Ally Salimu Lukoya vs Republic (Criminal Appeal No. 520 of 2023) [2025] TZCA 894 (28 August 2025)

IN THE COURT OF APPEAL OF TANZANIA ATTANGA fCORAM: LILA. J.A.. KENTE J.A., And MGEYEKWA, 3.A.) CRIMINAL APPEAL NO. 520 OF 2023 ALLY SALIMU LUKOYA ................. .....................................................APPELLANT VERSUS THE REPUBLIC ..................... ....................................... ............RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Tanga) (Ndesamburo, J.^ dated the 27th day of July 2023 in Criminal Appeal No. 09 of 2023 JUDGMENT OF THE COURT 23rd May, 28th August, 2025 LILA. J.A.: The District Court of Kilindi in Tanga Region, in Criminal Case No. 87 of 2022, tried and, convicted the appellant of two counts; first count, rape contrary to sections 130(l)(2)(e) and 131(1) of the Penal Code, Chapter 16 of our laws (the Penal Code) and, in the second count, the offence of impregnating a secondary school girl contrary to section 60A(3) of the Education Act as amended by Written Laws (Miscellaneous Amendments) Act (No. 2) of 2016 (the Education Act). Consequent upon such convictions, it sentenced the appellant to thirty (30) and three (3) years imprisonment, respectively. Aggrieved, the appellant appealed to the High Court of Tanzania, (Tanga Registry) in (DC) Criminal Appeal No.

09 of 2023 but was unsuccessful, hence this second appeal before the Court. The charge indicated that the appellant, at the time he allegedly committed the two offences, was twenty (20) years old and that he committed the two offences at Kibirashi Village within Kilindi District in Tanga Region on diverse dates between June, 2022 and 7th November, 2022 during which time he had sexual intercourse with a girl aged seventeen (17) years who, to disguise her identity, we shall conveniently refer to her as the victim or PW2 as she testified. Looking at their respective ages, both the appellant and the victim were still very young and were still at what people term as a problematic age, just matured. Common to both sides of the case, is that the two lived in the same village and all was well until when the victim, a Form One student at Kibirashi Secondary School, stopped going to school on 7/11/2022. On that date, it was noted by her mother one Mwanaisha Athumani Mwagango (PW1), that the victim, who was her biological daughter aged seventeen years having been born in the year 2005, had not gone to school and was seriously vomiting. Harsh and holding a stick, PW1 inquired her but the victim was not ready to disclose the cause until when she was taken to her grandmother one Hawa Hassan Mgogo (PW4) who, upon hearing the quarrel between the victim and her mother, got

out of her house which is close to PWl's house. She (PW4) took the victim into her room where the victim told her that she was not ready to go to school as was constantly vomiting hence battered by fellow students and that she had missed her menstrual period since May, 2022. PW4 outrightly suspected that the victim might be pregnant. The victim then named Ally Satim Lukoya, the appellant, as the person who was responsible with her pregnancy as they secretly used to meet at night in the room he had rented in one Zuberi Majengo's house. To verify if the victim was pregnant, PW4 advised PW1 and her husband to report the matter to the police station where they were issued with a Police Form No. 3 (PF3) and took the victim to Kibirashi Dispensary for medical examination. Athumani Kipemba (PW5), a Clinical Doctor, examined PW2 using Urinary Pregnancy Test (UTP) and found her womb diameter covering 24 centimeters which signified that she was six months pregnant, a finding he indorsed on the PF3 which he tendered, admitted and was marked as exhibit P2. Explaining how the love affairs between her and the appellant arose, PW2 said, it was around 1400 pm in June, 2022 when they first met at the water tap where she was washing her clothes and the appellant, a person she knew well prior to as a resident of Kibirashi and a garage mechanic at TopRich, coincidentally appeared with his clothes and

