John Peter Maulid Maguful vs Republic (Criminal Appeal No. 22684 of 2025) [2026] TZHC 3001 (5 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA CRIMINAL APPEAL NO. 22684 OF 2025 (Originating from Bahi District Court at Bahi in Criminal Case No. 32267 of 2024) JOHN PETER MAULID MAGUFUL ................................................. APPELLANT VERSUS REPUBLIC ............................................................................... RESPONDENT JUDGMENT 29/4/2026 & 5/6/2026 MASABO, J. John Peter Maulid Maguful, the appellant herein is challenging the District Court of Bahi at Bahi (the trial court) for convicting him of unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code, Cap 16 R.E. 2022, and condemning him to life imprisonment. The background facts of the case leading to this appeal, as discerned from the court record, are not hard to discern. They go as follows. It was alleged that on 27 th April 2024 at about 14:00hrs at Chiona hamlet, Bahi Sokoni Bahi District in Dodoma the appellant unlawfully had carnal knowledge of a girl of 8 years (refereed here after as "the victim") against her order of nature. At that time, the accused and PW1 (the victim's mothers) were cohabiting as a married couple. Theu resided with their toddler daughter (PW3) and the victim (PW2), who is PWl's daughter and sired by another man. Hence, the accused's step daughter. PW1 recalled that in the morning of that day, she went to a funeral ceremony. She left PW2 and PW3 at home. On her return at around 15 to Page 1 of 14

16 hours on the same day, she smelt faeces in the house. She inquired from the children what had happened. PW2 disclosed to her that her stepfather had carnal knowledge of her against the order of nature after he sent PW3 to buy soda at a shop. The matter was reported to the police station. PW2 was issued a PF3 and sent for examination at hospital. PW4, the medical doctor who examined her, observed that her vagina was normal, but her anus muscle was loose, implying that she was penetrated by a blunt object. She also found signs of sperm from which she concluded that she was sodomised. The appellant refuted the allegation during his defence, alleging that the case against him was fabricated to evict him from the matrimonial home in retaliation to a long-standing matrimonial dispute between him and PW1. The trial court disbelieved his story. It was convinced that the prosecution had proved the charge against the appellant beyond all reasonable doubt and as a consequence, it convicted and sentenced him as earlier stated. Dissatisfied with both the conviction and sentence, the appellant preferred this appeal based on seventeen (17) grounds of appeal. At the viva voce hearing of the appeal, the appellant was represented by Mr. Leonard Haule, learned advocate, while the respondent was represented by Mr. Francis Kesanta, learned State Attorney. Submitting in support of the appeal, Mr. Haule abandoned grounds number 2,3,6 and 7 of the appeal. As for the remaining grounds, save for Page 2 of 14

ground number 10, which was argued separately, he consolidated the remaining grounds of appeal and clustered them under one heading, namely, that the case was not proved beyond reasonable doubt. The grounds of appeal were therefore reduced into two grounds, namely, one, that the prosecution failed to prove the case beyond reasonable doubt and two, that the trial court erred in law and fact when it ignored the appellant's defence. Submitting in support of the first ground, Mr. Haule argued that the case was not proved beyond reasonable doubt. He predicated his argument on seven points namely, first, variance between the charge sheet and the evidence; second, reliance on unsworn evidence; third, the court failure to draw an adverse inference, fourth, credibility of the prosecution witnesses; fifth, reliance on extraneous matters; sixth, wrongly convicting the appellant because he did not cross examine on material facts; and seventh, credibility of the physical examination done by PW4. On the variance between the charge sheet and the evidence, it was argued that as per the charge sheet, the appellant was charged of unnatural offence contrary to section 154(1) of the Penal Code but the victim testified that the appellant inserted his penis into both, her anus and vagina meaning that she was raped and known against her order of nature. The disparity necessitated the amendment of the charge. The failure to amend left the charge unproved as held in Lalahe Karoli vs Republic (Criminal Appeal No. 463 of 2023) [2026] TZCA 247 TANZLII. Page 3 of 14

