Said Daimu Bahati @ Mkope vs Republic (Criminal Appeal No. 787 of 2023) [2025] TZCA 1116 (15 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA fCORAM: MKUYE, J.A.. MASOUP. J.A. And ISMAIL, J.A.^ CRIMINAL APPEAL NO. 787 OF 2023 SAID DAIMU BAHATI @ MKOPE ...................................... .........APPELLANT VERSUS THE REPUBLIC ................... ............................................. RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Songea) (Madeha, J.) dated 28th day of June, 2023 in Criminal Appeal No. 16 of 2023 JUDGMENT OF THE COURT 8th & 15thOctober, 2025 ISMAIL, J.A.: The appellant was charged with two counts of attempted rape, contrary to the provisions of section 132 (1) and (2) (a) of the Penal Code, Cap. 16. In terms of the charge sheet laid at his door, the offence was allegedly committed in the night of 26th March, 2022, at Namiungo village, within Tunduru District, in Ruvuma Region. Those on the receiving end were two girls aged 12 and 13 years, whom we shall interchangeably refer as the victims or PW1 and PW2. The appellant pleaded not guilty to the charge, necessitating a full trial which ended in a conviction on both counts. A ten-year custodial sentence was meted out to him. l

The brief facts of this case as gleaned from the record of appeal are pretty straight forward, and they are to the effect that, at around 03.00 hours on 23r d March, 2022, PW1 and PW2 were sleeping in a room at their residence. PW1 woke up to attend to a call of nature. As she stretched her legs something obstructed her. Alarmed, she woke PW2 up and enquired if her mother sent a child called Amina to share a bed with them. In a bid to establish what had happened, PW1 lit a dry cell powered light that illuminated the room. They saw the appellant who swiftly moved to shut PWl's mouth while hurling threats that death awaited them if they raised an alarm. Having succeeded to contain the duo, the appellant embarked on a raping spree. He attempted to penetrate PW1 but he abandoned his plan when he realised that the victim could not give him the pleasure that he craved. His attempt on the PW2 was equally unappetizing and therefore unsuccessful. He then moved back to PW1 but, as he did in his first attempt, he cut it short and left through the window, promising to come back to orient them until they get used to the sexual act. Immediately after his departure, the victims drew the attention of Fatuma Mtembezi, PW3, who is PWl's mother. The latter enlisted the assistance of Fatuma Hamad, PW4. The victims named the appellant as their tormentor. The matter was reported to the Village Executive Officer for Namiungu Village who referred them to Nakapanya Police Post from which they were issued with a Police Forms No. 3 (PF3) that allowed the victims to be examined and treated at Nakapanya Health Centre. PW6 Antony Boniface

Kayombo, who conducted the medical examination, observed that there was no penetration to either of the victims' vaginas. He, however, found some bruises in between PW2's anus and vagina. The PF 3 was admitted as exhibit PI. The appellant was subsequently conveyed to Tunduru Police Station from which he was arraigned in Tunduru District Court. In his defence, he denied any wrong doing. He stated that, on the material date and time, he was with his wife at their residence. This version of story was corroborated by his wife, Haruna Athumani Maulid, who testified ad DW2. She stated that she was together with her husband on the fateful day and that she was surprised when he was arrested in connection with the allegations. The trial court found the prosecution's account convincing and credible. It concluded that the victims' testimony was mutually corroborative. It went ahead and convicted the appellant. The verdict was left unscathed on appeal to the High Court of Tanzania. The High Court, though, reasoned that the testimony pointed to a graver offence of rape. The learned 1s t appellate Judge substituted the charge to rape and enhanced the sentence from 10 years to 30 years' prison term. Unable to put up with it, the appellant took a ladder up, to this Court. His appeal has raised five grounds the substance of which we choose not to reproduce. This is in view of what transpired in the course of the appeal hearing as we shall soon find out.

