Judgment Charles

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MWANZA AT MWANZA CRIMINAL APPEAL NO. 15781 OF 2024 (Arising from the Judgement of the District Court of Misungwi, Criminal Case No. 79 of 2023) PAULO CHARLES ……………………………………….……….……………. APPELLANT VERSUS REPUBLIC ……………………………………………………………………. RESPONDENT JUDGEMENT 29th August & 24th September 2024 CHUMA, J. In the District Court of Misungwi, at Misungwi, the appellant was arraigned for two counts of rape and impregnating a schoolgirl, respectively. The first count of rape was laid down under the provisions of sections 130 (1) (2) (e) and 131 of the Penal Code, Chapter 16 of the Revised Laws; whereas the second count was preferred under section 60A (3) of the Education Act, Cap 353 (R.E 2002) as amended by Act No. 2/2016. The particulars of the first count were that, on divers’ dates between February and March 2023 at Ukiriguru Village within Misungwi District, Mwanza the appellant did have carnal knowledge of X (pseudo name to conceal her identity) a 16 years old girl. 1 As regards the second count, the accusation was that, on diverse dates, between February and March 2023 at Ukiriguru Village within Misungwi District in Mwanza region, the appellant impregnated the said X who was then a primary school pupil. After the conclusion of the trial, the appellant was convicted on both counts. He was thereafter, sentenced to 30 years imprisonment in respect of the first count and 12 months imprisonment in respect of the second count. The sentence was ordered to run concurrently. Aggrieved with the decision of the trial Court, the appellant has preferred the present appeal to the Court on the following grounds; - 1. That the testimony of PW1 is doubtful and incredible, the trial court erred in law and fact by convicting the appellant on the first count solely based on the testimony of PW1 while the same was not coherent to amount conviction. 2. That as the particulars of the charge are opposed to the evidence on record the trial court erred in law and fact by failing to evaluate, analyze, and scrutinize the evidence of the prosecution witness which was tainted with serious contradiction enough to raise reasonable doubt to warrant a conviction on both counts. 3. That the trial court fatally erred in law and fact by failing to consider the evidence of the defence. 4. That the trial court fatally erred in law and fact by failing to take into account that the prosecution failed to prove the age of the 2 victim which is a paramount ingredient of the offence of statutory rape 5. That the prosecution case was not proved beyond reasonable doubt. At the hearing of the appeal, Messrs. Erick Kahangwa, Mr. John Edward, and Ms. Anastasia Mao, all learned counsels represented the appellant. The Respondent (Republic) on the other hand, was represented by Deogratius Rumanyika, learned State Attorney. Submitting in support of the appeal, Mr. Kahangwa argued that the lower court’s findings in respect of the first count were incorrect because PW2 was not a credible witness. To him, the trial Court stood in error to base the appellant’s conviction based on the evidence of PW2, because one; the victim named the accused person as the one who raped her after a lapse of four months from the alleged date of the incident. Two; the evidence of PW2 was contradictory. Submitting on the pointed-out flaws, Mr. Kahangwa stated that, according to the victim (PW2) she was raped on 18.2.2023, in evidence she stated to have named the appellant on 19.6.2023 about 4 months later. 3 Mr. Kahangwa went on to submit that, although the victim told the trial Court that she was threatened to be stabbed with a knife by the appellant on 18.2.2023 before being raped, the victim did not explain whether the alleged threat continued in a subsequent event. In view of Mr. Kahangwa, since the victim used to stay with her parents after classes, her failure to notify the parents about the incident raises doubt about her evidence. To cement his submission, Mr. Kahangwa cited the case of Yust Lala Vs. R Criminal Appeal No.337/2015. He also submitted that though PW2 claimed to have notified one Violate a housemaid at first on 18.2.2023 during cross- examination PW1 denied having a housemaid at his household. Submitting in respect of the second ground, Mr. Kahangwa faulted the learned trial Court for its failure to analyze the prosecution evidence. He started by submitting that, while PW2 said she was raped by the appellant thrice, during cross-examination, she testified to have told her aunt that, she was raped once. Mr. Kahangwa submitted further that, Exhibit D1 does not reflect the existence of threats not even the presence of the alleged knife. On the other hand, Mr. Kahangwa argued that while PW2 testified that she was impregnated by the appellant on 18.2.2023 and that she never had 4 sexual intercourse with anyone else from that