Tungu Ngasa vs Republic (Criminal Appeal No. 87 of 2023) [2025] TZCA 1083 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA ( CORAM: GALEBA, 3.A., MGEYEKWA, 3.A., And MLACHA, J.A.^ CRIMINAL APPEAL NO. 87 OF 2023 TUNGU NGASA ................................................................. APPELLANT VERSUS THE REPUBLIC.............................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Salema, 3 .) dated the 28th day of October, 2022 in DC Criminal Appeal No. 49 of 2021 JUDGMENT OF THE COURT 3rd & 13th October, 2025 MGEYEKWA, J.A:. The appellant, Tungu Ngasa stood trial before the District Court of Nzega at Nzega for rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code Cap.16 (the Penal Code). It was alleged that the appellant on diverse dates of June, 2020 at Isanga Village in Lusu Ward, Nzega District within Tabora Region, did have carnal knowledge of a girl aged seventeen (17) years whose identity is concealed, henceforth to be referred to as "the victim" or simply as "PW1", the code name by which she testified. i

Briefly, the evidence adduced by the prosecution was to the effect that, PW1 was a Form Three student at Hamza Aziz Ally Secondary School. In her testimony, she said that she had a consensual sexual relationship with the appellant in April, 2020. She further recalled that they had sexual intercourse on three occasions, which took place in the bushes. In October 2020, she was medically examined and it was discovered that she was four months pregnant. According to her testimony, she informed the appellant, who accepted responsibility for the pregnancy and gave her money. Kabeta Ibrahim Kasebeye (PW2), the Village Executive Officer (the VEO), testified that on 22n d October 2020, the Headmaster of Hamza Aziz Ally Secondary School brought a list of students who were pregnant, PW1 was among them. PW2 further testified that he summoned PW1 and her parents for interrogation. Upon being questioned as to the person responsible for her pregnancy, she named the appellant. Subsequently, PW2 reported the incident to the police which led to the appellant's arrest. Wande Mahona (PW3) is the mother of the victim. She recalled that sometimes in October, 2020, she noted her daughter's pregnancy after PW1 began abstaining from attending school. PW3 stated that upon 2

interrogation, PW1 was initially reluctant to name the perpetrator. PW3 then took PW1 to school, but again, PW1 did not mention the appellant at that point. It was only later that PW1 named the appellant as the person responsible for the said pregnancy. The prosecution also relied on the testimony of No. 8585 DC Agnes (PW4), a police officer stationed at Jita Police Post. She recorded the appellant's cautioned statement, in which the appellant allegedly admitted to having had sexual intercourse with the victim. Masalu Robert (PW5), a teacher at Hamza Aziz Ally Secondary School, testified that PW1 was a Form Three student. To substantiate his testimony, PW5 tendered the school attendance register and the admission book, which were admitted in evidence as Exhibits P4 and P5, respectively. He recalled that on 22n d October 2020, the victim was suspended from school due to her pregnancy. In his defence, the appellant distanced himself from all allegations levelled against him. He challenged the prosecution's case, contending that PWl's evidence was hearsay and inconsistent, particularly noting the varying dates regarding when the alleged incident occurred. 3

On the whole of the evidence, the trial court's findings were to the effect that the prosecution witnesses presented a credible tale on what transpired at the scene of the crime. The trial court thus found that the appellant had ravished the victim and impregnated her. Against this backdrop, the trial court convicted and sentenced the appellant to thirty (30) years imprisonment. His appeal to the first appellate court was unsuccessful. Aggrieved by the decision of the first appellate court, the appellant has preferred the present appeal anchored on a total of eleven grounds. Initially, the appellant lodged a memorandum of appeal comprising four grounds, and on 7th September, 2025, the appellant filed a supplementary memorandum of appeal containing seven (7) additional grounds. The four grounds contained in the original memorandum of appeal may be summarised as follows: one, that, the prosecution failed to prove the case against the appellant beyond reasonable doubt; two, that, the element of penetration was not established; three, that, the arresting officer was not called to testify in order to clarify whether there existed any nexus between the appellant's arrest and the offence charged; and four, that, the cautioned

statement (exhibit P3) was recorded outside the time prescribed by law. The seven additional grounds of appeal as set out in the supplementary memorandum of appeal may, for convenience, be paraphrased as follows: one, that, the victim failed to mention the appellant at the earliest opportunity; two, that, both the trial and first appellate courts erred in law and fact in believing that PW1 was raped and impregnated by the appellant in the absence of DNA evidence; three, that, PW1 was unable to state with clarity when her alleged relationship with the appellant commenced; four, that, the first appellate court erred in sustaining the conviction and sentence despite the prosecution's failure to establish the gestational age of the pregnancy; five, that, the Clinical Officer, who was a material witness in the case, was not summoned to testify, six, that, the credibility of PW1 was questionable due to contradictions in her testimony, and, seven, that, the first appellate court erred in law and fact in affirming the conviction while the appellant's defence, if properly considered, raised reasonable doubt as to the prosecution case. 5

