Judgment Chrispian Joseph VS DPP

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 14558 /2024 {Arising from criminal case No.5/2023 of Mbuiu District court) THE DIRECTOR OF PUBLIC PROSECUTIONS................ APPELLANT VERSUS CHRISPIAN JOSEPH @LAGWEN............................... RESPONDENT JUDGMENT 2&hJune & 12th July, 2024. Kahyoza, J.: Chrispian Joseph @ Lagwen, the respondent, was charged with the offence of rape, found not guilty and acquitted. Aggrieved, the prosecution appealed to this court contending that trial magistrate erred to acquit the respondent on contradictions which did not go to the root of the case and to hold that the prosecution did not prove the case beyond reasonable doubt. The issue is whether the prosecution proved the case beyond reasonable doubt against Chrispian Joseph @ Lagwen. According to the victim's evidence, after she came from farming tired she slept under a tree. She had no underpants. The respondent took advantage of the victim's sleeping outside at 10:00am and raped. He managed to escape when he was saw the victim's daughter approaching. The respondent denied the allegations. This is a first appeal where the court's duty is to re-appraise, re­ assess and re-analyze the evidence on the record before us and arrive at our own conclusions on the matter and give reasons either way. The parties to the appeal argued orally in support and opposition of the appeal. Mr. Johnson Ndibalema, learned State Attorney appeared for the appellant, whereas the respondent appeared in person, unrepresented. Mr Johnson argued in support of the appeal, that the trial court erred in law and fact, to conclude that the prosecution's evidence was contradictory. He argued that the contradictions, if any, did not go to the root of the matter. He added that the court failed to appreciate the fact that the offence of rape is committed in privacy so victim's evidence does not need corroboration. The respondent supported the trial court's judgment that indeed the whole evidence was contradictory. The prosecution witnesses testified quite differently from each other. It is settled that in a criminal case like this one, that burden is always on the prosecution; it never shifts and no duty is cast on the respondent to establish his innocence. The appellant who was the prosecution had a 2 duty to establish the case beyond reasonable doubt. Inconsistencies and contradictions in the prosecution's case may weaken its case if they go to root of the matter. The court has a duty where the testimonies by witnesses contain inconsistencies and contradictions to address the inconsistencies and try to resolve them where possible; else the court should decide whether the inconsistencies and contradictions are only minor, or whether they go to the root of the matter. There is no doubt that in the presence case there were contradictions. Mr Johnson, the learned state attorney argued that the contradiction in the present case ought to have been ignored as the offence of rape can be proved by evidence of the sole witness, the victim of rape. To support his contention, he cited Mgonchori (bonchori) Mwita Gesine vs R., (Criminal Appeal 410 of 2017) [2021] TZCA 173 (5 May 2021). I wish to point out here that I had an opportunity to read Mgonchori (bonchori) Mwita Gesine vs R., unfortunately I found no relevancy to the case at hand. The case cited was a judgment in murder case where the conviction was grounded on circumstantial evidence and the appellant's confession admitted without objection. The case under consideration involves the offence of rape and there is circumstantial evidence. I also wish to add that it is settled that the victim's evidence is 3 the best in sexual offence. See Selemani Makumba vs Republic [2006] TLR 379. Thus, the court may rely on the victim's sole evidence to convict. It is also settled that the evidence of the victim of sexual offences should not be taken as a biblical truth it must be subjected to scrutiny to test the witness' credibility. See the Mohamed Said v. R., Cr. Appeal No. 145/2017 and Akwino Malata vs Republic (Criminal Appeal No. 438 of 2019) [2021] TZCA 506 (21 September 2021). The Court of Appeal in the latter case had this to say- "This is a principle of law to the effect that the evidence of sexual offence has to come from the victim and if the court is satisfied that the victim is telling the truth it can convict without requiring any corroborative evidence.” Much as agree with the state attorney that in sexual offences, the best evidence is that if the victim and the court may rely on that sole evidence to convict, but that evidence must be credible. It is vital to scrutinize the evidence to determine if it is credible because sexual offences are very easy to allege and hard to prove and much harder, for the accused to defend himself. The Court of Appeal in Mohamed Said vs R., (supra) cited with approval a passage of a Supreme Court of Philippines in the case of People of The Philippines vs Benjamin A. Elmancil, G. R. No. 234951, dated March, 2019 in which the Court where it was observed that- 4 "In reviewing rape cases, this Court has constantly been guided by three principles, to wit: (1) an accusation of rape can be made with facility; difficult to prove but more difficult for the person accused though innocent to disprove; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits and cannot draw strength from the weakness of the evidence for the defence. And as a result of these guiding principles, credibility of the complainant becomes the single most important issue. If the testimony of the victim is credible, convincing and consistent with human nature and the normal course of things the accused may be convicted solely on the basis thereof" It is on record that respondent raped the victim who was 67 years old at 10:00am. She testified that Bahati (Pw3), the victim's daughter who testified as