On unsworn evidence, it was argued that the evidence of PW3 was unsworn. Although the court explicitly acknowledged that she was competent to testify thus she ought to have been formally sworn but she was not. Her unsworn evidence had no probative value and ought to have been expunged from the record as held in Ashumu Maliooya @ Lesage vs Republic (Criminal Appeal No. 156 of 2021) [2024] TZCA 70 TANZLII. As for adverse inference, the trial court was faulted for failure to draw an adverse inference against the prosecution for failure to call the shop keeper of Mchaga shop where DW3 was sent to buy soda by the accused. Citing the case of Simon Steven vs Republic (Criminal Appeal No. 670 of 2022 [2025] TZCA 344 TANZLI. Mr. Haule argued that the omission to parade the shop keeper raises an impression that the prosecution intended to hide something and left the chain of events broken hence attracts an adverse inference. He also invited the court to draw an inference on the prosecution's omission to tender the t-shirt allegedly used by the appellant to clean himself after sodomizing the victim and which allegedly bore traces of faeces and spermatozoa for it was highly material physical evidence. On the credibility of the prosecution witnesses, the learned counsel referred to the bests evidence rule in sexual cases as propounded in the case of Seleman Makumba v. Republic [2006] TLR 379. He then argued that, the trial tribunal lucidly misapprehended the victim's evidence as it overlooked her questionable credibility. He submitted that, the evidence of the victim should not be treated as a holy truth. For the best evidence rule to prevail, her credibility must be robustly tested and verified. In the present case, that was not done. The trial tribunal treated Page 4 of 14

her evidence as consecrated truth while ignoring the fact that she alleged that she was penetrated in her vagina and anus, an assertion that materially contradicted with PW4 who stated that while examining PW2, she observed that the vagina was in normal condition. Also, in her testimony she stated that the appellant smeared oil on her vagina and anus but PW4 testified that the victim told her that glycerine was only applied to her anus. Citing the case of Martin Jacob @ Mlila vs Republic (Criminal Appeal No. 434 of 2021) [2024] TZCA 447 TANZLII and Simon Steven (supra), he maintained that the victim was entirely unreliable and her evidence ought not to have been believed. Submitting on the court's impermissible reliance on extraneous matters, he argued that in page 4 of the trial court's judgment that the trial magistrate remarked that the appellant was employing a delay technique a fact that none of the witnesses alluded to. Thus, it was a personal opinion of the trial magistrate and was erroneously used to convict the appellant, contrary to rule in Florence Mobili & Others vs DPP (Criminal Appeal No. 96 of 2019) [2021] TZCA 749 TANZLII. Faulting the trial court for condemning the appellant for his failure to cross examine on a material fact, Mr. Haule submitted that the rule that the failure to cross examine on a material fact implies acceptance of the facts ought not to be applied blanketly without considering that the accused as lay and unrepresented. This was materially wrongs as held in Michael John Kajela vs Republic (Criminal Appeal No. 447 of 2021) [2024] TZCA 1014 TANZLII. Page 5 of 14

Lastly, he faulted the methodology employed by PW4 in examining the victim. He argued that the examination ought to have employed sophisticated and scientifically acceptable means instead of just inserting a finger in the victim's anus which everyone including a layman can do. Submitting on the trial court's failure to consider the appellant's defence he reasoned that the trial magistrate lucidly erred by failing to analyse or consider the appellant's defense and for summarily dismissing it. Based on the case of Ladislaus Baltazal Kaba vs Republic (Criminal Appeal No. 736 of 2023) [2025] TZCA 247 TANZLII and Simon Steven (supra), he submitted that the omission fundamentally undermined the integrity of the trial. Summing up, he prayed that the appeal be allowed and the appellant be set free. For the respondent, Mr. Kesanta rebutted and maintained that the case was proved beyond reasonable doubt as stated in the case of Matiko Mwikwabe Mwita vs Republic (Criminal Appeal No. 412 of 2021) [2025] TZCA 28 TANZLII. The three elements of the unnatural offence facing the appellant, was all proved. The victim testifying as PW1 well narrated how the appellant molested her. Her testimony was strongly corroborated by the medical evidence of PW4 and Exhibit Pl (the PF3) that shows that the victim's anal sphincters or muscles were loose. The appellant was squarely implicated by both direct evidence and subsequent conduct. The victim reported the abuse to her mother (PW1) at the earliest available opportunity and she mentioned the appellant as the culprit. The appellant, upon being confronted and realizing that PW1 was contacting the police he fled and, for a long time, he remained large, a Page 6 of 14

conduct that infers his guilty conscience. Citing section 10 of the Evidence Act he added that sending PW3 to the shop amounted to preparation. Regarding the alleged variance between the charge sheet and the evidence, Mr. Kesanta argued that the case of Lalahe Karoli is distinguishable because it centred on discrepancies regarding dates, whereas the instant case concerned separate counts of rape and unnatural offence. He maintained that the prosecution was at liberty to prefer a single count of an unnatural offence where it felt that evidence of rape was insufficient. On the issue of the unsworn testimony of PW3, it was argued that there was no fault as this witness, being of tender age, undertook to tell the truth and that was sufficient. Citing section 135(7) of the Evidence Act, Cap 6 R.E 2023, the Mr. Kesanta argued that the irregularity, if any, is inconsequential. The omission to parade the shopkeeper was seen as a far-fetched outcry by Mr. Kesanta. He submitted that it is inconsequential as the prosecution is not legally obliged to call every single witness. It is only obliged to parade the material witnesses to the offence. The shopkeeper was not among them. The lamentations regarding the appellant's failure to cross- examine material witnesses was also downplayed, and it was argued that he ought to have cross-examined them and his failure amounted to admission as held in Nyerere Nyangue vs Republic (Criminal Appeal No. 67 of 2010) [2012] TZCA 103 TANZLII. Page 7 of 14

