CRIMINAL APPEAL NO 189 OF 2022

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA (CORAM: LILA. 3.A.. KIHWELO. J.A. And ISSA. J.A.^ CRIMINAL APPEAL NO. 189 OF 2022 BAKARI SEIF.....................................................................APPELLANT

VERSUS THE REPUBLIC.............................................................RESPONDENT (Appeal from the decision of the Court of Resident Magistrate of Geita at Geita} (Tenawa. SRM Ext. J.1 dated the 20th day of December, 2021 in RM Criminal Appeal No. 19 of 2021

JUDGMENT OF THE COURT 17th & 24th February, 2025 KIHWELO. J.A.: In the Court of Resident Magistrate of Geita at Geita the appellant, Bakari Seif, a former primary school teacher at Nyarutefye Primary School, was arraigned and convicted for rape as well as impregnating a school girl. Upon conviction, he was sentenced to thirty (30) years imprisonment for each count both of which were to run concurrently. His appeal to the High Court which was later transferred to Tengwa, SRM with Extended Jurisdiction who sat at the Court of Resident Magistrate of Geita at Geita (first appellate court), was partly allowed to the extent that, the appeal in respect of the second count of impregnating a school girl was allowed. However, the first appellate court was satisfied that the offence of rape was proven, hence this second appeal. At the outset, and, in order to set matters into their right perspective, it is imperative to give the context in which this appeal arose as can be ascertained from the record. From a total of three witnesses and two documentary exhibits, the prosecution case was that, on diverse dates of January, 2021 and February 2021 at Nyarutefye area within the District and Region of Geita, the appellant did have carnal knowledge of a girl aged 16 years, who we shall refer to her as the victim or PW1 in order to disguise her identity. At the commencement of the trial on 19th

April, 2021, the victim who was the prosecution's star witness (PW1) introduced herself as a 16 years old girl who was born on 30th November, 2005 and up until March, 2021 was a standard five (V) pupil at Nyarutefye Primary School, but since then she dropped from school owing to her pregnancy. As proof of that, an Attendance Register was earlier on that day, admitted in evidence before trial began, to be more precise, during the Preliminary Hearing (PH) and was marked exhibit PI. Her evidence was to the effect that, it all began in November 2020 when the appellant started enticing the victim to have sexual intercourse with her. It followed that, later, in January 2021 the appellant summoned the victim to his office in the perfect pretext of giving her an assignment. Describing in minute detail, PW1 explained that, once she was in the appellant's office, the appellant went outside briefly, leaving her behind. Shortly thereafter, the appellant came back and once the duo were alone, the appellant forcefully undressed the victim's skirt and underpants then he inserted his manhood into the victim's private parts. The victim felt pain but dared not to tell anyone since the appellant warned her not to. The duo, had these impromptu sex three times. First time in the office, the second time in the cassava plantation and the third time in February and this time around it was in the

girls' toilet. According to PW1, at all times the appellant used to have sex with the victim while other pupils were not within the school compound. It was her further testimony that, following these series of sexual encounter with the appellant, she got pregnant and her mother was worried as such, she had no option but to reveal the truth to her mother about her pregnancy and that the appellant was the one responsible. PWl's mother relayed the sad news to PWl's father, one Masalu Nzolwalile (PW2) and together they immediately reported the matter to the police station where they were given a PF3 which they later took to Buziku Dispensary for medical examination. There was some further prosecution evidence from Robert Daud (PW3) a Clinical Officer at Buziku Dispensary who medically examined the victim and found out that, she had no virginity and there were no bruises either. Upon further laboratory and physical examination, PW3 found out that the victim was two months pregnant. He then filled the PF3 which was later tendered in evidence and admitted in court as exhibit P2. The appellant was arrested, and, eventually, he was formally arraigned for the offences which he completely disassociated himself. In his sworn evidence, the appellant who testified as DW1, did not refute the allegations that he was a teacher at Nyarutefye Primary School and taught the victim. However, he

maintained his innocence and protested that the case against him was fabricated by the headteacher and the victim's parents. His further account was that, it was impossible to rape the victim in the school compound under the circumstances explained by PW1. He completely refuted having committed the offence in question. Apart from DW1, the appellant brought other three witnesses both of whom were teachers from the same primary school. These were Emmanuel Mtesigwa Kasisi (DW4), Liwa Masalu Buhango (DW3) and Hamis Sowera Shonza (DW4). Their testimonies were completely general as they testified that they did not believe that the appellant could have raped the victim under the circumstances explained. On the whole of the evidence, the two courts below were concurrent in the finding that PW1, PW2 and PW3 told a credible tale of what transpired. The two courts, thus, found as an established fact that the appellant committed the offence of rape. As alluded before the appellant was acquitted by the first appellate court for the offence of impregnating a school girl hence this second appeal in relation to the offence of rape. Initially, the appellant on 6thJuly, 2022 raised one ground of appeal that, the magistrate with Extended Jurisdiction erred to uphold conviction of the appellant on the second count of rape basing on the evidence which is doubtful and incredible. Before hearing of

