Gaspa Nevele vs Republic (Criminal Appeal No. 20 of 2022) [2025] TZCA 1042 (8 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: MWANDAMBO, 3.A. MAIGE 3.A. And MANSOOR. J.A^ CRIMINAL APPEAL NO. 20 OF 2022 GASPA NEVELE.... ........... . ....... .. ........ . ............ ....... ....................APPELLANT VERSUS THE REPUBLIC ........ . ............... . .............. . ......... . ......... ...... RESPONDENT (Appeal from the Judgement of the High Court of Tanzania at Iringa) (Matoaolo. in dated the 16th day of December, 2021 in Criminal Appeal No. 31 of 2021 JUDGMENT OF THE COURT 3,d & 8th October, 2025 MANSOOR. 3.A.; The appellant, Gaspa Nevele, an elderly man of about 67 years old, and a pastor in the Church of Tanzania Assemblies of God (TAG), situated in Lundamatwe Village within Kilolo District in Iringa Region, was arraigned in the District Court of Kilolo for allegedly having sexual intercourse with a girl of twelve (12) years old, a member of his church. He faced the charge under sections 130(1) and (2)(e) and 131(1), of the Penal Code, Cap 16 R.E 2002.

It was alleged by the prosecution in the particulars supporting the charge that, on 5th January 2020, the appellant had sexual intercourse with a girl named in the charge. At that time, the girl was twelve years old and a standard V student at Lundamatwe Primary School. Briefly, the prosecution's case alleged that the date on which the offence was alleged to have been committed was a Sunday, a day of worship for people who practice Christianity. The girl (victim) testifying as FW1 at trial stated that, in the morning of 5th January 2020, at around 7.00hrs, she went to the appellant's house to collect musical instruments for the day's prayers at the church. She found the appellant outside his house, and he invited her inside to take the radio. While inside the house, the appellant brought a mattress from his room to the sitting room, undressed the victim, he also removed his clothes and laid the victim on the mattress where he forcefully inserted his manhood into her vagina. He then asked the victim to dress up and let her go, but warned her not to tell anyone, as he would kill her. The girl went straight to the church for the morning worship, but she was unable to sit properly. One Mama Cheke (the church elder), who testified as (PW3), noticed the girl having difficulties when sitting. She asked her why she could not sit properly, and the girl started crying but did not tell Mama

Cheke what had happened. After the prayers, the appellant asked the girl to go to Mama Cheke's house for a rest until the evening prayers, she obliged. The victim and Mama Cheke returned to church at around 15.00 hrs for the evening prayers. After the prayers, the victim and Mama Cheke went back to Mama Cheke's house. Then, the appellant appeared at Mama Cheke's house and took the victim to his house and ravished her for the second time. At around 21.00 hrs, she went home. The next day, the victim's aunt was informed by one Sitamili Kikoti, the victim's sister, that the victim returned home late the previous night. The victim's aunt, who testified in court as PW2, questioned the victim as to why she went home late. The victim narrated to her aunt the entire ordeal. At around 16:00 hrs on the second day of the incident, Mama Cheke went to the victim's house to check on the victim. She informed the victim's aunt about what happened in the church the previous day, and together with the victim's aunt, inspected the girl's private parts and found no hymen. PW2 reported the incident to the village leaders and then to Lugalo Police Station, where a PF3 was issued. The victim was medically examined by PW5, a male clinical officer, one Gerald Mbangili. A PF3 tendered by PW5 was received as

evidence and marked as exhibit PI, in which the clinical officer indicated that he examined the girl four days after the incident, that is, on 9th January 2020, and established that the hymen was not intact and had minor laceration of navicular fossa, a medical term denoting a small indentation in the vagina, which could be caused by sexual assault. PW4 was the Village Chairman who stated that, he reported the incident to Kilolo District Council on 8th January, 2020, three days after the incident. Mama Cheke's (PW3) evidence was of interest. She stated that, after the morning worship service at around 12.00 noon, the appellant called the victim and one Christina and told them that his grandson, namely Alphonse Kapoma, raped the victim, and asked Christina to tell the victim that she should never again visit his house. Mama Cheke did not specify whether she was present during the conversation or she was informed about it by either the victim or Christina, but stated that she had asked the victim about this, and the victim began to cry. She also stated that she reported the problem to the appellant, and this was before the afternoon supplications. She continued to testify that during the afternoon service, she noticed the victim's uneasiness while sitting, but did not ask her

