Shirazi Abdalah Amanzi vs Republic (Criminal Appeal No. 5622 of 2026) [2026] TZHC 3008 (9 June 2026)

1 THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB - REGISTRY AT SONGEA DC . CRIMINAL APPEAL NO. 5622 OF 2026 ( Originati ng from the District Court of Namtumbo at Namtumbo in Criminal Case No. 1811 of 2026) SH I RAZ I ABDALA H AMANZI .……....…………… . …… . APPELLANT VERSUS REPUBLIC ..... ........... .....……………..…...……….……… RESPONDENT JUDGMENT 28 th May & 9 th June, 2026. KAWISHE, J.: T he app ellant appro ached this Court trying to challe nge the dec is ion of the D is t ric t Court of Namtumb o (the trial Court ) in Criminal Case No. 1811 of 2026. T he appe llant was charged and convicted with the offence of rape of a girl aged 13 ye ar s old contra ry to se ction 130 (1), (2) (e) and 131(1) of the Penal Cod e [C a p 16 R.E 2023]. H e wa s

2 sent ence d to serve a term of 43 years i mpr iso nment. I rritated with the co nvict ion and senten ce he raised the following three g rounds o f appea l:

1. T hat , the trial C ourt erred in law and in facts by convicting the appellant relying on evidence from relatives (PW1 and PW2) without corroboration from any independent witness .
2. T hat , the trial C ourt erred in law and in facts by convicting the a ppellant while the whole proceeding was conducted un procedura l l y.
3. T hat , the trial C ourt erred in law and in facts to con vict t he a ppellant without the case being proved beyond reasonable doubts. T he respond ent upon b eing s erved with the pe tition of appeal resi sted the appeal . B efore I set to determin e the appeal , I find it necessary to state the facts briefly leading to th e appe al at hand. It was a lleged by the pro secution that on 5 th Novemb er , 2025 the appellant raped a girl of 13 years old in Libango Village, within Namtumbo District in Ruvuma Region . T he p rosecution added that it was in the eveni ng w he n the appellant me t the victim and her young siste r, dr agged the vic tim into the bush and committed the alle ged r ape . T hat the youn g sister al e rted the victim ’ s father who arrived and arr est ed the appellant at the scene of cr ime. T hat the appellant was taken to Libango Gover nment Village Offi ce and later to Na m tumbo P olice S tation w here he was interrogated and confessed to hav e had sexual intercourse with the vic tim. T he

3 prosecution summoned f our wi tnesses and te ndered t wo exhibits. T he appellant w as the sole d efence witness and tend ered no ex hibit. A t the conc lusion of the trial , the t r ial C ourt fou nd tha t the prosecution proved the ir case beyond reasonable dou bt and convicted the appellant as hinted earlier hence this appeal. W h en the appeal was called on for hea ring the r e spond ent was represent ed b y Ms. Lucia Bukuku and Mr. Ja mes Rhobi , learned State Att orn eys . T he appe llant was unrepresented hence fe nded for himself. W h en invited to su bmit in support of his appeal , the appellant , Mr. Shirazi submitted on t he first ground t hat, t he trial C ourt e rred in law and in facts by convicting him relying on the evidence relatives (PW1 and PW2) without corroboration from any independent witness . H e claimed that PW3 , the victim ’ s brother testif ied that the appellant is called Chino whi l e it is not true. H e a dded that , the evidence of PW2, the vic tim ’ s father stating tha t he cau ght the appellant at the s cene of crime is n ot true. T he appellant claimed th at, there was a contradiction in the test imony of P W1 and PW2 where PW1 testi fied that he raped her at church , PW2 testified that it was in a bush. T he appellant went claiming th at , the victim tes tif i ed that , she d id n ot know the him before

