Anderson Mngete vs Republic (Criminal Appeal No. 26 of 2022) [2025] TZCA 1022 (6 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CO RAM: MWANDAMBO, J.A., MAIGE, 3.A. And MANSOOR. J.AO CRIMINAL APPEAL NO. 26 OF 2022 ANDERSON M NGETE ...... ........ .......... ...... ..................... APPELLANT VERSUS THE REPUBLIC ..... ........ ............... ............ ..... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Iringa) (Mlvambina, JO dated the 13th day of December, 2021 in RM. Criminal Appeal No. 71 Of 2019 JUDGMENT OF THE COURT 1 s t & 6th October, 2025 MWANDAMBO, J.A.: The appellant, Anderson Mngete, was tried and convicted by the District Court of Iringa at Iringa for the offence of statutory rape involving a young girl of eight years at the time. A 30 years' custodial sentence followed after the conviction. His first appeal to the High Court (Mlyambina J.) sitting at Iringa was dismissed for lack of merit upon the first appellate court concurring with the trial court that the prosecution had proved the case against the appellant beyond reasonable doubt. Still discontented, the appellant has appealed to this Court to protest his innocence. 1

What triggered the appellant's arraignment before the trial court and ultimately his conviction is largely common cause. According to the record, RD; a young girl of eight years stayed with her grand mother (PW1) along with other relatives including FM (PW4). On 25 May 2018, PW1 left for some errands away from her home at Mlanda Village within Iringa rural district leaving behind her granddaughters; RM and FM at home. In her absence, it was alleged, the appellant surfaced at PWl's house and asked RD (PW3) to escort him to a nearby bamboo field for tapping bamboo wine popularly known as "Ulanzi" in the area. The record goes further that, PW3 obliged and accompanied the appellant and, instead of accomplishing the mission, the appellant seized the moment to gratify his sexual desires by undressing RM and laying her on the grasses before inserting his manhood into her vagina. Having exhausted his passion, the appellant is said to have fled leaving behind the victim in pain before returning home crying where she narrated the ordeal to her aunt who in turn informed PW1 upon her return. Subsequently, the incident was reported to the local government village office where, Vitalis Mario Samila (PW5) had the victim inspected on her private parts by another woman (PW6), who confirmed that the victim had indeed been raped judged by presence of sperms on her private parts and swelling of the vagina. With that feedback, PW2 had the

appellant who had been mentioned by the victim, arrested by the police. Later in the day, the victim was taken to the police for obtaining a PF3 with which PW1 took the victim to Iringa Regional Hospital. At the hospital, Dr. YuginVictor Lutambi (PW7) examined PW3 and posted his findings in the PF3 (exhibit PI) revealing existence of minor bruises on her right vulva, but without hymen or blood discharge. With the above, the appellant was arraigned in court on the charge of rape to which he pleaded not guilty. The trial court determined the case on two issues; whether the victim was raped and if so, whether it was the appellant who did so. On the first issue, the trial court relied on the evidence of PW1, PW2 and PW5 who testified to have seen PW3's gown wet at the back and swollen vagina and sperms thereon upon inspection. Further, the trial court found the evidence supported by PW7 and the PF3 which revealed absence of virginity and presence of some bruises, and, above all, the victim's own evidence which it found to be credible and reliable. On the second issue, the trial court found it proven through PW3, that it was none other than the appellant who sexually assaulted the victim. At the end of the trial involving seven prosecution witnesses and one for the defence, the trial court found the prosecution testimonies proved the charged offence

hence a finding of guilt followed by conviction and sentence as alluded to earlier on. As mentioned above, the High Court concurred with the trial court in its finding of fact sustaining both conviction and sentence now challenged in this appeal. The appellant faults the decision of the first appellate court on six grounds which in effect, seek to invite the Court to interfere with the concurrent findings of fact by the two courts below on his guilt. That is notwithstanding the limited power by the Court on a second appeal as this except where it is established that the finding was a result of misdirection, non-direction or misapprehension of vital evidence causing a miscarriage of justice. At the hearing of the appeal, the appellant appeared in person, unrepresented. Being a layperson, he simply invited the Court to allow the appeal on the basis of the grounds in the memorandum of appeal insisting that the case against him was not proved to the required standard on account of PW3's inability to mention the date, time and year when the charged offence was committed. On the adversary side, Mses. Magreth Mahundi, learned Senior State Attorney and Rehema Ndege, learned State Attorney appeared representing the respondent Republic. Resisting the appeal, Ms. Mahundi

