Gerod Sanga @ Alcaro vs Republic (Criminal Appeal No. 361 of 2022) [2025] TZCA 1048 (9 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA ( CORAM: MWANPAMBO J.A.. MAIGE, 3.A. And MANSOOR, 3.A.) CRIMINAL APPEAL NO. 361 OF 2022 GEROD SANG A @ G ALCARO ........... ............. ...... .......... APPELLANT VERSUS THE REPUBLIC ............ ..... ............. .......................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Iringa) (Mlvambina, J.l dated the 8th day of June, 2022 in Criminal Appeal No. 76 of 2020 JUDGMENT OF THE COURT 6th & 9th October, 2025 MAIGE, 3.A.: The offence for which the appellant was convicted by the District Court of Iringa (the trial court) and sentenced to 30 years' imprisonment plus payment of compensation of TZS 7,000,000.00, was rape contrary to section 130(1) and (2) (a) of the Penal Code which was allegedly committed on the 1st day of August, 2020 at Kihwele Village within Iringa Rural District in Iringa Region, against a girl of 4 years old (PW2). She was, soon before the incident, at home together with her aunt one Getrude Mbalikila and her 8 years' brother (PW3). While there, the

appellant appeared and took her behind the house and raped her. The victim's grandmother who was at that time in her business premises near her residence, heard the children crying and, therefore, went back home where she met with her mother who revealed the ordeal to her. As soon as she was informed as such, PW1 raised an alarm in response to which, the village chairman (PW4), came and directed for the arrest of the appellant who was just 15 meters from the place. As a result, the appellant was arrested by the village militia and produced to the village office. Afterwards, PW2 was taken to hospital and medically examined by PW5 and the result as per the medical sheet (exhibit PI) was that she was penetrated. On the next day, PW5 was requested by police to incorporate her observations in exhibit PI into a PF3 which she did (exhibit P2). Subsequently, a police officer with No. H 593 D/C David (PW6) interviewed the appellant and extracted a confessional statement from him which was, at the trial, admitted and marked as exhibit P3. Its admission, however, was preceded by an inquiry as the appellant had made a plea of retraction. When called upon to testify in defence, the appellant denied committing the offence claiming that, the same had been framed up due to grudges between him and PW1 which started in 2018 after he had refused to sell his piece of land to her. As a way to fulfill her desire, he

further testified, PW1 attempted to establish love affairs with him and that, one day as the appellant was in the club, she approached him and seated on top of his thighs. In reaction, he made it clear to her that he did not want to be involved in a trouble with her husband which might result into someone being killed. He said, PW1 reacted by complaining to the police which led to his arrest and remand until the next day when he was released. That notwithstanding, PW1 kept on reporting him to the police and finally revealed to him that unless he agreed to sell the said piece of land to her, she would frame up a case against him. He vehemently denied confessing before PW6 and asserted that he was beaten by police and forced to sign a document whose contents he did not know. Despite his defence, the trial court was satisfied that the case against the appellant had been proved to the required standard. The trial magistrate was impressed by the testimony of the victim as validated by PW1, PW3, PW4, PW5 and PW6. In his opinion, the defence raised by the appellant did not shake such evidence as to raise any reasonable doubt. He, therefore, convicted the appellant with the offence and sentenced him as afore stated. The appellant preferred an appeal to the High Court of Tanzania at Iringa (the first appellate court) which was, however,

dismissed and the first appellate court entirely concurred with the trial court Once again aggrieved, the appellant has brought this appeal. At the hearing of the appeal, the appellant who appeared in person without being represented adopted the grounds of appeal and urged us to allow the appeal and set him free. On its part, the respondent Republic was represented by Ms. Radhia Njovu, learned Senior State Attorney who teamed up with Ms. Muzzina Mfinanga, learned State Attorney. It was Ms. Njovu who presented the submission in opposition to the appeal. Notably, the appellant raised four grounds in the memorandum of appeal and soon before the hearing, he filed a supplementary memorandum of appeal consisting of six grounds. Right from the outset, Ms. Njovu drew our attention that the first three grounds in the memorandum of appeal as well as the first and fourth grounds in the supplementary memorandum of appeal consist of points of facts which were neither raised nor decided in the first appeal. In her contention which is premised on our decision in Abeid Mponzi v. R (Criminal Appeal No. 476 of 2016) [2016] TZCA 2025, TANZLII, such grounds cannot be the subject of this second appeal. Being a layman, the appellant did not have any comment to make in respect of this issue.

