her. PW2 explained to the court on how she inspected the victim and observed that she was bleeding in her vagina. PW3 on examining the victim saw bruises and fluid substance and concluded that she was raped. 12 We agree with the learned Senior State Attorney on the principle that the best evidence in sexual offences must come from the victim so long as she/he is believed to be a truthful witness - See: Selemani Makumba's case (supra). We are mindful that both courts below found PWl's evidence to have been corroborated by the PF 3 (exhibit PA) and PW3‘that victim was raped. However, we have had opportunity to go through the said exhibit PA (PF3) and we noted that the same (pages 56 to 57 of record of appeal) has been erased on the dates it is purported to have been prepared. Also, more importantly, it was admitted in evidence in a strange manner. The record shows it was admitted as exhibit PA for scrutiny, something which is not known under the law and also it is not reflected in the record if it was scrutinized let alone its results. It is not clear what scrutiny,was envisaged to be done. In this regard, so long as it did not meet the standard of being admissible in evidence we expunge it from the record. However, that notwithstanding, even if PF3 is expunged, PW3 explained clearly what he observed during examination of PW1. Besides that, PW1 gave cogent evidence on how she was penetrated. Her evidence that she was penetrated was also corroborated by PW2, her mother, who upon inspecting her observed that she was bleeding in her vagina. Yet, PW3 who examined her observed bruises in her vagina and watery fluid suggesting that it was sperms. The law 13 requires that penetration however slight amounts to rape. See: Section 130 (4) (a) of the Penal Code. We are therefore satisfied that the victim was raped. As regards to the proof of age, we think, we have discussed at length when dealing with grounds nos. 2 and 3 of the supplementary r i memorandum of appeal. Without much ado, we find that it was proved that the victim was aged 15 years when the offence was committed. As to who committed the offence, Ms. Mollel submitted that, PW1 who was a credible witness proved that the appellant raped her. See: Goodluck Kyando v Republic, [2006] T.L.R. 367. She added that, PW1 was familiar to the appellant as he was among the tenants in the premises she was living. On the material date, the victim watched the appellant being at home from the morning. That, it was when she was passing towards PW4's room when appellant dragged her in his room and raped her. The learned Senior State Attorney implored to Court to find that the appellant's conduct of prohibiting PW4 to report to PWl's mother; and telling PW2 not to listen to the children corroborated his guilty mind to what he did. In this regard, it was Ms. Mollel's contention that all the ingredients of rape were proved beyond reasonable doubt. She, thus, urged the Court to dismiss the appeal in its entirety. 14 In rejoinder, the appellant stressed that the charge sheet was defective; the PF3 be expunged; and that the doctor's oral evidence is not sufficient to prove rape. He insisted to the Court to allow the appeal and set him free. Basically, this case hinges on the credibility of the witnesses particularly PW1 who was the key witness in this matter alleging that the appellant raped her. When dealing with credibility, we are mindful that it is within the domain of the trial court to assess it - See: Toyidoto s/o Kosima v. Republic [2023] TZCA 17305. Also, it is clearly settled law on credibility, that every witness is entitled to credence unless there is/are cogent reason (s) for not believing him/her. See: Goodluck Kyando (supra); and Ali Abdallah Rajab v. Saada Abdallah Rajab and Another, [1994] T.L.R. 132, where Court stated among others that: "(i) Where a case is essentially one of fact, in the absence o f any indication that the trial court failed to take some material point or circumstances into account, it is improper for the appellate court to say that the trial court has come to an erroneous conclusion. (ii) Where the decision of a case is whole based on credibility of the witnesses then it is the trial court which is better placed to assess their credibility than the appellate court which merely reads the transcript of the record" 15 In the case of Shani Chamwela Suleiman v. Republic, [2022] TZCA 592, while citing the case of Shabani Daudi v. Republic, [2004] TZCA 84, the Court stated as follows: "Credibility ofa witness is the monopoiy o f the trial court but only in so far as demeanor is concerned. The credibility of the witness can also be determined in two other ways. One , when assessing the coherence of the testimony of that witness and two, when the testimony of that witness is considered in relation to the evidence of the other witnesses including that of the accused person. In those two occasions, the credibility of a witness can be determined even by a second appellate court when examining the findings o f the first appellate court." There is no doubt that in the matter at hand five prosecution witnesses, PW1 (the victim) being the key witnesses, testified in court. The High Court, upheld the appellant's conviction on the basis of testimony of PW1 being the best witness as she was found to be truthful. Her evidence was also found to have been corroborated by PW2 and PW4 who saw the victim private parts bleeding and was carrying her underpants on her hands. The appellant's evidence that he feared to be invaded and went out through a window was found to be intended to exculpate himself. 16 As alluded to earlier on, we do not have qualms with a settled law that in sexual offences, the best evidence should come from the victim as per the celebrated case of Selemani Makumba (supra). However, having scanned PWl's evidence in the record of appeal, we think, it leaves some questions still nagging. In her testimony, she told the court that she was grabbed by appellant who was standing by his door and dragged her inside his room where she was raped. She claimed that he covered her mouth with his black shirt he was wearing and undressed. However, we wonder, one, why didn't she scream immediately after being grabbed taking into account that the place she was living had eight rooms with tenants who were there. Had she screamed perhaps people would have responded to her rescue. Two, she stated that the appellant stood on her stomach while being laid on appellant's bed and undressed his black shirt in that situation. Ordinarily, it is difficult to comprehend how a man sat on someone's stomach could manage to undress himself in such a situation. Three, according to PWl's testimony, it appears she kept on watching the appellant the whole day if he was at home or not. She even realized that the appellant spent the whole day drinking and that he was drunk. Our question is, what inspired her to keep on watching at him the whole day. Four, after the incident of rape and while she was thrown out together with her clothes, she quietly picked up and put on her clothes, carrying her under pants in hands and went to PW4's room. The nagging 17 questions are that; why didn't she scream as she was left free by that time and also, why did she proceed to PW4 instead of to her mother (PW2) after the happenings. In our view, following such a serious incident ■ \ of rape, it would not have been easy for the victim to proceed to PW4 where she had planned to sleep previously. Instead, she would have rushed to report to her mother. Five, in her testimony, PW1 said she picked the appellant's black shirt that was thrown after her. But she did not bother to tender in court as exhibit. In the absence of clear explanations to such crucial questions, we find that it is a clear depiction that it shakes the credibility of PW1. In other words, PW1 was not a truthful witness. With the foregoing, looking at the totality of the evidence in this case, that PW1, the key witness was not credible, compounded with the fact that appellant was delayed to be arraigned in court without any explanation, as alluded to before ad amongst other factors such as failure of the two courts below to give the appellant's defence evidence the deserving attention, we find that all tend to raise doubt in the prosecution case. Therefore, it is our considered view that, the case was not proved beyond reasonable doubt. In the event, we allow the appeal, quash the judgments of the two courts below and set aside the sentence meted out against the appellant. 18 We further order for his immediate release from jail unless otherwise held for other lawful cause(s). DATED at DODOMA this 29th day of May, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered Virtually this 8th day of June, 2026 in the presence of the appellant in person, Ms. Imelda Aluko, learned State Attorney for the Respondent/Republic and Mr. Shafii Kassim, Court clerk, is hereby certified as a true copy of the original.