JUDGMENT RASHID ABDALLAH KOMBO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MWANZA SUB- REGISTRY AT MWANZA CRIMINAL APPEAL NO.1340 OF 2025 (Arising from Criminal case No.3290 of 2024 of Ilemela District Court (J.D. OPUDO SRM) RASHID ABDALLAH KOMBO ........................................................... APPELLANT VERSUS THE REPUBLIC ............................................................................ RESPONDENT JUDGMENT 4th & 14th March, 2025 E.L. NGIGWANA, J. This is the first appeal from the decision of Ilemela District Court henceforth (the trial Court) in Criminal Case No. 3290 of 2024 where the appellant was charged with the offence of Rape contrary to sections 130 (1) (2) (e) and 131 (1) of Penal Code, [Cap. 16 R: E 2022. The particulars of the charge presented before the trial court were to the effect that the appellant, on an unknown date of January, 2022 at Kitangiri area within Ilemela District in Mwanza Region, did have carnal knowledge of a girl aged 9 years old; to protect her identity shall be referred to as J. C or PW1. The appellant denied the charge. After a full trial at which the prosecution relied on the evidence of four (4) witnesses and one (1) exhibit to wit: PF3 (Exhibit P1) while the appellant fended himself under oath called 1 three (3) witnesses and tendered one (1) exhibit, the trial court was satisfied that the case had been proven beyond reasonable doubt. Consequently, the appellant was convicted and sentenced to serve a jail term of thirty (30) years. Aggrieved by both conviction and sentence, the appellant appealed to this court. In the petition of appeal, he raised five (5) grounds of appeal, and three (3) supplementary grounds of appeal, to make a total of eight (8) grounds of appeal. However, before the commencement of the hearing, the appellant abandoned his 2nd supplementary ground of appeal and remained with seven (7) grounds of appeal upon which he asked this court to quash the conviction and set aside the sentence of thirty (30) years imprisonment meted against him. Supplementary grounds are grounds 1 and 3 and will appear as grounds 6 and 7 respectively in this judgment. Therefore, the grounds of appeal raised by the appellant may conveniently be paraphrased as follows; 1. That, the trial magistrate erred in law and fact to convict and sentence the appellant based on the defective charge. 2. That, the trial Magistrate erred in law and fact to convict the appellant based on the evidence which did not specify whether the offence was committed during the night or day, to enable the court to determine 2 whether the appellant was identified as a person who committed the offence. 3. That, the trial Magistrate misdirected himself in law and fact by relying and acting upon the medical evidence of one medical doctor as corroborative evidence while the victim was examined by two different Medical Doctors. 4. That, the trial Magistrate erred in law and fact to convict and sentence the appellant without considering his defence. 5. That, the trial Magistrate erred in law to convict and sentence the appellant while the prosecution had not proved the case beyond reasonable doubt. 6. That, the trial Magistrate erred in law and fact to convict and sentence the appellant based on the evidence of PW1 which was received contrary to the law. 7. That, the trial Magistrate erred in law and fact to convict the appellant before being called to enter his defence At the hearing, the appellant appeared in person without legal representation while the respondent Republic appeared through the service of Ms. Sarah Perias, learned State Attorney. The appeal proceeded viva voce. The appellant was the first to take up the floor to his appeal. On the first ground of appeal, he submitted that the charge was defective for not indicting the date and time of the commission of the 3 offence. He went on to submit that the victim (PW1) in her evidence stated that the offence was committed on 25/01/2022 but the prosecution did not bother to amend the charge. He added that according to PGO No. 227(2), the date and time of the commission of the offence must be indicated in the charge. He ended his submission on the first ground by saying that, as per the law, where the charge is defective, no conviction can stand Replying to the first ground of appeal in which the appellant is complaining that he was convicted on a defective charge for not disclosing the time and the date of the commission of the offence, Ms. Perias briefly argued by conceding that the charge filed in the trial court did not disclose the time and date of the commission of the offence but, the month and the year were indicated. She elaborated further that failure to indicate the date and time of the commission of the offence cannot make the charge incurably defective. She further explained that the appellant was not at all prejudiced