Upon a glance over the respective grounds of appeal in line with what transpired at the first appellate court, we are inclined to agree with the learned Senior State Attorney that, on the face of them, the said grounds constitute points of facts which were neither raised nor adjudicated upon in the first appeal. As a matter of principle, such grounds cannot be entertained in a second appeal like this. This has been our approach in the numerous previous unbroken chain of precedents. For instance, in Hassan Bundala @ Swaga v. R (Criminal Appeal No. 386 of 2015) [2015] TZCA 261 TANZLII, we quoted the following statement in Abeid Mponzi v. R (supra): "It is now settled that as a m atter o f general principle this Court w ill only look into matters which came up in the low er courts and were decided, and not on new m atters which were not raised nor decided by neither the tria l nor the High Court on appeal" On the strength of what we have discussed herein above, we shall not, in this decision, take into account the first three grounds in the memorandum of appeal as well as the second and fourth grounds in the supplementary memorandum of appeal. We now remain with the fourth ground in the memorandum of appeal and the first, third, fifth and sixth in the supplementary

memorandum of appeal which in our reading, raise four main complaints namely: one, the age of the victim was not proved; two, the cautioned statement of the appellant was improperly recorded; three, the judgment and proceedings of the trial court were defective; and four, the case against the appellant was not proved beyond reasonable doubt. We shall start our discussion with the third complaint that the proceedings and the judgment of the trial court were irregular. Ms. Njovu submitted that they were quite in order as the succession of the trial magistrates was in observance of the legal requirements under section 214(1) of the Criminal Procedure Act. We note from the proceedings that the trial was initially conducted by Hon. Chamshama, RM who took the evidence of PWl, PW2 and PW3. On 20tH January, 2021, he was succeeded by his learned brother Hon. Mkasiwa, PRM who conducted the trial up to the end and composed the judgment. As per page 18 of the record, the reason for succession namely; transfer of the predecessor magistrate to another working station was explained to the parties by the successor magistrate before he took over the proceedings. Importantly, parties were addressed In terms of the respective provision. In that regard, therefore, the complaint is without any merit and it is dismissed. This now takes as to the first complaint that the age of the victim was not proved. Admittedly, the charge at hand being statutory rape, age

of the victim was of essence. Age of a child, it is now settled, can be proved by a birth certificate or testimony of a parent or guardian of the child. See for instance, Issaya Renat us v, R (Criminal Appeal No. 542 of 2015) [2016] TZCA 218, TANZLII. On this, we agree with Ms. Njovu that, such fact was proved by the testimony of the victim's grandmother (PW1) which testimony has never been doubted by way of cross examination or independent testimony. Without much ado, therefore, we find the complaint with no leg to stand on and, it is dismissed. Next is the issue of propriety of the procurement of the appellant's cautioned statement. During trial, it was challenged on account that it was not procured voluntarily. An inquiry was, however, conducted and the trial court made a factual finding that it was voluntarily procured. In here, the complaint is that, it was taken out of time. It was, nevertheless, not raised in the first appeal. However, it being a pure point of law, it is trite law, can exceptionally be entertained in a second appeal even though it was neither raised nor determined in the first appeal. On this, Ms. Njovu submitted that the statement was taken within time as the appellant was arrested and interviewed on the same day. The time available for recording a cautioned statement, it is common ground, is 4 hours from the time of arrest and detention of the suspect. The duty to prove that aspect beyond reasonable doubt was on

the prosecution and, in our humble view, it has to be established before the statement is cleared for admission. In here, the statement was procured by PW6 and he is the one who tendered it into evidence. His testimony suggests that it was recorded on 1st day of August, 2020 from 16:45 hours to 17:59 hours. PW1 does not claim to be the person who arrested the appellant. He does not give any testimony on the manner and timing of his arrest too. What is clear in his evidence is that he was assigned the case file while the appellant had already been arrested and held in custody. Of all the witnesses paraded by the prosecution, it was only PW6 who was a witness from the police. There is, therefore, no evidence from the police as at what time was the appellant arrested and put in restraint. The facts of the case which were read out during the preliminary hearing are also silent on that pertinent issue. The only evidence on the arrest of the appellant comes from PW4 who said he was arrested by the militia soon after commission of the offence. In our view, where the prosecution relies on a cautioned statement to establish its case, the period when the suspect was arrested and kept in custody is material. This is because, when it comes to recording of a cautioned statement, time is of essence. Where time for the arrest and detention of the suspect is not known and an issue whether the cautioned statement was timely taken arises, it

is now settled, the accused has to be given a benefit of doubt that perhaps, the recording of his cautioned statement was taken out of time. See for instance, Anald Loishie @Leshai v. R (Criminal Appeal No. 249 of 2017) [2021] TZCA 528, TANZLII. The reason being that the burden of proof of such fact is on the prosecution. In the premises, we find merit in the second complaint and we sustain it. As a result, we exclude the cautioned statement in exhibit P6 from the evidence. This now takes us to the last complaint whether the charge against the appellant was proved beyond reasonable doubt. Ms. Njovu submitted that, the testimony of the victim when taken together with the supporting evidence from PW1, PW2, PW3, PW4 and PW5 as welt as the medical report in exhibits PI and P2 would suffice to prove that the victim was penetrated and that, it was the appellant who committed the offence. She cemented her contention with the principle in the famous case of Selemani Makumba v. R [2006] T.LR.379 to the effect that, when it comes to rape cases, true evidence has to come from the victim. We find it compelling to commence our deliberation in this respect with a caution we made in Mohamed Said v. R (Criminal Appeal No. 145 of 2017) [2019] TZCA 251, TANZLII that, for the testimony of a child of tender age or the victim of sexual offence to be taken as the best evidence, it must, upon being strictly scrutinized, pass the test of