the appeal could commence in earnest, Mr. Sekundi B. Sekundi, learned counsel for the appellant prayed and was granted leave to argue two additional grounds of appeal in terms of rule 81 of the Tanzania Court of Appeal Rules, 2009. The two additional grounds of grievance may conveniently be crystalized as follows; One, the first appellate court erred to uphold the conviction and sentence while the appellant was apprehended at Geita District instead of Chato District the geographical location of Nyarutefye and two, the first appellate court erred to uphold the conviction and sentence of the appellant relying on Attendance Register (exhibit PI) and the PF3 (exhibit P2) which were not read out in court upon admission. We heard the appeal on 17th February, 2025 and, as hinted before the appellant was represented by Mr. Sekundi whereas Mses. Verediana Mlenza and Luciana Shabani, learned Senior State Attorneys, stood for the respondent Republic. Mr. Sekundi fully adopted the memorandum of appeal and written submission earlier on lodged on 5thSeptember, 2022. At the outset, we wish to point out that, Mr. Sekundi elected to abandon the second ground of appeal in the additional grounds raised in Court whose criticism was in relation to reliance on the Attendance Register (exhibit PI) and the PF3 (exhibit P2) which he contended that they were not read out in court upon admission. He

chose that path following our prompting during his submission in chief. In the circumstances, we remained with only two grounds of appeal for deliberation. Mr. Sekundi prefaced his submission by imploring us to interfere with the concurrent findings of the two courts below which to him have been arrived at in misapprehension of evidence or wrong interpretation of a principle of law leading to a miscarriage of justice. In support of the criticism that the first appellate court erred to uphold conviction relying on the evidence which is doubtful and incredible, the learned counsel faulted the first appellate court for relying on the evidence of PW1 whose testimony was not corroborated. Mr. Sekundi, took the view that, PW1 was not credible and reliable witness and therefore, it was unsafe for the trial court to convict the appellant relying upon her testimony. Elaborating, he argued that while PW1 alleged to have been raped by the appellant twice in January 2021 and once in February 2021, she did not disclose this to anyone until on 27th March, 2021, when PWl's mother suspected her to be pregnant. To him, this dented PWl's evidence since it took almost three months to report the incident, and, had it been not for the pregnancy PW1 would not have reported it. In his further submission, the learned counsel faulted PWl's testimony that she was scared to tell anyone given the

appellant's position as a teacher in her class. In his view, this was an afterthought and beyond imagination, and by itself sufficed to impeach PWl's credibility. According to the learned counsel, although it is a settled position of the law that the evidence of the victim of sexual offence is the best but the court has to scrutinize it in order to satisfy itself that the victim is telling nothing but the truth, citing section 127 (6) of the Evidence Act, Cap. 6 (the Evidence Act) and the case of Mohamed Said v. Republic (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (23 August 2019) for the proposition that the word of the victim of sexual offence should not be taken as a gospel truth but her testimony should pass the test of truthfulness. Criticizing further PWl's testimony, the learned counsel paid homage to the case of Yusta Lala v. Republic (Criminal Appeal No. 337 of 2015) [2015] TZCA 50 (15 October 2015) in which faced with analogous situation we observed that, the lapse of time between the alleged rape and the time when the appellant was mentioned raises doubt on the credibility of PW1. He thus, discounted PWl's claim that she was fearful to report because of the superior position of the appellant as a teacher. In support of the additional ground of appeal that the charge was defective because the appellant was tried at Geita District instead of Chato District the

geographical location of Nyarutefye, the learned counsel was brief and to the point. He contended that, Nyarutefye is located within Postcode 30314 which is at Buziku in Chato District and not Geita District and therefore, the appellant was wrongly tried at Geita District instead of Chato District. He was thus, of the view that, the charge was defective. He therefore, implored on us to allow the appeal, quash the conviction and set aside the sentence. On our prompting as to the applicability of section 180 of the Criminal Procedure Act, Cap. 20 (the CPA), in relation to the place of inquiry and trial, the learned counsel admittedly argued that, the appellant was arrested and kept in custody in Buziku, Chato, Katoro and Geita which is seemingly in line with section 180 of the CPA. However, he was adamantly convinced that the charge was defective. For her part, Ms. Mlenza opposed the appeal and supported both the conviction and sentence. She too, prefaced the submission by arguing the first ground in the additional grounds of appeal whose main criticism was that, the charge was defective since the appellant was apprehended at Geita District instead of Chato District the geographical location of Nyarutefye. In response, Ms. Mlenza hastily submitted that the appellant's complaint in this ground has no merit. Illustrating, she contended that, section 180 of the CPA is categorical

