ABDUL KASSIM LILI VS REPUBLIC

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI DC CRIMINAL APPEAL NO. 24810 OF 2024 (Originating from Criminal Case No. 39813 of 2023 of Mwanga District Court at Mwanga) ABDUL KASSIM LILI ………………………………………. APPELLANT VERSUS REPUBLIC ………………………………………………… RESPONDENT JUDGMENT 27/01/2025 & 21/02/2025 SIMFUKWE, J. In this appeal, the appellant herein is dissatisfied with the decision of the District Court of Mwanga in Criminal Case No. 39813 of 2023, which 1 convicted and sentenced him to thirty years' imprisonment. The conviction and sentencing were rendered upon the accused being found guilty of rape, contrary to sections 130(1), 130(2)(e), and 131(1) of the Penal Code [Cap. 16 R.E. 2022]. Before the trial Court, the particulars of the charged offence alleged that, on 08th December 2023 at or about 09:00hrs at Mramba area within Mwanga District in Kilimanjaro Region, the appellant had carnal knowledge of a girl aged 15 years old (hereinafter referred as the victim). In a nutshell, the available evidence reveals that the victim was staying with her mother and her stepfather. It was alleged that on the fateful date, the mother of the victim went somewhere, leaving the Victim at home with her stepfather. That, the appellant took advantage of the mother being absence, he sent the Victim to pick his phone. However, as the victim bent down to pick the phone, the appellant allegedly grabbed her and began removing her underwear and skin-tight. He then removed his trousers and proceeded to rape the victim. Shortly, the victim’s mother returned and found the appellant raping the victim red handed. She started battering the appellant and removed him from the victim while raising an alarm. 2 PW2, the Ten Cell Leader, was alerted by the alarm from the victim’s mother. Thereafter, PW2’s neighbour one Babu Juma also approached PW2 and informed her about the same alarm. In response, PW2 and the said neighbour proceeded to the scene. Upon arrival, they found the victim’s mother beating the victim. They asked the victim’s mother about the situation. The victim’s mother stated that she had found the appellant having sexual intercourse with the victim. Subsequently, PW2 and her neighbour intervened, separating the victim and her mother, the appellant fled the scene. Then, PW2 left to her residence. Later, two women informed PW2 that they had found the victim at the bush crying and urged her to go there. When she reached at the noted location, PW2 found the victim. She asked her about the incident, the victim confirmed that the appellant had raped her. Then, PW2 took the victim to her residence before escorting her to the police station. Thereafter, the police contacted the victim’s mother and directed her to report to the police station. Subsequently, the victim was taken to the hospital for medical examination. 3 PW3, a medical doctor, examined the victim. The examination revealed the presence of vaginal discharge and an open vagina indicating penetration. PW4 a police officer testified inter alia that, after leaving the hospital, the victim’s mother arrived at the police station carrying the victim’s underwear. The victim’s mother was interrogated, she defended the appellant, asserting that he was not responsible. It was alleged that the victim’s mother had washed the underwear, which had been used to wipe off sperms from the floor. PW4 stated further that the appellant was interrogated, he denied to have committed the alleged offence. Moreover, PW4 explained that the victim’s mother declined to appear in court to testify for the prosecution. In his defence, the appellant contended that he had decided to cohabit with the victim’s mother to provide support to them, as they were living in difficult conditions. The appellant contended further that after marrying the victim’s mother, the victim was not pleased with the arrangement and frequently returned home late at night. He reported the matter at the school of the victim and police gender desk in vain. The appellant said that the allegations against him were fabricated. 4 The trial court held that the prosecution had proved its case beyond reasonable doubt. Consequently, the appellant was convicted and sentenced to thirty years imprisonment. Aggrieved with the decision of the trial court, the appellant filed the present appeal on the following grounds: 1. That the trial court grossly erred in law and facts to convict and sentence the appellant while prosecution side failure (sic) to prove their case beyond reasonable doubts. 2. That the trial magistrate erred in law and fact to convict and to sentence the appellant on relied to insufficient evidence. (sic) 3. That trial Magistrate erred in law and fact to convict and sentence appellant on relied to contradictory evidence adduced by prosecution witnesses. (sic) 4. That the trial court erred in law and facts to convict and sentence the appellant for failure to summon important witnesses 5. That, trial Magistrate erred in law and facts for failure to consider the evidence adduced by defence side. 5 The appellant prayed that his appeal be allowed, conviction be quashed and sentence of 30 imprisonment be set aside, When the appeal was set for hearing, the appellant appeared in person with no legal representation. The respondent/Republic was represented by Mr. Makore Simeon Maheri, learned State Attorney. The