CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA (CORAM: WAMBALI. 3.A.. MAIGE. J.A. And MURUKE. J.A.^ CRIMINAL APPEAL NO. 465 OF 2021 BUJINGWA MAZURI............ ......................................... APPELLANT

VERSUS THE REPUBLIC........................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) fSumave. SRM Ext. Jur.1 dated the 1st day of June, 2021 in RM Criminal Appeal No. 50 of 2020

JUDGMENT OF THE COURT 11th8121 st February, 2025 MURUKE. 3.A.; In the District Court of Kwimba at Ngudu, the appellant Bujingwa Mazuri, was charged with the offence of rape contrary to section 130 (2) (e) and section 131 (1) of the Penal Code Cap 16. (R.E 2002) now (R.E 2022). It was alleged in the particulars of the offence that on 7/10/2019 at about 14:00 hours, at Mwabilanda Village within Kwimba District Mwanza Region, the appellant had carnal knowledge of a girl aged 12 years. The girl shall be referred to as the victim or PW1 in order to hide her identity. I ■* A brief!account underlying the conviction of the appellant was i I accounted by the victim herself. That, on the material day, the victim was selling boiled cassava entrusted to her by her mother. The appellant I approached her and took one boiled cassava without making any payment. That, she continued with her business and upon winding up her sales, she went to the appellant's home to demand payment. On arrival, the appellant requested the victim to get inside the house in order to receive her payment. Unaware of the impending danger, the victim obliged. It is; at this juncture that the appellant got hold of the victim, laid her on the bed and had carnal knowledge of her after applying oil in her vagina that was in a small bottle. When the appellant let her go, she went to sleep over at her sister's residence. On

arrival home the next morning, the incident was reported to the local leadership leading to the arrest of the appellant and being remanded at the Police station. After being issued with PF3, the victim was taken to Ngudu Hospital on 08/10/2019 and medically examined by Doctor Bwatere Eliyabo (PW5) who found bruises on the victim vagina and hymen removed. PW5 recorded the medical findings in the PF3 which was tendered as exhibit PI. Juliana Ladislaus (PW2) a mother of the victim stated that the appellant is her in-laws in that, he married her niece. On 7.10.2019, she sent PW1 to sell boiled cassava, however that night PW1 didn't show up. Later she received information that she was at the residence of her brother in law at Ngula. On noting that, PW2 communicated with the said in law and ordered him to bring the victim. PW2 knew that, her daughter was raped as she was told by the neighbours who saw her inside the appellant's room. She then reported the matter to the hamlet chairperson. Richard Shija, (PW3) stated that he is a village/hamlet chairman of Iyuki 'B'. On 7.10. 2019 was at Village Executive Office. At around 14.00 hours, he received PW2 complaining that her daughter was raped by the appellant. WP 6703, (PW4) a police officer at Ngudu Police Station under CID office, testified that on 9.10.2019, she received a file from OC/CID in relation to the offence of rape for

investigation, by then the appellant had been arrested. Then, the appellant was arraigned before the court. On the other hand, the appellant denied each detail of the prosecution account. He claimed to have been arrested on fabricated case. He testified that, he did not rape the victim otherwise, being an H.I.V. positive he would have infected her with H.I.V. After a full trial, the trial magistrate was satisfied that the offence of rape was proved against the appellant beyond reasonable doubt. The appellant was convicted and sentenced to serve 30 years imprisonment. His first appeal to the High Court which was heard by a Senior Resident Magistrate with Extended Jurisdiction was not successful. Being dissatisfied, he has appealed to this Court fronting both substantive and supplementary memoranda of appeal, consisting fifteen (15) grounds of appeal. However, the crucial grounds are compressed into three and paraphrased as follows: 1. That the appellant was convicted based on a defective charge which cited a wrong provision o f the law.

