Juma Hassani Islahi vs Republic (Criminal Appeal No. 303 of 2023) [2025] TZCA 1093 (13 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. 303 OF 2023 JUMA HASSANIISLAHI............................................................. APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Songea) (Madeha, J.) dated 21s t day of November, 2023 in DC. Criminal Appeal No. 35 of 2022 JUDGMENT OF THE COURT 7th & 13th October, 2025 ISMAIL, J.A.: The District Court of Namtumbo at Namtumbo, in which the appellant was arraigned, convicted Juma Hassan Islahi of rape, contrary to sections 130 (1) and (2) (e) and 131 (1) of the Penal Code. He was, in the end, handed a hefty sentence of 30 years in prison. The victim of this savage act was a ten-year old girl whom we shall herein refer as the victim or PW2. Particulars of the charge revealed that the incident occurred on 22n d May, 2021, at Minazini Village within Namtumbo District, Ruvuma Region. Not unexpectedly, the appellant pleaded not guilty to the charge, necessitating a trial that culminated in the conviction and eventual sentence.

In a bid to protest his innocence, the appellant instituted an appeal to the High Court but his efforts fell to naughty when the court dismissed the appeal and upheld the trial court's findings. Undaunted, the appellant is before us through the instant appeal. The brief facts as gathered from the record inform that, at around 18:00 hours on 22n d May, 2021, PW2 was sent by PW1 to buy rice from a shop. On her way back, she met the appellant. He grabbed and dragged her to a nearby sunflower farm, belonging to Mianzini Primary School. Amidst threats that he would kill her if she screamed, the appellant stripped PW2 naked and forced her to kneel down. He then inserted his manhood into the victim's genitalia. When he was done, he warned the victim against disclosing the incident to anybody. Smarting from this horrible encounter, the victim went home crying and narrated the ordeal to PW1, her mother. The latter conducted an inspection of the victim's private parts and noticed that they were swollen. She reported the matter to Namtumbo Police Station from which she obtained a Police Form No. 3 (PF3) through which she conveyed the victim to Namtumbo Health Centre. PW3, a clinical officer who conducted the examination, observed that the victim carried bruises and wounds on her vagina, while her cervix was open, her hymen perforated, indicating that she had been penetrated by a blunt object. After treating the victim, PW3

filled a PF3 and handed it back to the police. This document was tendered in court and admitted as exhibit P2. In the course of the hearing, the prosecution tendered, amongst others, the testimony on the victim's age, exhibit PI (the victim's birth certificate), which proved that she was of the age of below 18 years. On how PW2 identified the appellant, her testimony was that, the appellant was a prolific football player who was popular among the villagers. The appellant valiantly denied any involvement in the incident with which he was associated. He denied that he knew PW2 as much as he did about his being a footballer. Turning on to the testimony of PW3, the appellant argued that, such testimony clearly showed that no spermatozoa were found inside the victim's genitalia. He took a swipe at PW2's testimony as the same did not clearly state what exactly penetrated into her vagina. This, therefore, created doubts that implied that the prosecution did not prove its case. The learned trial Magistrate was convinced that the prosecution had done what was necessary to prove the case against the appellant. He was convinced that the evidence pointed to the appellant as the wrong doer. Consequently, he convicted him of the offence of rape and handed down a 30-year prison sentence. The conviction and sentence were not to the appellant's liking. He instituted an appeal to the High Court which was adjudged unmeritorious. 3

This ignited his journey to this Court through a memorandum of appeal that has raised five grounds of appeal. His points of dissatisfaction are as paraphrased hereunder.

1. Improper conduct of a preliminary hearing;
2. Evidence relied upon to convict him was adduced by witnesses who were not listed during the preliminary hearing;
3. That, a voire dire test in respect of PW2's testimony was conducted contrary to the law;
4. That, the trial court failed to consider the defence case; and
5. The case against the appellant was not proved beyond reasonable doubt. When the matter was called on for hearing, the appellant appeared in person, unrepresented. The respondent's team consisted of Ms. Mwajabu Tengeneza, learned Principal State Attorney and Mr. Frank Chonja, learned State Attorney. The appellant who was invited to address the Court opted to let the respondent's counsel address us first, while he reserved the right to a rejoinder, if the need for doing so would arise. Ms. Tengeneza informed us that they were supporting the appeal. Her position was premised on what she considered to be shortfalls highlighted in ground three of the appeal. The learned counsel argued that, at page 16

of the record of appeal, the trial court conducted a voire dire test on PW2 and that, the findings in respect thereof are found at page 17 of the record. She argued that, a culmination of all this was a statement by the trial Magistrate that the witness was intelligent and qualified to testify. Ms. Tengeneza took an exception to the procedure adopted by the learned trial magistrate. She submitted that, the offence with which the appellant was charged was allegedly committed in 2021, at a time when section 127 (2) (now section 135 (2) of the Evidence Act had undergone an amendment to dispense with the requirement of holding a voire dire test for a witness who is a child of tender age. In her contention, the new dispensation only required the said witness to promise to tell the truth and not lies. Drawing our attention to the record of appeal, the learned counsel contended that, since PW2 did not make the promise to tell the truth and not lies, the imperative requirement under section 135 (2) was not complied with. Referring us to the decision of the Court in Babu Abdullahman @ Msuya v. Republic, Criminal Appeal No. 139 of 2021 [2023] TZCA 18017, Ms. Tengeneza urged us to hold that the testimony of PW2 did not have any evidential value and that, the same should be expunged. Having urged us to cross off PW2's discrepant testimony, the learned counsel invited us to evaluate the residual testimony with a view to assessing if the same is capable of proving the charge of rape. The residual testimony 5

