Judg

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY CRIMINAL APPEAL No 24034 OF 2024 Originating from the Judgment conviction and Sentence in Criminal Case No. 17 of 2023, delivered on 9th July 2024 at Temeke District Court, Hon. J.M. Ngeka - SRM ALLY SALEHE ZAKARIA@SHEHE ALLY..............................................APPELLANT VERSUS REPUBLIC................................................................................... RESPONDENT: JUDGMENT. 25th Nov 2024 & 17th Feb 2025. KIREKIANO J: Before the District Court of Temeke, the appellant herein was charged with the offence of rape c/s 130 (1) and 2 (e) and 131 of the Penal Code CAP 16 [R.E 2022]. According to the charge laid against him, it was alleged that, on diverse dates between October 2022 and 26/12/2022 at Mbagala Temeke, the appellant did have carnal knowledge of a girl aged 4 years old. The girl’s name was named in the charge and the proceedings however I shall sufficiently refer to her as “the victim” in this judgment. 1 The appellant pleaded not guilty to the charge. The prosecution side procured the attendance of five witnesses; PW1 Nasra Said, PW2 the victim, PW3 Juma Mzua, PW4 WP 3884 D Sgnt. Agness and PW5 Dr Isabela Ipopo. The substance of the evidence which led to the appellant's arrest and prosecution was that; the victim (PW2) is the daughter of (PW1) Nasra Saidi. The appellant was PW1's brother-in-law, and the appellant and his wife were PW1's guests between October 22, 2022, and 26, December 2022. They stayed together. In November of that year, PW1 Nasra suspected some suspicious staff coming from the victim's private parts. This was repeated and on 5/12/2022, she reported to her husband (PW3). Acting on her husband’s advice she referred the victim to a private hospital and got treatment and there were no more details on this. Again on 26/12/2022 at 18:00 hrs, she found the victim looking sick and weary and when she asked her, she said that she was not sick. When she inspected her, she found what she suspected to be spermatozoa and some were on the bed where the victim slept. This time the victim was taken to Kizuiani government hospital. She was examined by one Dr Malaki who prepared the report in the PF3 (Exhibit 2 P1) on 29.12.2022. Unfortunately, he passed away. According to record the PF3 was tendered by PW5 Dr Isabela. The same had opined that there was evidence of penetration of the victims’ genitals. The PF 3 was admitted as Exhibit P1. According to the victim, PW2 the appellant inserted his manhood to her genitals. This happened when she slept with the appellant as her mother was absent. When cross examined by the appellant she said, she was taught by her mother to say so, her father did not teach her to say lies. There was also piece of evidence for PW3 the victim’s father and appellant brother, according to him, his wife PW1 informed about what happened to the victim and showed a video clip of how the appellant admitted raping the victim. The said clip was not tendered as evidence. The case was investigated by PW4 D. Sgnt Agness. According to her, when assigned the case, the appellant was already arrested, and she then recorded the statement of the witnesses. She said the victim told her that the accused followed her at the room and told her that there was a bug in her genital instead of removing it, he penetrated her. As such, she gathered from PW1 that one Doto was instructed to bathe the victim. As such, 3 according to the scene of the crime, the house was both used by the appellant and the victim. She said at the scene; a landlady also informed her that the appellant admitted raping the victim and prayed for forgiveness. On his part, the appellant said it is true he stayed with PW1; he was sleeping in a room different from the one used by the victim and PW1. Later on, he started working at the port, and his sister-in-law (PW1) was not happy seeing him working at the port; thus, this was a fake case. He said he was not in Dar es Salaam on the date of the offence, in stead he was at Iringa. According to him he stayed at Pw1 residence for two days from 19.11. 2022. Based on the above the trial court found that the prosecution case was credible, it believed the evidence of the victim and that the same was corroborated by the evidence of the doctor PW4. As such the trial court rejected the appellant defence of alibi holding that notwithstanding lack of the notice, the same was not convincing. The trial court thus convicted the appellant and sentenced him to serve life imprisonment in jail. The appellant being dissatisfied with the proceedings, judgment, conviction and sentence of the trial Court, preferred this appeal on the following three grounds; 4 1. That the trial Court erred in law and fact by denying the Appellant’s right to cross examine the 1st Prosecution witness (PW1). 