2. That the evidence o fa victim was taken contrary to the law.

3. That the prosecution failed to prove the case beyond reasonable doubts. At the hearing, the appellant appeared in person unrepresented, whereas the respondent Republic was represented by Ms. Revina Tibilengwa, leaned Principal State Attorney assisted by Ms. Brenda Mayala, leaned State Attorney. Ms. Tibilengwa's address was the first one as the appellant had indicated his preparedness to submit by way of a rejoinder after hearing submissions from her regarding his grounds of appeal. In brief, the learned Principal State Attorney submitted on ground one, on the issue of defective charge that it is true that there is omission of citing subsection (1) of section 130 of the Penal Code. However, she argued that the omission did not prejudice the appellant as he was able to catch the proceedings and cross-examine the prosecution witnesses. She stressed that the omission is therefore curable under section 388 of the Criminal Procedure Act. Regarding the complaint that evidence of PW1 did not comply with section 127 (2) of the Evidence Act, Cap 6 the learned Principal State Attorney stated that, it is true that, as girl of 12 years of age, in the absence of a promise to tell the truth, her evidence has to be treated as unsworn evidence which would require corroboration. Besides, she stated, the victim's evidence was to be recoded in compliance with section 127 (2) which was not. She

submitted, however that the victim evidence was corroborated by evidence of Bwatare Eliyabo, a medical Doctor who examined the victim and found that she was penetrated. On ground three, learned Principal State Attorney insisted that the offence of rape was proved by the evidence of the victim after being corroborated by that of the PW5, who examined the victim and observed that she was penetrated in terms of exhibit PI. In totality, she implored us to dismiss the appeal for lack of merit. The appellant had nothing much to say. He only asked the Court to consider his grounds of appeal and allow the same as his case was framed. Having heard both sides in this appeal, it is worth noting that this is a second appeal. It is a settled position of the law that, the Court will not interfere with concurrent factual findings of the courts below, unless there has been misapprehension of the nature and quality of the evidence occasioning miscarriage of justice. For this position, see for instance, DPP v. Jaffar Mfaume Kawawa [1981] T.L.R. 149 and Isaya Mohamed Isack v. The Republic, Criminal Appeal No. 38 of 2008, Seif Mohamed E. L. Abadan v. The Republic, Criminal Appeal No. 320 of 2009 and Wankuru Mwita v. The Republic, Criminal Appeal No. 219 of 2012 (all unreported). In the latter case, the position was emphasized thus: .. The law is well-settled that on second appeal, the court w ill

not readily disturb concurrent findings o f facts by the trial court and first appellate court unless it can be shown that they are perverse, demonstrably wrong or clearly or unreasonable or are a result o f a complete misapprehension o f the substance, nature and quality o f the evidence; a violation o f some principle o flaw orprocedure or having occasioned a miscarriage o fjustice." It is also settled law that, although assessing the credibility of a witness basing on demeanor is the exclusive domain of the trial court, credibility can still be determined by the appellate court when assessing the coherence and consistency of the witness and when the evidence of such witness is considered in relation to the testimony of other witnesses, including that of an accused person. For this position, the case of Daniel Malogo Makasi & Others v. The Republic (Consolidated Criminal Appeals No. 346 of 2021) [2022] TZCA 230 (2 May 2022, TANZUI) is relevant. The other principle relevant to this case is that, in sexual offences, the best evidence is that of the victim, see Selemani Makumba v. The Republic [2006] T.L.R.

379. Moreover, in terms of section 127 (6) of the Evidence Act, (Cap. 6 R.E. 2019), the court can ground conviction basing on the evidence of the victim of sexual offence if it forms an opinion that the victim's evidence is'credible. Besides, it is settled that every witness is entitled to credence of his/her evidence unless there are good and cogent reasons to hold otherwise as expounded by the Court in Goodluck Kyando v. Republic [2006] T.L.R.

363. It is common knowledge that in cases involving statutory rape like the one at hand, it is necessary that the age of the victim be proved. In the case of Alex s/o Ndendya v. The Republic (Criminal Appeal 340 of 2017) [2020] 17CA 201 (6 May 2020, TANZLII), the Court stated that: "...in a situation where the appellant was charged with statutory rape then, age o f the victim must specifically be proved before convicting the appellant." Commencing to the first ground on the issue of defective charge, the appellant claims that the charge was defective for wrong citation of the subsection of law which creates the offence of rape. As per the charge sheet, the appellant was charged with the offence of rape contrary to sections 130 (2), (e) and 131 (1) of the Penal Code. Looking at the charging provisions, it appears that subsection (1) of section 130 has been omitted. The omission is the subject of the appellant's complaint. For ease of reference, the subsection reads thus: "130. - (1) It is an offence for a mate person to rape a g irl or a woman." The issue is whether the defect arising from non-citation of the respective subsection prevented the appellant from understanding the nature and seriousness of the offence of rape to the extent of failing to mount his proper defence thereby occasioning injustice. In our view, the particulars of the offence together with the evidence of

