Masoud Abdallah @ Said vs Republic (Criminal Appeal No. 245 of 2022) [2025] TZCA 1016 (3 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA fCORAM: MWARIJA. J.A.. MASHAKA, J.A. And FELESHI. J.AJ CRIMINAL APPEAL NO. 245 OF 2022 MASOUD ABDALLAH @ S A ID .......... . ............. . .......................... APPELLANT VERSUS THE REPUBLIC . .............................................. . ......................RESPONDENT [Appeal from the judgment of the High Court of Tanzania at Sumbawanga] (N k w a b Li) dated the 30th day of March, 2022 in DC. Criminal Appeal No. 01 of 2021 JUDGMENT OF THE COURT 18fl1 March & 3rd October, 2025 MASHAKA. 3.A.: The appellant, Masoud Abdallah @ Said, aged 21 years old engaged in a forbidden sexual relationship with a girl (name withheld) aged 17 years and was charged before the District Court of Sumbawanga for the offence of rape contrary to sections 130 (1) and (2) (e) and 131 (1) of the Penal Code, Chapter 16 of the Laws (the Penal Code). It was alleged that, between the year 2018 to December 2019 at Ng'ongo Village within Sumbawanga District in Rukwa Region,

the appellant had sexual intercourse with the girl. We shall hereafter refer to her as the victim or PW2. From the evidence of four prosecution witnesses, the account is that in the year 2018, the victim was a Standard Seven student attending Ng'ongo Primary School. During the years 2018 and 2019 and had a sexual relationship with the appellant on a number of occasions. She used to go to the house of the appellant for the purpose of having sexual intercourse. PW2 completed her primary school education in the year 2018, and continued with her secondary education in 2019 at Vuma Secondary School. Come 16th January 2020, when the school term commenced, she avoided attending classes and her father, Filius George (PW1) was concerned and made a follow up to the School Headmaster. Then PW1 reported the complaint to the Mtowisa Police station and PW2 was issued with Police Form 3 (PF3). On 31s t March 2020, Dr. Mariasinta Kavuanga (PW4) received PW2 accompanied by her relatives and conducted medical examination. PW4 established that PW2 was six months pregnant and filled her PF3 which was tendered in evidence and admitted as exhibit P2. PW1 questioned PW2 and she stated that the appellant was responsible for the pregnancy and that he was known to PW1 as they lived in the same village.

Later, on 21s t July, 2020 at 15:00hrs, H5929 DC Wycliff (PW3) received information that the appellant was seen at Ng'ongo Village. PW3 and DC Hatibu went to the village, arriving around 16:00hrs and arrested the appellant at his home. The appellant was taken to the Police station. At 17:30hrs, PW3 interrogated the appellant and recorded his cautioned statement in which he admitted having sexual intercourse with PW2. The prosecution tendered the cautioned statement which was not objected to by the appellant and admitted in evidence as exhibit PI. The appellant was thereafter found to have a case to answer. In his sworn evidence, the appellant denied having had any sexual intercourse with the victim as alleged. He contended that he is not capable of seducing her and had never engaged in sexual intercourse. Also, he told the trial court that though he lived with the victim in the same village and was identified by her, he firmly denied to have committed the offence. After a full trial, the trial magistrate was satisfied with the prosecution evidence and convicted the appellant basing on the testimony of PW2 that she was a credible witness who successfully revealed that it is the appellant who had sexual intercourse with her. Hence was a victim of statutory rape. Also, the conviction was based on exhibit PI in which the appellant admitted to have had sexual

relationship with the victim and the trial court disregarded the defence case and held that it did not cast any doubt on the prosecution case. The appellant was sentenced to thirty years' imprisonment and ordered to pay a compensation of TZS. 2,000,000.00 to the victim. Aggrieved, the appellant preferred his appeal before the High Court which despite of disregarding exhibit PI, upheld the conviction and sentence. Still undaunted in his pursuit to challenge his conviction in this final appeal, the appellant has raised three grounds of appeal:

1. That the first appellate court erred in law by upholding the conviction and sentence without considering that the prosecution did not prove the case beyond reasonable doubt
2. That the court below erred in law by basing conviction on the cautioned statement o f the appellant who did not know how to read and write which was illegally obtained.
3. That the first appellate court erred in law by upholding the conviction and sentence by relying on the evidence o f PW2 who was not credible. During the hearing on 18th March 2025, the appellant appeared in person, unrepresented and adopted the three grounds of appeal. He optedto first hear the respondent's reply to his complaints and reserved his right to rejoin. Whereas Ms. Flavia Shiyo, learned Senior State

