Mwalemi Tundu vs Republic (Criminal Appeal No. 614 of 2021) [2025] TZCA 903 (28 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: KOROSSO. J.A.. KENTE. J.A. And MGONYA. J.A.l CRIMINAL APPEAL NO. 614 OF 2021 MWALEMI TUNDU............ . .....................................................APPELLANT VERSUS THE REPUBLIC.......................... . ................. . ....................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) fUtamwa, J.1 dated the 10th day of November, 2021 in Criminal Appeal No. 01 of 2020 JUDGMENT OF THE COURT 17th February & 28th August, 2025 KENTE. 3.A.: Mwalemi Tungu, the appellant herein, was twenty years old at the time of occurrence of the offence of rape of which he was tried by the District Court of Mbarali and subsequently convicted and sentenced to thirty years' imprisonment. The particulars of the offence alleged that, on diverse dates in July 2020, the appellant, at Mahango village in the Mbarali District of Mbeya Region, had unlawful carnal knowledge of a girl who was aged seventeen years at the time and was a student at Solace Secondary School.

To safeguard her privacy and maintain her anonymity, we shall hereinafter simply refer to her interchangeably as PW1 or the victim. The appellant pleaded not guilty to the charge but after a full trial, he was convicted accordingly and sentenced to the mandatory thirty years' imprisonment, a sentence which appears to have shocked him to the core. His appeal to the High Court of Tanzania (sitting at Mbeya), was unsuccessful hence this appeal in which, as in the lower court, he is challenging both the conviction and sentence. A summary of the evidence in the courts below was that, on 21s t July, 2020 the appellant went to the victim's home where he went on to have sexual intercourse with her and that, while having sex, he was found and apprehended inflagrante delicto, It appears that, having been found by her brothers with clear evidence and, in the circumstances that made her guilt obvious, the victim was caught between the devil and the deep blue sea. Thus, being forthright as one could be in the circumstances she found herself in, she saw that the only way in which she could extricate herself from her inglorious predicament, was to tell the truth. Specifically, the victim who testified as PW1 is on the record as having told the trial court that, on the fateful day, she was home all alone as other members of her family had gone away. That, whilst there, the appellant 2

who was a neighbor to their family and her lover, arrived and immediateiy proposed his desire to have sex, a request which she quickly embraced without reluctance or unwillingness. The victim went on testifying that, following the appellant's request and for the sake of privacy, they closed the door and proceeded as usual, to make love. She recounted that, in the course of the intercourse, she heard a loud knock at the door and quickly went to see who was there. That, when she went closer, she realized that the person knocking the door was her brother one Paulo Salum (PW2). PW1 recalled that, after she opened the door and PW2 gained entry, he ordered the seemingly disturbed and quivering appellant to move towards the door or else risk being hacked with a bush- knife which PW2 had in his possession. PW1 narrated that, she earnestly asked PW2 not to attack the appellant as he was her boyfriend, telling him that, even the decision to have sex on that day, as had been the case on the previous occasions, was based on their mutual agreement. PW1 further recounted that, shortly thereafter, another brother of hers, namely Yohana Salum (PW3), arrived home and ordered PW2 to get out before he went on to lock her and the appellant inside the house. At that point, PW2 and PW3 with the help of other persons who had gathered to see what was going on, apprehended the appellant. He was whisked to 3

Igurusi Police Post where he was booked for rape. Meanwhile, PW1 was referred to Chimala Heath Centre where she was examined and simply confirmed to have been used to having sexual intercourse. Explaining his version of events, the appellant admitted during the trial that, indeed he was found by PW2 and PW3 with the victim in their house but he told the trial court that, he was just assisting her with the killing of a snake which had slithered into their home, a version which was however, rejected by the trial Magistrate. As intimated earlier, on the basis of the foregoing evidence and, given our penal policy that the risk of the crime must afways by far outweigh the reward, the appellant was, convicted and slapped with a mandatory thirty years' imprisonment sentence. His appeal to the High Court was unsuccessful hence the present appeal. Before us, the appellant appeared in person fending for himself, while Ms. Caroline Matemu learned Senior State Attorney appeared along with Ms. Veneranda Masay learned State Attorney to represent the respondent Republic. On 4th March, 2022 the appellant filed a memorandum of appeal containing five grounds of appeal and later on, on 4th February, 2024, he filed a seven grounds supplementary memorandum of appeal to add to the grounds already raised in the first memorandum. However, our reading of