When the appeal was placed before us for hearing, the appellant appeared in person without legal representation, whereas the respondent Republic was represented by Mr. Winlucky Mangowi, learned State Attorney who teamed up with Mr. Steven Mnzava and Ms. Joyce Nkwabi, both learned State Attorneys. When the appellant was given the floor to amplify his grounds of appeal, he preferred to let the learned State Attorney to respond first and rejoin later if the need would arise. Upon taking the floor and before canvassing the grounds of appeal, Mr. Mangowi, rose and informed the Court that the third, fifth, and seventh grounds in the supplementary memorandum of appeal constitute factual grounds which were not raised, canvassed, or adjudicated upon at the first appellate stage. He contended that, in terms of sections 6 and 9 of the Appellate Jurisdiction Act, Cap. 141 (the AJA), this Court, sitting as a second appellate court, is precluded from entertaining such new factual matters which were not the subject of consideration by the High Court sitting as the first appellate court. In the premises, Mr. Mangowi urged the Court to disregard those grounds for being incompetent and improperly before the Court.

We entirely agree with the learned State Attorney that the third, fifth and seventh grounds were not raised before the first appellate court, thus clearly raise factual matters which were neither canvassed nor adjudicated upon at that stage. This Court, sitting as a second appellate court, is constrained by the parameters of its jurisdiction as delineated under sections 6 and 9 of the AJA. See, for instance, the cases of Stanley Kalembwana v. Republic, Criminal Appeal No. 313 of 2015 (unreported), and Yassin Mziray v. Republic [2006] TLR 100. Consequently, we find them to be incompetent and improper before us. In response to the second ground in the supplementary memorandum, Mr. Mangowi, readily conceded that no DNA evidence was adduced at trial. However, he was quick to submit that in a rape case, DNA evidence is not a legal requirement. To buttress his proposition, he cited the decisions of this Court in Ally Salimu Lukoya v. Republic, Criminal Appeal No. 520 of 2023 and Hango Omary v. Republic, Criminal Appeal No. 445 of 2022 (both unreported). Upon being probed by the Court to clarify whether a DNA test would have been necessary in establishing the second count; impregnating a schoolgirl, the learned State Attorney conceded that such scientific evidence would have served a crucial

evidential role in linking the appellant to the pregnancy in question. He admitted that, in the absence of a DNA test, and considering the fact that the PF3 had been expunged from the record by the first appellate court, the second count of impregnanting a school girl was not proved to the required standard. We agree with the position submitted by the learned State Attorney that DNA evidence, though scientifically probative, is not a legal prerequisite for sustaining a conviction for rape under the law. However, we are unable to adopt the same reasoning in relation to the second count, impregnating a school girl. We agree with the learned State Attorney that, for purposes of establishing paternity of the unborn child and its age in such a charge, DNA evidence or similar scientific test would be a most reliable proof. In the absence of scientific evidence, and in the face of a contest by the appellant, it would be unsafe to affirm the conviction on the second count. In the premises, we find merit in this ground of appeal. On ground four, the learned State Attorney proffered the submission that the age of the victim had been sufficiently established by the victim that she was seventeen years old in the year the offence was committed. 8

We are aware that, the age of the victim may be proved either by the victim, relative, parent, medical practitioner or a birth certificate. See Issaya Renatus v. The Republic, Criminal Appeal No. 542 of 2015 and July Joseph v. The Republic, Criminal Appeal No. 226 of 2021 (both unreported). In the present case, as rightly submitted by Mr. Mangowi, the age of the victim was proved by PW1 and PW2 that she was seventeen years at the time when the incident occurred. The other ingredients of rape such as penetration was also proved by PW1. But, in the absence of cogent medical evidence or medical report, the assertion that the victim was precisely four months pregnant in October, 2020 remains an unsubstantiated averment by the prosecution, rendering the purported four-month term of pregnancy not precisely proven before the trial court. This ground of appeal is partly allowed, but only to the extent demonstrated hereinabove. Submitting on the first and second grounds of appeal, Mr. Mangowi submitted that penetration was proved, and the case was proved beyond reasonable doubt. He argued that, the three ingredients of rape were proved: age, penetration and perpetrator. The learned State Attorney elaborated that PW1, proved her age that 9

she was seventeen years old when the incident occurred. He added that, PW1 proved penetration by stating that they made love three times in the bushes, and proved that the appellant was the perpetrator. It was his further submission that PW1 was consistent and her evidence was not shaken. Mr. Mangowi stressed that her evidence alone suffices to ground a conviction. Upon being probed by the Court whether the acquittal on the second count would bear any adverse impact on the conviction under the first count, Mr. Mangowi argued that the two offences are legally distinguishable from each other. He stressed that the appellant was rightly convicted on the first count of rape. In the end, he implored the Court to find no merit in the appeal and to dismiss it in its entirety. We align ourselves with the submissions made by the learned State Attorney, that in order to establish the offence of statutory rape under which the appellant was charged, the prosecution was required to prove three essential elements: one, the age of the complainant, two, that there was vaginal penetration of the complainant and three, that the appellant was the perpetrator of the act. 10