4 the fa teful day. T hat he a sked for DNA test b ut the trial C ou rt rejected his pr ayer . O n the se cond gr ound of appe a l the appellant subm itted that , th e trial Court ’ s proceeding was not procedur ally co rrect. T hat the police offic er testified that he recorded his statement at 23 hours w hile it was at 9 am. T he appell ant compl ain ed that, the police officer who recorded his cautioned statement was not qu alified as he was of the ra nk of Corporal. H e added that , when the victim was medically ex amined the appellant ’ s relatives were not pr esent. On the third ground of appeal the appell ant c laimed that, the trial cou rt erred in law and in facts to convict the a ppellant without the cas e being proved beyond reasonable doubts . T he appellant had nothing to add or e laborate . I n reply, Ms. Lu cia learn ed State Att orn ey for t he respondent at the out set stated cl early that , t he r espond ent strongly o bje cts the appeal. S he supported the trial Court ’ s conviction and sente nce of 43 ye ars imprisonment meted on the appellant . O n the first ground of appe a l Ms. Lucia re plied that , the trial C ourt did not rely on the evidence of PW1 a nd PW 2 only. Th at , the

5 prosecution summoned four witnesses , viz , PW1 the victim, PW2 the victim’s father, PW 3 the investigator who recorded the cautioned statement of the appellant and PW4 the clinical offic er. T he learned S tate Attorney submitted that , PW 1 testi fied that , on 5 th November, 2025 while com ing f rom a b arbershop together with her young si ster on their way home, the appellant pu lled h er into the church premises and raped her . T hat her young sister ran home and alerted their father. Ms. Lucia ref erred the court to p age 8 of the trial Court ’ s proceed ings where it is recorded that , at the scene of crime the appellant forced PW1 to lay down, undressed her dress and underpants t hen the appellant undressed his trouser s and pants . T hat he took his manho od and penetrated into the victim’s genitalia . T hat , P W1 and PW2 stated that , while the appellant continuing with sexual inte rcourse, PW2 arrived and found the appellant on top of the victim while raping the her . T hat , PW2 arrested the appellant and took h im to the village office. Ms. L uc ia cont inued to s ub mit th a t , the evi dence of PW1 and PW2 was corroborated by PW4, a clinical officer who stated that on 5 th November, 2025 he examined the victim and found out that she was penetrated in her genitalia by a b lunt object. T hat she had no hymen. T ha t there w ere d ead spe rm s in the victim ’ s genital organ. It was Ms.

6 Lucia ’ s v iew that , such testimony co r roborated that of PW1 and PW2 t hat , the vi ctim was penetrated by the appellant . S he in sisted that , the t rial Cour t ’ s judgment at pa ge 7 and 8 , the trial magistrate conside r ed th e evidence of PW1, PW2 and PW4 . S he averred th at , the best evi dence in sex ual cases comes f rom the victim. S he sup ported her stance by the case of Godi Kasenegala vs Republic, Criminal Appeal No. 10 of 2008 (unreported) . O n the compl aint that PW3 was the brother of the victim who testified in court that the appellant is called Chino while he is not called Chino , she referred the court to page 14 of the proceedings . T he proceedings depict that P W3 was H9478 D/CPL Fadhil and not the victim ’ s brother as claimed by the appellant. S he averred th at , th e compl aint is baseless and pr ayed for it to be dismissed. R epl yi ng to the complaint that, the t r ial C ourt rejected the appellant ’s pr ayer to ord er for DNA test, Ms. Lucia s ubmitted th at , the appellant was not specifi c. T hat h e should have speci fied what t he test for. S he continued to submit t h at , the appellant prayed for the test w hile the prosecution had c losed it s case. T hat he raised pr a yer during his def ence. S he di s missed the co mpl aint for being an after thought .

7 R ep l ying to the alleged contradictions betw een PW1 and PW2 as to whe ther she was raped in the ch urch or bush, she averred that, at page 8 of the trial Court ’ s procee di ngs the victim stated th at the appellant pulled her to church premise s. T hat at page 13 of the trial Co urt ’ s proceedi ngs PW2 testifi ed that the vic tim ’ s young si ster told him that , the appellant pulled the victim into the bush. T hat when PW2 went to the s cene of crime it was a bu sh (pori ) where he found the appellant on top of the victim while raping her. Ms. Lucia state d that , th e crime was committed in Libango Village , that the victim testified that she was pulled in to the church premis es. T hat it is a wide term, that the premis es may be surrounded by bushes or shr ubs . S he cl aimed that, the appellant is a grown - up person who could not c ommit the offence inside the church. S he stressed that , whether the act was committed in church or bush, the is sue i s whet her the re was rape or no t. S he prayed to the court to find out tha t the co ntradiction is min or and does n ot go to the r oot of the ca se. S he al so prayed for th e first ground to be dis missed. E ncountering the second g round of appeal, the lear ned State Attorney argued tha t , the pro c e eding s w ere conducted in accord ance to the law and proc edure. S he refuted the claim that the proceedings wer e v iti ated on a reason that , the ap pellant ’ s cau tioned st atement was

