Seif Shabani vs Republic (Criminal Appeal No. 888 of 2023) [2025] TZCA 869 (21 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: WAMBALI. J.A.. MGONYA, 3.A. A ND FELESHI. J.A.) CRIMINAL APPEAL NO. 888 OF 2023 SEIF SH A B A N I ......................... . ............. . .......................... • ■ ■ ■ ■ • ..... APPELLANT VERSUS THE REPUBLIC................... . .................. . ......................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mwanza) (Itemba, J.1 dated the 22n d Day of September, 2023 in Criminal Appeal No. 31 of 2023 JUDGMENT OF THE COURT 30th July & 21st August, 2025 MGONYA. J.A.: Seif Shabani, the appellant herein, was convicted of rape by the District Court of Magu at Magu (the trial court) and was sentenced to thirty years imprisonment, with hard work. On appeal to the High Court (Itemba, J.) concurred with the trial court, sustained conviction and sentence save for an order of hard work which was set aside. Still dissatisfied, the appellant is now before the Court on a second appeal. Before the trial court, it was alleged by the respondent Republic that; on 31st July, 2020 at about 19:00 hours at Nyanguge street within Magu District in Mwanza Region, the appellant unlawfully did have canal

knowledge of one PD a girt of 15 years old and a student of Itumbili Secondary School, herein to be referred to as the victim or PW1 to conceal her identity. When the charge was read over and explained to the appellant, he distanced himself from commission of the offence, hence the case proceeded to a full trial. During trial, five witnesses and one exhibit (PF3) were marshalled by the prosecution side, whereas, the appellant was a sole defence witness (DW1) without any exhibit. PW1 (the victim), a form one student at Itumbili Secondary School, told the trial court that, on the material date on her way back from Magu Hospital where she had gone to buy some medicines for her father, she met Hosea who told her that she was called by Seif, the appellant. Upon her refusal to heed to the appellant's call, the appellant slapped her on her face. Thereafter, she was dragged into the toilets of Nyalikungu Primary school. While in the toilet, she was undressed and threatened with a screw driver. Having successfully undressed her, the appellant told her to lay down and then he undressed himself as well and inserted his manhood into PW l's vagina. Abel Deus Mashamba (PW2), was among the prosecution witnesses who testified to have been at the scene of crime. PW2 testified that, he saw the victim being slapped by the appellant. PW2 testified further that,

in his effort to rescue the victim, he was also slapped by the appellant and ordered to do some jumping, squats and pushups. That he was also taken to the toilet but he was released while leaving PW1 with the appellant. PW2 told the trial court that he was the one who reported the incident to the victim's grandfather. PW3, victim's grandfather testified about the PW l's age to be 15 years. He also testified on how PW2 went to report to him that PW1 was kidnapped by the appellant and another person. PW4 is a doctor who examined PW1 at Magu Hospital. She averred that, PW1 had bruises and some blood in her private parts, suggesting that she was raped. PW4 filled in PF3 which was tendered and admitted as exhibit A l. PW5, a police officer was an investigator of the case. He told the trial court that, he interrogated the accused and thereafter he prepared a charge sheet. In his defence, the appellant (DW1) marshalled a defense of alibi. He told the trial court that, on the material date, he was not at Magu. That, on 12/6/2020, he travelled to Musoma to visit her sick sister. He stayed there until 13/11/2020. Along with the defence of alibi, the

appellant told the trial court that, he had a quarrel with PW l's grandfather who promised to do something unforgettable to him. The trial court found that the prosecution's case was proved beyond reasonable doubt. Consequently, the appellant was found guilty and sentenced to the statutory thirty years imprisonment with hard work, as we indicated earlier. On the first appeal, the High Court Judge partly allowed the appeal in respect of "heavy work" which she set aside. However, the sentence of thirty years imprisonment was undisturbed. Still protesting his innocence, the appellant filed before the Court a memorandum of appeal comprising three grounds of appeal to wit: i. There was unfavorable identification; ii. Failure to arrest and summon Hosea; and Hi. That, the charge was not proved beyond reasonable doubt. At the hearing of the appeal, the appellant, who fended for himself, prayed the Court to allow his appeal basing on the grounds of appeal he filed earlier, and he had nothing to explain. On the other side Ms. Rehema Henry Mbuya, the learned Senior State Attorney assisted by Hr. Adam Murusuli, the learned State Attorney, represented the respondent Republic.