2. That the trial Court erred in law and facts by omitting part of testimony by PW2 who denied openly to have been victimized by the Appellant. 3. That the trial Court erred in law and facts by convicting and sentencing the Appellant while the prosecution case was not proved beyond reasonable doubt. During hearing the appellant had service of Mr Tumaini Mfinanga learned advocate while the respondent had service of Miss Jackline Werema learned senior state attorney. In his submission Mr Mfinanga submitted that, according to record the appellant did not cross-examine PW1. Failure by the trial court to afford the appellant this opportunity was inconsistent with his constitutional right which is also clearly echoed under Section 290 of the Criminal Procedure Act. He cited Charles s/o Kidaha and Two Others Vs Republic, Criminal Appeal No. 395 of 2018. He argued this court to nullify the Judgment and set aside the conviction. 5 On the second ground, he argued that the evidence of PW2 (the victim) was not reliable enough to convict the appellant. When cross examined by the counsel for the appellant, PW2 clearly admitted to have been taught by PW1 (her mother) to testify the way she did. He said there was missing answers of PW2 on record. Thus, the trial court wrongly applied the principle laid down in the case of Selemani Makumba Vs Republic [2006] TLR 379. He also argued without indicating that there were discrepancies in the evidence of the victim. He Cited Lucas Kapinga & Two Others Vs Republic [2006] TLR 374, that a prosecution witness who changes his story on an important aspect of the case is not a credible and truthful witness. On the third ground, Mr Mfinanga argued that PW4 testified that the appellant confessed in the presence of the Land Lady to have raped PW2. As such, PW1 said it was the housemaid who saw sperm in the victim’s genital but the said landlady and the housemaid were not among the prosecution witnesses; thus, because of the decision in Aziz Abdallah Vs Republic [1991] TLR, 71, it affected the prosecution case. 6 He said the evidence of PW2 is uncorroborated as the purported medical examination report (Exhibit Pl) was conducted days after incident hence unreliable. He cited Mtasingwa Gaspar Vs Republic, Criminal Appeal No. 50 of 2021, High Court, Bukoba (unreported) it was held that “done after three days from the date of alleged rape cannot reveal anything to prove rape. On part of the respondent Miss Werema contested the appeal. She responded on the first ground that the appellant did cross-examine PWI as it is seen in the original court records. On the second ground, she argued that the appellant submission did not prove that part of the victim's testimony had been omitted. She said PW2 testified that, her mother told her to say so, but this piece of reply is broad and can not be used to conclude that the whole testimony of the victim was adduced due to coaching. On the third ground, she argued that it is not disputed that the victim was below 10 years this was proved by her mother hence proper person to establish the victim’s age she cited. Isaya Renatus V. Republic, Criminal Appeal No. 54 Of 2015 Unreported). According to her, the victim PW2 7 clearly stated how the appellant had penetrated his penis in her vagina while giving testimony in court as seen in the proceedings. She stated that the choice of words “mdudu” was not a problem citing Haruna Mtasiwa Vs Republic Criminal Appeal NO. 206 OF 2018 in which the court looked at the circumstances of each case including cultural background, upbringing, and age of the victim. As such the respondent observed that, there was non-compliance with section 231(1)(a) and (b) of the Criminal Procedure Act and argued that there was no prejudice to the appellant as he was represented by an advocate, one Mr. Tumaini Mfinanga. Thus, no miscarriage of justice could be expected to have been occasioned because the appellant had the advantage of being guided by his advocate. She cited decision in Safari Anthony @ Mtelemko & Another V. Republic, Criminal Appeal No. 404 Of 2021 (Unreported) where the Court insisted on what it referred to as the justice-driven test in resolving procedural violations, that is to say, inquire if the accused has been prejudiced. 