On PW2's credibility, it was submitted that she was credible and the trial court believed her. The disparities in her evidence were because she was a minor. The disparities stated are also just minor and the prosecution side was under no obligation to charge a person for an offence to which there was no sufficient evidence. As for the t-shirt he argued that while it would have been relevant, it would have just offered corroborative evidence. Responding to the issue of extraneous matters Mr. Kesanta argued that the comment about technical delay was not the basis for conviction. It was just an orbiter, hence inconsequential. On the physical examination done to the victim, Mr. Kesanta argued that the physical examination was entirely sufficient, especially given that the appellant had failed to propose a superior scientific alternative. The doctor's finding that the anal muscles were loose provided clear physical proof of penetration. Regarding the appellant's defense not being considered, Mr. Kesanta argued that pages 4 and 5 of the judgment demonstrates that the trial court did look at the defense but found it legally incapable of raising a reasonable doubt. He further argued that, as a first appellate court, this court is mandated to re-examine and reappraise the entire evidence to reach its own independent findings. He prayed for the appeal to be dismissed and the trial court's judgment to be upheld. Page 8 of 14

In his rejoinder submission, Mr. Haule argued that the three essential elements outlined in the case of Matiko (supra) could not stand because the credibility of the primary witnesses had been completely decimated. It was argued further that PW1 and PW5 had contradiction in the time of the offence. PW1 suggested that the offence occurred at 18:00 hours, whereas the medical examination of the victim reportedly took place at 09:00 hours on the same day. It was argued that, had the trial court properly analysed the defence, it would have believed the appellant's explanation that his home because he had assaulted PW1 during a quarrel. I have examined the lower court record, alongside the grounds of appeal and the rival arguments of both counsels for the parties. As I embark on determining the appeal, I will start with the fundamental principles that will guide my determination. The first regards the burden and standard of proof in criminal cases. It is a cardinal law in our jurisdiction that, in criminal cases, the legal and evidential burden of proof falls squarely on the prosecution. To secure a conviction the prosecution must prove the offence beyond reasonable doubt. The burden never shifts to the accused as, normally, the accused would not be convicted based on the weakness of his defence but on the strength of the prosecution's case (see Director of Public Prosecutions vs Shishir Shya Msingh (Criminal Appeal 141 of 2021) [2022] TZCA 357 TANZLIL The second principle, regards the role of the first appellate court. In law, a first appeal is regarded as a rehearing and the first appellate court is therefore, mandated to reappraise the evidence on record and draw its Page 9 of 14

own conclusion (see the case of Leonard Bundala Malulanya @ Rena Ngasa vs Republic (Criminal Appeal No. 313 of 2022) [2023] TZCA 17345 TANZLII). Reverting to the grounds of appeal, the first point raised in the consolidated ground of appeal is variance between the charge sheet and the evidence. I will consider this alongside the complaint on the credibility of the victims. A charge sheet, being a foundation of any criminal proceedings, must align with the evidence (see Elias Kandomaso vs Republic (Criminal Appeal No. 253 of 2022) [2025] TZCA 757 TANZLII and Charles Maiso Manyanki vs Republic (Criminal Appeal No. 671 of 2023) [2026] TZCA 90 (23 February 2026) TANZLII. In the present case, the alleged discrepancy is drawn between the charge sheet and the evidence of the victim (PW2). Mr. Haule's argument, which was not opposed by Mr. Kesanta, is that the offence levied against the appellant in the charge sheet is an unnatural offence, while the victim, testifying as PW2, stated that she was penetrated in her anus and vagina. Countering this argument Mr. Kesanta maintained that the prosecution retains absolute discretion when it comes to charging of the offence. Its decision to prefer a certain charge is normally informed by its assessment of the available evidence. Where the available evidence is insufficient, it would not prefer the charge. The decision to charge the appellant with one count was, therefore based on the available evidence and the amendment of the charge to align it with PW2's evidence was unnecessary as there was no sufficient evidence to support the count of rape. The argument by Mr. Kesanta is indeed correct as in or jurisdiction the National Prosecution Services enjoys wide discretionary powers in the Page 10 of 14