Attorney teamed up with Mr. Joseph Mwakasege, learned State Attorney, to represent the respondent Republic. At the outset, in reply, Mr. Mwakasege resisted the appeal. He argued ground 3 of appeal which the appellant is questioning the decision of the first appellate court to rely on the evidence of PW2 which was not credible. Mr. Mwakasege referred us to the evidence of PW2 on how she had a love relationship with the appellant and engaged in sexual intercourse on a number of occasions which according to her testimony was more than 12 times. He contended that the second appellate court can determine the credibility of PW2 by testing it. To bolster his argument, he cited the case of Rashid Ally Kimage v. Republic [2024] TZCA 490 (21 June 2024 TANZLII), where the Court made reference to its decision in Shabani Daudi v. The Republic [2004] TZCA 84 (11 March 2004) and it spelt out the scenario in which the credibility of a witness could be determined by a second appellate court on its coherence and when considered in relation to the evidence of other witnesses, including the accused. The Court had this to say: "... The credibility o f a witness can be determined in two other ways. One, when assessing the coherence o f the testimony o f that witness, two,

when the testimony is considered in relation to the evidence o f other witnesses, including that o f the accused person. In those two occasions, the credibility o f a witness can be determined even by a second appellate court when examining the findings o f the first appellate court." Mr. Mwakasege's argument regarding ground 2 of appeal is that the procedure for admission of the cautioned statement was followed and when the appellant was probed by the trial court on its admission in evidence, he raised no objection and the statement was admitted in evidence as exhibit PI. Further, Mr. Mwakasege submitted that the first appellate court did not consider this ground though it was one of the grounds of the petition of appeal raised by the appellant. He contended that the first appellate court was required to cali on parties to address the complaint. It was his argument that the first appellate court did not consider exhibit PI in its judgment because the parties were not called to address the first appellate court about it. With these short observations, he concluded that ground 2 of appeal was baseless. On ground 1 of appeal whether the prosecution proved the charge beyond reasonable doubt, Mr. Mwakasege submitted in the affirmative for the following reasons; one, that PW2 and the appellant were in a

long relationship indulging into sexual acts; two, PW4 established that the victim was pregnant, proving penetration as revealed in exhibit P2; and three, the appellant was the perpetrator. He supported his arguments with decisions in the cases of Iddi Omary v. Republic [2023] TZCA 17699 (3 October 2023), Selemani Makumba v. Republic [2006] TZCA 96 (21 August 2006) and Goodluck Kyando v. Republic [2006] TLR 363. On the credibility of PW2, Mr. Mwakasege argued that though the appellant and PW2 had enjoyed a forbidden relationship for almost one and a half years and not timely reported the ordeal per the rule settled in the case of Marwa Wangiti Mwita and Another v. Republic [2000] TZCA 23 (12 June 2000), her evidence was credible. He prayed to the Court that the appeal be dismissed. Rejoining, the appellant implored the Court to consider the grounds of appeal, allow the appeal and set him free. Having heard the submissions by both parties and perused the record of appeal, we shall begin our determination with ground 2 of appeal as listed in the memorandum of appeal. The appellant's complaint is that the conviction was grounded on the cautioned statement (exhibit PI) which was illegally obtained as the appellant did not know how to read and write. The trial court convicted the appellant

based on the evidence of the victim, PW2 and exhibit PI. However, the first appellate court refrained from basing the conviction on exhibit PI and stated: "As to exhibit PI the cautioned statement, the record of the trial court is silent as to whether, it was supplied to the appellant for his examination (looking at it), though it appears that the appellant said he had no objection, which in my view, in the absence o f the record indicating that he examined it before making any comment, it is unsafe to rely on the cautioned statement to ground conviction. I do not consider the caution statement in determination o f this appeal" The first appellate court based its finding on the case of Hassan Hussein Tinna v. Republic, Criminal Appeal No. 33 of 2011 (unreported), where the Court had these observations and held: ” However, and as correctly observed by the learned Senior State Attorney, all the documents were purported to have been admitted in evidence as exhibits without the appellant being given an opportunity to see them and give his remarks on them. This was the right o f the appellant...Section 172 o f the law o f Evidence Act says that before any documentary evidence is admitted in court; it must be shown to the other 8