sought her assistance in washing them. In the course, she explained, the appellant offered her to have sexual intercourse with her which she hastily accepted leading to their regular secret meetings at 2100 pm in the appellant's room in one Mangi's house located at Gombero Road along Chanika Street wherein the appellant used to insert his penis into her vagina after undressing themselves and did not apply protective gears (condoms) in the course. As it turned out, it was no more a secret when, on 7/11/2022, the victim found herself unable to go to school as she was seriously vomiting which condition raised a concern to PW1 but she could not disclose what had befallen her as PW1 was harsh to her hence she was taken to PW4 whom she narrated the whole story as stated above. In proving that the victim was a student at Kibirashi Secondary School, Beatrice Thomas Simwaba (PW3), a teacher in that school, told the trial court that the victim was a Form One student in the year 2022 there at with Registration No. 20170 and her identity number was number 2015-0196502 and a copy of a School Register in which she was number 6 in the roll was tendered and admitted as exhibit PI. All that the appellant told the trial court, in his affirmed defence, is that he was, in November 2022, arrested by a militiaman at his workplace

at TopRich where, as a tri-cycle famously known as "gutaP rider, do wait for customers and was taken to Kibirashi police post where he met a woman who had reported that he was disturbing her and was locked in police custody for three days after which he was transferred to Songe Police Station. He denied committing the alleged offences to the victim and was later charged in court. He vehemently denied having love affairs with the victim or taking her into his room. The trial District Court found the prosecution case impeccable and had proved the charge to the hilt and, as hinted above, proceeded to convict the appellant on both offences and sentenced him as stated above. In respect of the offence of rape, the district court was satisfied that the appellant was not a stranger to the victim as they lived in the same village and she knew where he worked which evidence found support from the appellants defence evidence. Penetration as a crucial element to be proved in rape cases, it held that it was proved by PW2's evidence that the appellant inserted his penis into her vagina and, relying on the legal proposition pronounced by the Court in the case of Selemani Makumba vs Republic [2006] T.L.R. 380 that the best evidence in sexual offences comes from the victim, the appellant was found to be the perpetrator thereof having been named by the victim and the offence was committed in the appellant's room which she also

managed to provide its detailed composition. As the appellant was charged under section 131(2)(e) of the Penal Code where proof of age is a requirement to ground a conviction as emphasized in the case of Ally Rashid vs Republic cited in the case of Elias Mpori vs Republic, Consolidated Criminal Appeal No. 115/1238 of 2019 and also relying on the case of Bashiri John vs Republic, Criminal Appeal No. 486 of 2016 (both unreported) that age may be proved by the parents, medical practitioner or by production of a birth certificate, the trial court found the same proved by PW1 who told the trial court that the victim was born in the year 2005 hence was seventeen (17) years by the year 2022 when she was raped. In the same vein, the trial court was satisfied by the evidence of PW1, the victim, PW3 and PW4 that the victim was a student at Kibirashi Secondary School. PW2's evidence and that of PW1 that she was vomiting as supported by PW4 who examined her and found her six (6) months pregnant was found to be sufficient to prove that the victim was impregnated by the appellant as exhibited by exhibit P2. The appellant's appeal to the High Court failed as it fully concurred with the trial court's reasoning and findings. To it, the delay by the victim to name the appellant as her ravisher to PW1, was justified by the victim's explanation that PW1 was very harsh to her.

In protesting his innocence before the Court, the appellant raised four (4) grounds of complaints in his memorandum of appeal. They centered on failure by the victim to name the appellant at the earliest opportunity, exhibit P2 not being read out to him by the district court after being admitted, lack of cogent evidence establishing both offences he was charged with and convicted of and, lastly, that the case was not proved beyond reasonable doubt. Before us, the appellant appeared in person and relied on four (4) grounds of appeal as reflected in the memorandum of appeal and the written statement of arguments thereof he had filed in court on 20/4/2025 without more and humbly beseeched the Court to allow the appeal. For the respondent Republic, Mr. Andrew Mandwa, learned State Attorney, appeared and resisted the appeal orally before us as he did not file reply arguments. Elaborating his ground one of appeal in the written statement of arguments, the appellant invited the Court to examine the victim's reliability on her account that it was him with whom she had love affairs and had sexual intercourse resulting in being pregnant. His main contention is that she, as a measure of her credence, failed to report the

