Florian Kabogo vs Republic (Criminal Appeal No. 15674 of 2025) [2026] TZHC 2905 (2 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) AT IRINGA. CRIMINAL APPEAL NO. 15674 OF 2025 (Originating from Criminal Case No. 5 o f2021 o f the District CourtofKHoto) FLO RIAN KABOGO ..... ........ ...... ..... ....... ........ APPELLANT VERSUS THE REPUBLIC ...... ..... ..... RESPONDENT JUDGMENT '23* March & 2n dJune, 2026 NDUNGURU, 3 : Before the District Court of Kilolo (trial court), the appellant stood charged with the offence of Incest by male contrary to section 158(l)(a) of the Penal Code (Cap. 16 R.E 2019). The prosecution alleges that on the 6th day of February, 2021 at Kihesa Mgagao village within Kilolo District in Iringa Region, the appellant had carnal knowledge of the victim, his daughter aged 12 years old. Facts leading to his arraignment are briefly as follows: on the fateful day, the victim (PW2) while with her sibling (PW5) was sent by the appellant to his house. While thereat, the appellant took her to his room, laid her on his bed, undressed her and he also undressed. The appellant

then inserted his penis into the victim's vagina and when he finished, he warned her not to tell anyone of the ordeal. The victim left and headed to her grandmother (PVV1). She disclosed the ordeal to PW1. PW1 then reported the incident to the ten-cell leader, Tegemea Kabogo who then informed PW4, Jafari Lulandala, the village chairman. On receipt of the information, PW4 ordered village militiamen to arrest the appellant. The victim was issued with PF3 and went to Kihesa Mgagao Dispensary where she was medically examined by Masanja Mtatundo (PW3), a clinical officer. In his evidence, PW3 testified that on examining the victim, he discovered that she had swollen labia majora and minora, her hymen was perforated and cervix swollen. He filled his findings on a PF3 which was admitted as exhibit PEI. In his defence, the appellant denied the charge. He testified that on the fateful day he woke up in the morning and left his house and headed to his farm where he returned home at about 10:00 hours. He again left and went to Igogo village to one Norasco Nyemba accompanied by PW5 where he stayed till 17:20 hours and returned home, When he arrived, he was arrested by militiamen and taken to the village office and finally to Mtitu Police station.

Upon hearing the evidence of both parties, the trial court held that the prosecution had proved the case against the appellant to the required standard, thus, convicted the appellant as charged and sentenced him to serve 30 years' imprisonment. Discontented with the trial court's decision, he has filed this appeal based on six grounds as follows:

1. That, the trial magistrate erred in Saw and fact to convict and sentence the appellant by relying on contradictory and inconsistency evidence adduced by PW1, PW2 and PW5 therein.
2. That, the trial magistrate erred in law and fact to convict and sentence the appellant without considering that the evidence o f PW3 (Doctor) did not prove penetration into victim's vagina since he failed to explain dearly when the hymen was perforated (i.e if it was recent perforated or long time perforated). Hence doctor's finding was void completely.
3. That, the trial magistrate erred in law and fact for failure to evaluate deeply the evidence o f PW2 (victim) since nowhere in her evidence claimed that she was threatened or feeling pain

during the occurrence o f the said event Hence creating doubt if such incident occurred thereto. 4. That, the trial magistrate erred in law and fact to convict the appellant by failing to the appellant while the exhibit PE1(PF3) was not read before the court to meet the requirement o f law. See page 31 o fproceedings. 5. That, the trial Magistrate erred in law and fact to convict and sentence the appellant while ignoring his defence. 6. That prosecution side failed totally to prove the case against the appellant beyond reasonable doubts. In the hearing of the appeal, the appellant appeared in person unrepresented whereas Mr. Gray Mhagila, learned State Attorney appeared for the Republic. The appellant argued on the 1s t ground that the prosecution evidence is tainted with contradictions as PW1 testified that she was at home outside the house and saw the victim coming from the appellant's house while crying whereas the victim testified that after the event she went home and told PW1 what had happened and the victim did not state that she was crying. Another contradiction according to the appellant is the

evidence of PW5 who testified that she was sent soda by the appellant and after she brought it to him, she met the victim sleeping on the appellant's bed while the victim did not corroborate this piece of evidence. He submitted on the 2n d ground that the medical doctor testified that on examining the victim he found her hymen perforated but did not testify whether it was perforated a long time ago or recently. Further, he did not testify on observing blood which could prove that the hymen was perforated recently. This in his view, creates doubts. On the 3rd ground, he contended that the victim has not testified on being intimidated or feeling any pain during the commission of the offence, thus creating doubt if the offence was committed. Regarding the 4th ground, the appellant asserted that the PF3 was not read out loudly in court, thus, have no evidential value and should be expunged from the record. On the 5th ground he argued that his defence was not considered at all. Lastly, on the 6th ground he contended that the prosecution has failed to prove the case against him beyond reasonable doubts. Mr. Mhagile pointed out that they resist the appeal. On the 1st ground he argued that the prosecution evidence is coherent and subsistent