8 record ed by unqu alified police offi cer of th e r ank of corporal. S he added tha t , w hen his c autioned statement was tendered, the appellant was a vail ed with an opportunity to accept or obje ct but he did n ot object i ts admission. T o her view, rais ing the issue at this sta ge is an after though t. S he amplified that , D/ CPL Fadhil who recor ded the appellant’s cautioned statement was qualified person as per the law . S he arg ued th at , according to the law, the recording officer is any police officer without stating the rank of the police officer as stated under section 58(1) of the Criminal Pro cedure Act [ Cap 20 R.E 2023 ] . S he dism issed the compla int for b eing unmeritorious . C h allenging the compl aint that the appella nt ’ s relatives were not pr esent w h en the victim was examined, she st ate d th at t he law requi res a vi ctim of sexual offence s to be ta ken to the police for PF3 and then to hospit al for medical exam ination. T hat there is no law c ompelling attendan ce o f the app ellant ’ s relativ es when the victi m is being examined. S he dismissed the complaint for being baseless. M s. Lucia objected the third gr ound of appeal that , the case was not proved beyond reasonable doubts. S he submitted th at , th e appellant was charged with offence of rape contrary to section 130(1) , (2)(e) and 131(1) of the Penal Code [ Cap 16 R.E 2023 ] . T ha t to prove the offe nc e

9 of ra pe , the pro secution was required to prove penetration, age of the vic tim and who raped the vict im. S he insis ted t hat, penetrat ion was proved by PW1 who testi fied how the appellant raped her . T hat her testimony was corroborate d by the testimony of PW4 who t estified that she was penet rated by a bl unt object . O n the second element of rape, she aver r ed that , the prosecution proved the age of the victim by callin g PW2 , the victim’s father who tes tified that the victim was 13 years old. T hat s he was born on 12 th Nove mber, 2012. T hat the same was proved by the victim when testifying . T hat the vic tim stated that she was 13 years old, as she was born on 12 th November, 2012. T he learned State Attorney argued t hat, it is a settled law that the age of the victim can be proved by the victim, parent, relative, medical practitioner or where available, birth certificate. T o buttress her s tan ce, she cited the case of Omary Rashid @ Milanzi vs Republic, Criminal Appeal No. 298 of 2021 . T hat the prosecution p roved the element a s the victi m w as under the age of 18 years when she was raped. A s to the element of who raped the v ictim, she cited the case of Selemani Makumba vs Republic [2006] TLR 379 which established t he p rincip le that , the true evidence of rape has to come from th e

10 victim. T hat the vic tim before the t rial Co ur t testified th at it was the appellant who raped her. T hat she pointed finger unto the appellant in court. S he added that , PW2 was eye wi tness who told the court that he found the appellant at the scene of crim e raping the victim . T hus, it was her f irm view that the prosecution prove d the ir case beyond reasonable doubt. S he p raye d for the appeal to be dismissed. I n his rejoinder, the appellant reiterat ed his submission in chief. H e prayed for the court to r educe t he sentence as 43 ye ars are ma ny. H ow ever, he call ed for th e court to find out if he committed the offence t h en he s hould serve the senten ce. T hat if it is found that he did not com mit the offence , the n the court to set him fre e. I have carefully and disp assionately follow ed the anta gonistic submissions of the p a rties and p erused t he trial Court ’ s proceedings and jud gment , now I am duty b ound to determine the appeal. T he ma in issue to be answered is whet her the prosecution proved the case beyond reasona ble doubt. B y res o l ving the main issue will d etermine the three grounds of appeal. It is a trite law that, in any cri minal trial, the prosecution is duty bound to prove the case beyond reasonable doubt . T hat the of fence was committed and it was the accused pe rson who committed it. This legal