anything. She said, the afternoon session ended at 17.00 hrs, and that after the service, she took the victim to her house. She further testified that, soon thereafter, the appellant went to her house and took the victim. She continued to testify that, the next day, i.e., on 6th January 2020 at around 16:00 hrs, she went to the victim aunt's house to inquire about the victim, and told her what had happened to the victim the day before at the church. When inquired, the victim told them that the appellant raped her. That, both her and the victim's aunt inspected the girl's private parts and found blood stains on her pants and bruises. They then reported the incident to PW4, the village chairman. Although there was no one from the police to explain to the court as to how, and when the appellant was arrested, the appellant, who gave his defence as DW1, said he was arrested by unknown people on 8th January 2020 at around 17:00 hrs from the market (mnadani) and was sent to Mbigili Police Station. He denied committing the offence and said, on the material day, he arrived early at the church, at around 07:00 hrs, and left very late at around 17.45 hours. His wife was not at home as she had travelled to Dar es Salaam, but he was with his

grandson, Alphonse Kapoma. When returning home, they had a meal with his grandson, and they both retired early for the night. The evidence of DW2, Braison Magava, and DW3, James Nevele, confirmed the death of the appellant's brother, one Eleuted Nevele, which happened on 6th January 2020, and that the appellant attended the burial of his brother from 6th January to 8th January 2020 at Igunga Village, a different area from the village where the crime was alleged to have been committed. With the above evidence on record, the trial court found the appellant guilty, convicted and sentenced him to serve a jail term of thirty years, and to compensate the victim TZS 1,000,000. He was aggrieved, but his first appeal before the High Court at Iringa was not successful. Hence, the second appeal before the Court. The appellant's appeal contained five grounds of appeal in his first memorandum of appeal filed in Court on 28th September, 2022, and five more grounds in the supplementary memorandum of appeal filed on 26th September 2025, On the whole, the appeal actually is centred on the contradictions and discrepancies between the evidence of the prosecution witnesses, and whether the contradictions and discrepancies have watered down the credibility of the prosecution case, bringing it

down to an issue whether the prosecution was able to prove the charge beyond reasonable doubt, through its five witnesses and one exhibit. The appellant, who was unrepresented at the hearing, adopted his grounds of appeal and asked the respondent Republic, through Mr. Sauli Makori, learned State Attorney, to respond on each ground o f appeal raised in the supplementary memorandum of appeal, as the appellant had abandoned the grounds raised in his initial memorandum of appeal. Before determining whether the prosecution was able to prove the charge against the accused, we shall first determine the first and second grounds raised in the supplementary memorandum, which raised two issues. The first issue was the competency of the charge, which was wrongly dated, and the second was an issue of voire dire test of a child witness. At the outset, we agree with the submissions of Mr.. Makori on grounds one of the appeal, that, although it is true that the charge seems to have been dated 3rd January 2020, that is, three days before the offence charged was alleged to have been committed, this is definitely a slip of the pen, and did not in any way prejudice the accused either procedurally or materially. We say so because, the charge itself is clear that it contains all the required ingredients of a proper charge and