In the instant case, as alluded to above, the victim's age was proved by her own testimony that she was seventeen years old when the incident occurred. This was corroborated by the evidence of PW2, the victim's mother, who testified that PW1 was born in 2003. Regarding penetration, PW1 testified that she had sexual intercourse with the appellant. The Court held in Hassan Kamuya v. The Republic, Criminal Appeal No. 277 of 2016 [2018] TZCA 259 (25 July 2018) TanzLII, that, phrases used by a victim such as "sexual intercourse" or "have sex" are sufficient to prove that penetration took place. That being the case, the first and second ingredients of the offense were, in our considered view, established. The next issue for our determination is whether it was conclusively established that the appellant was the perpetrator of the offence of rape. This question is inextricably linked to the credibility of the victim, whose evidence constituted the sole direct evidence implicating the appellant. In her account, PW1 stated that "she had sexual intercourse with the appellant." It was Mr. Mangowi's contention, that the charge of rape under the first count was proved to the requisite standard, whereas the offence under the second count of impregnating a schoolgirl was not. 11

Upon being probed by the Court as to whether the acquittal on the second count would bear any adverse impact on the conviction under the first count, Mr. Mangowi responded in the negative, arguing that the two offences are legally distinct. While we agree that, as a matter of law, the offences are indeed separate and capable of independent proof, we are of the considered view that this position is not absolute and must be evaluated within the factual matrix of each case. In the instant matter, PW1 asserted that the appellant was the first and only person with whom she had engaged in sexual intercourse and that she conceived shortly thereafter. Given these facts, we are of the considered view that the two counts were so intimately connected that proof of one would, in effect, reinforce the other. Conversely, failure to establish the appellant's culpability in relation to the pregnancy materially weakened the veracity of the rape allegation. Put differently, in a case where the pregnancy is alleged to be a direct consequence of the alleged rape, failure to establish that the appellant was responsible for the pregnancy undermines the reliability of the claim that he was the perpetrator of the sexual act in question. In the 12

circumstances of this case, the offences, though distinct in law, are inseparable on the facts of this particular case. It is pertinent to note that in cases of rape, the credibility of the victim is paramount, especially where the conviction vests solely on the victim's evidence. Therefore, the Court must conduct a careful evaluation of the witness's evidence to determine its reliability and probative value. In the case of Salum Ally v. Republic, Criminal Appeal No. 106 of 2013 (unreported), we held that: .. on whether or not any particular evidence is reliable, depends on its credibility and the weight to be attached to such evidence. We are aware that at its most basic, credibility involves the issue o f whether the witness appears to be telling the truth as he believes it to be. In essence, this entails the ability to assess whether the witness testimony is plausible or is in harmony with the preponderance o f probabilities which a practical and informed person would readily recognize as reasonable in the circumstances, particularly in a particular case. The test for any credible evidence is supposed to pass, which were best summarized in the case of Abdallha 13

Teje @ Malima Mabula v. Republic, Criminal Appeal No. 195 o f 2005 (unreported)." See also Elisha Edward v. Republic, Criminal Appeal 33 of 2018 [2021] TZCA 397 (TanzLII). In the present matter, PW1 testified that she had sexual intercourse with the appellant for the first time in June 2020. However, under cross-examination by the appellant, she initially claimed she could not recall the last time they met. Although she later corrected herself during re-examination by stating that she had met the appellant in June 2020. Her initial hesitation raises legitimate doubt as to the consistency and reliability of her account. These inconsistencies on a material point of the prosecution case adversely affect the credibility of PW1 and rendered her evidence unreliable. We have also taken into account that PW1 was initially reluctant to name the appellant as the perpetrator. When this hesitation is considered together with the appellant's firm denial of the allegations, it becomes unsafe for the trial court to have relied solely on her evidence to ground a conviction. In Mathias 14

Bundala v. Republic, Criminal Appeal No. 62 of 2004 (unreported), the Court held that: "Good reasons for not believing a witness include the fact that the witness has given improbable evidence, or the evidence has been materially contradicted by another witness or witnesses . " [Emphasis added] For the aforesaid reasons, we are satisfied that the evidence of PW1 was taken as gospel truth without passing the test of truthfulness. Had the courts below properly assessed the prosecution evidence and addressed the shortcomings in PWl's testimony, they would not have accepted her as a credible and reliable witness. We are not unmindful of the principle that every witness is entitled to credence and must be believed unless there are cogent reasons to the contrary. See Goodluck Kyando v. Republic, [2006] TLR 363. However, where there are good reasons not to believe a witness as indicated in this case, the court is entitled to reject their evidence. In the circumstances, we find it unnecessary to address the remaining grounds of appeal for it would be of no practical use.

In the result, the appeal is allowed. The conviction is hereby quashed and the sentence set aside. We order that the appellant be released from prison forthwith unless he is otherwise lawfully held. It is so ordered. 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, virtualy, in person and unrepresented, Ms. Suzan Barnabas with Ms. Aziza Mfinanga both learned State Attorney for the Respondent/Republic and Ms. Janekisa Bukuku, Court Clerk,