Hamis Idd Ramadhan Gindai vs Republic (Criminal Appeal No. 654 of 2024) [2025] TZCA 1161 (10 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: NDIKA. J.A., KIHWELO. J.A.. And NGWEMBE. J.A.t CRIMINAL APPEAL NO. 654 OF 2024 HAMIS IDD RAMADHAN GINDAI..............................................APPELLANT VERSUS THE REPUBLIC ....... ............................................. ........ ....RESPONDENT (Appeal against the Decision of the High Court of Tanzania at Dodoma) (Mambi, 3) dated 7th December, 2023 in DC Criminal Appeal No. 32 of 2023 JUDGMENT OF THE COURT 3rd & 10th October, 2025 NGWEMBE. J.A.: This is the second appeal from conviction and sentence for rape and unnatural offence contrary to sections 130 (1) (2)(e), 131 (1) and 154 (1) (a) respectively of the Penal Code, Cap 16 R.E. 2019 (now R.E. 2023). The victim was a girl of 12 years old at the time of the offence whose identity shall remain anonymous instead shall be referred to as the complainant. The appellant was arraigned before the District Court of Kondoa, for the charges in which the prosecution alleged that the appellant i

committed the offences on the 22n d day of September, 2021 at Tampoli Village, Kondoa District in Dodoma Region. It was alleged that he had carnal knowledge of the complainant and at the same time and place he had carnal knowledge against the order of nature. Upon arraignment, the appellant pleaded not guilty to both counts. The respondent Republic marshalled evidence from four prosecution witnesses. A brief factual account underlying the conviction of the appellant is as follows: that on 22/09/2021 at around 09:00 hours, the complainant went to the river for washing her clothes along with her mother (PW2). Thereafter, PW2 left for home leaving her daughter behind, waiting for the clothes to dry. The appellant appeared and asked for water to drink which the complainant generously complied by giving him some water and he left peacefully. A little later, the complainant collected her clothes and started the journey back home. When she was on the way, around 13:00 hours, the appellant appeared and grabbed her hand causing her clothes to drop and scatter on the ground. The appellant asked her to go somewhere, which request was turned down. Determined as such, the appellant threatened her with knife and eventually he pulled her to the bush where he raped her. The complainant narrated that she felt 2

pain and was crying, but the appellant ordered her to stop crying else he would cut her into pieces. Further she testified that, after satisfying his gratification, he also put his penis into her buttocks. Her testimony is partly reproduced as follows: "After he completed inserting his penis to my vagina, he put it into my buttocks " It was her statement that one man known as "Kamanda" appeared at the crime scene and the appellant ran away but "Kamanda" chased him unsuccessfully. Thus, she ran home and reported the incident to her parents who in turn rushed to the crime scene. However, the complainant took shower while the parents were at the crime scene. At the crime scene, PW2 saw the scattered clothes, and also met with "Kamanda" who disclosed that he rescued her daughter from the rapist. The complainant was later taken to a Health Centre where she was examined by a medical doctor. Further she said the medical doctor did not observe anything because she had showered after the alleged incident of rape and sodomy. PW2 testified on the age of the complainant that at the time of incident, she was 12 years old and the appellant was her village mate at Tampoli, otherwise, she repeated the testimony of the complainant. In respect of "Kamanda", PW2 testified that, when she arrived at the crime

scene, she met with "Kamanda" who rescued her daughter from the rapist, and later she took the complainant to Msui Kingale Health Center, where the medical doctor examined and gave her some medication. Finally, she insisted that the appellant was arrested on 24/9/2021, Jackson Petro (PW3) is among those who heard the complainant's screaming. In company of his fellow villagers, ran to the crime scene and saw the appellant running to the bush, but failed to apprehend him. Later, they followed the footprints of the appellant and managed to locate where he was and arrested him on the next day in the nearby village. The matter was reported to Kondoa Police Station and Police investigation was mounted by F . 158 CpI Greyson (PW4). The investigator mentioned "Sanda Hot" as the one who spotted the appellant raping the complainant, but upon threatening him with a knife, the appellant managed to run from the crime scene to the bush. In defence the appellant, denied the charge and narrated how he was arrested. He denied to have lived in Tampoli but at Bubutole village. As earlier stated, the trial court believed the prosecution account to be true and convicted the appellant as charged. He was sentenced to