the victim enabled the appellant to understand the seriousness of the offence he was charged with. In the case of Jamaly Ally @ Salum v. The Republic [2019] TZCA 32 (28 February 2019, TANZLII) the appellant, made a similar complaint pertaining to wrong and non-citation of the charging provision where "sections 130 and 131 (1) (e)" had been citated 8 instead of "sections 130 (1), (2) (e) and 131 (2)". The Court, in finding the omission curable under section 388 of the CPA, made observations that the particulars of the offence and the evidence of the victim enabled the appellant to understand the seriousness of the offence. In our view, the present matter has a similar calling. Hence, this ground lacks merit. We turn to the second ground, that the evidence of PW1, a child of tender age was received in contravention of section 127 (2) of the Evidence Act. The record of appeal shows that the victim (PW1) was 12 years old, hence, in terms of section 127 (4), a child of tender age. That being the case, she is permitted to give her testimony either on oath/affirmation or without oath or affirmation provided she promise to tell the truth as envisaged by section 127 (2) of the Evidence Act. See: Godfrey Wilson v. The Republic [2019] TZCA 109 (6 May 2019, TANZUI) & Issa Salumu Nambaluka v. The Republic [2020] T.L.R.

379. Now, in the present case, PW1 was subjected to the latter option of making a promise to tell the truth. We tend to grasp that the gist of the appellant's complaint is that she did not personally make a promise to tell the truth as it is not on the record. Truly, the record of appeal indicates that the trial magistrate, in a reported speech, indicated that PW1 had promised to tell the truth without there being the actual promise by the victim. In our view, despite the omission to have on record her actual words, the statement by the trial magistrate that she made the promise, was sufficient to comply with section 127 (2) of the Evidence Act. We are inclined to hold this position based on the case of John Ngonda v. The Republic [2023] TZCA 13 (15 February 2023, TAIMZLII) where the Court stated: "Although it is shown at page 8 o f the record o f appeal that the trial magistrate did not ask any preliminary questions to determine if the witness understood the nature o foath for her to qualify to give evidence on oath, it is evident that he recorded her to have said, "I promise that I will speak the truth" before he allowed her to testify. Certainly, the trialcourt couldnotlet her testify on oath since it had not established whether she understood what an oath entailed. Nonetheless, so long as the trialmagistrate extracted the child witness'promise to speak the truth

in compliance with the law, he rightly allowed her to give evidence on the strength ofsuch promise. The appellant's twofold complaint on this aspect is plainly unfounded. We dismiss it." [Emphasis added] Similarly, in the case of Kastuli Charles @ Akoonay v. The Republic (Criminal Appeal No. 414 of 2020) [2023] TZCA 17659 (26 September 2023, TANZLII), the Court made a similar observation by stating that; 'We hasten to observe that, since from the record, PW4 promised to tell the truth and not lies thus having complied with the provisions o f s. 127 (2) o fthe Evidence Act, the fact that the trial court did not ask her questions to determine the manner in which she wouldgive evidence does not have any effect as regards the validity o fher evidence." Confronted with the similar situation, the Court in the case of Mohamed Jumanne (Criminal Appeal No. 569 of 2021) [2024] TZCA 526 (8 July 2024, TANZLII) held that: "It is glaring that the victim's promise was not preceded by any inquiry by the trialmagistrate. A follow up question is whether the absence o f the inquiry vitiated the victim's account. Ouransweris in the negative because according to section 127 (2) o f the Evidence Act, what is paramount is for the child witness to promise to tell the truth and not lies prior to giving evidence which must be reflected in the record. See: YUSUPHMOLO VS. REPUBLIC, CriminalAppealNo. 343 o

