JUDGMENT EMMANUEL MKONGWE final

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA CRIMINAL APPEAL NO. 18632 OF 2024 CASE REFERENCE NO. 202407072000018632 (From Criminal Case No. 123 of 2023 in the district court of Mbarali at Rujewa) between EMMANUEL S/O MASHAKA MKONGWE .............................. APPELLANT VERSUS THE REPUBLIC .................................................................. RESPONDENT JUDGMENT 25th November 2024 & 24th February 2025 NONGWA, J. In the district court of Mbarali via Criminal Case No. 123 of 2023, the appellant was arraigned for the offence of rape contrary to section 130(1)(2)(e) and 131(1) of the Penal Code [cap. 16 R: E 2022]. It was alleged that on 27th May 2023 at Chalisuka village within Mbarali district in Mbeya region, the appellant had canal knowledge of a girl (name withheld) aged 12. To disguise her identity, the girl will be referred as PW1 or victim. The appellant denied to commit the offence. It started with the victim who narrated that on 27th May 2023 at 21:00 hrs went to his mother’s shop for taking her sibling home. She went to buy meat at the appellant butcher, requested her to go to his home, she was undressed and the appellant too. She was covered her mouth with a piece of cloth. When the appellant 1 inserted his manhood, she complained that it was hurting, the appellant stopped. He moved out and went to watch football. The appellant returned at midnight; they slept till morning when the appellant left leaving the victim asleep. When she woke up left the appellant room home. At home was received by her mother (PW2) who stated the victim did not sleep home, she reported her missing to leaders and searched her in vain. In the morning was told she was seen at the church. Sent her siblings to take her and when she was asked told them that she slept at the appellant and was raped. The appellant was arrested by militiamen and taken to police station where the victim was issued with PF3 and sent to hospital. PW3 received the victim at the hospital, she examined her found hymen not intact for long time and had live men sperm. The result was filled in PF3 and it was admitted in evidence as exhibit P1. PW4 a school teacher on 28/5/2023 received a complaint that the victim slept with a man, he interrogated her and mention the appellant. In defence the appellant distanced from the offence, he said was arrested on 28/5/2023 and sent to chairperson office where he was told the girl slept at his home and raped her, he denied and was sent to the police station. Upon full trial the trial court believed the prosecution evidence. The appellant was found guilty, convicted and sentenced to thirty years imprisonment. The whole judgment aggrieved the appellant who has filed petition of appeal on five grounds; one, that the trial court erred in law when convicted and sentenced the appellant without assessing deeply the credibility of the evidence of 2 PW1 why was not corroborated by IMMA as per her evidence. Two, that the trial court erred in law when convicted and sentenced the appellant without regarding that PW1 never raised an alarm to the nearby neighbouring in order to be rescued when locked inside the said room of the appellant this means that is a liar. Three, that the trial court erred in law when convicted and sentenced the appellant without regarding that when IMMA wanted to leave with her MASHAKA told her to returned back and thereafter she went to sleep at MASHAKA resident. a) In her testimonies PW1 IMMA and MASHAKA were two different persons. b) The said IMMA was heard when MASHAKA ordered PW1 to returned back to his butcher. c) These two people were not explained deeply in the testimony of PW1 as PW1 never went to sleep at the residence of IMMANUEL MASHAKA MKONGWE but was slept at “MASHAKA”. Four; that the trial court erred in law convicted and sentenced the appellant without evaluating the evidence of PW1, PW2, PW3 and PW4 which were full of contradiction and unbelievable before the court of justice. And five, that the defence of the appellant was not considered the trial court. When the appeal came up for hearing the appellant appeared in person, unrepresented. The respondent was represented by Mr. Rajabu Msemo State attorney. When the appellant was called to submit on his grounds had nothing useful but adopted his grounds of appeal to form his submission and prayed, he be set free. 3 The respondent did not support the appeal. on ground one he submitted that in sexual evidence the victim’s evidence is the most reliable and in this case the victim was a credible witness. He cited the case of Goodluck Kyando vs Republic [2006] TLR 363. He said that after the victim being abducted was locked in the room and soon as she got the chance to escape mention the appellant. In respect of ground two that the victim did not raise alarm, the state attorney submitted that evidence is clear that she was covered her mouth with a cloth, so she could not have made alarm. On mentioning one Imma on ground three, it was submitted that it was the appellant who asked her to come back to the butcher, that it did not exonerate from the offence. On contradiction in ground four, it was submitted there was none as the victim explained how she was taken and raped. PW2 said was looking for her daughter while PW3 said she found sperms evidence of penetration and PW4 testified that the victim mentioned the appellant. On failure to consider defence it was argued that the court considered it and found had no value. From the submission of the state attorney and raised grounds of appeal, it all boils on issue of fact; whether the prosecution proved the case beyond reasonable doubts. It is an elementary position of law under section 3(2)(a) of the Evidence Act 4 [Cap 6 R: E 2022] that, in criminal cases, the burden to prove the allegation by the prosecution is beyond reasonable doubt. The phrase ‘prove beyond reasonable doubt’ was discussed in the case of Magendo Paul and Another v. Republic, [1993] TLR 219 where the Court stated as follows: ‘For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed.’ The appellant was charged with statutory rape of a girl under section 130(1)(2)(e) of the Penal Code. To prove the offence under the above section, the prosecution is required to establish that the accused had sexual intercourse with a girl, with or without her consent. The sexual intercourse is proved by penetration of her vagina, even a slight penetration is sufficient to constitute sexual intercourse under section 130(4) of the Penal Code. Two, it must be proved that, the girl is under 18 years of age. In this jurisdiction it is settled law that the best evidence of sexual offence comes from the victim and the trial court can solely rely on such evidence to sustain conviction if the court is satisfied that what the victim states contain nothing but the truth. This is in accordance with the provision of section 127(6) of the Evidence Act [Cap. 6 R:E. 2022] as judicially considered in the case of Selemani Makumba vs R [2006] TLR 379. 5 However, the court has cautioned evidence of the victim of sexual offence not to be treated as truth of the biblical verses. See Mohamed Said vs Republic, Criminal Appeal No. 145 of 2017 [2019] TZCA 252 (23 August 2019; TanzLII), Malimi Peter vs Republic, Criminal Appeal No. 480 of 2020 [2024] TZCA 65 (20 February 2024; TanzLII) and Method Leodiga Komba @ Todi & Another vs Republic, Criminal Appeal No. 150 of 2021 [2024] TZCA 117 (21 February 2024; TanzLII). For evidence of the victim to be believed, it must be credible and probable. In assessing whether the victim is telling the truth or not, the court is guided by two test 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 that of the accused. Assessing credibility of a witness must be within the context of human realities. See Swed Ismail Msangi vs Republic, Criminal Appeal No. 576 of 2019 [2023] TZCA 17681 (2 October 2023; TanzLII), Majaliwa Ihemo vs The Republic, Criminal Appeal No. 197 of 2020 [2021] TZCA 304 (15 July 2021, TanzLII) and Straton s/o Steven Mboya vs The Republic, Criminal Appeal No. 576 of 2020 [2024] TZCA 349 (10 May 2024, TANZLII)]. In this case, being the first appellate court, I will objectively subject the entire evidence to proper scrutiny and see if the evidence in record established the prosecution case reasonable doubt. 6 The victim narrated the events leading to her being lured and ravished by the appellant, central is whether what she explained lead to a conclusion that was a credible witness. Evidence of the victim upon which conviction was grounded goes; ‘... I remember on 27/05/2023 during 21:00 hours I was at my mother's small shop when I took the twins to Anyesi' home to watch a Television, I left them there and went to Mashaka's butcher to buy meat, Imma came there wanted to leave with me, Mashaka told me to come back at his butcher, Mashaka told me to go with him to his house where he has rented, he lives alone, when we arrived in his room he told me to undress my clothes, the room has a mat and bed sheet, I denied to undress my clothes, he grabbed me and tied my mouth with a piece of cloth, he undressed my gown and underwear, he also undressed himself his trouser and T-shirt as he appears were before this Court, he took his penis and entered it into my vagina, when he was entering his penis to my vagina he had laid me at his mat, I felt pains and told him that I feel pains, he left me, later he went out and locked the door from outside leaving me inside his room. I slept there until late hours when he returned back and slept. In the next day morning at 11:00 hours I left his room to home. At home my mother asked me where I slept I answered that I slept at Mashaka's house and has raped me, my mother took me to Police. I know Mashaka well, he used to sell meat at the butcher at our place, he is the accused person before this Court. That's all.’ When she was cross examined by the appellant she said ‘The owner of the house which you rented is Nyagawa, you left me there and went to watch soccer and returned later, in the morning you left while 7 I was still asleep, you left the door open, when I left your room no one saw me.’ During questions of clarification by the court he answered; ‘It was my second time to go to Mashaka's house on the day which he raped me, on the first time he told me that he will give me Tsh. 3000/= if we will do sex, I admitted and he raped me, nothing happened to me. It is a settled position of the law that, every witness is entitled to credence and must be believed and his testimony accepted unless there are cogent and good reasons to disbelieve the said witness. From the above reproduced evidence which was believed by the trial court I have found the following wanting. One, PW1 said was covered her mouth with the piece of cloth yet when she was being penetrated was able to tell the appellant that was feeling pains and the appellant acceded. How did that happen, the evidence is silent. In Rashid Ally Kimage vs Republic, Criminal Appeal No. 107 of 2022 [2024] TZCA 490 (21 June 2024; TanzLII) the court observed that a witness who tells a lie on material point should hardly be believed in respect of other points. Two, failure to flee, PW1 said the appellant went to watch soccer and left her in the room until midnight, why did she not flee in absence of evidence that the doors or windows were locked outside or there was any threat from the appellant had she attempted to run. If the appellant was not there, why did she not raise alarm to attract help from neighbours in absence of evidence that the appellant 8 lived in the isolated place. In Mapinduzi Mgalla vs Republic, Criminal Appeal No. 406 of 2020 [2024] TZCA 21 (6 February 2024; TanzLII) the court stated; ‘.... Also, the prosecution evidence did not state if she tried to raise alarm or that there were no houses nearby even if she could raise alarm no one could hear her and come to her rescue.’ [See also; Samson Patrick Thomas vs Republic, Criminal Appeal No. 463 of 2021 [2024] TZCA 1294 (19 December 2024; TanzLII)]. Three, failure of to disclose the first incident, the victim testified that it was the second time to go to appellant’s home and raped. Unfortunately, she did not disclose to any person and no any reasons was advanced. Selectivity in revealing occasions of rape cast some doubts in her credibility. See Riziki Valentine Massawe vs Republic, Criminal Appeal No. 440 of 2021 [2024] TZCA 813 (23 August 2024; TanzLII). Four, is contradiction between evidence of PW1 and PW3. PW1 said when the appellant was penetrating her complained that it was paining and was left but PW3 said when she examined the victim found hymen not intact for long time, live men sperms from the victims’ uterus and in the PF3 (exhibit PE1) the records reads HVS- live spermatozoa seen per HPF, a urine test and there were no bruises. In my view evidence of PW1 suggests there was slight penetration and no ejaculation or fluid on her vagina. If I have to believe what PW3 stated that there were live sperms, then not necessarily was from the appellant. Because PW1 says as he told the 9 appellant that it was hurting, he left her and went to watch soccer, and came back at midnight, did not do anything till morning when she was left alone. In the totality of the above, I agree with the appellant that evidence of the victim was not plausible and could not therefore be relied upon to convict him. At the end I kept wondering if really PW1 went missing on 27/5/2023 and the matter was reported to people and ten cell leader who searched in vain, why did they not come to testify. If the people and militiamen arrested the appellant on the alleged rape and sent to police station what prevented them from appearing to testify. Was the matter not investigated by police, what evidence they gathered and opted to exclude from involvement in the case. It has to be noted that under section 10 of the Criminal Procedure Act Cap 20, all criminal investigation is the domain of the police. Thus, when the criminal case is instituted in court, there must be evidence from those charged with investigation duties on how they carried their investigation and kind of evidence collected linking the accused with the offence. Time without number, the court has expounded the role of investigators in criminal cases. In Shukuru Moshi @ Elimringi vs Republic. Criminal Appeal No. 29 of 2021 [2024] TZCA 1022 (1 November 2024; TanzLII) the court cited with approval the Ugandan case of Bwaneka vs Uganda [1967] E.A. 768 in which it was stated; ‘Then there is the practice indulged by the police or other prosecutors when prosecuting in magistrate’s courts of not calling police officers who had investigated the case and arrested and charged an accused person involved in such a case. It seems to me that the police do not attach 10 Importance to their duty of investigating cases reported to them, but are content to sit back and wait for a civilian to bring to them someone suspected of or arrested for alleged commission of a crime.... Generally speaking, criminal prosecutions are matters of great concern to the State and such trials must be completely within the control of the police and the Director of Public Prosecutions. It is the duty of the prosecutors to make certain that police officers who had investigated and charged an accused person do appear in court as witnesses to testify as to the part they played and the circumstances under which they had decided to arrest and charge an accused person. Criminal prosecutions should not be treated as if they were contests between two private individuals.’ Having quoted the above passage, the court held; ‘We fully subscribe to the view expressed above. These incidents are prevalent in our country and it is our hope that this practice of not calling the investigators to testify will be discontinued in the future for the better meeting the ends of justice.’ The mentioned people would have clarified that they embarked in searching the victim after being reported missing during the night of 27/5/2023 and the investigator would have clarified on what he discovered during investigation and kind of evidence collected. More important that they issued PF3 to the victim for medical examination on the alleged rape. All these are missing in the prosecution evidence. 11 From the discussion above based on the pointed shortcomings, it cannot be said the prosecution proved the case beyond reasonable doubts. The doubts are resolved in favour of the appellant. In the event, I allow the appeal, quash conviction order and sentence meted on the appellant. I order his immediate release unless held for any other lawful cause. V.M. NONGWA JUDGE 24/2/2025 Dated and Delivered at Mbeya this 24/2/2025 in presence of the Appellant linked via video conference at Rwanda Prison - Mbeya and Ms. Elicia Paul S/A for the respondent. V.M. NONGWA JUDGE 12