Hearing of the appeal pitted the appellant who fended for himself, unrepresented, against Ms. Mwajabu Tengeneza, learned Principal State Attorney, assisted by Mr. Frank Chonja, learned State Attorney, who represented the respondent Republic. Ms. Tengeneza, who addressed us first supported the appeal. She first began by highlighting the variance that existed between the charge and the testimony adduced by PW1, PW2 and PW3 on the date on which the incident occurred. She argued that, whereas the charge stated that the incident occurred on 26th March, 2022, the evidence adduced in support cited 23r d March, 2022 as the date on which the offence was allegedly committed. The learned counsel was quick to submit, however, that the discrepancy was of a minor effect and that the appellant was not prejudiced as he knew the nature of the charges against him and prepared his defence. Turning her attention to the 1s t appellate Judge's decision to substitute the charge, Ms. Tengeneza argued that the decision was unjustified as powers of the High Court on appeal are drawn from section 29 (a) of the Magistrates' Courts Act, Cap. 11 (MCA). She hastened to submit, however, that such powers are only limited to substitution of a conviction or sentence. They do not extend to framing of new charges. The learned counsel argued that, either way, in exercise of such powers, the High Court must, when it does so, afford the appellant the right to be heard. She was firmly of the view that, in the instant case, the parties were kept oblivious of the learned Judge's intention until when she sat to deliver the impugned judgment. She urged us to consider the learned

Judge's conduct as anomalous and declared the decision a nullity. This would, she contended, leave the decision of the District Court as the only legitimate decision. Taking the argument a notch higher, Ms. Tengeneza dived deep into the substance of the testimony adduced by PW1, PW2 and PW6, and submitted that none of these witnesses' testimonial account proved that there was penetration, a key ingredient in proving rape cases. PW6 in particular, ruled out penetration into PWl's genitalia while in the case of PW2, bruises were found in between the vagina and anus. These bruises would not bring any slightest impression that PW2 was penetrated. This in effect meant that the self-styled allegation of rape was not backed up by evidence and, therefore, unproven, she argued. Reverting to the core allegation of attempted rape, Ms. Tengeneza drew our attention to section 132 (1), (2) (a) of the Penal Code under which the offence of attempted rape is established. She argued that, the main ingredients for proving rape is: issuing threats to a girl or woman for sexual purpose, and that such threats must be issued in the process of procuring the prohibited sexual intercourse. Ms. Tengeneza contended that the testimony of PW1 and PW2 revealed no element of threats before or during the attempt. If any, they were after the fact. In view thereof, the learned counsel contended, the key ingredient of attempted rape was missing.

Ms. Tengeneza reasoned that, the appellant was not disrupted by any external force and he had an option to proceed but he chose to cut short his intention. She was of the contention that a critical review of the testimony revealed an offence different from attempted rape. At most, she argued, this was a case of grave sexual abuse. The learned counsel dwelt on the question of identification and the question that she came up with is whether the appellant was identified. While acknowledging that none of the two victim witnesses explained the intensity of the dry cell battery light that illuminated the room, the learned counsel argued that dry battery lights are usually very bright and able to emit enough light that would aid in identifying an assailant. She argued that, being girls aged 12 and 13 years, they were not expected to be so graphic in their testimony and point out each and every aspect of the identification. Overall, Ms. Tenegeneza urged us to allow the appeal and set the appellant free. The appellant had nothing of substance to submit. His plea was that we should set him free. The singular issue for our determination is whether the case against the appellant was proved to the hilt. But before we delve into this substantive question, we wish to address the disquiet expressed in respect of the 1s t

appellate Judge's decision to substitute the charge of attempted rape to that of rape and enhance the sentence to imprisonment for 30 years. As the learned counsel for the respondent contended, the High Court enjoys some additional powers when it sits on appeal against decisions emanating from the district court. These powers are drawn from the provisions of section 29 (a) of the MCA. The scope of the powers under this provision is quite clear and it entails taking or ordering such other court to take additional evidence; to confirm; reverse; amend or vary the decision or order appealed against. For ease of reference, the said provision is reproduced hereunder: "29. In the exercise o fits appellatejurisdiction under this Part, the High Court shall have power- (a) to take or to order some other court to take and certify additional evidence and, whether additional evidence is taken or not, to confirm, reverse, amend or vary in any manner the decision or order appealed against (including, without prejudice to the generality o f the foregoing, power to substitute a conviction, or a conviction and sentence, for an order o f the district court substituting an acquittal for a conviction, and power to make declaratory orders):

Provided that- (i) the decision or order o f the High Court as altered shall not be in excess o f the jurisdiction o f the court o f first instance; (ii) a conviction or conviction and sentence shall not be substituted for an order o f the district court substituting an acquittal for a conviction ; and no sentence shall be enhanced, unless the accused or convicted person, as the case may be, has been given an opportunity of being heard; and (Hi) .... N/A; (b) . N/A." [Emphasis is added] From the quoted excerpt, we draw the following key imports. One, that, in case of an order for reversal, amendment or variation of an order or decision, then decision or order of the High Court must be within the confines of jurisdiction of the of the court of first instance. Two, the decision of the High Court shall not have the effect of substituting a conviction or conviction and sentence for an acquittal. Three, no order for enhancement of a sentence should be made unless the person who has been convicted and sentenced has been afforded an opportunity to be heard on the intended enhancement.