matter of being raped by the appellant at the earliest opportunity and, in particular, her failure to name him to PW1 when she was first inquired. To him, the victim was not reliable and her later naming him before PW4 was an afterthought and was intended to use him as a scapegoat and therefore hide the true rapist. The appellant's second complaint was in respect of the school register (exhibit PI) not being read out to him after being admitted which he contended that the omission was a contravention of the settled law as expounded by the Court in the case of Robert P. Mayunga and Another, Criminal Appeal No. 514 of 2016 (unreported) that he was denied the right to know the contents thereof for him to marshal his defence properly hence he was not fairly tried. He urged the same be expunged from the record. Basically and hastily, this complaint is superfluous. The record of appeal leans in favour of the learned State Attorney's argument who, relying on the Court's decision in Issa Hassan Uki vs Republic, Criminal Appeal No. 129 of 2017, contended that the same complaint was raised and considered by the High Court in the first appeal and the same was expunged from the record as vividly reflected on pages 73 and 74 of the record of appeal. The respondent Republic appears satisfied with the decision as no appeal lied against it. That notwithstanding, and rightly so in our view, did not prevent the High

Court, relying on the Court's decision in the case of Huang Qin and Xu Fujie vs Republic, Criminal Appeal No. 173 of 2018 (unreported), from acting on PW3's oral testimony in its respect and found the same to have sufficiently proved that the victim (PW2) was a Form One secondary school student at Kibirashi. That being the right position of the law, we find no reason to fault the learned presiding Judge. With respect to his last complaints that there was no cogent evidence which established both offences he was convicted of hence the case was not proved beyond reasonable doubt, his attack was double- edged. In the first place, he submitted that the evidence by PW1, PW3 and PW4 were hearsay as neither of them witnessed the commission of the charged offences which are mostly committed in privacy. His argument was that their evidence lacked probative value and could not ground his convictions. We shall consider this complaint in conjunction with his caution to the Court that it is unsafe to rely on the testimonies of PW1, PW2 and PW3 who are relatives (family members) hence there was need for investigator or a local Government leader to have testified. Mr. Mandwa was completely opposed to the appellant's contentions. Although he did not expressly concede that PW1, PW3 and PW4 did not witness the offences charged being committed and being relatives, but he was quick to argue that their evidence was not hearsay but was crucial in the case 9

as it was before them the victim disclosed her affairs with the appellant and, in particular, guided by the Court's decision in Issaya Renatus vs Republic, Criminal Appeal No. 542 of 2015 (unreported), he argued that PW1, being the victim's mother, established that the victim was seventeen (17) having been born in the year 2005 and PW3's evidence established that the victim was a Form One student at Kibirashi secondary school. Starting with PW1, PW2 and PW3 being relatives, it is plainly true that PW1, PW2 and PW3 were family members but, in law, it is no bar from testifying on the facts that came to their knowledge like any other witnesses and whether their evidence could ground a conviction depend on their credibility and reliability, (see Khatibu Kanga vs Republic, Criminal Appeal No. 290 of 2008 (unreported). Familiarity and being close members of the same family of PW1, PW2, PW3 and PW4 appears to have been escaped the learned State Attorney's mind hence we had no privilege of hearing his views. For clarity, in the case of Fred Mathias Marwa vs Republic, Criminal Appeal No. 136 of 2020 (unreported), the Court, faced with an akin situation, lucidly stated that: 10