credibility and truthfulness imposed under section 127(7) of the Evidence Act. In particular, we said: "We think it was never intended th at the word o f the victim o f sexual offence should be taken as gospel truth but that her or his testimony should pass the test o f truthfulness. We have no doubt that justice in cases o f sexual offences requires strict compliance with rules o f evidence in general and S. 127(7) o f Cap. 6 in particularand that such compliance w ill lead to punishing the offenders in deserving cases." The incident here happened during day time and it is not in dispute that, the appellant was well known to the victim. The issue of identification, therefore, does not arise. As noted above, the appellant gave a detailed testimony suggesting that the charge might have been framed up due to grudges between him and the victim's grandmother. We note that, such claim was not considered by the trial court while assessing the credibility of the victim's testimony. Neither was it reappraised by the first appellate court. Obviously, such omission amounted to non-direction on the pertinent point of law which justify this Court, as the second appellate court, to reappraise the evidence and establish if at all the evidence of the victim when considered along with other prosecution evidence and the defence evidence, would be credible

and probable enough as to leave no reasonable doubt that the appellant might have not committed the offence. The evidence of PW1 indicates that 30 minutes before the incident, the appellant went to her business premises where he purchased some vegetables. That, when she heard her grandchildren crying, she went at home and found her mother who told her that, the victim had been raped by the appellant. Though, such testimony would suggest that PW6's mother was present at home soon after or before the incident, it is surprising that the testimony of PW2 and PW3 does not ever suggest that, the mother of PW1 was present soon before or after the incident as claimed by PW1 or at all. Indeed, their evidence does not at all speak of the said person. Interestingly, even the village chairman (PW4) who allegedly visited the scene of crime as a result of an alarm raised by PWl, does not name the appellant's mother as among the persons who were present at the scene of the crime. He said, when he arrived at the scene of the crime, he found PWl crying while holding the victim. More to the point, what PWl narrated to PW4 on what happened upon her arrival at the scene of crime appears contradictory to what PW1 testified. He said; "I then heard noises begging for help. I went there and m et a grandmother crying white carrying a child. She said that she found a child near the

cemetery. She said that the child was crying and said that she was raped by Gerod Sanga. " It can be seen from the above statement that contrary to PWl's claim that she was initially informed of the incident by her mother, the story she narrated to PW1 was such that it was the victim who told her about the incident. Yet, the respective story is not consistent with that of PW3 who claimed to be the first one to disclose the ordeal to PW1. It was after he had been asked why he was crying. In the similar way, the latter's evidence would be contradictory to that of PW3 In this respect. There is also inconsistence in the testimony of PW1 and PW4 as to where the alleged bed sheet of the appellant was found. For PW1, it was at the door of her house while for PW4 at the maize farm. It is also worth of a note that, while the proposition in the prosecution case was that the appellant had raped the victim at the home residence of PW1, the evidence in exhibit P2 suggests that the basis of the victim being brought for medical examination was that she " had the history o f taking by somebody and goes away from her homd'. Ordinari ly, the doctor is expected to acquire such information from the complainant. The question which is obvious here is, if at all the basis of the victim's medical examination was the incident as narrated by the victim and her grandmother PW1, why should such information be in the medical report? 12

A similar doubt may arise from the oral testimony of PW5 at page 21 of the record when she said, she found the underwear clean and when she asked the victim's grandmother, she said, she had the same changed after the event. A doubt arises, when such fact is compared with her remarks in exhibit P2 at page 49 of the record where she said, she found "dirty clothes". Besides, while in her oral testimony, PW5 claimed to have observed blood stains in the victim's vagina and her hymen perforated, the victim is on the record testifying that after the incident, she proceeded playing with her fellow. It is rarely probable, in our humble view, for a young girl of four years to go to play soon after being sexually abused to the extent as in the testimony of PW5. The apparent discrepancies and contradictions in the prosecution evidence above when weighed against the appellant's defence as aforesaid, would, in our view, raise a reasonable doubt that, the case against the appellant might have been framed up because of the grudges between the appellant and PW1 as narrated in details in the testimony of the appellant in defence. As a matter of principle, such doubts, reasonable as they are, should have been resolved against the prosecution.

In the final result and for the foregoing reasons, we find that the case against the appellant was not proved beyond reasonable doubt. The appeal is thus allowed. As a result, the conviction against the appellant is quashed and the sentence set aside. We further order that the appellant be set free unless he is held for some other lawful cause. DATED at IRINGA this 8th day of October, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL Judgment delivered this 9th day of October, 2025 in the presence of Appellant in person - unrepresented, Mr. Damas Sixtus, learned State Attorney for the Respondent/Republic and Leopard Mabugo, Court Clerk is hereby certified as a true copy of the original. I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL 14