IN THE COURT OF APPEAL OF TANZANIA

AT BUKOBA
fCORAM: MUGASHA. J.A.. KOROSSO, 3.A. And KIHWELO, J.A.)
CRIMINAL APPEAL NO. 71 OF 2020
NEHEMIA R W ECH U N GU RA..................................................................... APPELLANT

VERSUS
THE R EP U B LIC ......................................................................................RESPONDENT
(Appeal from the decision of the High Court of Tanzania
at Bukoba)

(Mtulya, J.)

dated the 23rd day of October, 2019

in
Criminal Appeal No. 9 of 2017

JUDGMENT OF THE COURT

29th & 30th November, 2021

KIHWELO, J.A.:
The appellant was arraigned in the District Court of Bukoba at Bukoba

for two offences, abduction and rape contrary to section 133 and section

130 (2) (e) and 131 (1) respectively of the Penal Code [Cap. 16 R.E 2002]

(now R.E 2019). It was alleged that on 3rd December, 2015 at Kashai area

within the Municipality and District of Bukoba in Kagera Region the appellant

with the intent to marry a girl who we shall henceforth identify her as PW2,

for purposes of concealing her identity did detain her. It was alleged further

that the appellant on unknown dates between the year 2012 and 2014 within

Bukoba in Kagera Region did rape PW2 aged 15 years.

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 The trial court upon hearing the prosecution and the defence, believed

the prosecution's version that the case against the appellant was proved to

the hilt. Accordingly, the trial court found the appellant guilty as charged,

convicted him and subsequently sentenced him to serve 4 years

imprisonment for abduction and 30 years imprisonment for rape which were

to run concurrently.

In protesting his innocence, the appellant filed his first appeal in the

High Court in Criminal Appeal No. 9 of 2017 which after being heard on merit

on 23rd October, 2019 it was dismissed. Undeterred, the appellant lodged

this second appeal.

Before the trial court, the prosecution case was founded on the

evidence of seven (7) witnesses namely; Renatus Felix Muganyizi (PW1), the

victim PW2, Adventina Felician Mpinzile (PW3), Felician Mpinzile Kamugisha

(PW4), WP 5898 Det. CpI Anita (PW5), MG 62648 Selestine Bakaigwa (PW6)

and ASS INSP Christopher Kapera (PW7). On the adversary, the defence had

the appellant as the lone witness.

It was the prosecution case that on 8/12/2015 at his home village

Kaibanja in Katoro, Bukoba District Kagera Region the appellant was arrested

in connection with the offences of abduction and rape of PW2, a girl aged

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14 years at the time. According to PW1 and PW3 on 7/11/2015, PW2 a

standard seven leaver who had passed her examinations and was about to

join secondary school suddenly went missing from her parents' home at

Kashai in Bukoba Town and the duo went to the police to file a missing

person report where they were given RB and the search for PW2 began.

However, efforts to trace PW2 amongst close relatives where ordinarily PW2

would have gone did not bear any fruits as PW2 was nowhere to be seen

and the family started to expect for the worst. After a month PW4, informed

PW1 that, it was romoured that PW2 was in Katoro living with the appellant

and that PW4 took trouble to investigate further and the results of which he

came to find that those rumours were actually true and he immediately

informed PW1 who along with PW3 went to Katoro Police Station and a raid

to the appellant's house was conducted by PW1, PW3, PW4 and PW6, a

people militia from Katoro Police Station. The appellant was arrested at his

house and PW2 was found holed in the appellant's house. Both were taken

to the police station for further processes. The investigation was conducted

by PW5 and PW7 took the cautioned statement of the appellant which was

admitted in evidence as exhibit P2. The appellant was then charged for the

two offences as hinted above.