by the omission because, in her evidence, the victim who testified as PW1 confirmed that the offence was committed on 25/01/022 during noon time, and her evidence was corroborated by the evidence of PW2. To bolster her submission on this ground, Ms. Perias cited the case of Benjamin Arnold vs Republic (Criminal Appeal No. 11 of 2023) [2023] TZHC 18509 (30 June 4 2023) Tanzlii. She ended her submission on the first ground praying for the dismissal of the first ground for being devoid of merit. From the above submissions of both parties on the first ground, the issue is whether the appellant was convicted and sentenced to a defective charge. In terms of sections 132 and 135 (a) of the Criminal Procedure Act, [Cap. 20 R.E 2022], every charge must contain a statement of a specific offence or offences with which the accused is charged. It is also required that the statement of offence must refer to the specific provision of the law creating such offence. Further, the charge must contain particulars of offence. The rationale of the charge to contain the statement and particulars of offence is to give an accused person reasonable information as to the nature and seriousness of the offence and to enable him/her to prepare his/ her defence. The charge may be incurably defective or defective but curable as articulated in the case of Jamali Ally @ Salum vs Republic (Criminal Appeal No. 52 of 2017) [2019] TZCA 32 (28 February 2019) Tanzlii where the Court of Appeal had this to say; "Where particulars of the offence are clear and enabled the appellant to fully understand the nature and seriousness of the offence for which he was being tried for, where the particulars of the offence gave the appellant sufficient notice about the date when the offence was committed, the village where the offence 5 was committed, the nature of the offence, the name of the victim and her age and where there is evidence at the trial which is recorded, giving detailed account on how the appellant committed the offence charged and thus any irregularities over non-citations and citations of inapplicable provisions in the statement of offence, are curable under section 388 (1) of the Criminal Procedure Act, Cap 20 Revised Edition 2002 (the CPA)” In the matter at hand, the appellant complains that he was convicted and sentenced on the defective charge because the same did not describe the time and date on which the offence was committed. I am aware of section 135 (f) of the CPA, which provides that; “Subject to any other provision of this section, it shall be sufficient to describe any place, time, thing, matter, act, or omission of any kind to which it is necessary to refer in any charge or information in ordinary language in such manner as to indicate with reasonable clarity the place, time, thing, matter, act or omission referred to” The said provision was interpreted by the Court of Appeal in the case of John Stephano and 5 Others vs Republic (Criminal Appeal 251 of 2021) [2022] TZCA 469 (22 July 2022) Tanzlii. The Court had this to say; “The herein above provision connotes that the necessity to describe the time in a charge sheet or information arises where time is of essence in proving the offence. Construing the provision 6 otherwise would render all charges and information pertaining to offences whose time of commission is unknown, defective….In the time of the commission of the offence was addressed in the prosecution evidence and the appellants had time in their evidence to address it. In the event, the variance between the charge and evidence in respect of the time at which the offence was committed is immaterial.” Considering the fact that time is not of essence in proving the offence of rape, but also the fact that the month and year were indicated, and PW1 testified that the offence was committed on 25/01/2022 during the daytime, and guided by the above Court of Appeal authority, I shake hands with the learned State Attorney that the complaint by the appellant that the charge was defective for not mentioning specific time and date of the commission of the offence is immaterial. In the event, I dismiss the first ground of appeal for being devoid of merit. On the second ground of appeal, the appellant simply submitted that the prosecution had failed to establish whether the offence was committed during daytime or nighttime for purposes of identification. According to him, under the circumstances of this case, it cannot be said that he was identified as the person who committed the offence. 