is in total compliance with Section 132 of the Criminal Procedure Act [Cap 20 R.E. 2022] (the CPA), now Section 135 R.E 2023. The section reads: "A charge or inform ation shall contain, and sh all be sufficient if it contains; a statem ent o f the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable inform ation as to the nature o f the offence charged" Apart from the mistake of dating the charge, all the other requirements of a proper charge, as required under the law, are met. Looking at the charge, it is clear that it did not only comply with Section 132 of the CPA, but the particulars of the offence on the charge or information have been given in ordinary and clear language, stating all the essential ingredients that establish the offence. The appellant has not shown if at all his rights of fair trial have been prejudiced by the error. We are of the view, and as submitted by Mr. Makori that, the appellant was not at all prejudiced by a typographical error in the charge as the particulars given in the charge were clear, unambiguous, enough to enable the appellant to comprehend the charge and enabled him to

prepare for his defense, and in no way has affected his rights of fair trial. We are also in agreement with the submission of Mr. Makori regarding the 2n d ground of appeal The appellant faulted the trial court for failure to test the intelligence of PWl, the victim, who was of the age of 12 years when she was testifying before the Court. For clarity, we shall reproduce the proceedings recorded by the trial court on 4th July 2020 : "PWl: AM, 12 years old, Lundamatwe Village, Hehe, Standard five at Lundamatwe Primary School, Christian: Court Inquiry Court: Do you understand the nature of oath PWl: I do not understand/know the nature of oath. Court: Do you promise to speak the truth before the court and not telling lies PWl: I do promise to speak the truth before the court and not telling lies. Court finding: Upon court inquiry, since the victim does not understand the nature of an oath instead, she promises to speak the truth before the court and not telling lies, in this regard, the victim will testify in court without taking an oath." 9

From the above extract, it is without doubt that the trial Magistrate, who had the opportunity to observe the demeanor of the child witness and who on the evidence before him, was satisfied that the child witness understood the duty to speak the truth, and had promised to speak the truth and not to tell lies, was satisfied that the child witnesses possessed intelligence and was competent to testify before the court. There is nothing on record to fault the trial Magistrate on the way she tested the intelligence of the child witness, as she was in total compliance with the provision of section 127 (2) of the Tanzania Evidence Act, renumbered as section 135 (2) in the revised edition of 2023. It was in the opinion of the trial court, after an inquiry, that the child witness did not understand the nature of an oath and her evidence, nonetheless, was received as in the opinion of the court, the child witness was possessed of sufficient intelligence to tell the truth and not to speak lies in court to justify its reception. In any case, section 127, renumbered as section 135 of the Evidence Act, does not prescribe the precise manner of ascertaining and determining whether the child witness understands the meaning of the oath or is possessed of sufficient intelligence or her ability to understand the duty of speaking 10

the truth. Thus, any mode or style used or employed by the trial Magistrate to assess the intelligence of the child witness suffices as long as the Magistrate is satisfied that the child witness is possessed with intelligence to understand the duty of speaking the truth. Based on the above, we find the first and second grounds of appeal without merit, and we accordingly dismiss them. We shall not give any regard to grounds three, four and five in the supplementary memorandum of appeal as this Court by the provisions of Section 9 (7) (a) of the Appellate Jurisdiction Act, Cap 141 (AJA), cannot entertain a ground of appeal unless it involves a question of law. We emphasize that, erroneous findings of fact or an appreciation of the relevant evidence will not constitute a ground in a second appeal. The issues raised in grounds three, four, and five are grounds of facts and appreciation of evidence by the trial court. The issues whether the hymen of the victim was perforated, when PW2 and PW3 first examined her, or whether there was a delay in reporting the crime to the police or whether the facts of the case have not been signed, are issues of facts and were not raised during the first appeal at the High Court, and cannot be entertained by the Court on a second appeal. See, for instance, the case of Hadija Ally vs George Masunga Msingi (Civil ii