and clear that every offence shall be tried where the accused person was apprehended or in custody on a charge for the offence charged, and, since the appellant was in custody at Geita Police station then it was in order for the appellant to be charged at Geita. She rounded off by arguing that, the appellant was properly charged and therefore, this ground has no merit. In response to the ground that the evidence of PW1 was doubtful and incredible to warrant conviction of the appellant, Ms. Shabani had an opposing view, she contended that there was neither misapprehension of the evidence nor any miscarriage of justice to warrant this Court interfere with the concurrent findings of the two courts below. She further argued that, according to the provisions of section 127 (6) of the Evidence Act, the court may rely upon the sole evidence of the lone victim of sexual offence to convict, upon assessing the credibility of the evidence of that victim and being satisfied that the victim is telling nothing but the truth. Ms. Shabani submitted further that, the trial court at page 33 of the record of appeal evaluated the evidence of the victim and was satisfied that the victim was telling nothing but the truth, and the first appellate court equally at pages 178 and 179 of the record of appeal evaluated and assessed the evidence of the victim and was satisfied that she was telling nothing

but the truth. Speaking of the reasons for the delay to report the incident which was gallantly criticized by the appellant, Ms. Shabani contended that, it was evidently clear on record that the appellant was scared to disclose what was going on between her and the appellant and that was because the appellant had warned her not to tell anyone. She referred us to the record of appeal at page 6 when the victim was giving evidence in chief as well as page 7 during cross examination by the appellant in which she repeatedly said that she was scared and terrified to tell other people since the appellant warned her not to. Responding further to the criticism on unexplained delay to disclose the incident, Ms. Shabani argued that, given the nature of the offence of rape which is shameful by nature and traumatic by character, it is quite understandable that the appellant could not report the matter with promptitude. He paid homage to our previous decision in the case of Selemani Hassani v. Republic (Criminal Appeal No. 203 of 2021) [2022] TZCA 127 (22 March 2022) in which we observed that, whilst unexplained delay to report the incident may apply in cases involving property offences, it will not apply with equal force in cases concerning sexual offences. For her, given the nature of the relationship between the victim and the appellant who was her teacher in a position of authority, and,

the fact that the duo usually were in constant encounter at school it is quite understandable that the appellant could not report the matter with promptitude. Ms. Shabani summed up by contending that the victim proved penetration and this was corroborated by the clinical officer PW3 who equally proved that there was penetration while the age of the victim was proved by the victim's father PW2. She moved us to dismiss the appeal. Our starting point will be deliberation of the additional ground of appeal whose criticism is in relation to the charge sheet which Mr. Sekundi complained that it was defective. We have given the most dispassionate consideration to the rival submission by the learned trained minds and we think that, this ground poses no difficult. It bears reaffirming that, the provisions of the law relating to place of inquiry and trial are covered from section 177 to section 190 of the CPA. More specifically, section 180 of the CPA is the most relevant in the circumstances before us. For the better understanding of the provisions of section 180 of the CPA we think, it is desirable to reproduce the entire section. It reads: "180. Subjectto theprovisions o fsection 178and to the powers o f transfer conferred by sections 189,190and 191, every offence shallbe inquired into and tried, as the case may be, by a court within the locallimits o f whosejurisdiction it

was committed or within the local limits of whosejurisdiction the accusedperson was apprehended, or is in custody on a charge for the offence, or has appeared in answer to a summons lawfully issued charging him with the offence." [Emphasis added] In our careful reading and understanding of the above provisions of the law, we think that, the provision tells it all that, every offence shall be inquired into and tried where it was committed, where the accused was apprehended or is in custody on a charge for the offence. In the instant case before us, the appellant according to his own testimony at page 20 of the record of appeal he was in custody at Geita Police station before he was taken to the trial court. It follows therefore, that, in terms of section 180 of the CPA, it was appropriate for the appellant to be charged at Geita. Thus, we are decidedly of the view that the charge laid at the appellant's door step was not defective so as to render the trial emanating therefrom unfair. In the premises, this ground of appeal fails. Next, we will deliberate on the complaint that PW1 was not credible and reliable witness and therefore, it was unsafe for the trial court to convict the appellant and the first appellate court uphold that verdict relying upon her testimony. We must admit that the issue of credibility and reliability of PW1, has caused us considerable anxiety. The real

pith and marrow, is whether PW1 was truthful. We have considered the arguments placed before us and we have closely examined the records of appeal in particular the proceedings, the judgment of the trial court at page 33 of the record of appeal as well as the judgment of the first appellate court at pages 178 and 179 of the same record and considered the competing arguments in respect of this complaint. Undoubtedly, this complaint has no merit. The quest by the appellant is no more than an attempt to save his skin. We are satisfied, as the first appellate court did, that the evidence of PW1 was cogent and reliable and that the victim was telling nothing but the truth, as such we find no cogent reasons not to believe her testimony. It bears reaffirming that, true evidence of rape has to come from the victim, if an adult, that there was penetration and no consent, and in case of any other woman where consent is irrelevant, that there was penetration. See, for instance, Selemani Makumba v. Republic [2006] T.L.R.