party so that he can comment on such document The other party also has the right to cross examine the witness on that document The omission to show the appellant the documents denied him the right o f fair hearing." From the excerpts above, the decision of the first appellate court was not founded on exhibit PI. In that regard there is no reason to consider its legality while it did not form the basis of conviction before the first appellate court. It is our finding that the complaint by the appellant that the cautioned statement was relied on by the first appellate court as the basis of conviction and sentence is baseless. Grounds 1 and 3 of appeal concerns the appellant's complaint whether PW2 was a credible witness to be relied upon to prove the charge beyond reasonable doubt. We shall determine these two grounds jointly. The record shows that the appellant was charged under section 130 (1) and (2) (e) of the Penal Code and the onus is on the prosecution to prove penetration, age of the victim and the perpetrator of the statutory rape. Mr. Mwakasege relied on the principle that the best evidence in rape cases comes from the victim as stated in the case of Selemani Makumba v. The Republic, (supra) where the Court held: "True evidence o f rape has to come from the victim/ if an adult; that there was penetration

and no consent; and in case o f any other woman where consent is irrelevant, that there was penetration." In the present appeal, there is no doubt that the victim was under the age of 18 as she testified that she was born on 8/02/2003. More so, the fact that the victim was pregnant, a fact which was not contradicted, suffices to prove ingredient of penetration. What is contentious is who is the perpetrator and to determine this issue the credibility and reliability of the victim is of utmost importance. It was the evidence of the victim that she was raped between the years 2018 to 2019 but did not report the incidents to anyone. It was PW1 who noted that the victim was not attending classes. Upon an inquiry by PW1 at the School, he discovered in January 2020 from the Headmaster that his daughter was avoiding classes. Eventually PW1 reported to the Police and exhibit P2 was issued for further examination at the hospital. PW4 conducted the examination and revealed that PW2 was six months pregnant. PW2 revealed to PW1 that the appellant was responsible for the pregnancy. At page 12 of the record of appeal, PW2 stated: "... I used to go to the accused home on different occasions for purposes o f having sexual intercourse, I used to go to the accused house 10

during the night where we were having sexual intercourse for two hours I go home, accused has his own house in the same compound with his parent I had sexual intercourse with the accused over twelve times..." The excerpt above challenges the credibility of the victim as she stated that she had sexual intercourse on several occasions with the appellant between the years 2018 and 2019. We note that she did not tell PW1 that she had been raped. PW2 had decided to abscond classes knowingly but still did not inform anyone of her situation, until PW1 decided to report the matter to the police and PW4 came out with the findings in exhibit P2 that she was six months pregnant. As an active participant in the charged statutory rape, we are however not surprised that PW2 decided not to report the ordeal. So, it never proved that it was the appellant who impregnated her. PW2 testimony that she left her home at night and went to the appellant's house so that she could not be seen, spent two hours committing the act which is forbidden due to her age and returned home without her actions being known was strongly denied by the appellant (DW1). To us, PW2's willingness to go outside at night under the camouflage of darkness as there are no street lights in villages, could not have prevented her to go to somebody else, that justify that 11

had it not been her failure to attend school and six (6) months pregnancy, no one would have been charged with that statutory rape. There is no evidence to prove that it was the appellant who made her pregnant bearing in mind that PW2 was already six months pregnant. Such evidence from PW2 raises serious doubts and ought not to have been relied upon to ground conviction. It is significant to note that it was never intended for the word of the victim of sexual offence to be taken as gospel truth but that her testimony should pass the test of truthfulness. See for instance, Mohamed Said v. Republic [2019] TZCA 252 (23 August 2019). The evidence of PW2 does not suggest that she is a witness of truth because she did not mention the culprit for that long without demonstrating that she was either threatened, ashamed or forced to keep silent. Therefore, after proper scrutiny of the evidence of PW2, it should not be taken as gospel truth as her credibility and reliability is not intact. Since the evidence of PW2 did not pass the test of truthfulness, what remains is the evidence of PW4 and exhibit P2 which only proves that the victim was pregnant but did not establish who was the perpetrator. In the absence of corroborative evidence which link the appellant with the commission of the offence, it cannot be concluded that the prosecution proved its case beyond reasonable doubt. The 12

incredible and unreliable evidence of PW2 raises doubts which ought to have been held in favour of the appellant. For these reasons, we allow the appeal, quash the conviction and set aside the sentence imposed on the appellant. We order the release of the appellant from prison forthwith, unless held for some other lawful reason. DATED at DODOMA this 22n d day of September, 2025. A. G. MWARIJA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 3rd day of October, 2025 in the presence of the appellant in person, Mr. Jackson Komba, learned State Attorney for the respondent Republic via virtual Link from Sumbawanga and Steven Msila, Court Clerk; is hereby certified as a true copy of the original.