Bahati (Pw3), arrived at the scene of the crime and saw the respondent committing the offence. She became unconscious. When she regained her consciousness, she went in her house changed clothes and went to hospital. She alleged that she bled and was unable to walk properly. During cross-examination, the victim deposed that neighbours case at the scene of crime responding to a call for held Bahati (Pw3) raised. Bahati (Pw3) deposed she went to the victim's house where she found the victim and the respondent. She saw the respondent running to 5 his home while her mother was lying bleeding profoundly. She notified her elder sister and later in the evening they went to Haydom police station, interrogated and issued with the PF3. In her cross-examination, Bahati (Pw3) refuted to raise alarm. During the re-examination in chief, Bahati (Pw3) deposed that she was informed by the victim that the respondent raped her. It is clear as daylight that there were contradictions, which went to the root of the matter and weaken the credibility of the victim. The victim alleged that Bahati (Pw3) saw the respondent committing the offence and raised a call for help and neighbours responded. While, Bahati (Pw3)'s evidence was that she saw the respondent running to his home place. She did not witness the accused person committing the offence or raise alarm to call for help. If the victim can lie that Bahati (Pw3) saw the respondent committing the offence and that Bahati (Pw3) raised alarm, what prevents her to lie that the respondent raped her. It should not escape our mind that an accusation of rape can be made with facility; difficult to prove but more difficult for the person accused though innocent to disprove. As if the above is not enough to expose the victim's false allegation, the victim deposed that she went to hospital after she gained consciousness but Bahati (Pw3) deposed that she notified her elder sister 6 what had happened and in the evening, they went to Haydom police station to report. The police gave them a PF.3. They then went to hospital. Dr Simon Tajiri (Pw4) deposed that he attended the victim at 23:00hrs. He contended that a blunt object penetrated the victim's private parts as he saw bruises and laceration. I was unable to believe the victim's evidence that she was raped at 10:00hrs and that she sustained injuries went to hospital at 23:00hrs. Had that been true, that she was injured, she would not have delayed to go to hospital until 23:00hrs. In addition, Bahati (Pw3) deposed that the victim bled excessively. I was unable to find truth in her evidence for two reasons; one, if the victim was bleeding excessively as she put it, why did she delay to take her to hospital until 23:00hrs; two, I doubt if it was true that the victim aged 67 years bled because a blunt object was forced to penetrate her private parts. Dr Simon Tajiri (Pw4) deposed that the victim suffered bruises and laceration, the doctor did not explain what was the cause of excessive bleeding if any. I am of the firm opinion that the prosecution's evidence was fabricated than real. Like the trial court, I find that the contradictions in the prosecution's evidence weakened the victim's credibility. I dismiss the first ground of appeal. The second ground of appeal raised the issue whether the appellant proved the case beyond reasonable doubt. The appellant took a position 7 that the victim's evidence proved that the respondent penetrated her. The learned state attorney sought to rely on the settled position of the law that the victim's evidence is the best evidence in sexual offence. I totally agree with the state attorney that the best evidence in sexual offence is the victim's evidence, however, for the court to convict, the victim's evidence must be credible and probable. As shown above the victim's evidence is not credible and probable. In the case of Rashid Ally Kimage V. R., (Criminal Appeal No. 107 of 2022) [2024] TZCA 490, the Court of Appeal laid down the principles of determining credibility. It stated- "The credibility of a witness can be determined in two other ways; one, when assessing the coherence of the testimony of that witness; two, when the testimony is considered in relation to the evidence of other witnesses, including that of the accused person". The victim's evidence is not credible when considered with the evidence of other witnesses and considered alone it is not coherent. Why did she take thirteen hours to report go to hospital? Why did she tell lies that her daughter saw the respondent committing the offence when it was false? Why did she lie that her daughter shouted for help when she found the respondent committing the offence? The victim's daughter refuted on 8 oath, the allegations that she saw the respondent committing the offence and that she cried for help. The respondent's defence raised doubt in the prosecution's defence. The respondent's defence was that the victim framed up the case after he demanded his wages from the victim. There is no doubt that the respondent was working for the victim. It is in the victim's evidence that before the incident the respondent worked for her and she paid him Tzs. 7,000,000.00. Given the nature of the prosecution's evidence and the circumstances as to how the offence was committed, the respondent's defence that the victim fabricated evidence cannot be taken lightly. It is doubtful if the respondent raped the victim. I find and uphold the trial court's holding that the prosecution did not prove the case beyond reasonable doubt. In the end, I find the appeal without merit and dismiss it. I uphold the respondent's acquittal. It is ordered accordingly. Dated at Babati, this 12th day of Ji/Jy, 2024 J. R. Kahyoza JUDGE 9 Court: Judgement delivered in the virtual presence of Mr Bizimana, State Attorney for the appellant and the respondent. B/C. Ms. Fatina (RMA) present virtually. /) , J. R. Kahyoza JUDGE 12.7.2024 10