Appeal 384 of 2019) [2023] TZCA 17270 (22 May 2023) in which we reiterated our earlier decision in Godfrey Wilson vs Republic (Criminal Appeal 168 of 2018) [2019] TZCA 109 (6 May 2019), and held: "We think that those grounds being new grounds for having not been raised and decided by the first appeiiate court, we cannot iook at them. In other words, we find ourseives to have no jurisdiction to entertain them as they are m atters o f facts and a t any fate, we cannot be in a position to see where the first appeiiate court went wrong or rig h t Hence we refrain ourselves from considering them ." Now, having discarded the said grounds of appeal, we shall determine the issue whether the charge against the appellant was proved beyond reasonable doubt. On this, Mr. Makori submitted that the case of the prosecution was proved beyond reasonable doubt as there was proof that the victim was penetrated, and that it was the appellant who had penetrated her, as testified by the victim herself. Mr. Makori relied on the case of Selemani Makumba vs Republic [2006] T.L.R 379 in which we stated that, the best evidence of rape comes from the victim. 12

Mr. Makori also submitted that the age of the victim was proved by PW2, the guardian of the victim. Thus, the prosecution discharged its duty of proving all the ingredients of the offence, and the charge against the accused was proved beyond reasonable doubt. We have carefully read the record, and it is clear that the offence of rape under section 130(1), (2)(e) of the Penal Code requires proof of penetration, proof that the victim's age is below 18 years, and proof that the appellant is the wrongdoer. The prosecution relied heavily on the evidence of the victim (PW1) and that of PW3, Mama Cheke. While it is the acceptable principle of law established in Selemani Makumba, that, the true evidence of rape comes from the victim, it is equally the law that the evidence of the victim should not be regarded as gospel truth and is subject to scrutiny once the court finds that the evidence is shaky and not credible. Going through the testimony of the key witnesses for the prosecution, particularly the evidence of PW1, the victim and PW3, we find that there were material contradictions in their testimonies which affected the case of the prosecution and shaken PWl's as well as PW3's credibility.

From the record and looking at the evidence of PW1 and PW3, their stories contradicted each other on two important ingredients of the offence of rape, one, whether the victim was raped on the material date, and two, the involvement of the appellant in the commission of the offence. The story of PW1 was that, after the appellant raped her, she went straight to church and attended the mass, but Mama Cheke noticed that she could not sit properly as she was in pain. Mama Cheke then asked her why she could not sit properly, and the victim began to cry. She said as follows: "After finishing raping me, he then pulled me out and threw m y clothes to me. I then w ent to church and during worship Mama Cheke noticed me that I was not normal. I was not able to s it properly on the bench due to pains. Mama Cheke asked me to that effect I started crying, but I did not te ll her anything on w hat happened to me because pastor cautioned me that I should not reveal the incident to anyone otherwise he w ill k ill me " 14

Mama Cheke (PW3), on the other hand, states to the contrary. She said: "... a t about 10.00 hours PW l arrived a t the church while she seem ed tired and she was sweating. When the m orning worship ended at about 12.00 hours, the accused called PW1 and Ms. Christina and he told them that his grandson Alphonse s/o Kagoma raped PW l. He further ordered them to ask PW1 on that incident and stopped her (PW l) to go to his home. When we asked PW l, she did not answer anything and she started crying. We then reported the situation to the accused. I then took PW l to my home where she got re s t" There are two different narrations of the same incident by the prosecution witnesses. While PWl, the victim, stated that Mama Cheke saw her during the morning mass/service having difficulty sitting on the bench, and asked what was wrong, and when she was asked, she started crying, Mama Cheke, PW3, tells a different story altogether. Mama Cheke did not say that she noticed the victim having difficulties sitting during the morning mass, nor did she mention asking the victim in the morning why she could not sit properly. Mama Cheke says, it was the appellant who, after the morning prayers at around 12.00 noon, told 15