addressed the Court beginning with the first ground on the alleged irregular reception of evidence of the tender age witnesses (PW3 and PW4) by conducting a voir dire test contrary to section 127 (2) of the Evidence Act. The learned Senior State Attorney argued, rightly so, that much as the record shows that the trial court appears to have conducted a voir dire test instead of soliciting a promise to tell the truth from PW3 and PW4 in line with section 127 (2) of the Evidence Act in force at the time the tender age witnesses gave their testimonies, that in itself did not occasion any prejudice against the appellant to warrant discarding their testimonies. Guided by the Courts' decisions in Bashiru Salum Sudi v. Republic [2020] TZCA 196 and Issa Salum Nambaluka v. Republic [2020] TZCA 10, amongst others, we agree with Ms. Mahundi, that the complaint has no semblance of merit. After all, as we held in Mathayo Laurance William Mollel v, Republic [2023] TZCA 52, the whole purpose of asking questions to tender age witnesses is to assure the trial court that he knows the meaning of an oath or affirmation before making a promise to tell the truth. We see no prejudice in the procedure adopted by the trial court, now complained in this appeal. The complaint in the 1s t ground lacks merit and is hereby dismissed. Ms. Mahundi invited the Court to dismiss the appellant's complaints in the 2n d ground in relation to PW3's omission to mention the date, time

and year of the charged offence. Counsel urged us to consider the victim's age as a reason for such failure and the fact that, such vacuum was sufficiently filled in by PW1 and PW5 who testified that the offence was committed on 25 May 2018 around afternoon. We yet again agree with the learned Senior State Attorney being satisfied that the record says as much. We thus dismiss this ground which takes us to the 6th ground after declining to consider the 3rd , 4th and 5th grounds not canvassed and determined by the first appellate court neither do they involve points of law on the strength of the provisions of section 9 (7) (a) of the Appellate Jurisdiction Act (the A3A). The issue for our consideration and determination in the 6th ground is whether the case against the appellant was proved to the required standard. As previously hinted, the appellant seeks to impugn the concurrent findings of fact by the two courts below. The law on this is settled, that is, a second appellate court is, as a general rule, bound by the concurrent findings of fact by the two courts below unless such findings are a result of misdirection or non-direction or misapprehension of evidence on record occasioning a miscarriage of justice. See for instance: Saluiri Mhando v. Republic [1993] T. L . R. 170. Ms. Mahundi sought to impress upon us that in this appeal, the two courts below rightly concurred that the case against the appellant was proved warranting a

finding of guilt. This is so, counsel argued, all the ingredients of the charged offence were proved, that is, the age of the victim was below 18 years per PWl's evidence; penetration proved through PW3's own evidence corroborated by PW4 and PW5 as well as PW7 who tendered in evidence a PF3 admitted as exhibit PI. Counsel drew our attention to the Court's decision in Selemani Makumba v. Republic [2006] T.L.R. 379 to argue that, true evidence in sexual offences must come from the victim. According to her, PW3's evidence was sufficient to prove the charged offence and thus the first appellate court rightly concurred with the trial court on the finding of the appellant's guilt. Since there was no dispute on the victims age, the critical ingredients proving the offence involved penetration and whether the appellant was the responsible culprit. We shall preface our discussion with the time honoured adage that is; rape is an offence which is easy to allege, hard to be proved, harder to be defended by the accused though never so innocent. That observation is to be found in the book titled; The History of the Pleas of the Crown Court Vol. I (1847) by Sir Mathew Hale, Lord Chief Justice of the King's Bench Court, often referred to by the Court in various cases which we need not mention here. What emerges from the above observation is that, notwithstanding the rule that true evidence in sexual offences has to come from the victim, such

evidence should not be taken as a gospel truth without losing sight of yet another pertinent principle; each witness is entitled to credence and his evidence believed except where there are cogent reasons to the contrary underscored in Goodluck Kyando v. Republic [2006] T. L R. 363. In its decision, the first appellate court agreed that the prosecution proved the critical element in sexual cases; penetration of a male sexual organ into the victim's vagina. This it did based on PW3's evidence extracted at page 5 of the judgment running thus: "I live with my grandmother, father. I know Anderson [the appellant]... he asked me to escort him and show him a bamboo plantation. When we reached there, he undressed and inserted his dudu in my vagina. He then [ran] away after he finished. I felt pain when he inserted his dudu"[At page 52 o f the record o f appeal] The trial court was satisfied that rape had been established on the basis of the evidence of PW1 and PW2 cemented by PW7 and the PF3 as well as the victim own evidence. We shall let the trial court speak for itself on this: "... this court has, with two eyes, looked at the evidence ofPW l, PW2 who testified that they saw the victim's gown was wet at the back, further