appeal proceeded through filing written submissions. In support of the first and second grounds of appeal, which relate to the prosecution’s failure to prove the case beyond reasonable doubt and the trial court's reliance on insufficient prosecution evidence; the appellant submitted that the prosecution did not meet the required standard of proof. He contended that the case was not proved beyond reasonable doubt, as stipulated under Section 110(2) of the Tanzania Evidence Act, Cap. 6 R.E. 2022. The appellant based his argument on two factors: First, he contended that PW3, the doctor, stated that the victim was no longer a virgin but failed to specify what object was used to cause the loss of virginity, whether blunt or sharp. Second, he asserted that the prosecution neither mentioned the victim’s underwear during the preliminary hearing nor tendered it as an exhibit. He further argued that even if the said 6 underwear was washed, as testified by PW4, they should have tendered it as exhibit to establish the victim’s ownership. The appellant insisted that, failure to tender the said exhibit created doubt and suggested that the case had been fabricated against the appellant. In support of his argument, the appellant referred to page 27, first paragraph of the typed proceedings of the trial court. On the third ground of appeal, the appellant submitted that his conviction was based on contradictory evidence of the prosecution. He stated that while PW2 testified that he saw the appellant’s wife cleaning sperm from the floor, PW1 stated that the appellant discharged his sperm on the floor using her pant. The appellant asserted that the inconsistency creates reasonable doubt that the case was fabricated against the appellant. He referred to page 16 and 21 of the typed proceedings of the trial court in support of his assertion. Further, the appellant highlighted contradictions in the testimony of PW1 and PW2. He said that, while PW1, the victim stated that her mother arrived during the alleged rape and began beating the appellant, and that the appellant attempted to beat the victim; PW2 testified that he found the victim crying while her mother was beating her, after which she ran 7 away to the bushes. The appellant was not certain who between DW1 and DW2 did beat the victim. The appellant continued to point out the inconsistencies within PW1’s own testimony. He claimed that while PW1 initially claimed that her mother arrived and witnessed the accused raping her, she later stated during cross-examination that her mother was not present at the time of the alleged rape. He referred to pages 15, 16, and 21 of the typed proceedings of the trial court to substantiate the contradiction. Regarding the fourth ground of appeal, the appellant submitted that the prosecution failed to summon key witnesses specifically, the neighbours who, according to PW1, saw the appellant while naked. The appellant identified the said witnesses as Mama Juma, Mama Farida, Mama Ibra, Mama Juma’s husband, and Babu Juma, who informed the ten- cell leader about the incident. The appellant was of the view that the omission to call these witnesses suggests that the case was fabricated against him. He bolstered his argument, by referring to page 16 of the typed proceedings of the trial court. Lastly, on the fifth ground of appeal, the appellant reiterated his defence before the trial court. He further asserted that he had disputes with PW2, 8 arising from PW2's goats frequently trespassing into his garden and ate his vegetables, which led to conflicts between them. Moreover, the appellant averred that according to the testimony of DW2, DW1 did not commit the alleged rape and that the case was fabricated by PW1 and PW2 due to their conflicts. In conclusion, the appellant implored the court to quash the conviction and set aside the sentence imposed upon him. In his reply, starting with the first and second grounds of appeal on allegations that PW3 did not mention the object that caused the loss of the victim’s virginity, Mr. Makore submitted that at pages 23 and 24 of the typed proceedings, PW3 explained that the victim was penetrated by a blunt object. The learned State Attorney added that the trial magistrate was satisfied with the evidence adduced by PW3 at page 5 of the judgment. That the same corroborated the evidence of PW1 and PW2, and that the prosecution case was genuine. The learned State Attorney stressed his submission by citing the case of Selemani Makumba vs Republic, Criminal Appeal No. 94 of 1999 [2006] T.L.R, TZCA 96 (Tanzlii) at page 8, which held that the best 9 evidence in sexual offences comes from the victim. Mr. Makore was of the opinion that evidence of both prosecution witnesses proved the case. In response to the third ground of appeal concerning the alleged contradiction between the evidence of PW1 and PW2, Mr. Makore stated that there is no contradiction. He clarified that PW1 testified about what transpired at the scene of crime, as seen at page 15 of the proceedings; while PW2, whom the learned State Attorney referred to as a good Samaritan and ten cell leader; explained what she did on her part, as seen at page 20 of the trial court proceedings. Mr. Makore remarked that if there is any contradiction, it does not go to the root of the case. He cemented his argument by citing the case of Director of Public Prosecutions vs Daniel