KALEBl WILLIAMU MSELLA vs REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB - REGISTRY AT MOSHI DC CRIMINAL APPEAL NO. 15329 OF 2024 (Originating from Criminal Case No. 33 of 2023 of Moshi District Court at Moshi) KALEBl WILLIAM MSELLA.........................................APPELLANT VERSUS REPUBLIC................................................................RESPONDENT JUDGMENT 28/10/2024 & 10/12/2024 SIMFUKWE, J. This is an appeal against the judgment of the District Court of Moshi at Moshi (the trial court) in Criminal Case No. 33 of 2023. The appellant was 1 charged before the trial court with the offence of rape contrary to sections 130(1) (2) (e) and 131 of the Penal Code [Cap 16 R.E 2022]. It was alleged that on the 10th day of July 2022 at Kalimani Mkuyuni area within the District of Moshi in Kilimanjaro Region, the appellant had carnal knowledge of one DP a girl of 16 years of age without her consent. The facts giving rise to this appeal are as follows: The complainant, who testified as PW2, alleged that on 10th July 2022, she received a text message from the appellant instructing her to visit his residence so that he could send her to a shop. PW2 stated that she complied with the request and proceeded to the appellant's home. Upon her arrival, the appellant allegedly locked the door, removed the khanga she was wearing, tore the skin-tight she wore and sexually assaulted her. After the incident, the appellant instructed PW2 not to disclose what had transpired. However, on 18th July 2022, PW1, the complainant's mother, observed that PW2 appeared unwell and, upon inquiry, PW2 disclosed the ordeal. The matter was subsequently reported to the police, and PW2 was issued with a medical examination form (PF3). PW4, the medical doctor, testified that upon examining PW2, it was found that she was no longer a virgin. During investigation, PW3, WP 2463 2 D/SGT Happiness, stated that during interrogation the appellant denied the charges levelled against him. In his defence, the appellant denied the charges and narrated how he was arrested, alleging that he was intimidated and that the allegations were part of an attempt to deprive him of his landed property. The trial court found that the prosecution had proved its case beyond reasonable doubt. Consequently, the court convicted the appellant and sentenced him to a term of 30 years' imprisonment. In addition, the appellant was ordered to pay compensation of Tanzania Shillings Five Million (Tshs 5,000,000/=) to the victim. The appellant was aggrieved by both the conviction and sentence of the trial court. He appealed to this Court on the following grounds: 1. That, the Learned trial Magistrate grossly erred both in law and fact in failing to note that, there were variance between the charge and the evidence on record which rendered the charge not to be proved to the required standard. 2. That, the Learned trial Magistrate grossly erred both in law and fact in failing to note that the victim of the alleged 3 offence (PW1) withheld the details of an ordeal against her for quite a while and failure to disclose the same and name the Appellant at the earliest possible opportunity casts a shadow of doubts on her credibility and reliability as a witness. 3. That, the Learned trial Magistrate grossly erred both in law and fact in using weak, tenuous, contradictory, inconsistent, incredible and wholly unreliable prosecution's evidence as a basis of the Appellant's conviction. 4. That, the Learned trial Magistrate grossly erred both in law and fact in convicting and sentencing the Appellant despite the charge being not proved beyond reasonable doubt against the Appellant and to the required standard by the law i.e. to the hilt. At the hearing of this appeal, the appellant was unrepresented whereas the respondent/Republic was represented by Ms Ruth E. Kamola, learned State Attorney. 4 Supporting the first ground of appeal regarding the variance between the charge and evidence on record, the appellant pointed out that the charge indicates that the offence was committed at Kalimani Mkuyuni area. However, when the victim testified, she stated that she resides at Kalimani Makuyuni and that the incident took place at the appellant's home. That, according to the appellant's evidence at page 21 of the typed proceedings, he resides at Msufini village, which is the location where the incident occurred. Fortifying the point of variance between the charge and the evidence on record, the appellant made reference to the case of Salim Abdallah Maganga v. Republic, Criminal Appeal No. 285 of 2020, at page 6, which cited the case of