institution of criminal proceedings. These powers are derived from section 9(1) (a) of the National Prosecutions Service Act, Cap 430 R.E. 2023 which categorically states that:- "9.-(l) Notwithstanding the provisions of any other written law, the powers and functions of the National Prosecutions Service shall be to (a) decide to prosecute or not to prosecute in relation to any offence;" Thus, while the law permits amendment of the charge to substitute or add a count, the court cannot compel the prosecution to add a count to which it feels there is no sufficient evidence or is for any other reason, unwilling to prosecute. But, when it prefers a certain count, it must prove it by ensuring that, it aligns with the evidence on record. Therefore, since in the present case, the particulars of the offence set out in the chargesheet were that the appellant unlawfully knew the victim, a girl aged 8 years, against the order of nature, it was incumbent that the evidence paraded marry with the particulars above. In other words, the prosecution's evidence had to prove that the victim was known against the order of nature, that she was 8 years old, and that it was the appellant herein who knew her against the order of nature. The evidence record appears to be aligned with these essential ingredients. The testimony of PW2, PW4 and Exhibit Pl was to the effect that PW2 was penetrated against the order of nature. Her age was not in dispute as it was proved by PW1 who stated that she was eight years. AS for culprit, PW2's stated that it was the appellant herein. In the foregoing, the discrepancy of the Page 11 of 14

charge does not arise. It would have arisen had the PW2 stated that she was raped, and not carnally known against the order nature, which was not the case. The cited case of Lalahe Karoli vs Republic (supra), is therefore distinguishable". As for the credibility of PW2, under the best evidence rule propounded in Selemani Makumba vs Republic [2006] TLR 384 and applied in plethora of other authorities, the evidence of the victim of sexual offences prevails as the best evidence. However, as correctly submitted by Mr, Haule, such evidence should not be taken as holy version of truth. It must be critically examined as held in Abiola Mohamed @ Simba vs Republic (Criminal Appeal No. 291 of 2017) [2021] TZCA 632 TANZLII, where the Court of Appeal applying the best evidence rule in sexual offence instructively held thus: "We think it is momentous that we should remark, in passing, that, there is a dire need to exercise extra care in handling cases of sexual offence as we earlier on cautioned in the case of Mohamed Said v. Republic, Criminal Appeal No. 145 of 2017 (unreported) in which faced with an akin situation we quoted with approval the cautionary statement of Lord Chief Justice Mathew Hale made in the 17th Century which is still very relevant during our times. The Lord Chief Justice stated in People v. Benson, 6 Cal 221 (1856), that rape: "is an accusation easily to be made and hard to be proved and harder to be defended by the party accused, though never so innocent. ” Page 12 of 14

It is a peremptory principle of law that the best evidence of sexual offence comes from the victim. See, for instance, Magai Manyama v. Republic, Criminal Appeal No. 198 of 2014 and John Martin @ Marwa v Republic, Criminal Appeal No. 22 of 2008 (all unreported). However, we wish to emphasize as we did in the case of Mohamed Said (supra) the need to subject the evidence of the victim to scrutiny in order for courts to be satisfied that what they testify is nothing but the truth. The testimony of the victim of sexual offence should not be taken as gospel truth but has to pass the test of truthfulness. It is only through this litmus test that courts will ensure that only deserving offenders are kept behind bars and the innocent are set free." In the present case, the trial court relied on the best evidence rule and treated the evidence of PW2 as the best evidence. It was therefore crucial that her credibility be critically examined. As both counsels have observed, PW2's was inconsistent with that of the doctor who examined her and the medical report. As stated, while dealing with point above, her evidence that other than being carnally known against the order of nature, she was raped, an offence which was not part of the charge and to which, Mr. Kesanta has candidly admitted in his submission that there was no sufficient evidence for it. Her account was also, a material contradiction with the PW4 and Exhibit Pl which showed that her vagina was intact. Mr. Kesanta has invited this court to regard the inconsistency as minor and inconsequential to PW2's credibility. I respectfully disagree. Unnatural Page 13 of 14

offence and rape are two different offences that they could be mistaken especially in the present case where PW2 was so eloquent on what happened to her. She would have forgotten what happened to her on the fateful day. Her addition of the offence to which the prosecution has admitted that there was no evidence, raises a serious doubt on her reliability. It is in the circumstances not easy to tell with certainty what exactly happened to her on the material date. Had the trial magistrate considered this fact alongside the appellant's defence that there was a long-term matrimonial dispute between her and PW1, it would certainly have resolved the doubt in the appellant's favour as I hereby do. The questionable credibility of PW2, whose evidence was the best, left the charge unproved. In the foregoing and based on this finding, I allow the appeal, quash and set aside the appellant's conviction and sentence. It is further ordered that the appellant be released from custody forthwith unless lawfully held for a valid cause. DATED and DELIVERED at DODOMA this 5 th day of June 2026. J.L. MASABO JUDGE Page 14 of 14