f2017 and MSIBA LEONARD MCHERE KUMWAGA VS. li REPUBLIC, Criminal Appeal No. 550 o f 2015 (unreported). In the premises, the law does not require that the inquiry preceding the promise must be recorded as suggested by the appellant. In this regard, there is no dispute that PW1 did promise to tell the truth before her evidence could be recorded. The case o f ISSA SALUM NAMBALUKA VS. REPUBLIC (supra) cited to us by the appellant is distinguishable because in that case the victim was examined on oath which is not the case in the presentmatter. Therefore, section 127 (2) was not contravened in any manner and the appellant's complaint In the 1st ground is devoid o f any merit". In a most recent decision of Ally Selemani vs. Republic (Criminal Appeal No. 303 of 2022) [2025] TZCA 16 (11 February 2025), the Court referred its decision in Kastuli Charles @ Akoonay (supra) and the insisted that: "So, we held, the omission by the trial court to indicate the record o fthe preliminaryprocedure to assess whether PW2 and PW3 were to give evidence under oath or promise to tell the truth, is not fatal." In the event, the respective second ground of appeal is without merit, thus dismissed. Complaint on ground three is whether the prosecution case was proved beyond reasonable doubts. It is settled law that, the credibility of a witness is the monopoly of the trial court that had the advantage to

.see and. observe the demeanor of a witness when adducing evidence. However, on appeal, the Court can still determine the credibility of a witness by assessing the coherence of the testimony of that witness. The court can also do so when the testimony of that witness is considered in relation to the evidence of other witnesses including that of an accused person. Moreover, among the settled criteria of determining the reliability and credibility of a witness is the ability of the victim to mention a suspect at the earliest moment. There is no dispute that, in terms of the victim evidence and PW5, medical Doctor, the victim was raped. The following question is who raped the victim. In the case under scrutiny, PW1 testified that after being raped, she went to her sister Seke. In this regard, the following matters arise. One, surprisingly by it is not on the record at all whether the victim disclosed the ordeal to her sister and or her brother in law, although she spent the night there until the following day when her mother called the victim's brother in law to return her. Two, it was expected that, PWl's sister and/or brother in law would have testified to explain as to when the victim went to them and whether she informed 13 them over the rape incident and the involvement of the appellant. However, that was not disclosed. Three and more seriously, the victim's mother mentioned

neighbors to have told her that the appellant raped her daughter, but no neighbor was called to testify on what PW2 said. Clearly, there are some missing link from when victim alleged to be raped to the following day when she returned to her mother under the alleged escort of her brother in law upon request by PW2. We understand, it is the position of the law that, it is upon the prosecution to decide who should be called as a witness and that a particular number of witnesses does not matter. However, if a person who is unreasonably not called as a witness is a material witness, the prosecution is bound to produce that witness. Failure to do so, a court may draw an adverse inference for the omission. To emphasize the point, in the case of Aziz Abdallah v. Republic (1991) T.L.R. 71, the Court stated that: "The general and well known rules is that the prosecution is under a primafacie duty to call those witnesses who, from their connection with the transaction in question, are able to testify on materialfacts. I f such witnesses are within reach but not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution." In totality, there is a serious missing link as to what happened to the victim after the alleged rape on the date of the incident, when she spent a night at her sister's place, until PW2 requested the victim's brother in law

to return the victim to her on the following day. It is therefore not know whether the victim mentioned the involvement of the appellant to her sister or brother in law being the first persons she met as the record of appeal is silent. The missing link would have been filled if the victim's sister or her brother in law, neighbours who informed PW2 that victim was raped by the appellant, or the person who arrested the appellant and took him to police was called. Failure by the prosecution to bring the above mentioned witnesses, impacts the prosecution case. This anomaly invites this Court upon the failure by the two courts below to draw an inference adverse to the prosecution case for the lack of testimonies of such important witnesses. We therefore hold that the insufficiency of the evidence of the victim on the involvement of appellant was not supported by other witnesses in view of the evidence on the record of appeal. In view of the foregoing deliberations, we are of the settled view that, the case against the appellant was not proved beyond reasonable doubt. We thus upset the concurrent findings of the two courts below and find the appeal with merit and accordingly allow it. We consequently quash conviction and set aside the sentence. Ultimately, we order that the appellant be released forthwith from prison custody unless held for some other lawful cause. DATED at MWANZA this 19th day of February, 2025. F. L. K. WAMBALI

JUSTICE OF APPEAL I. J. MAIGE

JUSTICE OF APPEAL Z. G. MURUKE

JUSTICE OF APPEAL The Judgment delivered this 21st day of February, 2025 in the presence of the appellant in person and Ms. Lilian Erasto Meli learned Senior State Attorney assisted by Ms. Sarah Perias, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the ^ ^ R. W. CHAUNGU

DEPUTY REGISTRAR

COURT OF APPEAL