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 In his sworn defence testimony, the appellant totally distanced himself

from the accusations made against him by the prosecution. He said that on

8/12/2015 at 14:40 Hours while coming back from work heading home for

lunch he was arrested by people he did not know, handcuffed and taken to

the police station at Katoro where he was informed about the offence he

was charged with, but denied any wrong doing. The appellant was tortured

in order to confess to committing the crime but did not heed to and

thereafter the appellant was taken to Bukoba Police Station where he was

detained for 14 days. On 14/12/2015 the appellant was taken to the Justice

of Peace at Bukoba Primary Court where he denied to have confessed and

was released before he was re-arrested on 17/12/2015 and taken to Bukoba

Police Station and on 18/12/2015 was arraigned in court for the offences

stated above.

As hinted earlier on, at the height of the trial, it was found that, on the

whole of the evidence, the prosecution case was proven to the hilt and

therefore, the appellant was convicted and sentenced as stated above.

In this appeal before us, the appellant has amassed seven (7) grounds

of grievance, which may be crystalized as follows;

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 1. That, the charged offence was not proved beyond any reasonable
doubt.
2. That, the first appellate court erred in relying upon the cautioned
statem ent which was irregularly obtained to sustain the conviction.
3. That, the first appellate court erred in upholding the appellant's
conviction based upon PW 2's statem ent made at the police exhibit PI
which was irregularly adm itted in evidence.
4. That■ the first appellate court erred in upholding the appellants
conviction without considering that the whole prosecution evidence
based on the offence o f abduction and rape.
5. That; the first appellate court erred in upholding the appellant's
conviction without considering that the appellant's defense was not
considered.
At the hearing, before us, the appellant was fending for himself,

unrepresented, whereas Ms. Happiness Makungu and Mr. Juma Mahona both

learned State Attorneys stood for the respondent Republic. The appellant

fully adopted the memorandum of appeal but deferred its elaboration to a

later stage after the submissions of the learned State Attorney, if need would

arise.

Ms. Makungu, prefaced her submission by supporting the appeal. She

began by arguing that the third, fourth and sixth grounds of appeal were

new grounds as they did not feature in the appeal before the first appellate

court. However, she quickly pointed out that since the third and sixth

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grounds raise important points of law the Court can still entertain them,

otherwise the Court ordinarily cannot entertain grounds of appeal which

were neither raised nor determined by the first appellate court. Reliance was

placed in the case of Athumani Hassan v. Republic, Criminal Appeal No.

292 of 2017. On the basis of the foregoing, the learned State Attorney

started to argue the third and sixth grounds of appeal.

Submitting on ground three the learned State Attorney admittedly

conceded to the fact that the first appellate court erred in convicting the

appellant based upon the evidence of PW2 who was declared hostile witness.

It was her firm argument that the prosecution did not comply with the

procedure for declaring a witness hostile and therefore the evidence of PW2

was irregularly admitted. To bolster her submission, she referred us to the

case of Inspector Baraka Hongoli and Others v. Republic, Criminal

Appeal No. 238 of 2014 (unreported) in which this Court discussed at

considerable length the procedure for declaring a witness hostile. When

prompted by the Court on the effect of not following the prescribed

procedure, the learned State Attorney contended that its effect is to render

the testimony of PW2 after she was declared hostile inadmissible and

therefore she implored us to ignore that part of the evidence of PW2 from

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the record. According to her the remaining evidence of PW2 is contradictory

and hence cannot warrant conviction. In that regard, the learned State

Attorney, urged us to sustain the third ground of appeal for being

meritorious.

Moving to the sixth ground of appeal, the learned State Attorney was

fairly brief and submitted that, the trial and the first appellate court did not

consider the appellant's defence in which he distanced himself from the

offence he was charged with and alleged further that he was tortured in

order to confess to the crime. The learned State Attorney submitted that this

Court has discretion to step into the shoes of the first appellate court and

re-evaluate the evidence in order to come up with its own finding. To fortify

her argument, she cited the case of Athumani Hassan (supra) and

therefore implored us on the strength of the cited case to step into the shoes

of the first appellate court and re-evaluate the appellant's defence and

having done so find that the appellant's defence shook the prosecution's

case.

