Thomas Petro vs Republic (Criminal Appeal No. 303 of 2023) [2025] TZCA 1156 (17 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA f CORAM: LILA. J.A., FIKIRINI 3.A. And RUMANYIKA. J.A.^ CRIMINAL APPEAL NO. 303 OF 2023 THOMAS PETRO ..........................................................................APPELLANT VERSUS THE REPUBLIC......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania Manyara Sub-Registry, at Babati) (Barthy, 3.) Dated the 30th day of March, 2023 in Criminal Appeal No. 16 of 2022 JUDGMENT OF THE COURT 6t h & 17th October, 2025 LILA, 3.A: This is a second appeal by the appellant Thomas Petro. He is challenging the decision of the High Court which sustained his conviction and sentence by the District Court of Kiteto sitting at Kibaya (the trial court) on an indictment of incest by males contrary to section 158(l)(a) of the Penal Code. Initially, it was alleged that he had carnal knowledge of his daughter aged seventeen (17) years old at different times between 7/9/2020 and March 2021 at Njoro Village within Kiteto District in Manyara i Region. For the purpose of this appeal, we shall refer to the girl as the victim or PW1 so as to disguise her identity. A trial that ensued consequent upon his denial of the charge culminated in his being convicted and was sentenced to serve thirty (30) years jail term. He was also ordered to pay the victim TZS 500,000.00 as compensation. This second appeal is a result of his unsuccessful appeal to the High Court, Manyara sub-registry. To give light on what transpired, this brief background facts will save the purpose. Five witnesses were paraded by the prosecution in their verge to prove the charge against the appellant. The appellant was the only witness for the defence. The gist of the prosecution evidence was simple and direct. The victim, who was then seventeen (17) years old, was a Form One student at Njoro Secondary School and stayed with her biological father, the appellant at Njoro Kati area. By then, the appellant had already divorced his wife who left to live in Dar es Salaam where she was married to another man. The victim was, initially, raised by her grandmother until when the appellant took her to her aunt and later, when she was in Standard Seven on March 2020, she was taken by her father (the appellant). In the house comprising of a room and a sitting room stayed the appellant, the victim and his son one Calvin aged fourteen (14) years. The victim said Calvin ran away due to the appellant's cruelty against them as he used to threaten, beat them and restricted them from associating or talking with anyone. Therefrom, the appellant lived with the victim alone in the house. It was until 26/2/2021 when Mwanaid Yusuph Shang'a (PW3), a teacher at Njoro Secondary School and also a matron assigned with the duty to take care of the pupils' health, noted that the victim was always unhappy, was not interacting with others and her walking style had changed. The teacher wished to know from her (the victim) what was at issue. She called and inquired her but she was not ready to tell saying she was afraid. It was until PW3 questioned her a lot about how she lived resulting in her being worried saying that she was afraid of telling her everything. That, it was after she had assured her that she was in good hands, when she was forthcoming that her father had sexual intercourse with her regularly. Part of her evidence which constitute the tale of the matter, as recorded at pages 8 and 9 of the record of appeal, is this: "On 7/9/2020 from 9:00am I was at home working. I was [at] home with my father who is the accused. On that day of 7/9/2020 we were eating ugaii with father, he told me that he wants to do sex with me, but I refused. When I refused, he took a knife and told me that he wiii stab me to death. I wanted to scream but he dosed my mouth. With his one hand, he removed aii my clothes and I remained 3 naked. He also removed his trousers, he pushed me on bed, he also was naked. He told me if I scream, he will kill me. He took his penis and insert[ed] the same into my vagina and raped me. While raping me he told me that he loves me so much and there is no one in the family he loves like me. It was very painful because it was my first time having sexual intercourse. He told me not to tell anyone or else he will cut me into pieces. It was painful and my waist was in pain. Blood came out of my vagina for I was still a virgin. He went on raping me every day. I turned to be like his wife. I wasn't happy at all for he was my father I decided to tell my teacher. I was not happy in class and everywhere due to what my father was doing to me. I wasn't in peace at school every time. Madame Shanga called me and asked me why I wasn't happy and unpeaceful (sic). I told her everything what my father does (sic) to me. The Headmaster also came into awareness. They reported the matter to the WEO o f Njoro. I was taken to WEO's office where I told them as I have told you here. Police militia were sent to go and arrest him. From there I was brought to Kiteto Police station. I was taken to Kiteto Government Hospital where I was examined if I had pregnancy or other diseases. He is my biological father and I have lived with him for one year. My mother is in Dar es salaam where she was married, I was living with my grandmother on my mother's side in Goima before coming to live with my father. I was raised up by my grandmother since childhood. Father came to take me from grandmother's