here referred to the factual account adduced by PW1 and PW3. She was downbeat about its qualitative value to sustain the conviction. She contended that, while PWl/s testimony was a bunch of hearsay which is inadmissible, that of PW3 was a mere opinion which cannot stand on its own without the victim's own account. On this, she referred as to the famous case of Selemani Makumba v. Republic [2006] T.L.R. 379. Overall, Ms. Tengeneza urged us to hold that the case against the appellant was not proved beyond reasonable doubt. Not unexpectedly, the appellant did not have any thing useful to submit. He only implored us to allow the appeal and set him at liberty. We have unfleetingly reviewed the record of appeal, the counsel's submissions, and the appellant's prayer. One broad question that comes out for our resolution is whether the case was proved beyond reasonable doubt. Given what the learned counsel for the respondent submitted to us, we hold no doubt that this appeal will fall or stand depending on the determination of this ground. As stated earlier on, the appellant's conviction was, by and large, predicated on the testimony of PW2, the victim, who gave a detailed account of what happened on the fateful date. The testimony of PW1, PW3 and exhibit P3 weighed in as a corroborating testimony to what PW2 said was perpetrated to her by the appellant. As alluded to earlier on, PW2's

testimony is under the cosh and the issue in contention is that section 127 (2) of the Evidence Act was infracted. Ms. Tengeneza has rightly contended that, Act No. 4 of 2016 repealed the then section 127 (2) (3) of the Evidence Act and substituted it with a new sub-section (2) to dispense with the requirement of conducting a voire dire test on a child witness. As it did so, it lessened the burden that was placed on trial courts to determine if the child of tender age understands the nature of oath and the duty bestowed on him to tell the truth when he takes a witness box and testify, and if he possessed intelligence that is sufficient enough to have his testimony admitted - see: Hassan Hatibu v. Republic, Criminal Appeal No. 71 of 2002; Mohamed Sainyenye v . Republic, Criminal Appeal No. 57 of 2010 (both unreported); and Godfrey Wilson v. Republic, Criminal Appeal No. 168 of 2018 [2019] TZCA 109. Through this amendment, work was cut down to only leading the witness to tell the truth and not lies. The new requirement is coined in the following wording: "(2) A child o f tender age maygive evidence without taking an oath or making an affirmation but shah ' before giving evidence, promise to tei! the truth to the court and not to tell any lies . " A review of the record of appeal takes us to page 17 at which the learned trial court made its conclusion on the ability or otherwise of PW2 to testify in court. It observed as follows:

"Court After the voire dire test, I have found witness's intelligence and her awareness o f the purpose o f being here, qualifies her to give her testimony on this matter." It is clear from the quoted excerpt that, the learned trial magistrate was stuck in the past, applying a test which was no longer a requirement under the law. As he did that, the new requirement was given a wide-berth as the witness, PW2, adduced her evidence without making a promise to tell the truth. As Ms. Tengeneza submitted, this was a little wayward, and the effect is that PW2's testimony was taken irregularly, rendering it unworthy and a mere charade that cannot support the allegation. This position is an accentuation of what this Court has held in numerous decisions. In Godfrey Wilson (supra), we laid an emphasis on the compliance with this requirement and the fate that would await the non-compliant testimony. We guided as follows: "...In the absence o fpromise by PW1, we think that her evidence was not properly admitted in terms o f section 127 (2) o f the Evidence Act as amended by Act No. 4 o f2016. Hence, the same has no evidential value. Since the crucial evidence o f PW1 is invalid, there is no evidence remaining to be corroborated by the evidence o f PW2, PW3 and PW4 in view o f sustaining the conviction."

This position was underscored, yet again, in Babu Abdullahaman @ Msuya (supra) wherein we held as hereunder: "As a result, we are in agreement with Ms. Samwet that the resulting evidence o f PW1 had no evidentiary value as it was taken in violation o f section 127 (2) o f the Evidence Act and has to be expunged as we hereby do so." Emboldened by the cited decisions, amongst many others, we are left with no option but to accede to Ms. Tengeneza's urge and, as a consequence, we expunge PW2's testimony from the record. The next segment in our decision requires us to determine if the residual testimony is sufficient to prove the case against the appellant and sustain the conviction. We hasten to state that the answer to this question is in the negative. As Ms. Tengeneza argued, rightly so in our considered view, the remainder of the testimony is a mongrel that comes from PW1, of a hearsay account which does not count, and the testimony of PW3, which is essentially an opinion which would, at most, have a corroborative effect were the victim's testimony to stand. This testimony does not link the appellant to the offence with which he was charged. The net effect of all this is that the case for the prosecution was not proved beyond reasonable doubt, and it cannot be said, with any semblance of precision, that the appellant's conviction was properly grounded.

In view of the foregoing, we allow the appeal. We quash the appellant's conviction and set aside the sentence imposed on him. Accordingly, we order that the appellant be immediately released from prison unless he is held for other lawful cause. DATED at SONGEA this 10th 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 13th day of October, 2025 in the presence of the Appellant in person, Mr. James David Rhobi learned State Attorney for the Respondent/Republic and Mr. Elias Nkwabi, Court Clerk, is hereby certified as a truecop^-of the oriqinal.