particularly on important aspects like date and place the event occurred, people who were present at the scene and what happened at the scene. In his view, the contradictions pointed out by the appellant are minor and do not go to the root of the case what is important is that after the event the victim reported to PW1. On contradictions being minor he referred the court to the case of Mohamed Said Matula v. Republic [1995] TLR 3. He submitted on the 2n d ground that the evidence of PW3 proved penetration as he testified that in his observation, he observed a swollen labia majora and cervix and also a perforated hymen. Challenging the 3r d ground, the learned SA contended that the trial court properly evaluated the evidence as at page 23 the proceedings show that the victim testified that she was warned by the appellant. In his view, whether the victim felt pain or was threatened is immaterial as the same are not ingredients of the charged offence. Mr. Mhagile joined hands with the appellant in the 4th ground that indeed, the PF3 was not read out loudly in court, thus, should be expunged from the record. He added that though the PF3 is expunged, it cannot remove the oral evidence testified by the medical officer as it was stated in DPP v. Erasto Kibwana & 2 Others, Criminal Appeal No. 576 of 2016.

On the 5th ground, it is the SA's submission that at page 11 to 12, the trail court evaluated the appellant's defence. He argued on the last ground that the charge against the appellant was proved to the required standard. He argued further that the victim testified on the way the offence was committed and the relation she has with the appellant. He added that the medical doctor proved penetration as he testified on what he noticed after examining the victim. Rejoining, the appellant reiterated his submissions in chief. He added that on his defence of alibi, he requested the court to summon one Erasto Nyembi but the court denied and he was in remand custody, he could not summon him on his own. The issue for my determination is whether the appeal has merits. The appellant's complaint in the 1s t ground is that the evidence of PW1, PW2 and PW5 contains contradictions. Contradictions between the evidence of PW1 and PW2 is that while PW1 stated that she saw the victim coming from the appellant's house crying, PW2 did not state that she cried. Further, the appellant faulted the evidence of PW5 that it is not corroborated by the victim's evidence as he testified that he sent soft drink and on his return, found the victim sleeping on the appellant's bed.

The law regarding contradiction is well settled that where there is a claim of contradictions or inconsistencies in the evidence, the court is required to consider them and resolve if they are minor or they go to the root of the matter. See Mohamed Said Matula v. Republic [1995] TLR 3, Shukuru Tunungu v. Republic (Criminal Appeal No. 243 of 2015) [2016] TZCA 304 (14 April 2016) and Abasi Makono v. Republic (Criminal Appeal No. 537 of 2016) [2019] TZCA 299 (30 August 2019). I have weighed the contradictions identified by the appellant. The 1s t contradiction according to the appellant is that while PW1 testified that she saw the victim coming from the appellant's house crying, the victim testified that she went and told PW1 on what happened and did not state if she cried. Indeed, in her testimony PW1 stated that she saw the victim coming from the appellant's house crying a fact that was not stated by the victim herself. Witnesses are not expected to resemble in each and every aspect. The victim not stating that she cried does not mean that the appellant did not commit the charged offence. Again, another contradiction according to the appellant is that the evidence of the victim and PW5 differed as the victim did not testify that PW5 was sent soft drink by the appellant and that he found the victim sleeping on the appellant's bed. The 8

victim not testifying on PW5 being sent soft drink by the appellant could be due to the fact that he was sent the said soft drink in the absence of the victim. Therefore, this cannot be a contradiction as argued by the appellant. In my view, I find the contradictions minor and do not go to the root of the case. In Evarist Kachembeho & Others v. Republic [1978] LRT n. 70 it was observed that: "Human recollection is not infallible. A witness is not expected to be right in minute detaiis when teiiing his story." It was also observed in John Gilikola v. Republic, Criminal Appeal No. 31 of 1999 that due to the frailty of human memory, minor discrepancies may occur. In the 2n d ground, the appellant faults PW3's evidence that he has not stated when the victim's hymen was perforated. I have examined PWB's evidence, in his testimony he stated as follows: "After medical examination I found her iabia majora and labia minora have swollen. Similarly, her hymen was perforated and cervix was also swollen

Indeed, PW3 did not state in his testimony the time the hymen was perforated. I consider the omission trivial as PW3's evidence is the effect that the victim had no hymen, swollen labia majora, labia minora and cervix shows signs that vaginal penetration had recently taken place which is a key ingredient in the charged offence. Next for consideration is the complaint that the victim did not testify being intimidated or feeling pain during the commission of the alleged offence which raises doubts if the offence was committed. The victim in her evidence testified on how the appellant by force took her to his room and raped her. Her evidence is as follows: "Thereafter, by force he took me in his room on the bed then he undressed my pant and he also undressed his ciothes, trouser and pant and inserted his male organ in my vagina and started raping. After he finished his desire he told not to reveal the incident to anyone." It is true that in her evidence she did not state whether she felt pain or not. She only testified on being threatened. In my view, the victim not testifying that she felt pain does not create doubts on the commission of the offence as she gave coherent evidence on what befell her in the hands 10