30 years imprisonment on the first count of rape and life imprisonment in respect of the second count of sodomy. The first appeal to the High Court was dismissed, now this is the second and final appeal. In the memorandum of appeal, he raised a total of 15 grounds faulting his conviction and sentence, which all of them clock around one ground of whether the charged offences were proved beyond reasonable doubt At the hearing, the appellant was present in person, unrepresented. He adopted the grounds of complaint and implored the Court to allow the appeal and set him at liberty. Through the services of Ms. Ester Kyara, learned Senior State Attorney accompanied with Ms. Rachel Cosmas Tuli and Ms. Magreth Fumahiwa, learned State Attorneys, the respondent Republic stoutly resisted the appeal. Beginning with unnatural offence, Ms. Kyara submitted that the complainant was the key witness as was rightly decided by the Court in the case of Selemani Makumba v. Republic, [2006] T.L.R. 379. She had the best evidence of what befell her at the crime scene. However, when queried by the Court whether the offence of sodomy was established based on the testimony that the appellant did put his manhood into her buttocks, the learned Senior State Attorney stood firm that the statement of the complainant indicates that she was unnaturally

carnally known. She referred the Court to page 19 of the record that the complainant testified as follows: "After he completed inserting his penis to my vagina ; he put it into my buttocks " However, in the course of her submission, the learned Senior State Attorney indicated that the statement of the complainant did not in itself portray that she was sodomised because putting it into her buttocks may mean not putting in her anus. The testimony was ambiguous capable of many interpretations. Curiously, this point exercised our minds upon asking unanswered questions of whether the statement of "putting a penis into the complainant's buttocks" would amount to unnatural offence or may create other offences, including indecent assault and the like. We therefore, find that the complainant's testimony was ambiguous for the purpose of proving unnatural offence. This would be different if there was medical evidence. Putting a penis in the buttocks alone may not necessarily infer to insertion of the penis into the complainant's anus. Yet, another disturbing feature is the missing link between the complaint and the response of those who dealt with her at the earliest possible time, like her mother (PW2), the first recipient of the bad news from her daughter that she was molested by the appellant. Under normal circumstances, and bearing in mind that she was an adult

woman, she would have examined her to observe if anything would be seen in her private parts. PW2 just hurried to the crime scene leaving the complainant at home. She never examined her daughter even after returning from the crime scene. As we have already alluded to above, the medical doctor who attended her at Msui Kingale Health Center would link the alleged statement of "putting the penis into her buttock s" with the result of the medical examination to cement the existence of the complained offence of sodomy. In the absence of the evidence of the medical doctor with unexplained reasons, the court below believed. They found no uncertainties. Moreover, is the result of the alleged examination by the medical doctor that he found no signs of rape but he prescribed some medication. It is unknown, if the complainant had hymen and after penetration she lost it, whether taking bath would not be observed. There is also about widening of the vagina and sphincter of the anus, bruises and other indications that she was penetrated in both vagina and annus. The said medical doctor would also tender PF3 on what he observed during examination. We therefore, find logic to the complaint of the appellant on failure of the prosecution to call the medical doctor.

We reiterate to our decision in the case of Azizi Abdalah v. Republic [1991] T.L.R. 71 where we observed: "The generai and well-known rule is that the prosecutor Is under a prima fade duty to call those witnesses who, from their connection with the transaction in question , are able to testify material facts. I f such witnesses are within reach but are not called without sufficient reason being shown the Court may draw an inference adverse against the prosecution ." The unexplained absence of the medical doctor weakened the prosecution case and accordingly the offence of carnal knowledge against nature (sodomy) was not established and proved to the hilt. ITie remaining critical question is whether the offence of rape was established and proved to the hilt. The learned Senior State Attorney argued that the offence of rape was established and proved by the evidence of the complainant as was so found by the trial court and the first appellate court. Thus, she urged the Court to dismiss the appeal and uphold the conviction and sentence of the trial court as it was held by the first appellate court. It is trite law that in criminal trial the burden of proof always lies on the prosecution as provided for in section 110 of the Evidence Act