" Whether their evidence couid ground a convictionf like any other evidence, depended on their credibility and reliability irrespective o f the relationship between each other - see Khatibu Kanga v. Republic, Criminal Appeal No. 290 o f 2008 (unreported). See a/so Esio Nyamoloela & Two Others v. Republic, Criminal Appeal No. 49 o f 1995 and Juma Choroka v. Republic, Criminal Appeal No. 23 o f 1999 (both unreported) which we relied upon in Khatibu Kanga (supra). Certainly, there is nothing wrong in relying upon the testimonies o f family members to ground a conviction if such evidence is credible, "(emphasis added). Now turning to the first limb of the appellant's complaint that their (PW1, PW2 and PW3) respective evidence was hearsay for not having witnessed the commission of the charged offences but were told by PW2, the complaint is baseless. In the case of Diamond Malekela @ Maunganya vs Republic, Criminal Appeal No. 2015 of 2005 (unreported), the Court had an opportunity to examine the import of sections 61 and 62 of the Evidence Act (the EA) which require all oral evidence to be direct, in that it should be given by a person who says he either heard, saw, perceived it by his/her own senses or held such opinion. In that discussion, the Court was not ready to accept such a contention that the kind of testimonies of the three witnesses are

hearsay. In the cited case, the prosecution witnesses (PW3, PW7 and PW8), like the present PW1, PW2 and PW3, told the trial what they heard the accused person saying in respect of the commission of the offence. Mr. Ngalo, learned advocate, representing the appellants in the appeal contended that their evidence was hearsay which should not have been acted on to ground the appellant's conviction for murder. Desisting to accept the contention, the Court, at first, defined what hearsay evidence means to be that: "In iaw, hearsay evidence is the testimony "given by a witness who relates, not what he knows personally, but what others have told him, or what he has heard said by others": BLACK'S LAW DICTIONARY, 6th ed, at 15 page 72.: The Court, then went further to hold that: "This should be contrasted with direct evidence contemplated under sections 61 and 62 o f the Evidence Act. These two sections read, in part, as follows: - "61- AH facts, except the contents o f documents, may be proved by oral evidence. 62-(l) Oral evidence must, in all cases whatever, be direct; that is to say- (a) if it refers to a fact which could be seen, it must be the evidence o f a witness who says he saw it, 12

(b) if it refers to a fact which could be heard, it must be the evidence o f a witness who says he heard it; - (c): I f it refers to a fact which could be perceived by any other sense, or in any other manner, it must be the evidence o f a witness who says he perceived it by that sense or in that manner; (d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence o f the person who holds that opinion or, as the case may be, who holds it on those grounds: (emphasis added) And, after referring to what the said witnesses told the trial court, The Court pronounced itself thus: "We think we should do considerable violence to section 62(1) (a) and (b), in order to uphold the contention o f Mr. Ngato to the effect that the evidence o f these three witnesses was hearsay. With all due respect to Mr. Ngalo, we are not prepared to do so. This evidence was pureiy direct oral evidence on what they allegedly heard being said by the appellant and/or saw being done by him, which if found to be true would sustain the conviction (Emphasis added) The circumstances in the instant appeal being substantially similar to those which obtained in the above cited case that PW1, PW3 and PW4 13

told the trial court what they actually personally knew, did and heard from PW2, we firmly hold that their respective testimonies were direct, in terms of section 62(1) of the EA. The appellants contention is baseless and is hereby dismissed. Forcefully arguing against his being implicated with the offence of impregnating the victim, the appellant's arguments centered on the alleged date the victim claimed to have had started love relationship with him. He contended that, properly examined, the mentioned date does not support PW5's finding that he examined her and found her to be six months pregnant. According to him, if the victim's evidence is taken as true that their relationship began in June 2022 and she was found six months pregnant when she was medically examined on 7/11/2022, then her pregnancy ought to have been of five months. In another angle, he submitted that, PW2's evidence is self-contradictory as during examination in chief she said she first met the appellant at the water tape in June, 2022 and their relationship started then while when she was cross-examined she recalled that she met the appellant in July, 2.022 and their relationship started then which evidence would show that, by November, 2022, she ought to have been four months pregnant as opposed to PW5's finding that she was six months pregnant On these 14