11 principle is well stipulated under section 3(2)(a) of the Evidence Act [ Cap. 6 R .E 202 3 ] . The p rinci ple was accentuated by the Court of Appeal, which is the Ap ex Court in our jurisdiction in the case of DPP vs Ngusa Keleja @ Mtangi & Another (Criminal Appe al No. 276 of 2017) [2020] TZCA 288 (11 June 2020) where the Court held that : “We now pose to restate the basic principle of law that the bur den of proof in criminal cases lies squarely on the prosecution shoulders, the standard of which is beyond reasonab le doubt.” Also, see the case of Woolmington vs DPP (1935) AC 462 and Mohamed Said Matula vs Republic [1995] T.L.R. 3 . B eing guided by the a uthorit ie s cited, I w ill determin e the g rounds of ap peal ra ised by the ap p ellant while considering the re ply by the res pondent. I n the fir st ground of appe al the appellant complain ed that , the t rial C ourt convicted him bas ing on the evidence of PW1 an d PW 2 who are re latives without being corrobor ated. T he re spondent ’ s le ar ned State A t torney Ms. Lucia rep lied th at , the trial Court did not rely only on the testi mony of PW1 and PW2 to co n vict the appellant. S he referred the cou rt to the trial Court ’ s proceedi ngs w here PW1 and PW2 ’ s test imony was corroborated by PW4. S he supporte d her submission with the c ase of Godi Kasen egala vs Republic (supra). T heir riva l submissions

12 pr ompted me to r evisit t he trial Court ’ s pr oceedings. I t is clear on the trial Court ’ s pro ceedings that , PW 1 and PW2 testified that the appellant raped PW1. T he proceedings o f th e trial Co urt clearly show that PW1 claimed th at she was pulled by the appellant to the church premises and being raped . T hat he r youn g s ister r an home and informed her father who arri ved at the s cen e of crim e only to fi nd the appe llant still commit ting the offence. PW 1 testif ied that h er father and brother found the appell ant on top of her com mitting the offence. T he s ame w as testifi ed by PW2. T heir evidence was corrobo rated by PW4 , medical person nel who examined an d proved that PW1 was p enetrated by a blunt object an d had no hymen. I t is a s ettl ed law that in sexual offence s, the best evidence comes f rom the victim. T his position w as laid down by the Court of Appeal in the case of S elem ani Makumba vs Republic (Criminal Appeal 94 of 1999) [2006] TZCA 96 (21 August 2006) where the Cou rt held that: “ True ev id e nce of rap e has to come fr om the vic tim, if an adult, th at there was penetration and no consent, and in case of any o ther woman wher e consent is irrelevant, that the re was penetration. I n the case under considerat ion the victim – PW1 - said the appellant inserted his male organ into her f emale organ. ”

13 G uided by the authority herein above, the appellant ’ s complaint that , father and daught er ’ s testimon ies should have been corroborated found weightless. I ho ld so on the reason that, the Court of Appeal in the case I have cited herein above ha s put it very clear that , t rue evid en ce in rape cases should come f rom the victim. T hus, even if at all there was any t hing to prompt this court to disregard the evidence of PW2 , still the evidence of PW1 sufficed to convic t the appellant . T he trial Court w as in a position to observe the demeanour o f the victim, PW1 and trusted her to be a cre dible witness. H owever, there is no l a w in our ju ri sdiction w hi c h exclude relatives from testify ing in sexual off ence s. R elatives are competent wi tnesses , what matters is the credibility of t heir testimony. It was so pron o unce d by the C ourt of Appeal in the case of Tito Paulo Kuchungura vs Republic (Criminal Appeal No. 570 of 2020) [202 3] TZCA 17992 (13 December 2023) wher e the Co urt held that : “ Second, with regard to witnesses who are relatives, it is equally se ttled that, witnesses who are related to each other or the victim are not excluded by the law. They are competent witnesses; h ence, it is not legally proper to discard their evidence on that ground. There are good number of precedents on this point includi ng the case of Samwel Wilfred Mushi v. R, Criminal Appeal No. 236 of 2007 ; Abas Seleman Mbinga v. R , Criminal Appeal No. 250 of 2008 and Juma Senga v, R, Cri minal Appeal No. 16 4 of 2008 (all unreported ). However; the crucial legal point is on credibility of those