8 In rejoinder the appellant counsel maintained that going by the typed proceedings there was no record of cross examination accorded to the appellant On the second ground he said PW2 statement that she was taught by PW1 her mother to say as she did was clear evidence that what was purported to be the evidence of PW2 was a fabricated. On delayed medical examination, argued that the medical examination supporting penetration must be done as soon as possible after the alleged rape. In this case, three days raise a lot of doubts. On my part, I wish to start with the pertinent issue raised by Miss Werema on non-compliance with Section 231 of the Criminal Procedure Act, Cap 20 [R.E2022]. More specifically, this section requires that where it appears to the court that a case is made against the accused person sufficiently to require him to make a defence either in relation to the offence with which he is charged or in relation to any other offence of which, the court is required to inform the accused if he wishes to call witness in his defence. The court is further obliged to ask the accused person or his advocate if he intends to exercise that right. 9 It is the position of law that noncompliance with this procedure vitiates the proceedings. see Mathias s/o Juma Kulaba vs The Republic (DC. Criminal Appeal No. 67 of 2023) [2024] TZHC 2372 (10 May 2024) citing Bahati Makeja V. R, Criminal Appeal NO. 113 OF2006 Now, in this appeal, reading from the respondent's submission, it appears that Miss Werema believed that the trial court proceeded with total disregard for the procedure. For unknown reasons, Mr Mfinanga did not address this in his rejoinder. I have revisited the proceedings of the trial court the same shows that on 18.6.2024, after the closure of the prosecution case, the trial magistrate made a ruling finding the appellant to have a case to answer on a charge of rape as charged. As such, before the defense hearing, the charge was again read over to him, and he maintained a plea of not guilty and entered defense on oath. What is missing on the record is the record of this option on entering defense on oath or otherwise. Having considered the above circumstances, and in the absence of complaint that the appellant was prejudiced, I thus agree with Miss Werema to take the view that the shortcoming to the extent indicated did not cause 10 any injustice to the appellant. Anthony @ Mtelemko & Another (supra considered) Now on the first ground, I have revisited the original hand written record of the trial court. The same shows the appellant was accorded opportunity to cross examine PW1. As rightly submitted by Miss Werema, the appellant did cross-examine PWI, and she responded, “The child mentioned you to be the one who raped her. You admitted to rape the child” I note that the typed record misses the above. However, having raised this in his reply submission, the appellant counsel ought to have verified himself and made his case in case of a contrary view. Thus, this ground lacks merit and fails. On the second ground, the appellant complained that the trial court omitted part of the testimony by PW2 evidence, stating that this witness denied to have been abused. The argument by the appellant has the effect of questioning the record of the trial court. However, the principle regarding a court record is that the same is taken to reflect an actual position of what took place during the proceedings and cannot be easily impeached. This was 11 the position as held in the case of Iddy Salum @ Fredy vs Republic Criminal Appeal 192 of 2018 [2020] TZCA 1853 (18 November 2020) citing Halfani Sudi v. Abieza Chichili [1998] T.L.R. 527 that; "There is always a presumption that a court record accurately represents what happened... a court record is a serious document; it should not be lightly impeached." Based on the above-stated reasons, I see no merit in this complaint. The appellant also argued that PW2 testimony was unreliable in finding a conviction on the appellant. Proof of penetration is an essential element in the offence of rape. With that note, I wish to highlight here that, to answer the question of whether the appellant penetrated the victim, the best evidence is that of the victim. This was the position in Selemani Makumba v. Republic [2006] T.L.R 379 relied on by the trial court. I am also aware that the victim's evidence should not be taken as gospel truth, but her testimony should pass the test of truthfulness. See CAT decision in Mohamed Said v. the Republic, Criminal Appeal No. 145 of 2017 (unreported). In this appeal, the victim was a child of tender years (4 years). In Issa Reji Mafita v. R. (Criminal Appeal 337 of 2020) [2021] TZCA 