the twelve grounds of appeal revealed that their overall substance is the contention that, it was not sufficiently or at all proved that, the victim was raped and that, should we be inclined to find that it was proved, we should find that there was no sufficient evidence showing that the appellant was the perpetrator of the subject offence. However, for the sake of completeness, we have further noted that, when stripped of all ramblings, prolixities and recitals, the appellant's general grievances can conveniently be determined along the following specific areas of complaint: one, that the charge was defective in so far as it did not specify the date and time on which the subject offence was committed; two, that the victim was not a credible and reliable witness; three, that penetration which is a necessary constituent of the offence of rape was not proved; four, that the lower courts should not have believed the evidence of the medical expert and finally, that the evidence of visual identification by PW2 was materially wanting. Upon the above complaints, it was the appellant's contention that, he was wrongly convicted and his appeal to the High Court was erroneously dismissed as there was not even a whiff of any wrongdoing on his part. In support of the grounds of appeal, the appellant had very little to say. With regard to the first complaint, he submitted that the particulars of 5

the offence did not specify the date on which the subject offence was committed and that, as a result, he could not prepare himself properly to put up a good defence. In this regard, the appellant wondered why was the charge drafted not in accordance with what was testified by the prosecution witnesses. While skipping the allegation that the victim was not a reliable witness, the appellant went on to say in respect of the third and fourth complaints that, penetration was not proved and therefore the evidence of the victim and the Medical Expert (PW6) should not have been taken as gospel truth. In the circumstances, we were asked to find that the offence was not proved to the required legal threshold and subsequently allow the appeal. In response to the appellant's complaints and arguments, Ms. Matemu conceded in the first place that, indeed the particulars of the offence were slightly at variance with the evidence led by the prosecution witnesses regarding the date of commission of the subject offence. That, whereas the particulars alleged that the offence was committed on various dates in July 2020, the witnesses were fastidious about the specific date, that is 21s t July, 2020 on which the offence was allegedly committed. Even though, the learned Senior State Attorney was quick to submit, correctly so in our view that, inasmuch as the 21s t July 2020 falls within the period in 6

which the offence was allegedly committed, the defect in the charge is curable and the appellant cannot be heard to say that he was prejudiced. On our part, we begin from the premise that, in any criminal trial, the purpose of the charge is to inform the accused person the nature and magnitude of the offence he is charged with so that he can be able to put up resistance and make an informed defence. (See the case of Issa Mwanjiku @ White v. Republic, Criminal Appeal No. 175 of 2018). While we accept the fact that there was something awry in the drafting of the charge in the present case, we entirety agree with Ms. Matemu that, indeed there was neither injustice nor prejudice that was occasioned to the appellant. In this regard, we take the view that, since the date of commission of the subject offence fell within the month of July 2020 and as such, the appellant did not put up the defence of alibi saying that he was elsewhere on 21s t July, 2020 when the rape is alleged to have taken place, we do not agree that he was denied the right to know the nature and extent of the charges levelled against him so as to mount a meaningful defence. The evidence before the trial court does not suggest that the appellant did not know the nature and scope of the charges levelled against him. As it will be noted at once, despite being told in the particulars of the 7

offence that, he had committed the offence on various dates in July, 2020, after the prosecution witnesses testified that the offence was committed once on 21s t July, 2020 there is evidence showing that the appellant was able to confront them by way of a focused cross - examination specifically refering to the events as they unfolded on that particular day. On the basis of this evidence, it is our conclusion that, as opposed to the particulars of the offence, the subject offence was committed on 21s t July, 2020 as testified by the prosecution witnesses, and there was neither prejudice nor injustice that was caused to the appellant. We therefore find the appellant's complaint on that aspect to have no merit and we accordingly dismiss it. With regard to the complaints that the victim was not a credible witness and that penetration was not proved, we wish first to acknowledge the position of the law that, in terms of section 127(6) of the evidence Act together with the jurisprudence arising out of its interpretation by this Court, it is well settled law that, it was not the intention of the Parliament that in all criminal trials relating to sexual offences, the word of the victim should always be taken as completely true and beyond question. (See Mohamed Said v. Republic, Criminal Appeal No. 145 of 2017 and Edward Joseph Magoti v. Republic, Criminal Appeal No. 295 of 2022). It follows then that, in any case of the present nature, the trial Judge or magistrate is entitled to believe or disbelieve the evidence of the victim, an s