7 Responding to the 2nd ground of appeal in which the appellant complains that there was a failure of the prosecution to specify whether the offence was committed during the day or night, for identification purposes, Ms. Perias referred to pages 11 – 13 of the trial court typed proceedings, and submitted that PW1 testified before the trial court that the offence was committed during day time. She added that PW1’s evidence was corroborated by the evidence of PW2. Ms. Perias went on to submit that the victim is the relative of the appellant and, she mentioned the appellant to the Medical Doctor on 26/01/2022, therefore, the issue of identification cannot stand as per the position articulated in the case of Andrew Kang'ung'aro vs Republic (Criminal Appeal No. 258 of 2021) [2023] TZCA 135 (23 March 2023) Tanzlii Having considered the trial court record, the 2nd ground, and submissions of both parties on the 2nd ground, the issue for determination is whether the issue of identification is material. This issue should not detain me because the victim (PW1) testified that the appellant is her close relative and hence she knows him very well. The victim’s aunt (PW2) confirmed that she was living with the appellant who is her brother, and the victim in one compound since 2020. DW1 testified that the offence was committed during the daytime. 8 On the other hand, the appellant (DW1) confirmed that on 25/01/2022 at 11:00 hours, he came home, and found the victim with another child. He further testified that since PW1 was complaining of pain after she had fallen, on the stones, he massaged her on the swollen parts of her body using warm water and a piece of cloth. Under the circumstances of this case, the issue that the appellant was not identified cannot stand as per the position articulated in the case of Andrew Kang'ung'aro vs Republic (Supra). In that case, the Court held that “since the offence was committed during the daytime, and that the appellant and the victim knew each other as close relatives, the issue that the appellant was not identified could not stand”. In that respect, I dismiss the complaint by the appellant concerning his identification. On the 3rd ground, the appellant briefly submitted that since the PW1 was examined by two Medical Doctors from two different Government Hospitals, the trial magistrate wrongly admitted and relied on the medical evidence of PW3 without the Medical evidence of the 2nd Medical Doctor from Sekou Toure Hospital. Replying to the 3rd ground of appeal in which the appellant is complaining that the PW1 was examined by two Medical Doctors but the report of the second Medical Doctor was not presented in court, Ms. Perias 9 submitted that the Medical Doctor (PW3) explained at page 24 how she examined the victim. She admitted that PW3 referred PW1 to Sekou-Toure Hospital, but PW1 was not treated there because there was nothing found that required treatment. In this respect, she prayed for the dismissal of the 3rd ground. The issue to be determined here is whether the complaint raised by the appellant in the 3rd ground of appeal is meritorious. PW3 confirmed that she received the victim on 26/01/2022, around 11:00 hours, and upon examining her, she directed PW1 and PW2 to go to the police station to report the matter and get the PF3 and they did so. She further told the trial court that the victim and PW2 came back from the police station, she examined the victim, but before filling PF3, she referred her to Sekou Toure Hospital, and when diagnosed, she was not treated because nothing more was recognized. PW3 added that, thereafter she filled in the PF3 but no reasons were assigned by PW3 as to why she referred PW1 to Sekou Toure. It is not clear whether PW3 doubted the examination she carried out, or that she believed that experts who could competently examine the victim were at Sekou-Toure Hospital as opposed to Kirumba Dispensary. PW3 added that she filled out PF3 after the victim had returned from Sekou-Toure, but no documentary evidence to show that the victim was referred to Sekou-Toure 10 Hospital. In the absence of evidence from an expert from Sekou Toure Hospital, the above questions create doubts about the evidence of the medical expert (PW3) from Kirumba Dispensary. In that respect, the complaint by the appellant cannot be ignored. On the 4th ground of appeal, the appellant submitted that after the closure of the prosecution case, he was called to enter his defence but finally, his defence was not considered by the trial Magistrate. He added that had the trial Magistrate considered his defence accordingly, he would not have been convicted and sentenced him. He ended his submission on this ground by saying the omission had occasioned a failure of justice. Replying to the 4th ground of appeal in which the appellant is complaining that his defence was not considered. Ms. Perias conceded that reading the judgment of the trial court, it goes without saying that the defence of the appellant was not considered by the Hon. Magistrate. Concerning the way forward, she submitted that this court being the first appellate court, has the mandate to step into the shoes of the trial court and consider the defence evidence. She cited the case of Jafari s/o Musa vs DPP (Criminal Appeal No. 234 of 2019) [2022] TZCA 29 (17 February 2022) Tanzlii to support her submission. 