Responding to the first ground of appeal, Ms. Mbuya submitted that, the victim and the appellant knew each other. That, the victim knew Seif for a long time. The learned State Attorney contended further that, the incident took place at 19:00 hours and it took a long time. Hence, it was her firm view that, under the circumstances there was no mistaken identity. To bolster her submission, the case of Benjamini Mpilimi & 2 Others v. The Repubic (Criminal Appeal No. 69 of 2001) [2004] TZCA 87 (18 May 2004, TanzLII) was referred. In regard to the second ground on the prosecution's failure to call Hosea, the learned State Attorney argued that, only PW1 and PW5 were summoned because they were material witnesses. Referring to section 143 of the Evidence Act, Cap. 6 she contended that, the law does not provide for specific number of witnesses to be brought before the court to testify. It was Ms. Mbuya's argument that, Hosea was supposed to be called by the appellant as they were close. On the third ground of appeal that the case was not proved beyond reasonable doubt, Ms. Mbuya contended that, section 130(l)(a) of the Penal Code, in order to prove the offence of rape, it provides for the following key elements: penetration, the age of the victim and the name of the perpetrator, The learned Senior State Attorney stressed that, the prosecution side proved all the elements of the offence, as stipulated by 5

the law. According to Ms. Mbuya, this ground has no merit. She thus urged the Court to dismiss the appeal as the defense of the appellant had no basis. In his rejoinder, the appellant submitted that, Hosea was supposed to be called by the prosecution side as he was mentioned by PW1 and PW2. He further, faulted the prosecution for failure to summon the victim's father who is said to have sent PW1 to buy medicines on that particular day. The appellant urged further that, he did not call Hosea as he was a stranger to him. Having considered the appellant's memorandum of appeal, the record of appeal and the submissions made by the parties, the main issue for our determination at this juncture is; whether the offence of rape was proved against the appellant. It is trite law that, the prosecution bears a non-compromised duty to prove the offence against the accused. The standard of proof as provided by the law is beyond reasonable doubt. For this stance, see for instance, Fredric Fidelis v. Republic (Criminal Appeal No. 12 of 2023) [2025] TZCA 224 (17 March 2025, TanzLII) and Magwisha Mzee and Another v. Republic (Criminal Appeal No. 465 of 2007; Criminal Appeal

No. 467 of 2007) [2010] TZCA 240 (14 June 2010, TanzLII). In the former case, the Court stressed that: "We m ay not be fa r to stress further that, in serious offences iike hom icide cases, rape and alike which attract long sentence im prisonm ent, the evidence m ust not leave any reasonable doubt The prosecution has a duty to satisfy that serious investigation is conducted to unearth a ll relevant facts before the accused is arraigned and prosecuted in a court o f law ." Regarding the standard of proof beyond reasonable doubt, the Court in Musa Buguso v. Republic (Criminal Appeal No. 738 of 2023) [2025] TZCA 261 (21 March 2025, TanzLII), stated that: "Proof beyond reasonable doubt is to adduce evidence that irresistibly points to the accused as the one who com m itted the offence by establishing a ll the ingredients o f offence . " See also Anthony Kinanila & Another v. Republic (Criminal Appeal No. 83 of 2021) [2022] TZCA 356 (16 June 2022, TanzLII). As indicated earlier, the lower courts held a concurrent finding that, the case against the appellant was proved beyond reasonable doubt. Therefore, as the law requires, this being a second appeal, we will interference with such findings only if there is misapprehension or

misdirection of the evidence occasioning miscarriage of justice. For emphasis, see for instance; The Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 149, Baby Salehe v. Rahim Hussein (Civil Appeal No. 625 of 2022) [2025] TZCA 381(30 April 2025, TanzLII) and Musa Buguso v. Republic (supra). It is settled law that, for the offence of rape to be proved the prosecution must establish the following elements: one, penetration; two, the age of the victim; and three, proper connection of the accused to the offence charged. See - Fredric Fidelis v. Republic (supra) and Mudrica Adam v. Republic (Criminal Appeal No. 379 of 2023) [2025] TZCA 255 (20 March 2025, TanzLII). On our part, having gone through the record of appeal, we have no qualms on the standard of proof in regard to the first and second elements of the offence as indicated above. According to the testimonies of PW1, PW4 and exhibit A l, it is clear on the material date PW1 was penetrated. It is evidenced from exhibit A l that, upon medical examination done by PW4, PW1 had slight bleeding in her private parts and the hymen was not intact, which indicated that she was penetrated. Equally on the age of the victim, the law is very clear that, the victim's age can be proved by the victim's herself, parents, birth