Noel Gurth @ Bainth and Another v. Republic, Criminal Appeal No. 339 of 2013 (unreported). The appellant urged the court to amplify the findings of the cited cases and find that the charge against him was not proved to the required standard. On the second ground of appeal, the appellant faulted the trial magistrate for failing to note that the victim withheld the ordeal and failed to disclose it at the earliest possible time. The appellant argued that it is now trite law that the credibility and reliability of a witness is enhanced by the ability 5 of a witness to disclose the ordeal and name the suspect at the earliest possible opportunity. The appellant was of the view that in the case at hand, the victim (PW2) withheld the information of the alleged ordeal against her for a long period for no apparent reason. The incident occurred on 10th July 2022, but it was not reported until 18th July 2022, when the victim disclosed it to her mother. The appellant contended that, had it not been for the victim’s sickness, the alleged offence would have remained a secret. According to the appellant, this fact supports his averment that the case was fabricated against him. He further cited the case of Sadiki Hamis @ Rushikana and 2 Others v. Republic, Criminal Appeals No. 381, 382 and 383 of 2017, at pages 13-16, to support his argument. The appellant implored the court to find that the victim was a self- confessed liar whose evidence was suspect and unreliable due to her failure to disclose the incident for more than seven days. He asserted that her evidence could not be relied upon to form the basis of a conviction, and implored the court to disregard it. Further, the appellant urged the court to hold that the trial court had relied upon weak, tenuous, incredible, and wholly unreliable evidence in 6 convicting him. He submitted that the prosecution had failed to discharge its duty of proving the case beyond reasonable doubt. In conclusion, the appellant prayed the court to find merit in his appeal, allow the appeal, quash the conviction, set aside the sentence, and set him at liberty. In reply, the learned State Attorney disputed the raised grounds of appeal vehemently. Responding to the first ground of appeal Ms. Ruth submitted that there was no variance between the charge sheet and evidence concerning the place of the commission of the offence. The learned Sate Attorney noted that the charge indicated that the offence of rape was committed at Kalimani Mkuyuni area. The same was supported by the evidence of PW2 on page 11 of the typed proceedings, who testified to be a resident of Kalimani Mkuyuni. That, evidence of PW1 corroborated that of PW2 and the charge, since PW1 stated to be a resident of Msufini, Kalimani. Moreover, the appellant, in his defense as DW1 on page 21 of the typed proceedings, stated that he was a resident of Msufini village within Kalimani street. Ms. Ruth submitted further that PW2, during her testimony on pages 11 and 12 of the typed proceedings, was not cross-examined by the appellant 7 regarding the place where the offence was committed. The learned State attorney cited the case of Nyerere Nyague vs The Republic, Criminal Appeal No. 67 of 2010, CAT Arusha. She was of the opinion that based on the evidence of PW1, PW2, and the accused, it is clear that there was no variance between the charge sheet and evidence. Regarding the second ground of appeal, the learned State Attorney asserted that the victim, PW2, had initially withheld details of the ordeal for a while but did not fail to disclose the same and the name of the appellant at the earliest possible opportunity. It was stated that PW2 testified that the appellant raped her and then forbade her not to disclose the news to anyone else. PW2 gave the reason that made her withhold the information of the alleged rape. Ms. Ruth was of the opinion that the delay was justified since the victim adhered to the appellants advise. Ms. Ruth went further submitting that PW2’s account was corroborated by her mother, PW1, who testified that PW2 disclosed to her that the appellant raped her after pushing her on the bed. That, PW1’s evidence, as recorded on page 10 of the typed proceedings, aligned with PW2’s evidence. Furthermore, the learned State Attorney referred to the evidence of PW4, a doctor who examined PW2 and found her no longer a 8 virgin, indicating penetration. She cited the case of Marwa Wangiti & Another vs Republic [2002] TLR 39, which cited the case of Salum Seif Mkandambili vs Republic, Criminal Appeal No. 128 of 2019 CAT which held that: “The ability of a witness to name a suspect at the