Jumanne Pingu @ Memo Banebe vs Republic (Criminal Appeal No. 84 of 2023) [2025] TZCA 1080 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: GALEBA. J.A., MGEYEKWA, J.A. And MLACHA. J.A.^ CRIMINAL APPEAL NO. 84 OF 2023 JUMANNE PINGU @MEMO B A N EB E ...................................... APPELLANT VERSUS THE R EPU BLIC......................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Khamis, J.) dated the 7th day of October, 2022 in Dc Criminal Appeal No. 42 of 2020 JUDGMENT OF THE COURT 3rd & 13th October, 2025 MLACHA, J.A. The appellant, Jumanne Pingu @ Memo @ Benebe, was charged of rape contrary to section 130 (1) (2) (e) and 131 (3) of the Penal Code Cap 16 of the Revised Laws, 2002 (the Penal Code) at the District Court of Nzega at Nzega. It was alleged that he had carnal knowledge of a girl aged 7 years, who, for the purpose of preserving her modest shall be referred to as GJ or the victim, on 16/8/2019 during night hours at Halo village, Igusule ward, Nzega District, Tabora Region. He pleaded not guilty but following the trial which involved six witnesses and two exhibits, he was found guilty, convicted and sentenced to the

mandatory sentence of life imprisonment. His appeal to the High Court at Tabora (the High Court) in DC. Criminal Appeal No. 42 of 2020 could not be successful hence the appeal before the Court. Briefly stated, the facts leading to the conviction of the appellant can be presented as follows: Regina John (PW5) and her husband went to the burial ceremonies nearby on 16/8/2019 leaving their children asleep at home. With them at the ceremonies was Shimba Katina (PW6). While there, they heard Moshi Jumanne (PW2) shouting from the bush calling for help. PW6 and other people rushed and met PW2 who told them that the appellant was raping GJ in the bush. PW6 saw GJ who was in a bad condition and took her back home and handled her to PW5. While there, he heard people saying "huyo huyo" in the direction of the school. They soon came with the appellant. They sent him to the office of the Village Executive Officer (VEO) for further action. The story of GJ of (PW1) was that, while asleep on the material night in the room in the company of her siblings, Holo and Selina, the appellant entered and raped her. He then carried her to the bush where he took off her skirts and underparts and raped her again. He strangled her in the process of raping. She felt pains and loss consciousness.

When she woke up, she found herself with PW6. She was later sent to the hospital. The story of PW2 was that, while asleep at the sitting room that night, the appellant entered. He picked and carried him to the bush. After putting him down at the bush he strangulated his neck. At this time his siblings including GJ were at home in the room. He lost consciousness but woke up later and saw the appellant strangulating the neck of GJ. It was at this time when he run towards the burial ceremony to call people. They came at the scene of crime and met the appellant raping G J. He was on top of GJ with her trousers down. The appellant run away. He was arrested later. The story of PW6 was that he arrived with PW2 at the bushes but he did not see the appellant raping GJ. He saw GJ unconscious, picked and sent her back home and handled her to her mother (PW5). While there, he heard people chasing someone saying "huyo huyofm the direction of the school. This person was arrested and when he was brought before him, he turned out to be the appellant. He was sent to the VEO. The latter sent him to the police station. The police sent the appellant to Hassan Juma Chuka (PW3), a Primary Court Magistrate who recorded his extra judicial statement