the victim and one Christina that his grandson raped the victim, and the appellant told Christina to ask the victim not to go to his house. Mama Cheke says, she asked the victim about what the appellant had told Christina, and the victim started crying. This was indeed a contradiction that has undermined the credibility of the prosecution key witnesses. Again, Mama Cheke, in her testimony, says that after the evening prayers, she took the victim to her house, and then the appellant went to her house and took the victim from her. It raises an eyebrow as how possible would it be for Mama Cheke to allow the victim of rape, to be taken by the suspect or to be taken to the house where she was raped in the morning by the appellant's grandson. It should be noted that, the same PW3, had asked the victim as to whether she was raped by the appellant's grandson. This signifies that she knew since morning that the victim was raped at the house of the appellant by the appellant's grandson, yet, she agreed to hand over the victim to the appellant, without inquiring as to where he was taking her in the late evening hours. Again, it was Mama Cheke who testified that she heard the appellant telling Christina to tell the victim never to go to the appellant's house. Yet, in the evening, the same appellant went to Mama Cheke's 16

house to take the victim, and Mama Cheke allowed the appellant to take her. This story raises a lot of doubt about its truthfulness. The story has unexplained gaps and sounds improbable, as the victim never testified that the appellant had told her In the presence of Christina that she should never again go to his house, as she was raped by the appellant's grandson at the appellant's house. As if this was not enough, Mama Cheke says in her testimony that she heard it for the first time that the victim was raped the next day when she visited the victim's auntx and when the victim was revealing the ordeal to her aunt. This contradicts her own version of the story when she said she had asked the victim the previous day as to whether it was true that the appellant's grandson raped her, and the victim started crying. Again, Mama Cheke testified that on the day following the date of the incident, she and the victim's aunt inspected the victim's private parts and found blood stains on her underpants contrary to what was testified by PW2 that when she inspected the victim, she found blood stains on her vagina. In contrast, the victim said that when they inspected her, they found that her hymen was not intact. The victim never mentioned that they found blood stains either in her underpants 17

or vagina. Not only that, there are contradictions and discrepancies from the versions of the three witnesses of the prosecution on this issue. It is also highly improbable to find blood stains on underpants or vagina, after a day had passed. In the absence of the evidence that the victim neither changed her underwear nor washed herself for two days, the truthfulness of the evidence of the three prosecution witnesses on a material issue such as this, is questionable. In order to convict a person of an offence, the prosecution's evidence should always be consistent, with no gaps or missing links so as to erase all doubts in the minds of the court. As we held in Mohamed Said vs Republic (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (23 August 2019), that, a witness who lies on a material point should hardly be believed on other points unless corroborated. See also Samson Matiga ys The Republic, (Criminal Appeal No. 205 of 2007) (unreported), where we stated that the prosecution's evidence must be so strong as to leave no doubt as to the criminal liability of an accused person and must irresistibly point to the accused person, and not any other, as the one who committed the offence. Where such material contradictions lead to a reasonable doubt, that doubt must be resolved

in favour of the accused. The cumulative effect of the serious inconsistencies in the evidence leaves us with such a reasonable doubt. We find that PWl's and PW3's contradictory statements about the entire incident cast serious doubt on their reliability. The trial Court and High Court reliance on Selemani Makumba, which allows conviction based on a child's uncorroborated evidence, if the court records reasons for believing the child is truthful, could only have been correct if there were no such grave discrepancies. In this case, we find that PW1 and PW3's testimonies on the offence of rape were not credible, they were shaky, and could not be safely used to convict the appellant for the offence of rape. Based on the above and guided by the position stated in a plethora of decided cases cited hereinabove, we hold that the discrepancies in the testimonies of witnesses have affected the credibility of the key witnesses and have weakened the prosecution's case, thus not proved beyond reasonable doubt. Having found that the prosecution failed to prove the offence of rape beyond reasonable doubt, the conviction on the offence cannot stand. Consequently, the appellant's conviction for the offence of rape c/s 130 (1) and (2) (e) of the Penal Code, is hereby quashed, and the 19

sentence meted thereon is set aside. We order an immediate release of the appellant from prison, unless held for any other lawful cause. DATED at IRINGA this 7th day of October, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Judgment delivered this 8th day of October, 2025 in the presence of Appellant in person - unrepresented, Damas Sixtus, learned State Attorneys for the Respondent/Republic and Leopard Mabugo, Court Clerk is hereby certified as a true copy of the original. 20