contradictory facts, he submitted, it is clear that PW2 had sexual relationship with another person and not him. In his reply arguments, Mr. Mandwa, while making reference to pages 15 - 25 of the record of appeal, contended that the victim told the trial court that the appellant was her lover and they regularly had sexual intercourse from June to November, 2022 in the appellant's room without condoms hence by 7/11/2022, she was correctly found to be six months pregnant. The contention, he concluded, by the appellant was thus a non-issue. The foregoing contending arguments by the parties invite the Court to find out, first; whether the victim mentioned different dates she had affairs with the appellant during her testimony in chief and during cross examination and, secondly; whether by 7/11/2022 she was six months pregnant. The question whether probably the victim had affairs with another man which, in essence challenges her credibility, is an issue to be addressed later on when we shall delve into the determination of her credibility, an issue stemming out in ground four (4) of appeal. There is no doubt that the record of appeal, supports the appellant's contention. On page 13 of the record, it is vivid that the victim expressly told the trial court that her sexual relationship with the 15

appellant began in June, 2022 when they met at the water tape and ended on November, 2022 while on page 14, when she was cross examined by the appellant she said they met at the water tape on July, 2022 and was firm that by the time she was medically examined by PW5, she was six months pregnant. On his part, PW5 said he found the victim with a womb covering 24 centimeter which medically translated into six months pregnancy. We have asked ourselves whether the difference of one month is so material that may render the victim's evidence so unreliable. Definitely, if anything, the issue of pregnancy preceded existence of the alleged sexual relationship between the two during which time neither of them knew that it would later be an issue so that they could be required to keep record. In the circumstances, pinning down the victim to be exact is obviously unfair. We dismiss this complaint. In concluding his submissions, the appellant pointed out certain discrepancies in the prosecution case such as one; that PW1 said he was running a hodaboda business whereas PW2 said he was a garage mechanic, two; that whereas PW4 said she was told by the victim that he was undressing herself in the appellant's room, PW2 said she was undressing herself and three; that while PW4 said he rented a room at one Zuberi Majengo's house, PW2 said they were having sexual intercourse at one Mangi's house. 16

In their totality, the aforementioned contradictions focus on trying to discredit the victim's testimony. On his side, Mr. Mambwa, in his arguments, did not approach the complaint in grounds three and four (3 and 4), in the manner the appellant did in his written arguments. He, instead sought to show the Court that the prosecution discharged its duty to prove the charge against the appellant by navigating over the evidence on record of appeal. In the due course he dealt with grounds one (1) and four (4) of appeal, which, respectively, concern the failure to name the appellant as the perpetrator of the two offences at the earliest opportunity and failure by the prosecution to prove the charge. In respect of ground one (1), Mr. Mandwa readily conceded to the existence of the complained infraction that the victim failed to report the incident earliest when she was confronted by her mother (PW1) but assigned, as a good reason, that the victim's mother (PW1) was so harsh to her as reflected on page 13 of the record hence she was very much afraid of her citing the case of Hango Omary Hango vs Republic, Criminal Appeal No. 445 of 2022 (unreported) to fortify his assertion. He argued that according to the victim's evidence, the appellant was his lover hence she had no reason to report until she was pregnant. He further argued that the appellant was charged with statutory rape which prohibits both consensual and non-consensual carnal 17

knowledge of a child below 18 years hence, being lovers, failure by the victim to report at the earliest opportunity was inconsequential. He urged the Court to believe the victim as both courts below did because the victim and the appellant were familiar to each other. It was, however, on the same day PW1 had noted that the victim did not go to school that the victim was taken to PW4 who suspected her of being pregnant where she disclosed her relationship with the appellant. Mr. Mambwa insisted and pressed the complaint be dismissed. The High Court, on first appeal, considered this complaint and took exception finding the delay to name the appellant to PW1 as the ravisher justified by PW1 being so harsh to her.The contradictions complained of were treated as being trivial and not going to the root of the case and relying on the case of Jonas Boniface Massawe vs Republic, Criminal Appeal No. 52 of 2020 (unreported), the High Court held that they did not affect the credibility and reliability of the evidence by PW1, PW2 and PW4. We entirely agree with the learned first appellate Judge on the principle applied and the finding arrived at. The main theme of the charge was whether the appellant raped the victim and impregnated her and this was, comprehensively considered, achieved by the prosecution evidence. Matters such as the name of the person who owned the house the 18