14 blood related witnesses. If they are cred ible, they remain competent and compellable witnesses. ” [ Empha s is is mine]. G iven the position stated in excerpt a bove, since PW2 was a credible witness who was trusted by the trial Court, his testimony has v alue . H e was an eye witness who found the appell ant still u n lawfully perform ing the aw ful act to the vic tim. I n that, I see no reason to d iffer with the finding of the trial C ourt. T his c omplaint is baseless and is dismissed. T he appellant ’ s second complaint was that the victim ’ s b rothe r PW3 testif i ed before the trial Court and n amed the appellant as Chino while he is not called Chino. T he compl aint w as challenged by the r esp on dent ’ s lear ned State Attorney that , th ere was no victim ’ s b rother who testified. I nstead, she stated that , PW3 was H9478 D/CPL Fadhil the inv estigator of the case . I p erused the trial Court ’ s proceedings and found o ut th at the prosecution called four wit nesses and th e alleged victim ’ s b rother was not among t hem. PW1 was the vic tim, PW2 , the v i ctim ’ s father, PW3 was the investigator of the case and PW4 was a medica l practi tioner. C learly, th is co mplaint is unfounded and should not take the court ’ s time. T he th ir d complaint was that, the t r ial C ourt rejected the appellant ’s pr ayer to ord er for DNA test . A s was replied to Ms. Lucia , the

15 praye r was raised after the closure of the prosecution case. I p er used the trial Court ’ s pro ceedings and found out that the trial Court never made a ny order on th at praye r . T he proceedings are sile nt whet her the prayer was properly raise d o r not. N ever theless, be aring in mind that , the appellant was charged with rape, and the p osit ion of the law is very clear that, the best ev i dence com es from the victim , see Selemani Makumba vs Republic (supra) in my view, DNA test is not a legal requirement. H ad it been that the appellant w as n ot c au ght in flagrent e delicto see the case of Furaha Michael vs Republic (Criminal Application No. 1 of 2013) [2017] TZCA 1111 (22 February 2017) he could relied on mistaken identity and pr ay for DNA test if at all was so n e cessary . C ontra diction s in PW1 and PW2 ’ s testi mony was the fourth complaint ra ised by t he appellant under the first ground of appeal. Ms. Lucia replied that , the crime was commi tted in L i ban go Village . T hat in the village ar ea there was the probability of hav ing bushes. T hat PW1 st ated that she was pu lled by the app ell ant into the church premises while her fat her (PW2) said that he found the appellant in a bush on top of the victim continuing to ra pe her. S he added tha t , the co ntr adicti o n is minor a s it did not go to the root o f the case. I have gone t hrough the

16 trial Court ’ s p roceedings and found that PW1 sta ted that , she was pulled by the appellant to the church premis e s . W hile PW2 testifie d that , he was inform ed by her daughter that the victim was pulle d into a bush. I t is a settled principle that , w here the testimonies by witnesses contain inc onsistencies and contradictions, the court has a duty to address the inconsistencies an d try to resolve them . T his position was emphasized in the case of Mohamed Said Matula v s Republic [1995] T L R 3 where it was stat ed t hat: " Where the testimonies by witnesses contain inc onsistencies and contradictions , the court has a duty to address the in consistencies and try to resolve them where possible; else the court has to decide whether the inconsistencies and contradic tions are only minor, or whether they go to the root of the m atter. ” F rom the posi tion stated in the e xcerpt above, I hav e to resolv e the contradiction as to whether the rape was commit ted in the bush or chur ch premises. I went thro ugh the pro ceedings of t he trial Court and found the victim testi fied that , I quote: “ [ … ] when we were headed at our home from saloon, we met with unknown p ers on who summoned me, grabbed my hand and pulled me up to church premises. ” Whereas the PW2 tes tifi ed that , I quote: “ I w as at home where my child named Zainabu did inform me that Y was abducted and puled to bush area. I ordered my son Adimu to go on left side