home when I was standard seven on March, 2020. I have no conflict with my father..." (Emphasis added) On her part, explaining what she was told by the victim about the ordeal she underwent in the hands of the appellant, PW3 stated, at pages 16 and 17 of the record of appeal, that: 7 called her and asked what is the problem with her. I called her in the chamber [of] discipline master's office. I asked her what the problem was and if she has eaten. She said she hasn't eaten and she stays with her father at home only. I asked her why she is the only one staying with her father, she told how her father took her from her grandmother, took her to her aunt and later took her to his place to live with him. She was also with her young brother. She told me that her young brother ran away from home and she remained alone. I asked about the size o f the house and how many rooms are there, she said it's one bedroom and one sitting room house. She started to become afraid when I was questioning her a lot about how she lived, she said she is afraid if she tells me everything, I assured her that she will be in safe hands. That was when she told me that her father has been having sexual intercourse with her. She said that at first, she did something wrong and her father beated [did beat] her so 5 much and he threatened her that he will chase her home. When she asked for forgiveness her father told her to go in the house and spread him the bed. That was when her father pushed her on bed and raped her for the first time. He has been having sex with her every day except only when she is on her period/menstruation period. She said it was so painful when her first time and her father has threatened her with a knife on her neck that if she makes noise, he kills her. After I got the explanation from her, for it was the biggest case I have never met before, I decided to involve the Headmaster for more information. The Headmaster and I decided to call the girl again and talked to her but she hadn t appeared to school for the whole week. After a week she came back to school, I asked her why did she not come to school, she said she was staying at the farm with her father../' According to PW3, she left the matter with the WEO who caused the appellant's arrest and taken to Kibaya Police Station. The victim was issued with a PF3 and went to Kiteto District Hospital. She was medically examined by Honest Michael (PW2) who found that the victim was not virgin but circumcised and was penetrated which finding he endorsed on the PF3 (Exhibit PEI). No other decease was detected from the victim. 6 WP 6861 PC Neema (PW5) investigated the case including taking the witness statement of PW3. A relatively long defence evidence came from the appellant. In sum, it sought to establish that the victim was not well mannered and problematic not only to her grandmother, but also to her aunt leading to the appellant taking to live with her. In his own words, he said, at pages 29 to 31 of the record of appeal, that: "On 11/3/2021,1 was arrested at my house. I was taken to Kiteto Police Station. I was taken my statement, the child used to stay away from me. I was phoned from where she used to leave (the victim). I had to go the other day. The person who called me told me that she has been brutally beaten. I had to go. I had to call my sister to inform her. She told me to wait so that we can go together the next day. In the morning, I went with my sister up to where the victim was living with her grandmother. I found her sleeping outside so she woke up and was surprised to see us. I asked her what was wrong for she was swollen on her hand and her foot. A police militia who was a woman, passed there and found her crying, her name is Mwasu. She took her and had to take her to the office where she found WEO. She told WEO where she found her and she was given a note so that she will be treated. After treatment, the police militia woman gave 5000/= for medicine when I got there with my sister we left together with her up to the office. I found the WEO who said she knew her and that she was beaten by her unde. She tried to phone her people who were living with her, she is rejecting (sic) everything and do abuse her. She said her unde hasn't come home since he beated (sic) her. She told me that there was a ceremony nearby. She left home from 4:00pm up to 8:00pm she wasn't back home. Her unde followed her. I decided to take her so that I can start caring her and the school was dosed. I took her up to Njoro to her aunt. In the morning, we took her to the dispensary where she got treatment. I had to tell her to calm down and stop all bad behavior. She stayed there with my sister not even a month, I was called by my sister. I told her I would go in the evening. She told me to take my child because she had bad behaviour. I was angry because I live alone at home. I had to take her to my home. She told me she is tired o f staying at her aunts place. My other child called Calvin was there so we had to start living the three o f us. I went to the farm, when I came in the evening, Calvin told me that she was talking to her mother. I warned her not to talk to her mother. Her mother was telling her to quit school, she became a liar she beated (sic) her young brother for telling me. 8 It reached a point she was not hearing or respecting me, I had to be quit. One day she went with her brother to the stream to wash clothes and when they came in the evening her brother told me she has burst the washing