11 The 4th ground of appeal raises the issues as to whether or not the defence evidence was considered by the trial magistrate. As submitted by the appellant and conceded by the learned State Attorney, after summarizing the evidence of both sides, the trial Magistrate analyzed and evaluated the prosecution evidence only. He did not at all consider the evidence of DW1, DW2, DW3, and DW4 to see whether it raised any reasonable doubt on the prosecution case. The duty to consider the evidence of both sides was clearly articulated in the case of Leonard Mwanashoka vs Republic (Criminal Appeal 226 of 2014) [2015] TZCA 294 (24 February 2015) where the Court had this to say; “It is one thing to summarize the evidence of both sides separately and another thing to subject the entire evidence to an objective evaluation in order to separate the chaff from the grain. Furthermore, it is one thing to consider the evidence and disregard it after proper scrutiny or evaluation and another thing not to consider the evidence at all in the evaluation and analysis.” Similarly, the Court of Appeal in the case of Mkulima Mbagala versus Republic; Criminal Appeal No.267 of 2006 (Unreported) also had this to say; “For any judgment of a court of justice to be held to be a reasoned one, in our respectful opinion, it ought to contain an objective 12 evaluation of the entire evidence before it. This involves a proper consideration of the evidence for the defence, which is balanced against that of the prosecution in order to find out which case among the two is more cogent. In short, such an evaluation should be a conscious process of analyzing the entire evidence dispassionately to form an informed opinion as to its quality before a formal conclusion is arrived at” As submitted by the learned State Attorney, it is part of our jurisprudence that a first appellate court is entitled to re-evaluate the evidence adduced at the trial, subject it to critical scrutiny, and arrive at its independent decision. This stance has been taken in several cases including the case of Siaba s/o Mswaki vs Republic (Criminal Appeal No. 401 of 2021) [2021] TZCA 562 (4 October 2021) Tanzlii, and Jafari s/o Musa vs DPP (Supra). I will take the same path in this matter, especially when addressing the 5th ground of appeal. On the 6th ground of appeal, the appellant briefly submitted that the trial magistrate contravened section 127 (2) of the Evidence Act, [Cap. 16 R.E 2022] because he received the evidence of PW1 under section 198 of the CPA [R.E 2022], instead of section 127 (2) which governs the reception of the evidence of a child of tender age. According to him, the omission renders the evidence of PW1 invalid. 13 Opposing the 6th ground of appeal in which the appellant was complaining that the evidence of PW1 was received under section 198 of the CPA instead of section 127 (2) of the Evidence Act, [Cap. 6 R. E 2022], Ms. Perias submitted that the complaint is baseless because section 198 of the CPA states clearly that the evidence has to be given under oath or affirmation but the said provision has exceptions, one of them being that which is stipulated under section 127 (2) of the Evidence Act. She elaborated that in section 127 (2) of the Evidence Act, a child of tender age may adduce evidence without taking an oath or affirmation, but the law requires such a child to promise to tell the truth. She went on to explain that in the matter at hand, the victim (PW1) who at the time of adducing evidence was 11 years old, promised to tell the truth and not lie, thus her evidence was rightly received as per the law. Having read the trial court record, the 6th ground of appeal, and considered submissions from both parties on the 6th ground of appeal, the issue for determination is whether the evidence of PW1 was recorded under section 198 of the CPA as alleged by the appellant. Section 198(1) of the Criminal Procedural Act, [Cap. 20 R.E 2022] and section 127(2) of the Evidence Act, [Cap. 6 R.E 2022] both read as follows; 14 “198. -(1) Every witness in a criminal cause or matter shall, subject to the provisions of any other written law to the contrary, be examined upon oath or affirmation by the provisions of the Oaths and Statutory Declarations Act” “127(2) A child of tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell any lies” Reading the above provisions, it is trite that Section 198 (1) of the C.P.A. mandatorily directs that every competent witness in criminal proceedings must be sworn or affirmed before testifying unless there is another written law directing otherwise. Section 127 (2) of the Evidence Act is an exception to the general rule stipulated under section 198 (1) of the CPA. See Mwami Ngura v. R, Criminal Appeal No. 63 of 2014 (unreported). In the case at hand, the trial record reveals that before giving evidence, PW1, who was aged 11 years, promised to tell the truth to the court. The complaint by the appellant on the 6th ground is therefore devoid of merit and hence dismissed. On the 7th ground of appeal, the appellant complained that after the closure of the prosecution case, the trial court composed the ruling, and he was convicted even before being called to enter his defence. He submitted 15 that the words: “It is this court's satisfaction that the prosecution managed to establish the case against the accused…….” used by the trial magistrate portrayed that he was convicted before being called to enter his defence. To support his argument, the appellant referred this Court to the case of Maunda Masatu vs Republic (Criminal Appeal No. 653 of 2020) [2024] TZCA 768 (19 August 2024) Tanzlii On the other hand, Ms. Sarah Perias, learned State Attorney for the respondent, Republic, submitted that the appellant was not at all convicted before being called to enter his defence. She elaborated that the court was satisfied that the prima facie case had been established against the appellant, but the trial Magistrate did not state in the ruling that he was satisfied that the prosecution had managed to prove the case beyond reasonable doubt and thus the appellant was guilty. She ended her submission on ground 7 by urging the court to dismiss the appellant’s complaint for being devoid of merit. Having heard the parties’ submissions on the 7th ground, the issue for determination is whether the complaint by the appellant that he was convicted before being called to enter his defence is meritorious. This ground should not detain me because the ruling of the trial court speaks louder as opposed to the appellant’s complaint. It is trite law that upon the closure of 16 the prosecution case, the trial court has to determine whether the prosecution has established a prima facie case sufficiently to require the accused person/persons to enter a defence. At this stage, the Judge or Magistrate must consider whether the evidence, when taken at its highest, is such that the court properly directing its mind to the law and the evidence adduced before it, could not properly convict upon it. If the answer to that is yes, the Judge or Magistrate should make a finding of not guilty and proceed to dismiss the charge and acquit the accused person accordingly and, if the answer is no, the Judge or Magistrate must make a finding that a primafacie case has been established against the accused person/persons, and then, address the accused person(s) in the terms of section 293 (2) or 231(1) both of the Criminal Procedure Act, [Cap 20 R.E 2022] or 231 (1) of the CPA, depending on whether the matter is before the High Court or subordinate court. In that respect, as far as the matter at hand is concerned, the ruling of the trial magistrate cannot be faulted because the trial Magistrate did not rule out that the case was proved by the prosecution, but rather, he ruled out that the prima facie case was successfully established against the appellant and he then called the appellant to enter his defence as per the law. 17 Turning back to the 5th ground of appeal, in which the appellant was complaining that he was convicted and sentenced on a charge which was not proved beyond reasonable doubt, the appellant briefly submitted that the prosecution side had not proved the case beyond reasonable doubt. He added that in criminal cases, the standard is proof beyond reasonable doubt but according to him, the said standard was not reached hence ought to have been given the benefit of doubt. Opposing the appellant’s complaint, Ms. Perias submitted that to convict the accused with statutory Rape, the following ingredients must be established and proved beyond reasonable doubt; Firstly; the age of the victim, Secondly, penetration, and thirdly, that the victim’s vagina was penetrated by the accused’s male organ. On the first ingredient, she submitted that PW1 on page 11 of the typed proceedings of the trial court explained how the appellant came home, entered his house, called her (PW1) to enter his room, how he took off the victim’s clothes, undressed himself and then, inserted his penis into the victim’s vagina. She went on to submit that PW1’s evidence was corroborated by the evidence of PW3 who saw bruises and found that the victim’s hymen was not intact. She further elaborated that in sexual cases like the case at hand, the best evidence comes from the victim as per the case of Selemani Makumba versus 18 Republic [2006] T.L.R 379. She urged the Court to see PW1 as a credible witness who has given the best evidence concerning penetration. As regards the 2nd ingredient, Ms. Perias submitted that as per the law, the age of the victim may be proved by the victim him/herself that it can be proved