17 of th e bush while I go right side o f the forest to find where Y has been sent. At the said forest, we did find Y was lying down while an accused person lying over my daughter and having sexual intercourse. ” F rom the two q uot ations, PW1 ’ s testimony is gene ral ab out the scene of crime that is , ch urch premises. S he did n o t specif y or describe the status of the church premi ses . O n his part, PW2 stated that h e order ed his son to go to the left side of the bush while he took right direction o f the forest . H e cited the place with t wo desc r iption s at the same , b ush and forest . Ms. Lucia claime d that , the off ence was committed in the village area where there are bushes. T hat the appe llant could not commit the offence in side th e ch urch. S ince PW1 ga ve a general term of the scene of crime, church prem ises, while PW2 named bush and forest, it is clear that there was min or con tradiction as to t h e desc r iption of the scene of crime and not the scene of crime itself. I h old so on the g round that , PW1 testified that PW2 arrived and found the appellant st ill unlawfull y e njoying unc alled for sex. T he s ame testimony w as given by PW2. T he duty of this co u rt at this sta ge is to evaluate the contradiction if it af fected the case of the prosec ution. S ee the case o f Godbless Simon vs Republic (Criminal Appeal No. 647 of 2022) [202 5] TZCA 355 (11 April 2025) where the Court of Appeal stated that :

18 “ W e have noted some contrad ictions, for instance of the age of the vic tim, w hen the victim h erself sa id sh e was 13 years old at the commission of offence, her aunt PW3 said she was 12 ye ar s. I t is worthy in sisting tha t, in eva luating con tradictions and discrepanc ies in evidence, the duty of the Court is to ev aluate the evidence as whole, and more so, if such c on t r adiction has the ef fect of shaking the prosecution evidence. PW1 , PW2, PW3, PW 6 , said PW2 was a below 18 years of age. S he being 12 or 13 is immaterial, what matters is that she was st ill a school g i rl below 18 years of age. ” G uide d by the decision o f the Court of Appeal in the au thori ty a bove w here there was a contradiction on the age of the victim whereby the C ourt ruled out that , whether she was 12 or 13 ye ars old, what matter s was the victim wa s that s he was still a sc hoo l gi rl below 18 years of age . C ons equen tly, the same princ iple applies in the instant appeal. W he t her it was in a bush , f ores t or church premises, what matters wa s the appellant was caught in ac tion committing rape. I t is my view that, the alleged contra diction is minor , and it d oes n ot go to the root of the case so as to discredit the prosec ution ’ s witnesses. T h e complaint lacks mer it and it is therefore , dismissed. O n the second ground of appeal the appellant c ompl ain ed th at , the trial C ourt erred in law and in facts by convict ing him while the whole proceeding was conducted un - procedura l l y. H e claimed that th e police off i cer who recorded his cautioned statement w as not qualified as

19 h e wa s of the r ank of corporal. A lso, complained that he was interrogated a t 9 am but PW3 testifi ed t hat he recorded his caut ioned sta tement from 23:00 hours. That , h is relatives we re not present w hen the victim was medically examined. R epl ying to the complaint, Ms. Lucia learned S tat e Attorney fo r the respondent argued that , the proce dure followed the law an d procedu re. S he aver red th at , the police offi cer wh o recorded the statement was qua lified as the law requires a pol ice office r to recor d the s ame. S he cited section 58(1) of the Criminal Procedure Act [ Cap 20 R.E 2023 ]. I r ead the cited sect ion and I am at liberty to reproduce it herein. “ A police officer who interviews a person for the purpose of ascertaining whether the person has committed an offence shall, unless it is in a ll circumstances impracticable to do so, cause the interview to b e recorded. ” T he quoted provi sion does n ot provide for the r ank of a police offic er qualif ied to recor d the cautioned state ment . W ithout much ado, I am incli ned to the learned Stat e Attorney ’ s submission that the appellant ’ s cauti oned statement was recor ded by a qu alified pol ice officer. T he complaint is un tenable , it is dismissed. O n the comp laint that the appellant ’ s relatives were not present w hen the victim was examined, Ms. Lucia st ate d th at , t he law requi res a vi ctim of sexual offence s to be taken to the police for PF3 and then to