exercise which however, enjoins him or her to assign reasons to whichever decision he or she makes. While addressing the issue regarding the victim's credibility and whether or not penetration was proved, both the trial magistrate and the learned Judge of the first appellate court were satisfied that the victim was a credible and reliable witness who had no reason whatsoever to lie against the appellant who was her long time lover. This is what provided the basis for the learned Judge to conclude in his reasoned judgment that, the appellant's story of assisting the victim with the killing of a snake was a fanciful and unbelievable tale which was quickly and correctly dismissed by the trial court. On this evidence, we are satisfied that the learned Judge of the first appellate court was on firm ground to come to the conclusion that the victim was a credible and reliable witness. Similarly, we cannot fault the learned Judge for believing the victim who was candid in her testimony that she was in love with the appellant and that, on the fateful day, he visited her whereupon they went on to have sex as it had been their practice. As for the allegation that penetration was not proved, we begin by noting that, for the offence of rape to be proved, it is of ut-most importance for the prosecution to lead evidence of penetration and not simply to give 9

genera! statements that rape was committed without elaborating what actually took place. As to who can prove penetration in a charge of rape, the law is clear that, such evidence has to come from the victim and that, if the victim is an adult, such evidence has to show that there was penetration without consent, and if the victim is any other woman whose consent is irrelevant as in the present case, the evidence has to show that there was penetration. (See Selemani Makumba v. R [200] T. L. R 379. With regard to the argument by the appellant that penetration was not proved because the evidence of the Medical Expert merely showed that the victim was in her menstrual period, having in the previous decisions of this Court held that, expert evidence cannot override the victim's oral testimony in proving penetration and, in view of our decision in the case of Selemani Makumba (supra), we agree and associate ourselves with what was submitted by Mr. Matemu that, indeed penetration was sufficiently proved by the victim who generously told the trial court (at page 7 of the record of appeal) that, after the appellant had removed his trouser and pant and, having put on a condom, they went on to have penetrative sex in the midst of which they were caught by her brothers. It must be noted that, during the whole of the trial, this evidence remained unchallenged and therefore, like the lower courts, this Court 10

cannot be expected to ignore or reject such uncontroverted evidence which, without a doubt, shows that the victim was penetrated by the appellant with whom they had an affable relationship. While we are mindful that the appellant was a lay person and that his cross-examination particularly of the victim was, to say the least, quite short and somehow inept, we cannot but draw an adverse inference from his neglect or failure to put to her the version of having been called to assist her with the killing of the invasive snake. There are authorities galore in support of the proposition that, failure to cross-examine a witness particularly on crucial aspects of their testimony, can lead to the acceptance of the witness's evidence as unchallenged and true. Moreover, just thinking out loudly, even if we were to assume that the victim and her brothers had an intention to falsely implicate the appellant as he seems to suggest, there was no reason and none was advanced why the three witnesses would falsely incriminate him. Putting it plainly, for instance, we do not see why would the victim who had initially exhibited all signs of remorse and stood with the appellant asking her brothers to act with restraint, turn against and falsely implicate him? Granted that there is no danger or possibility of false implication by the prosecution witnesses, we find no reason to upset the concurrent findings and decisions made by the lower courts. li

We also consider the issue as to whether the appellant was properly identified as a peripheral question in view of the fact that he was caught in the act of committing the offence against the victim who also gave sufficient evidence to implicate him. For, we do not think that the issue of identification would arise in the circumstances of this case where the offence was committed in the day time scenario and the appellant was caught with trousers down. In the ultimate event, we find no merit in this appeal and we accordingly dismiss it in its entirety. DATED at DODOMA this 20th day of August, 2025. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL Judgment delivered this 28th day of August, 2025, in the presence of Appellant in person, appeared through video conference from Ruanda Prison at Mbeya and Mr. Rajabu Msemo, learned State Attorney for the Respondent/Republic, also appeared through video conference from Mbeya is hereby certified as a true copy of the original. O. H. KINGWELE^ DEPUTY REGISTRAR COURT OF APPEAL 12