PW5 [the Chairman] and PW6 a woman who inspected the victim testified that sperms and swollen (sick) was seen on the private parts o f the victim, their testimonies were cemented by that o f PW7, a doctor who examined the victim and tendered the PF3 indicating that the victim was not virgin and had some bruises. With these testimonies and that o f the victim who clearly narrated how the offence was committed, this court has been convinced that the victim was raped. " [At pages 29 and 30 o f the record o f appeal] It is plain from the above that, from the evidence of PW1, PW2, PW5 and PW6 which was said to have been cemented by PW7's testimony and the PF3, three critical aspects are noted; one, swollen vagina; two, presence of sperm on the victim's private parts; and, wetness at the back of the victim's gown she wore on the material date and time. It is significant that, the victim was inspected in the afternoon on 25 May 2018 before being taken to the Hospital later in the evening for examination. PW7 who examined the victim at the hospital posted the following observations in the PF3: "(iii) General physical/mental examination (eg. General appearance, bruises, bites, use of drugs, alcohol and demeanor - looks well, well 9

conscious, bruise or (Rt) vulva..., mentally fit dean clothes. (v) condition and appearance of clothes including inner garments (e.g., presence of tears, blood stains, fluid) - dean clothes, no blood strains, No secretions seen." In part IV, part B of exhibit PI, PW7 made the following observations to the specific areas of his examination: "Bruises (minor) on her right vulva, no hymen, no biood or secretions seen, anai normai finding, no discharge." Strikingly, despite his fleeting statement in his oral testimony that the loss of virginity and presence of bruises on the victim's vulva was indicative of rape, PW7 did not make any remark in the PF3 that is, whether, in his opinion, there was any penetration on PW3's vagina. In our view, PW7's observations in the PF3 were diametrically the opposite of what PW1, PW2, PW5 and PW6 claimed to have observed earlier in the afternoon before PW1 took PW3 to the hospital in relation to, swollen vagina, presence of sperms and wetness of PW3's gown at the back. Besides, whereas PW3 testified that she felt a lot of pains after the appellant had inserted his dudu in her vigina, her evidence is in sharp contrast with PW7 who observed minor bruises on her right vulva without 10

any sign of sperms, blood discharge, absence of hymen and above all, in norma! condition with clean clothes. In our view, unlike the two courts below, PW7's evidence could not have corroborated neither PW1, PW2, PW5 and PW6 nor PW3 on the essential element of penetration. In other words, the evidence through these witnesses does not talk to each other on such a crucial aspect. For instance, there is no explanation from PW.l, if she washed the victim's private parts and changed her gown before taking her to the hospital. In any event, if there was indeed forced and painful penetration on the victim's vagina, the fact that PW7 observed minor bruises without any blood secretions and with a lost hymen contradicts PW3's own evidence which the trial court found to be credible and reliable and concurred by the first appellate court. Had the two courts below subjected the entire evidence through PW1, PW2, PW3, PW5 and PW6 and subjected it to an objective scrutiny with that of PW7 and exhibit PI, they could not have concurred that penetration, an essential ingredient in the charged offence, had been proved. With respect, the concurrence by the two courts below was a result of misapprehension and non-direction on vital evidence on record for which we are constrained to interfere in this appeal. Consequently, unlike Ms. Mahundi who was steadfast that the prosecution proved penetration, the evidence on record contradicts that 11

assertion as we have endeavored to demonstrate previously. There being no proof of penetration, the finding of guilt on the charged offence cannot be sustained. It is accordingly set aside and substituted with an acquittal. In the event, we find merit in the 6thground of appeal and ultimately the appeal. The conviction is accordingly quashed and sentence against the appellant set aside who shall be released forthwith from custody unless held therein for any other lawful purpose. DATED at IRINGA this 4th 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 6th day of October, 2025 in the presence of Appellant in person - unrepresented, Ms. Rehema Ndege, learned State Attorney for the Respondent/Republic and Leopard Mabugo, Court Clerk is h