20 hospit al for medical exam ination. S he averred th at th ere i s no legal requirement of the appellant ’ s relatives to be presen t when the victim is being examined. T he appellant did not ex p ou nd why he wanted his relatives to be present w hen the victim was being medically examined. I f at all he thought it was helpful t o his defence, he shoul d have raised obj ection to the admission of the PF3 (exhibi t P2) before the trial C ourt. S ince, it is not a legal requi rement, I am persuaded by the submi ssion of Ms. Lucia that not h ing rendered t he t r ial Court ’ s proceeding un - pr oced ur al. A s to the complaint that , the caution ed statement w as recorded at 09 hours and not 23 hours as t es tified in the court , Ms . L ucia missed it in her reply. H owever, I read the trial Court ’ s proceedings wh er e I found nothing raised abo u t the time of rec ording the appe llant ’ s cau tioned statement. T he appellant did not object its admission . I t is a se ttled law that w hen a person fails to object to the admission of a document at trial, he generally waive d his right to challenge its admissibility on appeal . T h is p rincipl e was laid down by the Court of A ppeal in the case of Malula Chemu @ Malula & Others vs Republic (Criminal Appeal No. 188 of 2019) [2022] TZCA 417 (12 July 2022 ) w here the Court stated:

21 “ In essence, the third appellant is now seeking to challenge the admissibility of the statement. With respect, it is too late in a day for him to do so because its admissibility or otherwise was never raised at th e trial. As a ma tter of general principle an appellate court cannot decide matters that were not raised and decided upon by the court below. Our proposition stems from settled position of the law. See, for instanc e, Festo Domician v. Republic, Criminal Appeal No. 4 47 of 2016 , Nyerere Nyague v. Republic, Criminal Appeal No. 67 of 2010 and Julius Josephat v. Republic Criminal Appeal No. 3 of 2017 (all unreported). ” A nchoring o n the a bove authority, in the insta nt appeal the caution e d state ment was tendered b ut the appellant did not object to its admissibility when it was about to be tendered. So, the trial court and the prosecution were deprived of the opportunity to consider whatever o bjection the appellant may have had, in terms of section 1 72 (2) of the C riminal P rocedure A ct [ Cap 20 R. E 2023 . This deprives him of the right to complain about its admissibility at this stage . C omplaint is me ritless and it is di smissed. O n the thir d ground of appeal the appellant c ompl ain ed that , the case was n ot prove d beyond reasonable doubt. R eplying to the complaint, Ms. Lucia conte nded that, the a ppellant was charged with offence of rape contrary to section 130(1) , (2)(e) and 131(1) of the Penal Code [ Cap 16 R.E 2023 ] . T hat th ree ele me nts of r ape were prove d. T hat the re was penetration, age of the victim and tha t it was

22 the appellant wh o raped th e victim. O n the first element , the prosecution proved penetration as the victim her self t estifi ed that , the appellant pulled her int o th e church pre mis es, undressed her clothe s, laid her down, undres sed himself and inserted his manhood into her female orga n . H e r evidence was corroborated by that of PW2 who caught the appellant still on top of the victim continuing to enjoy unlawful sex with the victim. PW 4 ’ s testimon y showed that , PW1 was penetrated by a blunt obje ct and she had no hymen. I a gre e with the s u bmission of the learned State Attorney that the appellant penetrated the victim. T he second element of rape is the age of the victim. T he same was proved by the victim , PW1 w hen testif ying that she w a s 13 ye a rs when the act was committed. T he same test i mo ny was given by PW2 , the father of the victim . H e t estifie d that the victim was 13 ye ars old at the commission of the offence . T hat she was born on 1 2 th Nove mber, 2012. H e tendered the origina l clinic card of the victim , exhibit P1 showing the age of the victim. S he cit ed the case of Omary Rashid @ Milanzi vs Republic, (supra) where it was observed that , the age of the victim can be proved by the victim, parent, re lative, medical practitioner or where available, birth certificate. I n the instant appeal ,