Wasonga (Criminal Appeal No. 64 of 2018) [2022] TZCA 418 (12 July 2022) Tanzlii. Opposing the fourth ground of appeal regarding failure to call material prosecution witnesses, Mr. Makore submitted that under section 143 of the Evidence Act [CAP 6, R.E. 2022], there is no particular number of witnesses required to prove a case. Hence, the learned State Attorney believed that witnesses who were called by the prosecution to testify were sufficient to prove the offence against the appellant. He supported his 10 argument with the case of Julius Josephat vs Republic (Criminal Appeal No. 3 of 2017) [2020] TZCA 1729 (18 August 2020), which held that: “Likewise, we agree with Mr. Njau that in fact, under section 143 of the EA, there is no particular number of witnesses in any case required for the proof of any fact. This has been stressed in range of cases including those of Yohanis Msigwa v. Republic [1990] T.L.R 148, Gabriel Simon Mnyele v. Republic, Criminal Appeal No. 437 of 2007, and Nicodemus Awe and 2 Others v. Republic, Criminal Appeal No. 155 of 2014 (both unreported) …….” Lastly, on the fifth ground of appeal concerning failure to consider the defence evidence, Mr. Makore responded that the trial magistrate considered the defence evidence in her judgment, as seen at page 6 of the trial court judgment. In addition, it was explained that the appellant’s evidence did not shake the prosecution's evidence and that the trial magistrate convicted the appellant based on the strong evidence adduced by the prosecution side. The learned State Attorney prayed that the appeal be dismissed. 11 Having considered the submissions of the appellant and the Respondent, the issue for determination pursuant to the grounds of appeal, is whether the prosecution proved the case beyond reasonable doubt. On the first and second grounds of appeal, the appellant contended that the prosecution's case was not proved beyond reasonable doubt for two reasons: First, that PW3, the doctor, did not specify whether the object which caused the loss of virginity was blunt or sharp; and second, that the prosecution neither tendered the victim’s pants as exhibits nor mentioned them during the preliminary hearing. Conversely, these arguments were disputed by Mr. Makore, who stated that the prosecution's evidence was sufficient to establish the offence charged beyond reasonable doubt. According to Black’s Law Dictionary, 8th Edition, reasonable doubt is defined as follows: “Reasonable doubt. The doubt that prevents one from being firmly convinced of a defendant's guilt. or the belief that there is a real possibility that a defendant is not guilty.” 12 In the case at hand the question is whether the doubts raised by the appellant amounts to reasonable doubts. Starting with the argument that the prosecution did not tender the victim’s underwear. With due respect, the appellant's contention is unfounded, that’s why the court was prompted at the outset to discuss what constitutes reasonable doubt. The appellant’s argument is far-fetched, as the said underwear could not establish anything regarding penetration or whether the appellant was responsible, which are key elements in proving the offence of rape. The doubts raised do not amount to reasonable doubt, since as per the definition above, such doubts do not lead to the conclusion that the appellant is not guilty. Concerning the argument that the doctor did not specify the object which penetrated the victim, I have noted that the doctor in his testimony did not indicate whether the object was blunt or sharp. However, it is the observation of this court that the fact that the doctor did not explicitly mention the type of object that penetrated the victim cannot be considered as a reasonable doubt. The best evidence in sexual offences comes from the victim, who categorically stated that the appellant inserted his penis into her vagina. Thus, the object that penetrated the victim was stated by the victim, who was in a better position to narrate her tragedy 13 rather than the doctor. Having said that, the first and second grounds of appeal are henceforth devoid of merit. On the third ground of appeal, the appellant submitted that the prosecution's evidence was contradictory, an argument which was disputed by the learned State Attorney. It is a well-established principle of law that only material discrepancies can undermine the prosecution's case. Material discrepancies are those that directly impact the root of the case. In other words, not every discrepancy dismantles the prosecution case; it is only material discrepancy which may crumble the prosecution case. In the case of Said Ally Ismail vs Republic (Criminal Appeal 241 of 2008) [2009] TZCA 8 it was held that: "However, it is not every discrepancy in the prosecution case that will cause the prosecution case to flop. It is only where the gist of the evidence is contradictory then the prosecution case will be dismantled.” In the present case, respectfully to the appellant, the noted discrepancies do not affect the core issue in the rape case. The inconsistencies regarding 14 whether the appellant discharged his sperms on the floor or in the victim’s underwear, whether the victim’s mother witnessed the incident or not, do not constitute material discrepancies that would flop the prosecution’s case. Furthermore, the appellant’s question regarding who between PW1’s mother and the appellant, actually did beat the victim is misplaced, as the victim clearly stated at page 15 of the typed proceedings that: “...shortly my mother comes there and saw the accused when raped me and started to beat him and removed him from me while was making noise then accused wanted to beat me but I run at the back.’’ (sic) The foregoing quoted piece of evidence indicates that the victim’s mother assaulted the appellant, prompting the appellant to react by assaulting the victim who managed to escape. It is the considered opinion of this court that, given the circumstances of this case, the appellant could have been convicted based on the victim’s evidence as the best evidence. Consequently, the identified discrepancies lack merit, and the third ground of appeal is therefore dismissed. Next for determination, is the fourth ground of appeal, which concerns failure to call material witnesses, to wit, the neighbours who, according to 15 PW1, saw the appellant while naked. Mr. Makore disputed this argument, asserting that there is no number of witnesses which is required to prove a case. I am in agreement with the learned State Attorney. It is a well-established principle of law that no specific number of witnesses is required to prove a case. Only those witnesses whose testimony establishes the key elements of the offence are considered material witnesses. In the case of Alfred Pasalima Msumba vs Republic (Criminal Appeal No. 104 of 2022) [2024] TZCA 905, at page 15, the Court of Appeal stated the following: “We wish to emphasize that, pursuant to section 143 of the Evidence Act [Cap 6 RE 2022] there is no number of witnesses which is required in proving a certain fact, what matters most is the weight of evidence and credibility of a witness. Besides, it is the prosecution that has the duty to prove the case and the right to choose which witness or witnesses to call to give evidence in support of the charge.” Emphasis added 16 In the instant matter, the alleged neighbours who saw the appellant naked are not material witnesses, as they did not witness the appellant raping the victim. Their evidence could have been circumstantial. Thus, the fourth ground of appeal is also devoid of merit. Lastly, on the fifth ground of appeal, the appellant complained that his evidence which he adduced before the trial court was not considered. He reiterated his evidence which he adduced before the trial court. The learned State Attorney submitted that the appellant’s evidence was considered by the trial court in its judgment. I have thoroughly examined the appellant’s evidence vis a vis the trial court judgment. With due respect to the appellant, his evidence was indeed considered. At page 6 of the judgment while considering the defence evidence, the learned trial magistrate stated that: “On his defence DW1 accused denied to commit the offence and said that the same was fabricate because PW1 didn’t want him to marry her mother, so she didn’t listen to him “akaanza kuwa mjeuri” he reported to school and to the desk at Police but he failed to call any teacher or WP to come here in court to prove that he went there to report 17 about the behaviour of the victim. DW2 mother of the victim who saw the incident but defended her husband as if nothing happened.” The above quoted words demonstrates that the trial magistrate duly considered the defence evidence. Nevertheless, I have scrutinized the said evidence as first appellate court, it is my considered opinion that the said evidence does not create any reasonable doubt regarding the prosecution's case. It is a fundamental principle of law that the defence bears the burden of raising reasonable doubts in the prosecution's case. As already said, no reasonable doubt was raised by the appellant. The appellant's alleged grudges with the victim and PW2 are devoid of merit. The prosecution's evidence sufficiently established the essential elements of rape, namely, penetration of a male organ into a female organ. Furthermore, the prosecution proved that it was the appellant who committed the offence against the victim. Evidence of PW1 and PW2 was corroborated by PW3, the medical doctor who examined the victim and confirmed penetration and PW4, the investigation police officer. PW4 testified that her investigation revealed that the victim’s mother used to threatened the victim and assaulted her when she found her raped by the 18 appellant. Moreover, the victim was forbidden by her mother to appear in court to testify. PW4 took the victim from school and took her to court to testify. Furthermore, PW4 stated that the victim’s mother, DW2, refused to appear in court to testify despite being an eye-witness. Also, DW2 declined to take the victim to the police station. Therefore, this court is settled that evidence on the prosecution side was credible and sufficient to prove the appellant's guilt beyond reasonable doubt. Having resolved all the grounds of appeal in the negative, it is the finding of this court that the prosecution proved the offence charged beyond reasonable doubt. The defence of the appellant was an afterthought which did not raise any doubt on part of the prosecution. Consequently, this appeal is hereby dismissed in its entirety. It is so ordered. Dated and delivered at Moshi this 21st February 2025. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 21/02/2025 19 20