379. This is also consistent with the provisions of section 127 (6) of the Evidence Act. Mr. Sekundi's basis of discrediting PWl's credibility was mainly premised on her delay to report the appellant. In our considered opinion, we think, with respect, that, Ms. Shabani was undeniably right to argue that there is ample evidence on record indicating that the victim was, understandably scared to reveal as the appellant had warned her not to tell anyone. Under these circumstances, and given the nature of the relationship between the victim and the appellant who was her teacher in a position of authority, and considering that they were at the same school, understandably the victim could not dare tell anyone as she repeatedly testified that she was scared owing to the appellant's warning. We must hasten to say that, and as rightly submitted by Ms. Shabani, given the nature of sexual offences it is quite understandable that the victim may not report the incident with promptitude and therefore, delayed reporting cannot be the yardstick for gauging credibility of the victim of sexual violence. This is because sexual offences are deeply disturbing and painful by nature, as they tend to significantly affect the victim psychologically while often leaving lasting emotional scars. The traumatic experience of what victims have gone through, often may shape the victim's personality and how

they interact with the world. No wonder they may hesitantly delay to report. We discussed this at considerable length in the case of Selemani Hassani v. Republic (supra) while deliberating the principle of unexplained delay in naming the suspect which brings the credibility of a witness to question and observed that: "However, we musthasten to say that, the above principle must not be made to apply reflexively without having due regard to the particular circumstances o f the case concerned. We think that while it can apply fairly unrestrictedly In respect of, say, cases involving property offences, it will not apply with equal force in cases concerning sexual offences where immaturity o f the victim, death threats or shame associated with such offences may dissuade the victim from reporting the matter with promptitude." Furthermore, in that case, we took inspiration from the observation made by the Supreme Court of the Philippines in the People of the Philippines v. SPOl Arnulfo A. Aure and SPOl Marlon H. Ferol, G.R. No. 180451, October 17, 2008 in which it observed: "Delay in reporting an incident o f rape due to death threats and shame does not affect the credibility o f the complainant nor undermine her charge o f rape. The silence o f a rape victim or her failure to disclose her misfortune to the authorities withoutloss o fmaterial time does not prove that her charge is

baseless and fabricated. It is a fact that the victim would rather privately bear the Ignominy and pain o f such an experience than reveal her shame to the world or risk the rapist's making good on his threat to hurt or kill her." [Emphasis added] To cull from the extracted holdings, when it comes to sexual offence cases, great care is required while assessing the credibility of witnesses to establish whether they are telling nothing but the truth. It is particularly more so when dealing with victims of sexual offences whose testimony may in one way or the other be affected by the psychological trauma they may have endured which often may leave lasting emotional scars. As alluded above, in the instant matter the victim was warned by the appellant who was her teacher not to dare tell anyone. Considering the relation between the duo, and the surrounding circumstances where the victim and the appellant were in regular encounter at school, and almost on daily basis, by any stretch of imagination the victim was a vulnerable person who could not be expected to reveal immediately her ordeal she endured. It is not insignificant to point out that, in the instant case no evidence at all was led to indicate that the victim was motivated by any ulterior motive in lodging the accusation against the appellant. In the light of the foregoing, it renders untenable the argument by Mr.

Sekundi that the evidence of PW1 was doubtful and incredible. We equally find that this ground has no merit. We, on a second appeal, can only vary the findings of both courts below if they completely misapprehended the substance, nature and quality of the evidence or, applied some wrong principle of the law occasioning miscarriage of justice. We are unable to find any shortcoming and, accordingly, we uphold the finding that the appellant was justifiably found guilty. Thus, for the foregoing reasons, we find this appeal to be without a semblance of merit and, in the result, we dismiss it in its entirety. DATED at MWANZA this 21st day of February, 2025. S. A. LILA

JUSTICE OF APPEAL P. F. KIHWELO

JUSTICE OF APPEAL A. A. ISSA

JUSTICE OF APPEAL The Judgment delivered this 24th day of February, 2025 in presence of appellant in person and Mr. Benedicto Ruguge, learned State Attorney for the Respondent is hereby certified as a true copy of the original.