certificate if any and the guardian. See - Juma Juma v. Republic (Criminal Appeal No. 502 of 2021) [2025] TZCA 389 (6 May 2025, TanzLII). In this appeal, PW3 who is said to be the victim's grandfather, testified that, the victim was 15 years old. That fact was not challenged by the appellant during cross examination which connotes that he had no dispute on that aspect. See-Mungei Simion v. Republic (Criminal Appeal No. 238 of 2021) [2025] TZCA 38 (20 February 2025, TanzLII). In regard to proper identification of the accused, it is common ground that, the appellant's conviction was centered on the visual identification made by PW1 and PW2. The duo testified that, it was the appellant and one Hosea who called the victim and dragged her to the toilet where the alleged offence was committed. Further, it is on record that, the alleged offence was committed around 19:00 hours, although neither of the prosecution's witnesses testified on intensity of light so as to eliminate honest but mistakenly identification of the accused. Being guided with the criterias set out in the cases of Waziri Amani v. Republic [1980] T.L.R. 250, Alfredy Kwezi @ Alfonce v. Republic (Criminal Appeal No. 216 of 2021) [2022] TZCA 355 (16 June 2022,TanzLII) and Shedrack Sadock v. Republic (Criminal Appeal No. 623 of 2023) [2025] TZCA 452 (23 May 2025, TanzLII) to mention a few;

in order to conclude that there was proper identification of the appellant, the prosecution was obliged to establish that, at 19:00 hours when the alleged incident was committed, there was enough tight that illuminated the scene of crime. Hence, there was no material impediment towards a proper identification of the appellant. Unfortunately, what transpired in the appeal at hand, does not support that there was a proper identification of the perpetrator. We hold that view due to the following reason; it is on record that, PW1, PW2 and PW3 told the trial court that they knew the appellant even before the incident. PW3 told the trial court that, the appellant's grandmother was his co-tenant which suggests that, PW3 was also familiar with the appellant's family. The nagging question is; why the appellant was arrested four months later after the date of the alleged offence, while the matter was reported at the police on the same day on 31/7/2020. It is thus not clear whether the appellant was mentioned as the perpetrator at the police station. PW5 a police officer who was the case investigator, testified that, he was assigned the case file on 06/8/2020. However, nothing from his testimony established that, the appellant had disappeared after commission of the offence, hence the effort to arrest him was barren. No

explanation was given to account for the inordinate delay in arresting the appellant. Bewilderingly, PW5 who stated that he was dealing with the case, had no any tangible information about the appellant until on 12/11/2020, after being told by the victim that the appellant was arrested. It is not known how the appellant was arrested, where he was arrested, who arrested him and on what offence was he arrested. These questions were supposed to be attended by the prosecution witnesses. Unfortunately, they failed to adduce sufficient evidence to respond to the queries. This cast material doubts on the prosecution's case on the proper identification of the appellant. It also casts grave doubts on whether the appellant was the suspect in the first instance. Before we pen off, we find it apt to discuss on a noted controversy on a prosecution's witnesses. The controversy arose with respect of the testimonies of PW1 and PW2, when narrating on what happened during the alleged incident. The record of appeal is clear that PW1 told the trial court that, the appellant dragged her to a school toilet She stated that, Abel (PW2) was released while the appellant took her to the toilet. Unlike, PW1, PW2 on his testimony told the trial court they were both dragged to the toilets though he was later released. 11

Besides, we noted inconsistent evidence by PW2 regarding the appellant's attire. While he initially testified that he could not recall what he wore in the fateful day, when cross examined, he said the appellant, put on a handkerchief. Their statements raise a lot of questions, for instance, if PW2 was also dragged to the toilet, why PW1 failed to disclose such facts. Equally, if the two witnesses were testifying on the same incident what makes them to have different versions of the story? On our part, we find the inconsistency undermines the credibility of the prosecution's witnesses. It is a settled law that; coherence and consistency of the witnesses is crucial when assessing the credibility of a witness. See-Shukuru Moshi @ Elimringi v. Republic (Criminal Appeal No. 29 of 2021) [2024] TZCA 1022 (1 November 2024, TanzLII) and Godbless Simon v. Republic (Criminal Appeal No. 647 of 2022) [2025] TZCA 355 (11 April 2025, TanzLII). In the circumstances, we hold that, the prosecution did not prove the case against the appellant beyond reasonable doubt. Henceforth, we allow the appeal on first and third grounds of appeal and find no need to deal with the remaining second ground of appeal.

We thus quash the conviction and set aside the sentence meted to the appellant. We accordingly order immediate release of the appellant from prison unless there is lawful cause to detain him. DATED at M W ANZAthis 15th day of August, 2025. F. L. K. WAMBALI JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 21st day of August, 2025 in the presence of the appellant in person and Ms. Revina Tibilengwa, learned Principal State Attorney for the respondent/Republic both through Virtual Court; is hereby certified as a true copy of the original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL 13