Arguing in support of the first ground of appeal Mr. Mahona briefly

submitted that the case for the prosecution fell short of the requisite proof

beyond reasonable doubt. He contended that, in cases of sexual offence the

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evidence of a sole witness who is a victim of sexual violence is the best and

does not require any corroboration. To facilitate the appreciation of the

proposition put forward by the learned State Attorney, he referred us to the

celebrated case of Selemani Makumba v. Republic [2006] TLR 379 in

which the Court stated that true evidence of rape must come from the victim.

However, he argued that in the instant appeal the evidence of PW2 was

contradictory and there was no any other evidence to prove that the

appellant committed the offence. He therefore argued that this ground of

appeal has merit too.

Mr. Mahona argued in support of the second ground of appeal that the

appellant's cautioned statement exhibit P2 were retracted and repudiated

and therefore it was unsafe for the trial court to act on the same in convicting

the appellant without warning itself on the danger of doing so in the absence

of other corroborating evidence. Reliance was placed in the case of

Muhidini Mohamed Lila @ Emolo and Others v. Republic, Criminal

Appeal No. 443 of 2015 (unreported) in which the Court emphasized that

confession evidence which has been retracted or repudiated cannot be acted

upon to found conviction unless the same is corroborated by independent

evidence. He rounded up by arguing that in the instant case the cautioned

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statement was not sufficient to convict the appellant. He finally, argued that

in the circumstances the appeal be allowed, the conviction quashed and the

appellant be set free.

In rejoinder, given the response of the respondent Republic which

supported his appeal, the appellant had nothing to add. He simply prayed

that he should be released from prison.

It is now our precious duty to determine the appeal by considering the

grounds of complaints raised by the appellant and the supporting submission

by the respondent Republic. On our part, we think that this appeal can be

conveniently disposed by merely addressing the issue on whether or not the

case was proved beyond reasonable doubt.

The duty of the prosecution to prove the case beyond reasonable

doubt is universal. In Woodmington v. DPP (1935) AC 462, it was held

inter alia that, it is a duty of the prosecution to prove the case and the

standard of proof is beyond reasonable doubt. This is a universal standard

in criminal trials and the duty never shifts to the accused.

The term beyond reasonable doubt is not statutorily defined but case

laws have defined it, in the case of Magendo Paul & Another v. Republic

(1993) TLR 219 the Court held that:

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 "For a case to be taken to have been proved beyond
reasonable doubt its evidence m ust be strong against
the accused person as to leave a remote possibility
in his favour which can easily be dism issed."

We hasten to state at this point that, in seeking to answer the question

on whether the prosecution in the instant appeal proved the case beyond

reasonable doubt, we think, this should not detain us much as the answer is

not far-fetched. The learned State Attorneys have already pointed out

infractions in the prosecution's case. The learned State Attorneys were

undeniably right to argue that the prosecution did not prove the case beyond

reasonable doubt.

We will start with the evidence of PW2 the lone prosecution's star

witness whose testimony is discernible from pages 13 to 15 of the record of

appeal. We are alive to the timebound principle of law that true evidence of

rape has to come from the victim, if an adult, that there was penetration and

that there was no consent, and in case of any other woman where consent

is irrelevant that there was penetration. See for example, Dr. Moses

Norbert Achiula v. Republic, Criminal Appeal No. 63 of 2012

(unreported). However, in the instant appeal PW2 did not implicate the

appellant since she denied having engaged in sexual relation with the

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appellant. For clarity, we wish to let record of appeal at page 13 speak for

itself;

"XD: While in STD V I m et the accused at Katoro he

(sic) at the tim e did not te ll me anything (sic) I know
the accused as a Pastor that's our relationship. When
I lived with him, we slept in different rooms he has
never been my guardian there was no agreem ent
between the accused and my parents for me to go
and live with him it was between the accused and I
my parents knew nothing I never had a sexual
relationship with the Pastor/ accused. "

The above excerpt clearly demonstrates that until then PW2 did not

implicate the appellant in the contrary her testimony was contradicting the

prosecution's case. It is instructive to state that when the prosecution

realized that PW2 was not forthcoming in the sense that she was not

testifying to the expectation of the prosecution a prayer was made to declare

her a hostile witness upon which the prosecution cross examined PW2.