now is section 117 (1) (2) R.E 2023. The same position of law has been repeated in time without number including in the case of Jonas Nkinze v. Republic [1992] T.L.R 213 where the Court observed: "The generai rule in criminal prosecution that the onus o f proving the charge against the accused beyond reasonable doubt lies on the prosecution; is part o f our law, and forgetting or ignoring it is unforgivable, and is a peril not worth taking "(emphasis added) See also the case of Joseph John Makune v. Republic [1986] T.L.R. 44. It is therefore incumbent on the prosecution to marshal evidence to prove the charge beyond reasonable doubt, in the absence of which, reasonable doubt will benefit the accused person. The evidence must be cogent, watertight, pointing to the offence that it was committed and the perpetrator was no one else but the accused person. Accordingly, we agree with Ms. Kyara that our previous decision in Selemani Makumba's case, the best evidence in sexual offences is that of the complainant. Much as we acknowledge that the case laid a good principle which now operates as a general rule, we are also mindful that in Makumba's case we did not establish an absolute rule that the complaint's evidence should turn into gospel truth. That is why we have

constantly maintained on the need to subject the complainant's evidence to credibility test. See, section 127 (6) now section 135 (6) of the Evidence Act Cap 6 R.E 2023 and our decisions in Mohamed Said v. Republic (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (23 August 2019) (TANZLII) and Mhina Mndolwa @Mhina v. Republic [2008] T.L.R. 246, among many decisions of the Court. In numerous decisions, we have emphasized on credibility and reliability of the complainant's evidence. Undeniably, to prove the offence of rape, penetration is the most important ingredient to be established and proved. In the instant appeal, the complaint of rape was made by the complainant whose evidence is presumed the best as was submitted by the learned Senior State Attorney, that penetration to the complainant's vagina was committed by the appellant. The Court tried to engage her on this point, yet she stood firm that the offence of rape was committed. We have already discussed above on the evidence of the complainant that after being ravished, she reported the incident to her parents who rushed to the crime scene. PW2 did not observe the private parts of her daughter before rushing to the crime scene or even after returning home. More importantly, is the fact that the complainant and

PW2, few hours later went together to Msui Kingale Health Center where she was examined by a medical doctor. The result of that examination was testified by the complainant as follows: " the doctor told me that since I took shower, he did not find any signs so he prescribed to me some medication s". Such testimony created more questions than answers. As alluded to above, if the victim had hymen and after penetration she lost it, could that rapture be unnoticed by the medical doctor in his examination because she showered. How about widening of her vagina, bruises if any, and other indications that she was penetrated. The said medical doctor would also tender PF3 on what he observed during examination. A mere fact that she showered before examination, signs of rape could still be established. More so, the conduct and testimony of PW2 as matured woman was undesirable because she failed to examine her daughter after learning about what happened to the complainant. It is clear that the prosecution side left unanswered questions which creates doubt as to whether the complainant was indeed raped. Such doubts should, in law benefit the appellant. We are therefore, determined that the offence of rape was not established and proved to the required standard which is beyond reasonable doubt.

All said and done, we find merit in this appeal, consequently, we allow the appeal, quash the conviction of the appellant on both counts and set aside the sentences therefrom and order for an immediate release of the appellant from custody unless held for any lawful cause. DATED at DODOMA this 10th day of October, 2025. G. A. M. NDIKA JUSTICE OF APPEAL P . F . KIHWELO JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 10th day of October, 2025 in the presence of the appellant, in person /unrepresented, Ms. Rose Ishabakaki, learned State Attorney, for the Respondent / Republic, via virtual Court and John/Christina, Court Clerk; is hereby certified as a true copy of the original. 12