appellant rented, how each undressed in the room and the alleged difference of one month of the pregnancy, which actually is not there, are minor and inconsequential. As such and as we strongly held in Dickson Elias Nsamba Shapwata and Another vs Republic, Criminal Appeal No. 92 of 2007 (unreported), such minor discrepancies on immaterial matters cannot cause the prosecution case to crumble. Submitting in respect of grounds 3 and 4 that there was no evidence to establish the two offences charged, the learned State Attorney argued that in rape cases, the age of victim should be established to be under 18 which was proved by her mother (PW1) on pages 7 to 9 to be 17 years having been born in 2005, and the victim herself on page 13 to be 17 years old, the two being persons who are legible to prove so (See the case of Issaya Renatus vs Republic case (supra) at page 8. Arguing further, he said the second element to be proved is penetration which the victim proved on page 15 to 25 said she had sexual intercourse with the appellant who was her lover since June to November, 2022 and were having sexual intercourse in the appellant's room without condoms. Even when, on page 14, she was being cross-examined from line 10 to 15, the victim insisted that sexual intercourse was being done

at his rented room which meant that penetration was proved, Mr. Mambwa concluded. Regarding who was the perpetrator, the last ingredient to be proved, Mr. Mambwa referred the Court to pages 13 and 14 from line 10 to 19 of the record of appeal where the victim explained how she knew the appellant and the two became lovers followed by having carnal knowledge in the appellant's room without using protective gears (condoms). Mr. Mambwa considered the defence evidence as having advanced the prosecution case because the defence evidence did not controvert the prosecution evidence in which the appellant admitted working at Stoplift as was said by the victim and that he did not deny where he stayed and meeting the victim at night. On account of this evidence, Mr. Mambwa, sought the Court's indulgence and believe the victim that it was the appellant who raped her. Before resting his case, the Court wished to satisfy itself on two issues namely whether the pregnancy was established to have been caused by the appellant and whether PW2 was a witness of truth. We accordingly, suo motu, raised the issues and invited the learned State Attorney and the appellant to address us on them. 20

Unhesitant, Mr. Mambwa admitted that no DNA test was conducted which he however said it is not a legal requirement and urged the Court to believe PW2 as did the courts below that she had sexual relationship with the appellant as a result she became pregnant. Responding to the Court's follow-up question whether, on the evidence by the victim herself, she was a witness of moral wickedness that would have eliminated the possibility of the pregnancy being of another man as complained of by the appellant, without mincing words, Mr. Mambwa admitted that she was a bad mannered school girl who was able to regularly move freely at night without her parents' knowledge. He also doubted if, in the circumstances, the appellant was the only person (man) she had love affairs with regard being that the record is silent making it possible that she might have visited other men in such night movements. The manner, if true, the appellant did win her just on the first day they met at the water tape, casted doubt on whether she was well mannered. Being of such behaviour, Mr. Mambwa could not hold up but admit that she was not a reliable witness. Crucial and forming the basis of the remaining contending arguments by the parties in this case is whether PW2 is a reliable witness. Neither of the courts below took this as an issue and expressly dealt with it in a deserving weight. But, upon our examination of their respective 21

judgments, it is obvious that she was taken as a witness of truth as neither of the courts expressly doubted her. They, as a result, brought into application the Courts' principles in the cases of Selemani Makumba vs R, [2006] TLR 373 that best evidence in sexual offences comes from the prosecutrix (the victim) and Goodluck Kyando vs R, [2006] TLR 363 that every witness is entitled to credence unless there is cogent evidence establishing otherwise resulting in findings of guilt in both counts. It is undisputable, that if not for the pregnancy that caused PW2's failure to go to school on 7/11/2022, the whole matter would have remained closed. No charge would have arisen. Sexual intercourse or rather carnal knowledge is committed secretly save for those few and rare occasions where the concerned are unfortunately found or caught in flagrant delict. In the instant case, no witness claimed to have had seen the appellant and the victim together anywhere let alone having sexual intercourse. So, the allegation by PW2 that she was raped by the appellant could only be proved by themselves only. While PW2 claimed so, the appellant vigorously denied. Before the trial court, on the issue of carnal knowledge, it was a one against one evidence, the victim's evidence against that of the appellant. Who to be believed depended on the determination of who was a credible witness. In complementing the 22