earliest opportunity is an important assurance of his reliability, in the same way as unexplained delay or complete failure to do so should put a prudent court to inquiry.” The learned State Attorney continued to argue that PW2 was a credible witness who identified her perpetrator and she conveyed a message after one week because she adhered to the appellant’s advise of not disclosing the act to anyone. Ms Kamola commented that the delay was justifiable making the evidence of the victim strong, credible and reliable. Addressing the third and fourth grounds of appeal, Ms. Ruth opposed the appellant’s allegations that the trial Magistrate relied on weak or inconsistent evidence. She maintained that the prosecution presented watertight, credible, and reliable evidence. She supported her submission with the case of Nhembo Ndaru vs Republic, Criminal Appeal No. 33 of 2005 which was cited in the case of Omary Athuman @ Magari and 9 Another vs Republic, Criminal Appeal No. 398 of 2019, CAT which held that: “Relevant to the fact or facts in issues, admissible, credible, plausible, cogent and convincing as to leave no room for reasonable doubt.” The learned State Attorney continued to state that the offence was alleged to have been committed during the day and that the appellant was not a stranger to PW2, as both were residents of the same street, Kalimani. It was further stated that, according to PW1, the appellant was her brother- in-law and thus PW2's paternal uncle. According to Ms. Ruth, this made the evidence one of recognition, which is reliable and free from mistaken identity or fabrication. In addition, it was noted that the offence of rape occurred at Kalimani Mkuyuni, where PW1, PW2, and the appellant resided, in the same vicinity, as reflected in their evidence. Regarding the appellant's submission under the fourth ground that the trial magistrate erred in convicting and sentencing him despite the charge not being proven beyond reasonable doubt; Ms. Ruth reminded the court that the appellant had been charged with rape contrary to sections 130(1)(2)(e) and 131(1) of the Penal Code (supra). She asserted 10 that the prosecution had proven the charge. It was highlighted that the offence was one of statutory rape, and the age of the victim was established through her testimony, as recorded on pages 11 and 12 of the trial court proceedings, where she stated that she was 17 years old. Moreover, the learned State Attorney emphasized that penetration had been proven through the victim's testimony, when she described how the appellant inserted his male organ into her female organ. Ms Kamola made reference to the case of Selemani Makumba vs Republic [2006] TLR 379 which held that the best evidence in rape cases comes from the victim. She argued that the victim's evidence at page 11 and 12 of the proceedings which was supported by the testimony of PW4 on page 18 of the proceedings, clearly pointed to the appellant's guilt. In conclusion, Ms. Ruth argued that the prosecution had sufficiently proved its case beyond reasonable doubt, as all elements of the offence were properly adduced. She prayed that the court dismiss the appeal and uphold the conviction and sentence imposed by the trial court. Having summarised what was argued for and against the appeal, the trial court records and the grounds of appeal, I now turn to the merit or otherwise of this appeal. I will determine the grounds of appeals seriatim. 11 On the first ground of appeal, the appellant contended that the charge was at variance with the evidence on record regarding the location where the offence was committed. He centred his argument on the claim that, while his residence is at Msufini, the victim alleged that the incident occurred at his home, whereas the charge specifies that the offence occurred at Kalimani Mkuyuni area. He said, this constituted a discrepancy. The averments were refuted by Ms. Ruth, who submitted that no such variance existed, as the appellant himself stated that he resided at Msufini Village within Kalimani Street. Upon a thorough review of the proceedings, I find no evidence of the alleged variance. At page 22 of the typed proceedings, in his defence, the appellant introduced himself as a resident of Msufini Village, Kalimani Street. Furthermore, the charge specifies that the offence was committed at Kalimani Mkuyuni area. During cross-examination, the appellant acknowledged that the victim was his neighbour. Thus, the claim of variance between the charge and the evidence regarding the location of commission of the offence is unfounded and without merit. 