What comes out clearly is that, the learned High Court Judge who sat as an appellate court went far overboard when she substituted the charge from that of attempted rape to that of rape. The decision was not within the confines of the High Court sitting as an appellate body in appeals from the District Court. The other equally transgressing thing, but far more serious, stems from the decision to substitute the charge and enhancement of the sentence from 10 years imprisonment that the trial court meted out as a minimum sentence in the offence of attempted rape to 30-year custodial service served to convicts of rape. The decision to enhance the sentence was done without letting the appellant make a case. As a result, the inviolable right to a fair hearing that the appellant had under the law was thrown out of the window and we consider this to be a serious travesty that must be addressed. We, in consequence, quash the judgment of the High Court and sent aside the irregularly enhanced sentence on the offence of rape. Next for our determination is whether the case against the appellant on the offence of attempted rape was proved beyond reasonable doubt. The testimony adduced by the prosecution and constituted the basis of the trial Magistrate's decision was that of visual identification. This testimony was adduced by PW1 and PW2 both of whom contended that they were aided by a light whose source was a dry cell battery that was installed in their house. The settled law is that the testimony of visual identification can, in fitting circumstances, be used to hold an accused liable to an offence, but only if the 9

evidence is watertight and conditions surrounding the identification pass the test. This test was enunciated in the legendary decision of the Court in Waziri Amani v. Republic [1980] T.L.R. 250. It has since been amplified and underscored in a multitude of decisions of this Court. Such test entails ensuring that, if the offence was allegedly committed at night, the conditions for identification are favourable and leave no possibility of mistaken identity. Needless to say, therefore, that the prosecution would have to demonstrate, in no unclear terms, that the place was lit. further to that, the prosecution would need to state the source and intensity of the light that aided the witness to identify the accused. We emphasized this this position in Ally Mohamed Mkupa v. Republic, Criminal Appeal No. 2 of 2008 (unreported) in which we guided as follows: "Where one claims to have identified a person at night there must be evidence not only that there was light, but also the source and intensity of that light. This is so even if the witness purports to recognize the suspect"[Emphas\s added]. See also: Chacha Jeremiah Murimi v. Republic, Criminal Appeal No. 551 of 2015 [2019] TZCA 52; and Damian Manyika @ Babu Tanga v. Republic, Criminal Appeal No. 306 of 2022 [2024] TZCA 451. As stated above, neither PW1 nor PW2, described to the trial court the intensity of the light that was emitted from the dry battery light which PW1 purportedly switched on when she felt impeded as she woke up and stretched

the legs. Ms. Tengeneza attempted to shrug off the requirement, arguing that those are details which are not expected to be established by a 13-year-old child. With profound respect, we are unable to go along with the learned counsel's reasoning. The question of intensity of the light was not an insignificant matter which can be easily wished away by a casual contention that the witness, whose intelligence and ability to recount events of the fateful was considered to be admirably impeccable. It is a matter that goes to the root of the witness's credibility and it would be foolhardy if we were to pick what suits the prosecution and go along with it and ignore that which the prosecution considers to be a bother. These are not matters of style as to call for our flexibility. They are matters of principle which should not be easily bent for one's convenience. From the foregoing, the question that we pose is whether, amidst opacity on the intensity of the light that allegedly aided the identification, the testimony of PW1 and PW2 that the trial court relied on was watertight. We do not think so. Nothing in that testimony meets the threshold of watertight evidence which was enunciated in Nhembo s/o Ndalu v. Republic, Criminal Appeal No. 33 of 2005 [2008] TZCA 87. We held in that case, as follows: 7/7 law ...fo r evidence to be watertight, it must be relevant to the fact in issue, admissible, credible, plausible, cogent and convincing as to leave no room for a reasonable doubt"

