Nkanga Daudi Nkanga versus The Republic; Criminal Appeal No. 316 of 2013: Court of Appeal of Tanzania at Mwanza (Unreported).
- Evidence
- Witnesses – Whether there is a number of witnesses required to prove a fact.
- Burden of proof – whose burden to prove?
- Criminal Law
- Rape – Penetration – Whether sexual intercourse amounts to penetration.
Held:-
(i) Under Section 143 of the Evidence Act (Cap 6 RE 2002), no amount of witnesses is required to prove a fact. But it is also the law that the court may draw adverse inference in certain circumstances against the prosecution for not calling certain witnesses without showing any sufficient reasons.
(ii) It is the principle of law that the burden of proof in criminal cases rests squarely on the shoulders of the prosecution side unless the law otherwise directs, and that the accused has no duty of proving his innocence. Thus, the burden of proof placed on the prosecution arises from the presumption of innocence in favour of the accused that no less than the constitution of the United Republic of Tanzania, 1977 has guaranteed.
(iii) It is common knowledge that when people speak of sexual intercourse they mean the penetration of the penis of a male into the vagina of a female. Whenever words like sexual intercourse or sex are used or a witness in open court simply refers to such words they are or should be taken to mean the penis penetrating the vagina.