date when she was examined by PW3 on 19.6.2023 four months later, she was found to be 5 months pregnant. To Mr. Kahangwa, this raises doubt as to whether she was raped by the appellant on 18.2.2023. While citing the case of Abel Masikiti Vs. Republic Criminal Appeal No 24/2015 and Toyidoto Kosima Vs. Republic, Criminal Appeal No 525/2021, the counsel wanted the Court to find that PW2 was not a credible witness and her evidence could not be believed. Submitting in respect of the second ground of appeal, Mr. Kahangwa faulted the trial Court’s failure to consider the defence evidence. According to him, the trial Court never considered the appellant’s stance in his defence of alibi. The trial Court never considered the appellant’s plea that he was absent from the scene of the crime on the material date as he was with his friend to watch the football match. Mr. Kahangwa also expressed his concern about the failure of the trial Court to consider the fact that PW2 was transferred from Bukoba due to bad behavior. When submitting concerning the fourth ground, Ms. Mao argued that the age of the victim was not proven. She submitted that while PW2 and 5 PW1 said the victim was 16 years old, on the other hand, PW3 said the victim was 17 years old. She therefore implored the Court to find that the age of the victim was unproved. She cited the case of Charles Makapi Vs. Republic, Criminal Appeal No 85/2012. The counsel for the appellant concluded by praying that the Court find that the case against the appellant was not proved to the required standard. As intimated earlier herein, the respondent did not support the appellant’s appeal. He therefore contended that the lower court properly convicted the appellant as charged. To him, the evidence PW2 was coherent and credible. He submitted that PW2 clearly explained that she was raped on 18.2.2023 by the appellant. She also explained how the appellant lavished her. According to Mr. Rumanyika, the victim notified one Violate on the same date though she was threatened. Citing the cases of Eliah Jordan Sanga Vs. Republic, Criminal Appeal No 52/2021 and Goodluck Kyando Vs. Republic, 2006 TLR 363, and Shabani Daud Vs. Republic, Criminal appeal No 28/2001 Mr. Rumanyika submitted that the witness's credibility based on demeanor is exclusively in the domain of the trial court. 6 In respect of the contradictions alleged by the counsel for the appellant, Mr. Rumanyika agreed with me to find that there was no contradiction whatsoever and if there is any, such contradictions are only minor ones, as they do not go to the root of the matter. He cited the case of Abdallah Rajabu Waziri Vs. Republic, Criminal Appeal No 116/2004. Mr. Rumanyika pointed out that, the alleged contradiction between the evidence of PW1 and PW2 concerning the threats is minor. While PW1 said the victim was threatened before the incident, on the other hand, PW2 said she was threatened after the incident. To Mr. Rumanyika all witnesses testified in respect of the threat irrespective of the time. To cement his submission, he cited the case of Marando Slaa Hofu and three others Vs. Republic, Criminal Appeal No 246/2011. Concerning the contradiction between PW2 and PW3 as to when the victim was raped and the age of the pregnancy, Mr. Rumanyika was quick to submit that, the contradiction is again a minor and that does not go to the root of the case. On the appellant’s complaint for the trial Court’s failure to consider the appellant’s defence, Mr. Rumanyika declined to support the 7 stance. It was his submission that the defence evidence was considered, he referred to pages 2-4 of the trial Court’s judgment. On the complaint that the age of the victim was not proven, Mr. Rumanyika submitted that, although PW3 said the victim was 17 years old, contrary to what PW1 and PW2 said, that contradiction was minor and could not defeat the intention of the Legislature in terms of section 130 (1), (2) (e) of Penal Code Cap 16 RE 2022 which was aimed to protect a person below 18 years old. Mr. Rumanyika argued that such a contradiction was minor and could not do away with the fact that at the material time, the victim was under 18 years old. He cited the case of Isaya Renatus Vs. Republic, Criminal Appeal No 542/2015. On whether the case was proved beyond a reasonable doubt, it was Mr. Rumanyika’s submission that the case was proved to the required standards by PW2. Relying on the case of Seleman Makumba Vs. Republic, 2006 TLR 376 on the principle that the best evidence in rape cases comes from the victim, Mr. Rumanyika said that the victim (PW2) explained well how the appellant lavished her a fact which was corroborated by PW1 and PW3. He, therefore, asked me to uphold the findings of the 8 trial Court and find that the case against the appellant was proved to the required standards. In rejoinder, Mr. Kahangwa reiterated his submission in chief. It is now my