(exhibit P2). GJ was given a PF3 and moved to the hospital where she was attended by Juma Ramadhani Khamis (PW4), a nursing officer, who also filled the PF3, exhibit PI. PW4 said the victim had bruises and substances resembling semen in her vagina. The appellant denied to commit the offence. He said that he was merely arrested by people's militia while at home that day and sent to the police station where he was beaten up and forced to record a statement. He denied to be sent to the justice of peace. He challenged the evidence of PW2, PW4, PW5 and PW6 that they were not truthful. The trial magistrate believed the evidence of the prosecution. He rejected the defence of the appellant who was found guilty, convicted and sentenced to life imprisonment as alluded to above. His appeal to the High Court was unsuccessful as alluded to above. The appellant has two memoranda of appeal with a total of eleven (11) grounds of appeal. Having read them carefully, we think, we can safely reduce them to the following complaints: one, that, there was no evidence proving the offence beyond reasonable doubts; two, that, the appellant was of unsound of mind at the time of committing the crime; three, that PW4 being a nurse was not qualified to examine the victim and fill the PF3; four, the extra judicial statement (Exhibit P2)

was recorded contrary to the Chief Justice Guidelines; five, that, the age of the victim was not proved; six, that, the identification of the appellant by recognition was not water tight; seven, that, there were contradictions and inconsistences in the evidence of PW1, PW2 and PW6. The appellant appeared in person whereas the respondent Republic was represented by Mr. Enos Gabriel Kigoryo, learned State Attorney who teamed up with Mses. Suzan Barnabas and Wivina Rwebangira, both learned State Attorneys. Ms. Rwebangira made the address for the respondent Republic. When the appellant was invited to address the Court on the grounds of appeal, he opted for the respondent Republic to respond to the grounds of appeal first while reserving his right of rejoinder. At the outset, Ms. Rwebangira, with the leave of Court, argued a point of law, " that ; an interpreter who took part in the proceedings during trial ' James, acting for PW5, did not take an oath rendering the evidence illegal''. Amplifying, she contended that, failure to take an oath offended section 4(b) the Oaths and statutory Declarations Act, Cap 34 which demands any person acting as an interpreter o f questions put to and evidence given by a person being examined by or giving evidence

before a Court to take an oath before assuming the duties of an interpreter. She contended that failure to take an oath rendered the evidence of PW5 appearing at pages 36 and 37 of the record of appeal illegal. She cited our decision in Barutwayo Zahaki v. Republic, Criminal Appeal No. 432 of 2015 to support her stance. She urged the Court to expunge the evidence of PW5. The appellant being a layman could not respond to this point. On our part, having examined page 36 of the record of appeal and examined the law, we are in agreement with the learned State Attorney that the evidence of PW5 was recorded illegally and we proceed to expunge it. We now move to examine the complaints raised in the appeal. We will start with complaint number one. By necessary implications, we will also examine complaints number six and seven in the course. Ms. Rwebangira said that the respondent Republic did not support the appeal. They support the decisions of the lower courts. She started by examining the evidence of PW4. While admitting that the PF3 (exhibit PI) was filled by PW4, a nurse, who was not a "Medical Practitioner" within the meaning of the term provided under section 3 of the Medical, Dental and Allied Health Professionals Act, Cap 152, Ms.

Rwebangira contended that based on our decision in Hamisi Kayanda v. Republic, Criminal Appeal No. 166 of 2018, the PF3 can be expunged while the evidence of PW4 is left intact to be treated like the evidence of any other witness. With this in mind, she urged the Court to find that PW4 examined the victim and found her vagina with bruises and fluids which appeared like semen. On what happened to the victim that night, Ms. Rwebangira combined and submitted on the rape generally saying that the evidence of PW1 and PW2 was good enough to show that the appellant entered in the house and picked the victim, sent her the bush and raped her. That PW2 who had also been sent to the bush saw the appellant raping the victim and rushed to call people who came and witnessed the rapping. Ms. Rwebangira contended further that, the appellant who was known to PW1 and PW2 was properly identified using flash lights of fire batteries which were available in the house. PW2 could also describe the dress of the appellant; red shirt and black trousers. She submitted that, the appellant was identified outside using moonlight. When she was engaged by the Court to explain the reason as to why PW2 was sent to the bush, Ms. Rwebangira submitted that, it is not known why

