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Mahuti Chacha Marwa vs Republic (Criminal Appeal No 500 of 2020) 2024 TZCA 562 (15 July 2024)
Mahuti Chacha Marwa vs Republic (Criminal Appeal No 500 of 2020) 2024 TZCA 562 (15 July 2024)
AT MUSOMA
( CORAM: LILA. J.A.. KENTE. J.A.. And MGONYA. J.A.^
CRIMINAL APPEAL NO. 500 OF 2020
MAHUTI CHACHA MARWA........................................................... APPELLANT
VERSUS
THE REPUBLIC.......................................................................RESPONDENT
(Appeal from the Judgment of the High Court of Tanzania,
at Musoma)
fKahvoza. J.1
dated the 4th day of September, 2020
in
Criminal Appeal No. 75 of 2020
Million Shillings). His first appeal to the High Court was unsuccessful. Still
Before the trial court, the appellant's case was predicated upon the
allegation that, on 27th day of January, 2019 at Nyiboko Village within the
District of Serengeti in Mara Region, he had carnal knowledge of a girl
aged 16 years old, who shall be referred to as the victim or PW2 in order
committing the offence charged, hence the full trial against him.
victim (PW2) testified to the effect that, on 27th January, 2019 at Nyiboko
Village, the appellant threatened her with a knife, pulled her in the bush
and raped her. PW1, the victim's mother, Theresia Chacha testified to have
taken the victim to Borenga Police Station after she was informed of the
incident by the victim when she returned home on the following morning.
Later after obtaining the PF3, she took the victim to Nyiboko dispensary for
Officer at Nyiboko Dispensary (PW3) examined the victim and found that
there was clotted blood inside her vagina and bruises on labia minora. It
was PW3's finding that the victim was raped as there was penetration of a
PE. 2). PW4 was WP 7277 DC Anastazia who investigated the case and
arraigned the appellant in court after she had prepared the charge sheet.
that the case against him was fabricated; and that he and the victim had
agreed to marry.
As alluded to above, the appellant was found guilty by the trial court.
High Court of Tanzania at Musoma (Kahyoza, J.) was dismissed. The High
Court upheld the trial court's findings as well as the impugned conviction
and sentence. It is worth noting that, the first appellate court, expunged
Exhibit PE. 2, the PF3, as it was not read out before the court as the law
In his efforts to protest his innocence, the appellant has filed before
the 2nd and 3rd grounds are directed to the two expunged exhibits as seen
above, only three grounds remain for determination. Therefore, the instant
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1. That the tria l and the first appellate courts erred in law to convict
and sentence the appellant by holding that the appellant raped
the victim using a knife, as the appellant was not able to do two
things a t the same tim e, that is raping and holding a knife;
2. That the tria l and the firs t appellate courts erred in law and fact to
convict and sentence the appellant as the judgm ent delivered by
the tria l court was unreasoned and on the other hand, was upheld
by the first appellate court which actually is against the principles
o f naturalju stice; and
3. That both courts below erred in law and fact fo r convicting and
sentencing the appellant w ithout giving sufficient consideration
and w eight to the defence adduced by the appellant.
When the appeal was called for hearing, the appellant appeared in
person unrepresented, whereas, Mr. Tawabu Yahya Issa and Mr. Isihaka
respondent, Republic.
Being invited to enjoy his right to begin, the appellant prayed the
Submitting on the first ground, Mr. Issa referred the Court to page
that on the fateful date, PW2 on her way to visit her aunt one Chausiku
Magoigwa around 19:00 hours, she met the appellant who threatened to
stab her with a knife if she screamed. He then took her into the bushes
and after he undressed her, he went on having sexual intercourse with her
by force, thus he raped her. Further, during the act, the appellant told the
victim not to scream and that if she did, he would stub her with a knife.
Attorney's assertion that, the appellant's claim that it was not possible for
him to rape the victim while holding the knife threatening her, is
she was threatened by the appellant with a knife, it was not meant that
during the entire act, the appellant was holding a knife threatening the
victim. It was the learned State Attorney's conclusion that this ground is
As the appellant had nothing to rejoin apart from pleading the court
the respondent's counsel's views that the complaint has no merit. The
reason for our stance is from the record of this appeal, particularly PW2's
testimony. The record is very clear that PW2 said that the appellant
the time holding the knife threatening her. Given the circumstances, we
Moving to the second ground of appeal that the first appellate court
upheld the trial court's judgement which was unreasoned, it was the
learned State Attorney's brief observation that, both the trial and the first
decisions both courts gave reasons as to why they found that the
requirement under section 312 (1) of the Criminal Procedure Act (the
CPA), that every judgment must contain the point or points for
determination, the decision thereon and the reasons for the decision. See
See also the case of Josephat Joseph v. Republic, Criminal Appeal No.
both trial and first appellate courts, we are satisfied that the trial
record of appeal, it was the trial Magistrate's finding that, the victim was
indeed raped by the appellant. Giving his reasons for the above finding,
the learned trial Magistrate articulated that the evidence revealed that, the
appellantwas well known to the victim and that she was able tomention
him asher offender shortly after the incident; of which the trial court
found as guarantee of the reliability of the victim's testimony. The other
reason for the trial court's decision was the failure of the appellant to cross
examine the victim at all; which implies that the appellant agreed on what
grievances that both lower courts' decisions were unreasoned and against
fault the first appellate court's decision on the basis that no reasons were
given for the decision. In the event therefore, we find the appellant's
As to the third and last ground that both trial and appellate courts
this complaint. It was the learned counsel's view that, the appellant's
defence was considered but the same did not shake the prosecution's
s
Having examined the record of appeal, we concur with the learned
State Attorney that, it is on the record of appeal that both in the trial and
first appellate courts, the appellant's defence was considered and the
appellate Judge found that the same did not cast any doubt on the
prosecution's case.
heard and their cases be considered for evaluation before the decision.