dish but there is a boy that she gave is the one that broke it, I had to punish her as a child. That was when enermity was created, I wasn't in good term with her. On Friday was when I was arrested saying am always doing sexual intercourse with her. Her mother is the problem for we had separated a longtime ago a problem being a farm that she wanted her portion and I refused for it was for the kids. She was deeded (sic) to say I raped her. I think may be because o f that they created a problem to me. I don't use her as my wife she is my daughter. Doctor said she is used to sex, I haven't use her. Iam a HIVpositive since 2013. I f it's true then that means she is also positive. I pray this court to help me for she said I used her for a year. Am sure it's a family conflict." (emphasis added) It is notable that the appellant raised as his defence among others, family conflict and that he was HIV victim and was ready to produce a clinic card to that effect. On that account, on 3/8/2021, after the closure of the case by both sides, The, public prosecutor sought for an order of 9 the court that the appellant be subjected to a medical checkup to verify his health condition. The appellant was ready for that test to prove that he was HIV positive. However, on 23/8/2021, the prosecution turned around and withdrew the plea as being irrelevant to the case as not every victim can transmit the decease to another person. He, at page 31 of the record of appeal stated that: 1 1 Public Prosecutor: His piea has no connection to the case we have against him. The court has to remember that not every positive HIVperson can transmit the decease to anotherperson. - So, prosecution side we have seen that there is no need o f testing victim's health without her consent for in one way or other it won't affect the result o f the accused committing the offence - I pray the court to proceed." Convinced that the prosecution witnesses' evidence was straight forward, free from discrepancies and inconsistencies, and relying on the Court's pronouncements in various decisions that every witness is entitled to credence, must be believed and his testimony accepted unless there are good and cogent reasons to treat him otherwise, the trial court convicted the appellant with the charged offence. It found as an undisputed fact that the appellant was the victim's biological 10 father and that, through the evidence by the victim (PW1) and corroborated by that of PW2, the prosecution proved penetration. In challenging the trial court's decision before the High Court, the appellant raised substantially five (5) complaints but was unsuccessful. Before the Court, he has advanced five grounds of appeal in the substantive memorandum of appeal which was subsequently followed by a three-point supplementary memorandum of appeal. However, in his written statement of arguments he presented in Court and on which he opted to fully rely on, he decided to only argue ground one (1) of appeal in the substantive memorandum of appeal and ground five (5) of appeal in the supplementary memorandum of appeal. He amplified them under three headlines: 1. Failure by the victim to report the incident at the earliest opportunity, 2. Failure to call a crucial witness, and 3. The charge was defective. Mr. Jackson Jonathan Mayeka, learned State Attorney, represented the respondent Republic. The appellant appeared in person and unrepresented. Mr. Mayeka resisted the appeal. li Total reliance on the written statement of arguments was made by the appellant without more to add or elaborate. After that, he invited the Court to examine his grounds of appeal and the elaborations thereof and allow the appeal. The appellant was very brief and direct to the point in his statement. For the first ground, he wondered that it does not occur to him that the victim would not report the alleged incident for the whole period from 7/9/2020 when he allegedly began to have carnal knowledge of her until March, 2021 when she told her teacher. That was inconsistent with the Court's guidance in the case of Marwa Mwita Wangiti and Another vs Republic, [2003] TLR 39 and Abraham Wilson Kaaya vs Republic, Criminal Appeal No. 154 of 2020 (2020) TZCA 17655. In ground two, the complaint is in respect of failure by the prosecution to call one Calvin as a prosecution witness. His argument is that Calvin who stayed with the victim and the appellant in the same house before leaving the place, did not testify in court. He contended that the victim mentioned him stating that the appellant ordered him to leave so as to allow the appellant enough time to be 12 with her. In his view Calvin was a crucial witness to the case and failure to call him left so many questions unanswered. His third and last argument was that the charge was defective and the prosecution did not take issue and amend it as per the requirements of the provisions of then section 234(1) of the Criminal Procedure Act, R. E. 2019 [now section 251 (1) of the Criminal Procedure Act, R. E. 2023] (the CPA). To him, the omission is fatal referring to the Court's decision in Salim Abdalla Maganga vs Republic, Criminal Appeal No. 285 of 2020 (2023) TZCA 1768 301 96/5/2024) and Faraja Kazimoto Thomas vs Republic, (2024) TZCA 301 (6/5/2024). In response, Mr. Mayeka addressed all the grounds of appeal seriatim. Initially he took the position that the defence evidence was considered by both courts below. But, on the Court's prompting particularly referring to the appellant's assertions