that was done and is also not clear why the appellant was not arrested at the scene of crime. Nevertheless, she contended that the appellant was known by both PW1 and PW2 so he was properly identified by recognition. She cited our decision in Anthony Kinanila & Another v. Republic, Criminal Appeal No. 83 of 2021 (unreported). The learned State Attorney submitted further that, the age of the victim was proved by PW1 at page 7 where she said that she was 7 years old. Penetration was proved by PW1 at page 7 where she said that, "A/e raped me by putting the thing I don't know in my private parts which I use to pass water" She interpreted the words to mean that the penis of the appellant was inserted in the vagina of the victim. When she was engaged by the Court to explain if the evidence of PW1, PW2 and PW6 was free of inconsistencies and contradictions and whether the evidence was logical, she submitted that there was no any inconsistencies or contradictions but agreed that the act of carrying and taking both PW1 and PW2 to the bushes for raping PW1 was a bit unusual. The appellant being a layman could not respond to the submission of the learned State Attorney. He only urged the Court to consider his grounds of appeal and set him free.

On our part, we had time to examine the evidence and consider the submissions of the parties. With respect to the learned State Attorney, we have the view that, for the evidence of the prosecution to sustain a conviction in any criminal case, the evidence must be consistent, logical and free of any material contradictions. It must also establish the ingredients of the offence charged. As for the inconsistencies and contradictions in the appeal, both PW1 and PW2 said it was the appellant who raped the victim. They are the only star prosecution witnesses. The account of PW1 appearing at pages 7 and 8 of the record of appeal was, inter alia, as follows: "M em o cam e a n d ca rrie d s ib lin g M o sh i a n d to o k him to th e bushes. Then m em o ra p e d m e w h ile I w as sle e p in g w ith Ho/o a n d S elin a. Then Memo came to the bedroom and carried me, but I could not see him. H e c a rrie d m e to th e bushes. He left Holo and Selina to the bedroom sleeping. Also, my brother Moshi was brought to the bushes. After M em o to o k m e to the bushes, he to o k o ff m y s k ir t a n d u n d er p a rts . H e then ra p e d m e by then putting the thing I don't know to my private parts." [Emphasis supplied]

The story of PW2 appearing at page 9 and 10 was a follow: "Memo attacked us. There was light o f the fla sh lig h t o f fire b a tte rie s, — I recognized him with red shirt and a black pair o f trousers ....h e came in and he carried me and he to o k m e to th e b u sh es. He p u t m e dow n a n d stra n g le d m y neck. — / came to know it was Memo due to moonlight ; there was fu ll moon. A t the time he took me out my siblings were sleeping inside — so he to o k m e o u t First. I lost the consciousness. But when I got up, I sa w M em o stra n g lin g th e n e ck o f GJ. So, I run to the funeral. They cam e to th e bush a n d sa w M em o ra p in g G J .... GJ was naked lay down and Memo had lowered her trousers and he was on top o f GJ. Memo run away." [Emphasis supplied] The account of PW1 and PW2 coupled with the evidence of PW6 raise many questions without answers. This raise doubts if the appellant was the rapist. One, it is not known, as expressed by the learned State Attorney, why the appellant took both PW1 and PW2 to the bushes. Two, if his aim was to rape the victim again, on a second round, and assuming that the bush was more preferable than the 10

bedroom, why did he take the trouble to also bring her bother to the bush as well. Three, after taking and strangulated PW2 in the bush, the appellant had no reason to take PW1 to the bush. Logic demands that he could take his second round in the bedroom. This arrangem ent to take the victim for raping, for her second time, in the bush, defeats logic. Four, PW2 and PW6 came at the bushes together, arriving from the funeral ceremonies, but whereas PW2 saw the appellant raping the victim, PW6 did not witness this act. It is not known why PW6 did not see the appellant raping the victim. Five, whereas PW2 saw people who had come at the bush chasing the appellant, PW6 did not see them. He heard people chasing the appellant after arriving at the house of PW5. They were saying "huyo huyd' from the direction of the school suggesting that it was far. Six, it is not known why the appellant could not be arrested on the spot if at all he was found ready handed on top of the victim. The above exposition takes us to the credibility of PW2 and PW6. The Court has on several occasions addressed this subject. In Shabani Daudi v. R., Criminal Appeal No. 28 of 2000 (unreported) we stated as follows: "May be we start by acknowledging that credibility o f a witness is the monopoly o f the 11