through documents such as birth certificate, but also through the victim, parents, guardians, teachers, and medical doctor. She cited the case of Kidai Magembe vs Republic (Supra) to support her stance. She further explained that in the matter at hand, PWI testified that she was born on 20/07/2012, the fact which was confirmed by PW2. She cemented that at the time of the commission of the offence, PW1 was 9 years old as indicated in the charge sheet. On the 3rd ingredient, Ms. Perias submitted that according to the evidence of PW1, she was raped by the appellant. She went on to state that although PW1 did not mention the appellant to her aunt (PW2), she mentioned the appellant to PW3 when she was sent for a medical examination. She added that the fact that the offence was committed on 25/01/2022, and PW1 mentioned the appellant to PW3 on 26/01/2022, there was no delay to mention the appellant, and even if we assume that there was a delay to mention the appellant, the delay cannot vitiate the evidence of the victim as per position articulated in the case of Hango Omary Hango 19 vs Republic (Criminal Appeal No. 445 of 2022) [2025] TZCA 12 (3rd February, 2025) Tanzlii. She further submitted that the appellant was well known to the appellant, as were close relatives, and hence issues of identification cannot arise. She further explained that the appellant in his defence told the trial court that, there was a conflict between him and PW2 over the property of their late father and for that reason, PW2 fabricated this case, but PW2 was not cross-examined by DW1, hence his evidence is an afterthought she also said the claim by DW4 that, the offence was not reported to him as the street chairperson office is none-meritorious because the matter was reported to the police. Concerning the sentence of thirty (30) years, Ms. Perias submitted that since at the time of the commission of the offence, the victim (PW1) was 9 years old, the appellant ought to have been sentenced to life imprisonment. In that aspect, she prayed to the court to confirm the conviction and pass a proper sentence, to wit, a life sentence. In his brief rejoinder submission concerning submission by the learned State Attorney that his defence before the trial court that he had a conflict with PW2 who is the administratrix of the estate of their father is an 20 afterthought because he did not cross-examine PW2 on that fact, the appellant submitted that he asked PW2 questions on the conflict between him and PW2, (whose) in which the source of it is the properties of their late father but also the questions on why she decided to fabricate the case against him but the trial Magistrate interrupted him saying “Uliza swali linaloendana na kesi, hilo sio swali”. He added that the trial Magistrate did not record the said questions, thus it is not fair to condemn him because it was not his duty to record the proceedings. He stressed that he ought to have been given the benefit of the doubt. To conclude his rejoinder submissions, the appellant submitted that if at all we agree that the victim was born 20/7/2012 as per the evidence PW1, PW2, and as per submission of the learned State Attorney that on January 2022, the victim (PW1) was 9 years old as indicated in the charge sheet, it was not true to say that in April, 2024, she was 11 years old, thus the age of the victim was not proved. On the 5th ground, the issue for determination is whether the charge of rape was proved against the appellant beyond reasonable doubt. Reading section 130 (1) (2) (e) of the Penal Code, it is apparent that, for statutory rape upon which the appellant was charged, the vital ingredients which the prosecution must prove are; 21 1. The age of the victim 2. Penetration of the penis into the vagina of the victim; 3. That, it is the accused who is responsible for such an act. In the case of William Ntumbi versus Director of Public Prosecutions, Criminal Appeal No.320 of 2019, CAT (Unreported) it was held that; “It cannot be gainsaid that, the law requires that in statutory rape cases like the instant case, the age of the victim must be proved……There is a considerable body of case law to show that this Court has emphasized in imperative terms that proof of age may be by parents, medical practitioners, or where available by a birth certificate-see for example, Bashiri John versus Republic, Criminal Appeal No.486 of 2016, Isaya Renatus versus Republic, Criminal Appeal No.542 of 2015 and George Claud Kasanda versus Republic, Criminal Appeal No.447 of 2016 (all unreported)” Now, as far as the case at hand is concerned, as submitted by the learned State Attorney, the first ingredient was proved. PW1 testified before the trial court that she was born on 20/07/2012, the fact which was confirmed by PW2, and therefore in January 2022, she was 9 years old. 22 I now turn to the issue of penetration. As