duty, to determine the appeal by considering the competing arguments made by the appellant and the respondent the Republic. I will start deliberating on grounds one and two together. As I have gathered, the complaint on these two grounds is based on the credibility of PW2 (the victim). The appellant has complained that the testimony of PW2 is doubtful and incredible as it was not coherent enough to amount to conviction. On the other hand, the appellant faults the trial Court for its failure to evaluate, analyze, and scrutinize the prosecution evidence which was tainted with serious contradictions. As I have already intimated, PW2 was the only witness to the occurrence of rape and her account of the occurrence. Under section 127 (7) of the Tanzania Evidence Act, Chapter 6 of the Revised Laws Edition of 2022 (TEA), a conviction may be solely grounded on the uncorroborated evidence of a child of tender age or of a victim of a sexual offence, as the case may be. 9 In the celebrated case of Selemani Makumba (supra) and Mohamed Haji Ali Vs. Director of Public Prosecution, Criminal Appeal No. 225 of 2018 [2018] TZCA 332 (13 December 2018 TanzLII) and other several decisions of the Court of Appeal, it has been emphasized about the settled law that, the best evidence in sexual offences comes from the victim. However, the Court of Appeal has at various times said that the principle is not to be taken wholesale without considering other important factors, such as the credibility of the prosecution witnesses, the reliability of their evidence, and the circumstances relevant to the case in point. In the case of Mohamed Said Vs. Republic, Criminal Appeal No. 145 of 2017 the Court of Appeal observed that it was never intended that the word of the victim of sexual offences should be taken as gospel truth but that her or his testimony should pass the test of truthfulness. Guided by the above-settled position in the case at hand, I will thoroughly scrutinize the evidence in the record to ascertain whether the prosecution witness (PW2) was credible and worthy of belief. It is evident that in convicting the appellant, the trial court heavily relied on the evidence of prosecution witnesses, in particular, the victim's (PW2) evidence. In this 10 case, PW2 mentioned the appellant to PW1 as the person who raped her. She did so after she was discovered to be pregnant. PW2 (the victim) testified that she was raped by the appellant on the 18th day of February, 2023. Her first report was made on the 19th day of June, 2023 to her aunt when she was discovered pregnant. I interpose and note here that, the delay was for about four months. In my considered view, the lapse of time between the alleged rape and the time when PW2 mentioned the appellant raises doubt and diminishes the credibility of PW2. In the case of Marwa Wangiti & Another Vs. Republic [2002], TLR 39 the Court observed that; "The ability of a witness to name a suspect at the earliest opportunity is an all-important assurance of his credibility, in the same way as unexplained delay or complete failure to do so should put a prudent court to Inquiry." See also the case of Abel Orua @ Matiku & Others Vs. Republic, Criminal Appeal No. 441 of 2020. PW2 did not mention the appellant for that period of four months. She told the trial Court that was because of a threat she received from the appellant that if she disclosed the ordeal to anybody he could stab her with a knife. However, from what I have gathered from the record and as rightly 11 submitted by Mr. Rumanyika, PW2 was not staying with the appellant, she was staying with PW1. I find it doubtful that with such a serious offence, she could not fail to tell PW1 about the incident for all that period. If that is not enough, PW2’s allegations that she was threatened by the appellant were said during cross-examination. The law is settled on the evidence stated during cross-examination that, it should not be accorded much weight. At one time, when cross-examined the victim (PW2) told the trial Court that she reported the incident to the housemaid on the 18th day of February, 2023, however, in her evidence, PW1 denied having a housemaid at her residence. On the other hand, PW2 told the trial Court that she was raped by the appellant three times, but when cross-examined, she said to have told her aunt that she was raped by the appellant once. Another shortfall that diminishes PW2’s credibility is the findings of the doctor which contradicts the victim's account. It is on record that the pregnancy was a result of the sexual affairs with the appellant on the 18 th day of February, 2023. According to PW2 she never had sexual intercourse with any other man other than the appellant. The doctor who examined the victim on 19 June, 2023 after a lapse of four (4) months testified that the 12 victim had five (5) months of pregnancy. If the victim conceived on the 18th day