However, there were irregularities discernible in the proceedings in declaring

PW2 hostile. The procedure for declaring a witness hostile is provided for

under section 163 of the Law of Evidence Act, Cap 6 R.E 2002 (now 2019)

when a witness gives evidence in court for a party, which differs from a

previous statement made by him. The procedure was explained in the case

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of Republic v. Fabian Paul, Criminal Appeal No. 14 of 1999 (unreported)

in which the Court cited with approval the case of Jumanane Athuman

Mketo v R [1982] TLR 232 in which Samatta, Ag. 3. (as he then was) held:

"Having made up his m ind to treat the witness as

"hostile" the party should, after showing a copy o f
the w itnesses' previous statem ent to the court,
form ally apply to the court for leave to do so. The
court should then hear the opposite party, if he has
any objection to the application. Then after
comparing and contrasting the evidence o f the
witness and the contents o f his statement, and after
considering the witness demeanour in the witness
box, as w ell as the objections, if any, from the
opposite party, the court should make its ruling on
the application. I f the co u rt g ra n ts it, th e
a p p lic a n t sh o u ld then p ro ce e d to a tte m p t to
d is c re d it th e evid en ce o f the w itn ess b y w ay o f
cro ss- e xa m in a tio n ." [Em phasis added].

Clearly, the trial court did not comply to none of the above and

therefore the evidence of PW2 from the stage when the prosecution prayed

to the court to declare her hostile was irregularly taken and therefore as

rightly prayed by the learned State Attorney. It was thus irregular for the

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trial court to act on such evidence which ought to have been ignored for

lacking evidential value.

With regard to the confession evidence exhibit P2, the appellant has

challenged it and the learned State Attorney has conceded and submitted at

considerable length the infractions obtaining. It is not in dispute that the

appellant retracted and repudiated the cautioned statement. It is a

peremptory principle of law that confession evidence which has been

retracted or repudiated cannot be acted upon to found a conviction unless it

is corroborated by independent evidence and unless the second evidence is

found by the court to be truthful upon the court warning itself of the danger

to rely on uncorroborated evidence. In this case having disregarded the

evidence of PW2, her remaining evidence is contradictory which cannot

corroborate the retracted and repudiated confession. In the case of Ali

Salehe Msutu v. Republic [1980] TLR 1, the Court stated that:

"a repudiated confession, though as a m atter o f law

may support a conviction, generally requires as a
m atter o f prudence corroboration as is norm ally the
case where a confession is retracted.

We have found above that the evidence of PW2 is unworthy of credit

and that the cautioned statement cannot safely be relied without

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corroboration which would have been offered by PW2 as the lone victim of

sexual violence and therefore it suffices to say that, the prosecution did not

prove the case beyond reasonable doubt.

On the basis of the above stated reasons, we find merit in the appeal

and hereby allow it. In the event, the appellant's conviction is quashed and

sentence set aside. We order his immediate release from prison forthwith

unless held for other lawful cause.

DATED at BUKOBA this 29th day of November, 2021.

S. E. A. MUGASHA
JUSTICE OF APPEAL

W.B. KOROSSO
JUSTICE OF APPEAL

P. F. KIHWELO
JUSTICE OF APPEAL

The judgment delivered this 30th day of November, 2021 in the

presence of the appellant in person and Mr. Joseph Mwakasege, learned

State Attorney for the respondent/Republic, is hereby certified as a true copy

of the

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