In consequence, we hold the view that the testimony ofvisual identification adduced by PW1 and PW2 was laden with inadequacies andthe trial court was erroneous in relying on it to bring the appellant to a blemished account. But even if we assume, just for the sake of argument, that the appellant was positively identified as the perpetrator of the offence with which he was charged, the next question that comes to mind is whether, the facts, as they obtain in this case, support the charge of attempted rape. Ms. Tengeneza was not persuaded that they do, and we are in full agreement with her. We need to restate, at the onset, that the appellant's arraignment and eventual conviction was hinged on the stipulation enshrined in section 132 (1) and (2) of the Penal Code, which provides as hereunder: "132 -(1) A person who attempts to commit rape commits the offence o fattempted rape, and except for the cases specified in subsection (3) on conviction, shall be liable to imprisonment for life ; and in any case shall be liable to imprisonment for not iess than thirty years with or without corporal punishment (2) A person attempts to commit rape if, with the intent to procure prohibited sexual intercourse with any girl or woman, he manifests his intention by- (a) threatening the girl or woman for sexualpurposes."

The cited provision brings out three key ingredients necessary to successfully hold an accused liable to the offence of attempted murder. These ingredients were clearly enumerated in the case of Yavan Charles v. Republic, Criminal Appeal No. 411 of 2023 [2025] TZCA 438 in which the Court observed as follows: "From the quoted provision o f the law, it is dear that the key ingredients o f the offence o f attempted rape are: One , the intent to procure prohibited sexuai intercourse with any girl or woman; two, threatening the victim o f the attempted rape; and three, that the intention was not perfected owing to intervention or interference. Absence o f any o f these key pillars reduces attempted rape to something else. The term " threatening " is not defined by the Penai Code that created the offence. Nonetheless, Black's Law Dictionary, 6th edn. p. 1030defines " Threatening " to mean: " A communicated intent to infiict physical or other harm on any person or property . A declaration of intention to injure another or his property by some unlawful act..." [Emphasis added]. See also: Khatibu Kanga v. Republic, Criminal Appeal No. 290 of 2008 [2011] TZCA 203.

We have scrupulously reviewed the testimony of PW1 and PW2. In their identical testimony on the happenings of the night, we have distilled the following:

1. That, the appellant issued no threats against any or both of the victims before he allegedly indulged in the aborted sexual endeavour. Aware that "threatening" is a catchword that serves as a pillar on which the offence stands, absence of evidence that the perpetrator threatened the victim for sexual purposes throws the allegation by the wayside - see: Damian Ruhele v. Republic, Criminal Appeal No. 507 of 2007 [2012] TZCA 160.
2. That, appellant's original intent was not procurement of sexual intercourse. PW1 has testified at page 11 of the record of appeal that, having failed to give him money that he demanded, the appellant gave them the choice between taking their life or raping them. The victims chose the latter. In her words, PW1 was recorded testifying as follows: "the accused then demanded the money, we told him that we don't have money, he then asked us "Chagueni moja niwabake au niwaue" Shanaizer told him that "Bora utubake kuiiko kutuua" He ordered us to address the c/oth ; I told him "Basi muanze huyo mwenzangu." PW2 corroborated this testimony at page 13 when she stated as follows:

"... We told him that we don't have money, he gave us two options either to rape us or we could give him money Tsh. 100,000/= we asked if he could rape us the he could leave us safe." 3. That, whereas it is not disputed that the intent was put into action but not perfected, such failure was not frustrated out of interference or intervention from anybody. On the contrary, the victims stated that it was the appellant's own decision to shelve his plans when he realized that, on account of the victims' age, he could not get what he set out to achieve from them. The importance of frustration or intervention in the aggressor's evil intention, as a key aspect in proving the offence of attempted rape, has been underscored by this Court in its numerous decisions. In Joseph Paul @ Alex Makua v. Republic, Criminal Appeal No. 342 of 2019 [2020] TZCA 1869, the Court held as follows: "It is apparent in the above citedprovision that the offence o f attempted rape is committed when a person’ s intention to commit the offence o f rape is frustrated before he commits it fully." In the absence of these ingredients, what is considered to be an attempted rape is merely a revelation of some other violation of the law distinct from attempted rape. We are afraid, the learned trial Magistrate's conclusion

that the offence was proved beyond reasonable doubt was a little specious. It was not born out of the evidence presented before him. In sum, we allow ground five of the appeal and on the basis of that ground alone, we allow the appeal. Accordingly, we quash the conviction, set aside the sentence and order that the appellant be immediately released from prison unless held for a lawful cause. DATED at SONGEA this 13th day of October, 2025. R. K. MKUYE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 15th day of October, 2025 in the presence of the Appellant in person, Mr. Kauli George Makasi, learned Senior State Attorney for the Respondent/Republic and Mr. Elias Nkwabi, Court Clerk, is