of February, 2023, on the 19th day of June, 2023 she was supposed to have 4 months of pregnancy and not five. With this state of evidence, the doctor's account contradicted that of the victim whose account should be rendered incredible. In the premises, the victim might probably have engaged in sexual relations with other men. While I am aware of the settled law that, every witness is entitled to credence and faith and must be believed and his testimony accepted unless there are good and compelling reasons not believing a witness as per the case of Goodluck Kyando Vs. Republic, (2006) TLR 363, however, in this case, the victim's account of the rape incident was improbable having been materially contradicted. In my considered view, PW2’s act of withholding the details of the sexual occurrence for quite a long time, and the pointed contradictions undermine her credibility. Paying homage to a cardinal principle in criminal justice, the appellant should benefit from the doubts. In view of this, I respectfully find myself unable to share the certitude of the first trial Court to the effect that PW2 was a credible and reliable witness. Had, the learned trial magistrate 13 considered these factors, she would have found that the evidence of PW2 was doubtfully, hence incredible, the result of which would have been contrary to the reached one. Since neither of the remaining witnesses claimed to have seen the appellants committing the offence which is an essential ingredient to be established by the prosecution determining the remaining grounds are likely to remain as an academic exercise as the above two grounds suffice to dispose of this appeal. However, for the sake of arguments, I will discuss them albeit briefly as here under. Regarding the non-consideration of the defence evidence, Mr. Rumanyika was of the view that it was properly considered the fact that contested by the appellants’ advocates. In my perusal, the trial court judgment narrated/ summarized the evidence of the accused but when it came to the issues raised and determination the record does not reflect the discussion of defence evidence in the trial court’s judgment. This is because the records show that he was with his friend watching a match and went home at 23:00hrs but this was not considered at all. In the cited case of Shabani Daudi (supra), the court held that; - 14 “The credibility of a witness can also be assigned in two other ways one, when assessing the coherence of the testimony of that witness and two, when the testimony of that witness is considered in relation with the evidence of other witnesses including the evidence of the accused...” Therefore, I am of the settled view that the trial court was wrong in convicting the appellant without considering his defense evidence. The reason is that his evidence appeared to suggest he was not at the scene of the crime. Lastly, on the second count of impregnating a school girl so far as Section 60A (3) of the Education Act, [CAP.353 R.E 2019] is concerned, and as submitted by Mr. Rumanyika against the appellant's counsels that DNA is not a necessity to prove that the accused raped the victim, However, in a recent position by the Court of Appeal delivered on 19 August, 2024 in the case of Joseph Gerald @ Mdomvi Vs. Republic, Criminal Appeal No 680 of 2021 it has been decided that; - “Paternity of a child is neither established by plain words nor is it inferred. It has to be proved scientifically, commonly by a DNA examination and profiling” 15 The record does not reflect that the alleged order for a DNA test was prayed and issued by the court as submitted by the appellant’s advocates. What is reflected on pages 48 and 49 of the trial court-typed proceedings is not what the appellant’s advocates are trying to persuade this court to believe and act upon. Their submission on it is out of context. Be that as it may, whether the accused prayed for a DNA test or not, it was the duty of the prosecution side to prove their case beyond the required standard. For a criminal case to be proved as in Mariki George Ngendakumana Vs. Republic, Criminal Appeal No. 353 2014 CAT- it was held that; - “It is the principle of law that in Criminal Cases the duty of the Prosecution is in two folds; one to prove that the offence was committed, and two that it is the Accused who committed it. In the premise and for the foregoing reasons, I allow the appellant’s appeal, quash his conviction, and set aside the sentences meted out against 16 him by the trial court. I hereby order his immediate release from prison unless retained there for other lawful cause. It is so ordered. DATED at Mwanza this 24th day of September, 2024. W.M. CHUMA JUDGE 17 Judgment delivered in court before Mr. John Edward and Anastazia Mao learned advocates for the appellant and Mr. Evance Kaiza State Attorney for the republic this 24th day of September, 2024. W.M. CHUMA JUDGE 18