Court's guidance in Selemani Makumba's case (supra) that best evidence comes from the victim of the sexual offence and the principle in Goodluck Kyando's case (supra) which tended to suggest that what the victim said should be taken as true, the Court, in the case of Mohamed Said vs Republic, Criminal Appeal No. 145 of 2.017 (unreported), after appraising itself with the caution given in the17th Century by Lord Chief Justice Mathew Hale in the case People v. Benson, 6 Call 221 (1856) about rape offences that it "is an accusation easy to be made and hard to be proved and harder to be defended by the party accused, though never so innocent" gave this guidance to the courts when dealing with sexual offence cases: - 'We think that it was never intended that 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 sexuai offences requires strict compliance with rules o f evidence in general, and S. 127(7) o f Cap. 6 in particular, and that such compliance will lead to punishing o f offenders only in deserving cases." (Emphasis added) Besides the above guidance which is now being followed in numerous decisions including in Said Hamisi Mchanjama vs Republic, 23

Criminal Appeal No. 390 of 2022 (unreported), the Court dealing with an akin situation, defined what is meant by a reliable and credible evidence cited, in part, the Court's observation in the case of Salum Ally vs. Republic, Criminal Appeal No. 106 of 2013 (unreported) positively cited in that: - ”... On whether or not any particular evidence is reliable, depends on its credibility and weight to be attached to such evidence. We are aware that at its most basic, credibility involves the issue whether the witness appears to be teiiing the truth as he believes it to be. In essence, this entails the ability to assess whether the witness's testimony is plausible or is in harmony with the preponderance o f probabilities which a practical and informed person would readily recognize as reasonable in the circumstances particularly in a particular case... "(Emphasis added) In our instant appeal, its PW2 then aged 17 years old, who claimed to have been have had sexual intercourse with the appellant resulting into her being pregnant hence the charge. Unfortunately, after satisfying themselves that the victim’s age was sufficiently proved, neither of the courts below bothered to examine whether she was a witness of truth. Her credence was challenged before the High Court which was considered only on the basis of her failure or delay to name the culprit to PW1 which,

as discussed above, was found to have been justified by PWl's harshness. The appellants' convictions on both counts therefore relied on victim's (PW2) evidence as supported by PW1, PW3 and PW4. This was, in the circumstances of this case, quite improper. PW2's evidence required a binocular examination looking at the appellant's defence who vehemently denied involvement in the commission of the offences. This was a misdirection on the part of both courts which calls for our intervention on second appeal. It is quite clear that the victim was of such moral wickedness. She was a Form One pupil but, surprisingly, the circumstances at home permitted her free movements at night. It appears not only that the parents were so lose to her, but even herself was not keen to accomplish her responsibility. It does not occur to us that with such freedom, and it did not come out clearly from her, that all her night movements ended at the appellant's room. Neither did she accuse the appellant for destroying her virginity. In her own words, she admitted being of that moral turpitude. In Mohamed Said's case (supra), such manner and words used in her testimony, discredited the victim from being truthful. This being a serious offence, like the learned State Attorney, we entertain doubt on her credibility and hold it to be unsafe to rely on her testimony to implicate the appellant and ground a conviction. 25

For the foregoing reason, we allow the appeal, quash the appellant's conviction and set aside the sentence meted on him. We order his immediate release from prison if not held for another offence. DATED at DODOMA this 22n d day of August, 2025. S. A. LILA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 28th day of August, 2025 in the presence of the appellant in person and Ms. Jesca Thomas, learned State Attorney for the respondent Republic via virtual Court; is hereby certified as a true copy of the original. 26