404 (24 August 2021), the court of appeal 12 amplified that the court can not base its conviction solely on the evidence of a child of tender years or the victim of the crime unless it is satisfied itself that the same is credible and probable as to leave no reasonable doubt. That being the legal foundation, I now turn to the testimony of PW2, which is at issue. The victim's story was brief; she said the appellant penetrated her, and this happened when her mother was away. When cross- examined, she said, “my mother had taught me to say so. She told me while we were at home .... “ Mr Mfinanga argued that this evidence can not be relied upon as she was couched. I have given consideration to Miss Werema's view that the witness's reply was broad and should not necessarily mean that she was couched. With respect, I am not convinced to take that path because, in the absence of re-examination by the prosecutor requiring this witness to clarify her depositions, the meaning of what she said can go either way. Evidence, capable of different meanings, is akin to gambling on the appellant's innocence. There is a litany of authorities to the effect that the best evidence in sexual offences is that of the victim. This position shoulders a burden on the victims, the prosecutor, and the defence to assist the court 13 before deciding to believe the victim in determining the fate of the accused in such a serious offence. The way the prosecutor led the victim on this was wanting, leaving the victim's story wabbling. There is also an argument on the failure of the prosecution to summon two witnesses, a landlord and a housemaid. He cited HEMED SAID vs MOHAMED MBILU (1914) T.L.R 113 that where, for undisclosed reasons, a party fails to call a material witness on his side, the court can draw an inference on the prosecution case. I have considered the decision in Hemed Said. From what can be gleaned from that decision, the witness who is not summoned must be material in the first place to draw an adverse inference on the prosecution case. In the case, Jackson s/o Hakiel Msuya vs Republic (Criminal Appeal No. 138 of 2021) [2024] TZCA 430 (11 June 2024) at page 9 the CAT citing LII Legal Information Institute, held; “A material witness is a witness who possesses information going to some fact that affects the merits of the case. Generally, the information the material witness possesses has to have strong probative value and few, if any, other witnesses possess the same information. 14 In this case, the prosecution intimated that the landlady was stated to have heard the appellant's admission of the offence and sought an apology. At the same time, the maid is said to have seen the girl with suspected sperm before she was washed. On the other aspect, I have also considered the story by PW1 that the appellant visited her residence with his wife and a child (the victim), while the victim said the appellant abused her when her mother (PW1) was away. It is unclear where was the appellant's wife when the victim, a girl aged 4 years, is alleged to have slept with the appellant. Since the victim's evidence was shaky, these witnesses could have added life to her proof. The lack of explanation on the said witnesses leaves much more to be desired. There is also evidence of PW5 Dr. Isabela Ipopo; notwithstanding this, even by taking on board Exhibit P1, the same does not link as to who penetrated the victim. Based on the above, I am persuaded to agree with Mr. Mfinanga on the third ground that the charge against the appellant was not proved beyond reasonable doubt. 15 In passing, it is noted that in this case, it was stated that the victim was found with what was believed to be spermatozoa. Considering the challenges in proving the offences, it is vital that investigators should endeavour to gather scientific evidence when the opportunity presents itself. With such evidence being washed away and challenged in extracting evidence of a 4-year-old girl, the justice in this went begging. In the article Sexual Assault Cases, Exploring the Importance of Non-DNA Forensic Evidence published by the American National Institute of Justice. Issue No. 279 April 2018 the author highlighted this to the effect that; “Forensic evidence can be used to identify a suspect, associate a suspect with a victim, associate a suspect with a crime scene, and corroborate other evidence. All said and done this appeal is allowed. The appellant is to be released from custody and set free unless otherwise held for lawful cause. Dated at Dar es Salaam this 17th February 2025 16 A J. KIREKIANO JUDGE 17