a matter of law, rape is proved by penetration however slight. In terms of Section 130 (4) of the Penal Code Cap 16 R: E 2019, penetration however slight is sufficient to constitute rape. It is trite law that in sexual offences, the best evidence in sexual offences comes from the victim who is better placed to explain how she was raped and the person responsible. See Selemani Mkumba versus R (Supra). In other words, it is trite law that the evidence of one solitary credible witness can establish a case beyond reasonable doubt because the truth is not discovered by a majority vote. In Mohamed Said vs Republic (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (23 August 20190 Tanzlii while addressing the evidence of the victim in sexual cases, the Court observed, “We think it was never intended that the word of the victim of the sexual offence should be taken as gospel truth but that her or his testimony should pass the test of truthfulness. We have no doubt that justice in cases of sexual offences requires strict compliance with rules of evidence in general…” (Emphasis is mine). The emphasis here is that to convict an accused person based on the evidence of the victim, the trial court must be satisfied that what the victim has testified is nothing but the truth. This is because human experience has shown that in these cases, victims do sometimes tell an entire false story 23 which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, and sometimes for no reason at all. This court through the case of Elipius Rwezahula versus Republic, Criminal Appeal No.107 of 2020 had this to say; “It is without doubt, the easiest case to frame against a person is a rape case because a victim may easily be coached against an innocent person. Therefore, though it is important to trust the testimony of the victim, the court should always ensure that the demeanour is assessed and all possibilities of fabrication are eliminated” In the case at hand, the trial court record reveals that PW1 is the appellant’s close relative and she used to call him uncle. PW2 is the victim’s aunt. PW1 testified before the trial court that on 25/01/2022, while at home alone, the appellant came and then ordered her to enter his room and she did so. She added that upon entering the said room, the appellant ordered her to sleep on the bed and turn on the wall. She went on testifying that the appellant took off her clothes, and then undressed himself, and then inserted his penis into her vagina after he had applied jelly oil. She further narrated that she screamed from pain but the appellant covered her mouth to stop her from screaming. She added that later on, the appellant took water and washed her in her private parts, and having done so, he ordered her to dress 24 and warned her not to tell anybody. She further said that, upon the arrival of her grandmother, she lied to her that she fell on the stones and got injured, and she did the same to her aunt (PW2). As per the prosecution evidence, there was no eyewitness of the incident. The record reveals that the offence was committed in January 2022 when the victim was 9 years old, but she testified that on 18/04/2024 when she was 11 years old. PW1 did not tell her grandmother or aunt that she was raped by the appellant but told them that, she fell on the stones and sustained injuries. In her evidence, PW1 further said that she lied to them because she was warned by the appellant not to tell anybody about the incident of rape. However, PW1 did not state the words used by the appellant when warning her. PW1 added that other children were playing on the other side of the house while others went for extra studies, but none of them appeared to testify that PW1 was at home alone or that PW1 did not join them in the playground. PW1 further testified that she was examined by the medical doctor (PW3) and she narrated to her what the appellant did to her. According to PW3, PW1 was penetrated. However, the evidence of PW3 is not free from doubt. PW3 confirmed that she received the victim on 26/01/2022, around 11:00 hours, and upon examining her, she noticed abnormalities in her 25 private parts, and when she interviewed her, the victim mentioned the appellant as the person who raped her. PW3 further told the trial court that she directed PW1 and PW2 to go to the police station to report the matter and get the Pf3 and they did so. She further told the trial court that when the victim and PW2 came back from the police station, she examined the victim, but before filling PF3, she referred her to Sekou Toure Hospital, and when diagnosed, she was not treated because nothing more was recognized. PW3 added that, thereafter she filled PF3. From the evidence of PW3, it is clear that the victim was referred to Sekou Toure Hospital, which is the Regional Referral Hospital. However, no reasons were assigned by PW3 as to why she