12 The next ground for determination pertains to the appellant's contention that the incident was not reported at the earliest possible opportunity. In this ground, the appellant questioned the credibility of the witness, emphasizing her failure to report the matter at the earliest possible opportunity. Ms. Ruth opposed this argument, asserting that the delay in reporting was due to the fact that the victim was following the advice given by the appellant. Having gone through the entire evidence in conjunction with the judgment, I am mindful of the well-established principle that, in cases of sexual offences, the best evidence often comes from the victim, as correctly submitted by Ms. Ruth for the respondent. However, it is equally important to note that this principle does not operate as rule of the thumb. The court has always clarified that the victim's testimony must be subjected to the test of truthfulness to ensure its reliability. In the case of Mohamed Said vs Republic (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (23 August 2019) Tanzlii the Court of Appeal had this to say: 13 “…it was never intended that the word of the victim of sexual offence should be taken as gospel truth but that her or his testimony should pass the test of truthfulness.’’ I am also cognizant of the settled legal principle that a conviction in a sexual offence case can be based solely on the uncorroborated evidence of the victim, provided the court is satisfied that the victim is truthful. This principle is rooted in Section 127(6) of the Evidence Act, Cap. 6 [R.E. 2022], which provides that: “Notwithstanding the preceding provisions of this section, where in criminal proceedings involving sexual offence the only independent evidence is that of a child of tender age or of a victim of the sexual offence, the court shall receive the evidence, and may, after assessing the credibility of the evidence of the child of tender years as the case may be the victim of sexual offence on its own merits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceedings, the court is satisfied that the child of tender 14 age or the victim of the sexual offence is telling nothing but the truth.” One of the factors that gives credibility to the victims of sexual offences is their ability to name the suspect at the earliest possible opportunity. In the case of Lameck Bazil & Another vs Republic (Criminal Appeal No. 479 of 2016) [2018] TZCA 191 [Tanzlii] at page 14, the Court of Appeal held that: “...the ability of the witness to name the suspect at the earliest opportunity is an important assurance of his reliability; and in the same way unexplained delay or complete failure to report must put a prudent court to inquiry." In the present matter, the trial court observed that the ordeal was not reported at the earliest possible time. Although, at page 8 of the trial court judgment, the court acknowledged the established principle that the best evidence in sexual offences comes from the victim, it is regrettable that it did not adequately assess the victim’s credibility particularly on the issue of failure to report the incidence. This is particularly significant because credibility is the monopoly of the trial court, which is best positioned to 15 evaluate the demeanour and truthfulness of witnesses. See the case of Shaban Daud vs The Republic, Criminal Appeal No. 28 of 2000 (unreported) In the present matter, according to the victim’s evidence, it is apparent that at the time of the alleged offence, the victim was 16 years old and was approaching the age of majority. The record further shows that the appellant did not threaten the victim but merely forbade her from disclosing the ordeal. This court observes that the victim failed to provide a reasonable explanation for her delay in revealing the incident to anyone. The ordeal was disclosed only after the victim’s mother inquired upon noticing that the victim was not okay. It is the opinion of this court that had it been not the mother’s inquiry, the ordeal might have never been revealed. The victim's failure to disclose the ordeal promptly casts doubt on her credibility and undermines the prosecution’s case. Consequently, the prosecution has failed to prove its case beyond reasonable doubt. In light of the foregoing, the appeal is allowed. The appellant's conviction is hereby quashed, and the sentence and compensation order are set 16 aside. The appellant is ordered to be released from custody forthwith, unless lawfully held on other grounds. It is so ordered. Dated and delivered at Moshi this 10th day of December 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 10/12/2024 17