See the case of Abbas Sherally & Another v. Abdul Sultan Haji
No. 223 of 2020), [2023] TZCA 45 (23rd February 2023) TanzUI where in
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From the record of the appeal, we are satisfied that both prosecution
and defence sides were given equal chances to prosecute and defend their
cases. At the trial court, the appellant was given his right to enter his
defence, where he denied to commit the offence saying that the case
against him was fabricated. In addition, the appellant told the trial court
that he and the victim had agreed to marry. Whereas, during cross
examination he informed the court that he did not know the age of the
victim.
his defence and finally concluded that, since the appellant did not cross
examine the victim at all, that means he admitted the truth of her
testimony against him. From all the above, the trial Magistrate upon being
offence charged.
that this ground of complaint was determined by the first appellate court
and finally concluded that the ground was meritless as the appellant's
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defence was considered by the lower court. Having the same view, we also
Despite our ruling that all the appellant's three grounds of appeal are
knowledge that in the entire record of appeal, there is no any proof of the
victim's age. When probed by the Court on this issue, the learned State
the case before the trial court, the victim's age was not established.
establishing the offence of statutory rape under section 130 (1) (2) (e) of
victim's age can be proved by either the victim herself, both of her parents
Bernard v. Republic, Criminal Appeal No. 329 of 2018, Jafari s/o Musa
Republic, Criminal Appeal No. 173 of 2014 (all unreported). In the last
cited case, the victim who was alleged to be 16 years of age like the one in
this case, no witness testified about her age, hence the Court held that:
ii
"The evidence in a tria l m ust disclose the person's
age, as it were. In other words, in a case such as
th is one where the victim 's age is the determ ining
factor in establishing the offence, evidence m ust be
p ositively la id out to disclose the age o f the victim .
Under norm al circum stances, evidence relating to
the victim 's age would be expected to come from
any or either o f the follow ing: The victim , both o f
her parents or a t least one o f them, a guardian, a
birth certificate, etc."
victim's mother and PW3, was the clinical officer who examined the victim.
Both of them were proper and legal persons to establish the victim's age.
being sworn, PW2 declared her age to be 16 years old. Furthermore, the
charge sheet revealed that the victim's age was 16 years old. However, by
(supra), it is the position of the law that, the victim's declaration of her age
enough proof of victim's age for the court to base on the conviction and
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"i/7 this case, the particulars o f offence in the
charge sheet indicated that PW1 was 16 years old.
When she testified on I4 h February 2006, the tria l
Principal D istrict M agistrate, before putting her on
oath also indicated that she was aged 16 years.
With respect, it is trite law that the citation in a
charge sheet relating to the age o f an accused
person is not evidence. Likewise, the citation b y a
M agistrate regarding the age o f a witness before
giving evidence is not evidence o f that person's
age."
In this case, the appellant was charged with statutory rape contrary
to section 130 (1) and (2) (e) and 131 (1) of the Penal Code and
ascertaining that the victim's age was not proved, the appellant's
Trite law is to the effect that in sexual offences where only two
Republic, (Criminal Appeal No. 203 2021) [2022] TZCA 127 (22nd March
2022) TanzLII. That being the case, taking into consideration the
circumstances of this appeal, this Court finds that the victim's testimony
IB
should not be taken as a gospel truth, in a sense that the courts must
eliminates all the possible doubt. Early reporting by the victim of a crime to
a person whom he/she first comes across is taken to add credence on her
whom the victim claimed to have met immediately after the rape incident
their home at 16:00 hrs going to her aunt one Chausiku Magoigwa. On her
way at 19:00 hours, she met the appellant who ravished her. Also, it was
testified that after the incident, the victim met one Bachuta Maro
Nyakiwalo whom she informed on what had befallen her. Further, the
victim claimed to have gone to the house of Pili Saiga, a member to their
church to salvage herself that night. While there, she also told the latter on
what had happened to her. The victim then was accommodated that night
the court that it was difficult to procure the said Bachuta although it was
not stated as to what caused the failure to trace him to testify. Similarly,
Pili Saiga whom the victim stated that she met soon after the incident and
who accommodated her for the whole night, nothing was stated to
account for the failure to summon her. These were both material
that:
In this case, no one witnessed the appellant ravishing PW2. Pili Saiga
was a material witness who could have informed the court what PW2
reported to her immediately after the alleged incident and what was the
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victim's physical state at the time she met her immediately after the
ordeal.
call those witnesses who, from their connection with the transaction in
are within reach but are not called without sufficient reason stated, the
court may draw an adverse inference to the prosecution's case. See; Azizi
Flowing from the above established legal principles, this Court finds
Nyakiwalo and Pilly Saiga, without any sufficient reasons, casts doubt with
the possibility that they could have given evidence contrary to the
prosecution's case. Hence there are doubts that, prosecution case was
appellant's appeal, quash his conviction and set aside the custodial
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sentence imposed on him. We proceed to order his immediate release
from prison forthwith, unless held for some other lawful cause.
S. A. LILA
JUSTICE OF APPEAL
P. M. KENTE
JUSTICE OF APPEAL
L. E. MGONYA
JUSTICE OF APPEAL
The Judgment delivered this 15th day of July, 2024 in the presence of
the appellant who appeared in person and Ms. Beatrice Timothy Mgumba,
J. J. KAMALA
DEPUTY REGISTRAR
COURT OF APPEAL
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