in his defence evidence, he could no longer stand by his earlier position. He admitted that discussion on the appellant's defence versions were not reflected in both judgments of the lower courts. He invited the Court to step into the shoes of the High Court and consider them it being an omission which occasioned injustice on the appellant. He was, 13 however, firm that even if the defence is considered, the appellant's guilt will still stand basing on the strong prosecution evidence. With regard to the appellant's plea to be sent to hospital for medical checkup if the victim is also HIV victim on account of his association with her, he being a victim of it, he referred us to pages 18, 20, 21, 31 and 32 of the record of appeal and maintained that it was not relevant and, like the trial court, argued that it is not necessary for every HIV victim to spread it. Exhibiting professionalism, he did not hesitate to concede that six months lapsed without the victim reporting the matter. But he was quick to submit that immaturity, restriction not to associate with anybody and threats of her life done by the appellant caused the victim not to report the matter to anyone instantly or soonest. He referred the Court to page 9 line 3 of the record of appeal and to page 14 of the Court's decision in the case of Mwita Isombe @ Sam vs Republic, Criminal Appeal No. 639 of 2021 (unreported) wherein the Court cited the case of People of Philippines v. S PO Arnulfo A. Aure and S PO I Marlon H. Ferol, G.R. No. 180451, October 17, 2008 which underscored the position that immaturity and 14 threats of life constitute good reasons to justify delay to report a crime. In a serious not, Mr. Mayeka resisted ground 3 of the memorandum of appeal contending that, as far as the offence of incest is concerned, Calvin who stayed with the appellant and the victim and later left due to the appellant's cruelty, had nothing material to tell the trial court. He was, therefore, not a material and crucial witness such that failure to call him to testify would entitle the trial court to draw an inference adverse to the prosecution case. In respect of the charge being fatally defective as complained in ground 2 of the supplementary memorandum of appeal, Mr. Mayeka refuted the complaint stating that it was clear and the particulars thereof explained in clear terms all the ingredients of the offence of incest by males the appellant stood charged. Grounds 4 and 5 of the memorandum of appeal and grounds 1 and 3 of the supplementary memorandum of appeal were argued jointly by Mr. Mayeka as challenging the evidence on record to be insufficient to prove the charge. Not ready to concede, he referred the Court to the testimonies by the victim and the doctor (PW2) whose evidence proved penetration. It not being in controversy that 15 the victim was the appellant's biological daughter, an essential ingredient of the offence of incest by males, Mr. Mayeka was firm that the prosecution discharged its duty of proving the charge against the appellant to the hilt. On the Court's prompting before resting his case, whether the appellant's defence was given due consideration by both courts below, Mr. Mayeka readily admitted that not all the grounds of defence were considered and determined although both courts below finally arrived at the conclusion that the defence evidence failed to tore the strong prosecution case. Bearing in mind that there was no eye witness to the commission of the offence other than the victim and appellant, and the evidence in respect of the commission of the offence came from them only, Mr. Mayeka accepted that determination of whether the appellant committed the offence depended mostly on the credibility of the victim. But he was not ready to agree that the victim was of an unacceptable behaviour despite the fact that she did not account for the reason of her being moved from her grandmother who raised her to her aunt and later being taken by the appellant. 16 Having said it all, Mr. Mayeka beseeched the Court to dismiss the appeal in its entirety. Having heard both sides on the appeal and examined the record of appeal in relation to the grounds of appeal, we have decided to consider the merits of appeal generally while addressing key issues relevant to the determination of the appeal. Looking at the prosecution evidence as a whole in isolation of the defence evidence, as done by both courts below and the learned State Attorney before us, one would not hesitate to concur with the findings of both courts below and the learned State Attorney that the prosecution discharged its burden of proving the charge beyond reasonable doubt through particularly the victim who was found to be consistent and coherent and the corroborative evidence by the Doctor (PW2). But the Court's guidance in a plethora of decisions is that courts should always, in their judgments analyze and evaluate the evidence of both sides so as to arrive at a just decision. It is obvious from the record of appeal and the learned State Attorney readily admitted before us that the defence case (evidence) was not given due regard by both courts in the determination of his guilty. We acknowledge that the learned trial magistrate and the 17 learned first appellate Judge, in their respective judgments, appreciated the cardinal principle in criminal jurisprudence that it is the prosecution which bears the duty to prove the case beyond reasonable doubt. It is, also, trite law that the appellant cannot be