23 t he vict im and her parent proved th at she was 13 years old duri ng the commission of the offence. T herefore, it was p roved that, the victim was below 18 years old. T he third ele ment in r ape was who committed the off ence. T his is simply about identificati on . M s. Lucia asserted th at , in sexual offences the best evidence comes from the victi m . S he relied on the ca se of Selemani Makumba vs Republic ( supra) stating that , the vict im testified that it was the appellant w ho r aped her . T hat PW2 was eye witness who caug ht the appellant in f lagrente delicto . F rom the proceedings of the trial court, PW1 testified that w he n she wa s ravished by the appellant it was around 17 : 00 to 18 : 00 hours . I wa rned my self on visual identification when dete rmining th e appeal while being g uided by the position laid i n the ca s e of Waziri Amani vs Republic (Criminal Ap peal 55 of 1979) [1980] TZCA 23 (6 May 1980) w here the Court warned : “ T he first point we wish to make is an elementa ry one an d this is that the evi dence of vis ual ide ntification, as C ourts in East A frica and England have warned in a number o f cases, is o f th e weakest kind and most unreliable. I t fo llows therefore, that no court should act on evidence of vi su al identification unless all possibi lit ies of mista ken identit y are eliminated and the court is fully sa ti sfied that the evidence befo re it is absolut ely water tight. ”

24 T his authority has pa ved way in the in stant appeal. T hat the identification of the appellant in the alleged offence should have cleared all the possibi lities of m istaken id entity. T he question is whether prosec ution managed to clear identi fication of the appellant befo re the trial C ourt. PW1 testified that it was ab out 17:00 to 18:00 h ours that there was still sunshine. T hat she was still able to see cle arly. A part from the time of the commissio n of the offence, the doubt of identification cannot sta nd as PW1 testi fied th at her father PW2 arrived a t the scen e of crime with her brother and found the appellant sti ll continuing with un law ful act. T he s ame ev idence as given by PW2 , the victim ’ s father who arrived at the scene of crime and found the appellant still enjoying the unlawful sexual intercourse . C onsidering that he was cau ght in flagrent e delicto at the scene of crime , t he possi bilitie s of mistake n i denti fication were cleared. T he same was held in the case of Daffa Mbwana Kedi vs Republic (Criminal Appeal No. 65 of 2017) [2019] TZCA 5 (18 February 2019) w here the Court h eld that: “ They also said the appellant tried to escape but they made a chase and arrest ed him. There is no suggestion that they lost site with the appellant in the due course of chasing him and the circum stances do not suggest so. Given the fact that the appellant was found flagrante delicto and was arrested after a short chase and taken bac k to PW4, we fully agree with the

25 learned State Attorney that the issue of identification does not arise. Further, up on being taken back to PW4, the victim (PW) unhesit atingly explained how the appellant had ravished her in the kitchen . ” I n th e authority c ited the appellant tried to escape and he was arrested within the precinct of the scene of crime . T he C ourt of Appeal was of the settled view that the chasers did not lose s ite with t he appellant before they arrested him h en ce identification was proper. I n the instant ap peal, the records show that , he was busy engaged in unlawful sex where he was found on top of the victim still commit ting the offence. I am o f the fir m view that, the re w as no mistaken iden tification . T he appellant w as cle arly identified as was held in the ca se o f Juma Kombo vs Republic (Criminal Appeal No. 899 of 2023) [2025] TZCA 1096 (13 October 2025) . T he Court held: “ However, we wish to quickly observe t hat, while we are mindful of the vagaries of eye - witness ide ntification, given the particular circumstances obtaining in the instant case, there can be no doubt that the appellant was impeccably identified by the complainant as a perpetrator of the charged offence . ” F rom the au thority cited herein a bove , it was proved that , the appellant ra ped the victim. A s a result, the issue r aised is answered in the affirmative.

26 I n the upshot , the trial Court justifi ably convicted the appellant . C onsequently, the appe al is de void of merit. I t is dis missed and the co nviction and sentence of the trial Co urt are upheld. It is so ordered. DATED and DELIVERED at SONGEA this 9 th day of June , 202 6 . E. L. KAWISHE JUDGE COURT: Judgment delivered in the presence of Mr. Elipidi Tarimo and Ms. Lucia Bukuku, learn ed State Attorneys fo r the respondent and the appellant Shirazi A bdallah Aman z i in p e r son. R ight of appeal explained. E . L. KAWISHE JU DGE 09 /0 6 /202 6