trial court but only in so far as demeanour is concerned. The credibility o f a witness can also be determined in two other ways: One, when assessing the coherence o f the testimony o f that witness. Two, when the testimony o f that witness is considered in relation with the evidence o f other witnesses, including that o f the accused'' person. In these two other occasions the credibility o f a witness can be determined even by a second appellate court when examining the findings o f the first appellate court." See also Bahati Makeja vs Republic (Criminal Appeal 118 of 2006) [2011] TZCA 31 (28 February 2011) where we stated: "It is generally agreed that in assessing the credibility o f a witness, the court has to adopt a careful and dispassionate approach and critically evaluate the evidence in order to find out whether it is cogent, persuasive and credible,... A n o th e r o b servatio n w orth m a kin g here is th a t w h ile n o rm a l d iscre p a n cie s do n o t co rro de th e c re d ib ility o f a w itness, m a te ria l d iscre p a n cie s do. Normal discrepancies are those which are due to normal errors o f observations, memory errors due to lapse o f 12

time, or due to mental disposition such as shock and horror at the time o f the occurrence o f the event M a te ria l ones are those g o in g to th e ro o t o f th e m a tte r a n d /o r n o t e xp e cte d o f a n o rm a l p erso n " [Emphasis supplied] In view of what we have demonstrated above and in the light of the above authorities, we find that PW2 and PW6 were not credible witnesses. Their evidence is wanting. It is illogical on several aspects and has material contradictions. This casts serious doubt to the prosecution case. The identification of the appellant also leaves much to be desired. Much as it may be correct that both PW1 and PW2 knew the appellant in advance hence identification by recognition, but their descriptions and the circumstances surrounding the commission of the offence leave much to be desired. It is also a fact that this type of identification has its problems as was said in Anthony Kinanila and Another v. Republic, Criminal Appeal 83 of 2021 [2022] TZCA 356 where we stated: evidence o f visual identification or recognition should be cautiously acted upon as it is a lw a y s p ro n e to fa b rica tio n o r b ein g 13

b a se d on h o n e st m istakes. We are also m indful o f the stance o f the law that eye witness evidence can be devastating when false witness identification is made due to honest confusion or outright lying". [Emphasis supplied] See also Wilson Elisa Kiungai vs Republic, Criminal Appeal 449 of 2018 [2022] TZCA 629 (13 October 2022). Taking into account the type of light used to identify the appellant; "flash lights o f fire batteries" and moon light and the bush we left with doubts if PW1 and PW2 could identify the appellant properly. We are not told what is this thing called "flash lights o f fire batteries"\s all about. It sounds a new type of light and strange. Even at the hearing the learned State Attorney could not tell what type of source of light was this. Its intensity was also not described. Outside the house was a full moon light but the existence of bushes may prevent one to see properly. It was not favourable to make a good identification. It is obvious that, there was no evidence to prove the case without reasonable doubts. We thus allow the first, sixth and seventh complaints.

With this finding, we find no reason to discuss other complaints on the appeal for what we have said is sufficient to dispose of the appeal. We accordingly quash the conviction and set aside the sentence imposed on the appellant. We order his immediate release from prison unless lawfully held on some other grounds. Appeal allowed. DATED at TABORA this 13th day of October, 2025. Z. N. GALEBA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 13th day of October, 2025 in the presence of appellant, virtually, in person and unrepresented, Ms. Orester Onesphory, learned State Attorney for the Respondent/Republic and Mr. Oscar Msaki, Court Clerk, is hereby