convicted because of his weak defence and no similar duty rests on the appellant to prove his innocence. Such is a position of general application in criminal cases pronounced in a murder case in Mohamed Said Matula Vs Republic [1993] TLR 3, where we stated that: "Upon a charge o f murder being preferred, the onus is always on the prosecution to prove not only death but also the link between the said death and the accused; the onus never shifts away from the prosecution and no duty is cast on the appellant to establish his innocence ." The position does not change in other criminal charges. See: Joseph John Makune Vs Republic [1986] TLR 49 and unreported cases of Antony Mtafungwa Vs Republic, Criminal Appeal No. 267 of 2010 and Hussein Ramadhani Vs Republic, Criminal Appeal No. 195 of 2015, just to mention a few. An accused person's duty is therefore at least to lead evidence casting doubts on the prosecution case to entitle him to an acquittal. The point we underscore here is that, in all cases, both the 18 prosecution and defence evidence must be considered before arriving at a decision. The necessity to consider defence was considered in Farida Abdul Ismail vs Republic, Criminal Appeal No. 83 of 2017 (unreported) and, making reference to the case of Leonard Mwamashoka vs Republic, Criminal Appeal No. 226 of 2014 (unreported), the Court observed that: '7 /7 the latter case we held that it is not enough for the court to summarize the evidence for the defence, but it must specifically address it in arriving at its decision. We ask ourselves, what difference would there be between a trial in the accused's absence and that which, like the one under discussion, the defence version does not form part o f the decision? We think there is no much difference and it is a denial o f the accused's right to a hearing, "(emphasis added) It is discernable from the record that there was no discussion of the defence case by both courts below apart from a casual mention and dismissal as being unable to cast doubts on the prosecution case. Trite position as stipulated in JAMES BULOW and OTHERS vs R [1981] T.L.R. 283 is that it is an imperative duty of a trial judge to evaluate the entire evidence as a whole before reaching at a verdict of guilty or not guilty. 19 There was, too, no any eye witness to the incidents of the victim being carnally known by the appellant apart from what the victim alleged. As shall be discussed later in this case, even Calvin who was said by the victim that they lived with him and one incident occurred when he was staying with them, was not called as a witness. Much as it was not disputed that the appellant was the biological father of the victim to which we also entertain no doubt, yet evidence was required to prove that the appellant had a legally prohibited carnally knowledge of the victim, his daughter, as claimed. The issue whether or not the allegation by the victim was true or not remained to be a matter between the appellant and the victim. The learned State Attorney relied on our decision in Selemani Makumba vs Republic, [2006] TLR 384 to underscore the position that best evidence in sexual offences comes from the victim to move us to take the evidence of the victim as the best evidence telling the ordeal the victim experienced. He also relied on our decision in the case of Goodluck Kyando vs Republic, [2006] T.L.R 363 that, as a witness, the victim should be believed to have told the truth of the matter. With respect to the learned State Attorney, for the victim's evidence to be relied on to ground a conviction, it should pass the 20 test of being truthful [See Mohamed Said vs Republic, Criminal Appeal No. 145 of 2017 (unreported)]. We have given due consideration to the appellant's defence evidence, as the learned State Attorney invited us to do and satisfied ourselves that it was inclined to question the victim's credence. It elaborates the reasons why the victim who grew up at her grandmother, was later taken by the appellant to her aunt and later to live with him as having been caused by her unacceptable conducts. It also touched on the victim's secret communication with her mother who had been divorced by the appellant and shifted to Dar es Salam. Divorce is the last resort to spouses who observe the sanctity of marriage. It is a reflection of irreparably broken-down relationship. The appellant, it appears, had no communication with his divorced wife. Even the victim was forthcoming that the appellant was not comfortable with her communication with her mother. In effect, this demonstrates that the appellant and the divorced wife were not in good terms. Added to that there was an allegation of the victim suffering regular beatings from the appellant. The appellant attributed his being charged to family conflicts. These circumstances, 21 examined as a whole, the possibility of the victim fixing her father cannot be easily overruled as the appellant lamented in his defence. There is something more. It is the fact that PW3 extracted the information from the victim after a long solicitation and by inducing a promise. These circumstances influenced the victim's decision on what to tell. We are therefore convinced that had both courts below analyzed and evaluated the victim's evidence in relation to the appellant's defence evidence, they would have not taken and accepted the victim's words on their face value as they did. After all, in terms of then section 231 [now section 248 R.E. 2023] of the CPA, an accused