of her father, the appellant. Afterall, the feeling of pain or not neither justifies the act of the appellant nor is it an ingredient of the offence that the appellant is charged with. The complaint in the 4th ground is that exhibit P3 upon being admitted was not read over in court. I have perused the trial court record. Admittedly, exhibit PE2 was admitted in evidence and the proceedings do not show if the same was read out in court after admission. It is trite law that once a document has been cleared for admission and admitted in evidence, it must be read out in court in order to enable the accused person know and appreciate the contents and substance of that documentary evidence. The failure to read out documentary exhibit is fatal and leads to expungement of the said exhibit from the record. In Shabani Hussein Makora v. Republic, (Criminal Appeal No. 287 of 2019) [2020] TZCA 1897 (16 December 2020) the Court held that: - "It is settled law that, whenever it is intended to introduce any document in evidence, it should be admitted before it can be read out. Failure to read out documentary exhibits is fatal as it denies an accused person opportunity to knowing or understanding the contents o f the exhibit because li

each party to a trial be it criminal or civil, must in principle have the opportunity to have knowledge o f and comment on all evidence adduced or observations filed or made with a view to influencing the court's decision." In view of the above position of law, exhibit PEI deserves to be expunged from the record, This complaint, therefore, has merits. However, expunging exhibit PEI does not automatically disqualify PW3's evidence which proved penetration. In Wambura Kiginga v. Republic (Criminal Appeal 301 of 2018) [2022] TZCA 283 (13 May 2022) when the court expunged an exhibit that was not read out, it observed as follows: "It is significant to observe also that where a document is expunged, it does automatically follow that the evidence o f the witness who tendered it must as well collapse or diminish in value. It depends, if the substance o f the document which has been expunged is more or less the same as the oral evidence that was given by the witness, expunging the document cannot affect the recorded evidence. It is however not necessarily the case, where the substance o f the document expunged is completely different from that o f the oral testimony which was recorded." 12

Based on the above authority, having expunged exhibit PEI tendered at trial court as it was not read, I retain the oral evidence of PW3 as it is intact and valid as expunging the exhibit from the record has not affected the recorded evidence of PW3, In the 5th ground the appellant also faults the trial court in convicting and sentencing him without considering his defence. In the judgement of the trial court, the trial Magistrate properly evaluated the defence of alibi raised by the appellant, However, it was disregarded as the appellant failed to summon one Norasco s/o Nyembo who he alleged that he was with at Igogo village. The last ground is that the prosecution failed to prove the charge against the appellant beyond reasonable doubts. The appellant was arraigned and charged with the offence of Incest by Males contrary to section 158(1 )(a) of the Penal Code which states: "158. -(1) A male person who has prohibited sexual intercourse with a female person , who is to his knowledge his granddaughter, daughter, sister or mother, commits the offence o f incest, and on conviction, shall be liable where - 13

(a) The female is o f the age o f less that eighteen years, to imprisonment for a term o f not (ess than thirty years; In the above quoted section, there are certain elements to prove the offence of incest by male. First, the existence of relationship, that is, father and daughter in this case, second, the existence of sexual intercourse and lastly that age of the victim is below 18 years. In this case the prosecution proved through evidence that the appellant is the biological father of the victim. This has been proved by PW1, the appellant's mother, the victim herself and PW5, the victim's sibling. Furthermore, the appellant himself testified that the victim is his daughter. He stated as follows: "I woke up in the morning at home, Kihesa Mgagao Village and went to PWI's home to look for PW2 who was sick. PW2 is my daughter and PW1 is mother." Therefore, this ingredient has been sufficiently proved by the prosecution. The second ingredient of sexual intercourse has been proved by the victim herself who is the best witness in sexual offences as held in Majaliwa Ihemo v. Republic (Criminal Appeal No. 197 of 2020) [2021] TZCA 304 (15 July 2021). I find the victim credible as she reported the 14

incident to PW1 immediately. The victim's evidence is corroborated by the evidence of PW1 who as the victim's grandmother inspected the victim's vagina and saw sperms. The medical doctor (PW3) also corroborated the victim's evidence as he testified that on his observation, he discovered that the victim's labia majora and minora were swollen, hymen perforated and cervix swollen. Lastly the age of the victim was proved by the victim herself who testified that she is 12 years old, thus, below 12 years old. She testified as follows: "I was born on 18/9/2008. On 6/2/Z020 I had 12 years old." Moreover, the evidence shows that PW1 and the victim are the appellant's mother and daughter respectively. In my view, PW1 cannot conspire with the victim who is the appellant's daughter to fabricate the case against the appellant who is her son. Even the appellant in his defence did not raise any doubt as to whether PW1 and the victim conspired to fabricate the charge against him or the reason for such conspiracy. With this, I am convinced that the appellant committed the

charged offence. Therefore, the prosecution proved the charge against the appellant beyond reasonable doubts. In the upshot, the appellant's appeal lacks merits. I uphold his conviction and sentence. Appeal dismissed. It is so ordered. D.B. NDUNGURU JUDGE 02 / 06/2026 16