person is also a witness [See Albanus Aloyce and Another vs Republic, Criminal Appeal No. 283 of 2015 (unreported)]. The only difference is that while the victim gives evidence in support of the charge, the appellant (accused) gives evidence in rebuttal to the accusations in the charge. He therefore similarly enjoys the right to be considered credible unless proved otherwise as stipulated in Goodluck Kyando vs Republic case (supra). There may be an argument that the appellant did not cross- examine the victim on the alleged bad conduct and what she used to 22 secretly talk with her mother hence an afterthought when he raised it during defence. This argument, with respect, would be unfounded for a reason that the defence evidence purely aligned and was an amplification of the victim's evidence making it not an afterthought. It was upon the prosecution, when the victim testified, to have had cleared the doubt by seeking more clarification from the victim as to what reasons caused her being taken from her grandmother to her aunt before being taken by the appellant. What the appellant actually did, in his defence is to provide and clarify the reasons. The victim's evidence, therefore, legally deserved to be considered in relation to the defence instead of simply being dismissed that it could not raise doubts in the prosecution case. In our view, the defence evidence was candid and probable enough and managed to cast doubt on the credence of the victim and hence the prosecution case altogether. Immaturity and threat allegedly imposed on the victim and fear of her life was taken by the learned State Attorney as a good reason why the victim could not reveal the ordeal that befell her for the whole period from 7/9/2020 to March 2021. He cited the case of Mwita Isombe @ Sam vs Republic, Criminal Appeal No. 639 of 2021 (unreported) wherein the Court cited with approval, an 23 observation by the Supreme Court of Philippines in the People of Philippines v. S PO Arnulfo A. Aure and S POI Marlon H. Ferol, G.R. (supra). We have read the decision wherein death threats are treated as among justifiable reasons for failure to report at the earliest opportunity in line with the guidance in Marwa Wangiti and Another vs Republic [2002] TLR 39. We have no qualms with it. But, the circumstances, in the instant case, are different. Solicitation of the information from the victim and her bad conducts detailed by the appellant undermined the victim's credence. The victim alleged, together with Calvin, were subjected to regular beating and, particularly to her, threat of death, by the appellant. But, as complained by the appellant and conceded by the learned State Attorney, the said Calvin was not called as a witness. As opposed to the learned State Attorney who argued that he was not a crucial witness in the case, in our strong view, he was a witness who would have corroborated the victim's evidence in respect of the alleged conducts of the appellant. And, by extension, the Court would be moved to accept as true the allegation by the victim that she was forced to give in due to such threats. Her allegation would therefore be plausible that the appellant kept threatening her life to secure 24 prohibited carnal knowledge from the victim and maintain secrecy of the charged incident. Settled law is, unless justified, failure to call a crucial witness entitles the court to draw adverse inference against the prosecution case that if called, would lead evidence not in favour of the one who called him. In Aziz Abdallah v. R. [1991] T.L.R. 71, we stated that: "The general and well-known rule is that the prosecutor is under prima facie duty to call those witnesses who from their connection with the transaction in question are able to testify on materials facts. I f such witnesses are within the reach but are not called without sufficient reason, the court may draw an inference adverse to the prosecution" In her evidence, the victim named Calvin as being her young brother sharing the father. They were staying with him and he left the place to avoid the beatings by the appellant. She even dared to state that one of the incidences of being carnally known by the appellant, happened during the time Calvin was still there. That the appellant stayed with her as his wife. As we have held above, if the victim's allegations were true, Calvin was therefore a crucial witness to prove not only the appellant's brutality, but also the nature of life that the appellant and the victim lived in the house. Calvin's failure to testify left the prosecution case shrouded with doubt. We agree with the appellant's complaint. Had the trial court and 25 the first appellate court judiciously examined the evidence, they would have, as we hereby do, drawn an inference adverse to the prosecution evidence for such failure to call Calvin as a witness. In fine, for the foregoing reasons, we entertain doubts in the appellant's involvement in the commission of the charged offence. We accordingly allow the appeal, quash the conviction and set aside the sentence. The appellant be released from prison forthwith if not held for another lawful cause. DATED at ARUSHA this 16th day of October, 2025. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL Judgment delivered this 17th day of October, 2025 in the presence of Appellants in person, Mr. Philbert Msuya, learned State Attorney for the respondent and Ms. Jasmin Kazi, Court Clerk; is hereby certified as a true C 0 p x / n f f h p n r in in a l 26