referred PW1 to Sekou Toure. It is not clear whether PW3 doubted the examination she carried out, or that she believed that experts who could competently examine the victim were at Sekou-Toure Hospital as opposed to Kirumba Dispensary. PW3 added that she filled PF3 after the victim had returned from Sekou-Toure, but no documentary evidence to show that the victim was referred to Sekou-Toure. In the absence of evidence from Sekou Toure Hospital, the above questions create doubts about the evidence of the medical expert (PW3). It has to be noted that, the story that the victim was raped by the appellant emerged in the office of PW3, but PW3’s evidence as I said, is 26 doubtful. In PF3, which was admitted as Exhibit P1, PW3 remarked that the victim seems to have superficial penetration with old perforation. She did not explain why she remarked that way. Worse enough, Exhibit P1 shows that it was signed and dated on 27/01/2022, while PW3 received and attended the victim on 26/01/2022 but also during examination in chief, PW3 told the trial court that she signed the same on 27/01/2024 and that she collected the same from the police station on the date she appeared in court to testify. In re-examination, she was not asked to make any clarification concerning the exact date on which she filled out PF3. The investigator (PW4) assured the court she interviewed the appellant and the appellant denied having committed the offence of rape. As per the trial court record, although the appellant was not informed of his rights as per section 231 (1) of the CPA, he managed to defend himself and featured three (3) witnesses. DW1 went on denying having committed the offence. DW1 added that there was a conflict between him and his sister (PW2) over the properties of their deceased father because PW2, was an administratrix of the same. DW2 told the trial court that there was a conflict between PW2 and the appellant, as PW2 claimed that the appellant was calling her a witch. DW3, the brother of PW2, DW1, and DW2, confirmed the existence of a conflict between them over the estate of their late father. 27 DW4, who is a street chairman, confirmed the existence of a probate conflict between family members and he tendered a letter (Exhibit D1) dated 04/03/2021 which was copied to him concerning the said conflict. As submitted by the learned State Attorney, the trial court record reveals that when PW2 was testifying she was not cross-examined by her brother (DW1) concerning the conflict between them and the fabrication of this case, thus according to Ms. Perias, the appellant's defence was nothing but an afterthought. Ms. Perias added that failure to cross-examine a witness on a material matter implies an acceptance of the witness’s evidence. She also urged the Court to take note that DW4 being a Street Chairman testified that he had no information that the victim was raped, but since the matter was reported to the police as per the law there was no need to report it to DW4. She conceded that in rural areas, incidents of criminality are ordinarily reported to local leaders, but she added that does not mean that reporting a criminal incident directly to the police who are charged with the duty of investigating crimes would render victims’ complaints incredible. She cited the case of Kidai Magembe vs Republic (Criminal Appeal 228 of 2021) [2022] TZCA 346 (13 June 2022) Tanzlii On his side, the appellant submitted that although the record of the trial court is silent, the truth is that he asked PW2 questions on the conflict 28 between him and her, and the fabrication of this case but the trial Magistrate interrupted him saying “Uliza swali linaloendana na kesi, hilo sio swali”, and for that matter, the trial Magistrate did not record the said questions. Since the evidence of PW3 attracted more questions than answers, the issue is whether the evidence of PW1 alone was sufficient to ground a conviction as per the circumstances of this case. As pointed out earlier, human experience has shown that in these cases, victims do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute, and that such stories are fabricated for all sorts of reasons, and sometimes for no reason at all, and the fact the easiest case to frame against a person is a rape case because a victim may easily be coached against an innocent person. In my view, under the circumstances of this case, it was not safe to convict the appellant on the ground that the evidence of PW1 was corroborated by the evidence of the medical doctor (PW3). The evidence of PW1 is not free from doubt whether she lied to PW2 and her grandmother or she lied to PW3 and the court. Undoubtedly, Probate and administration cases oftentimes lead to family conflicts and revenge. Had the trial magistrate considered the defence evidence, he would have found that the accused, now appellant, had 29 managed to raise a reasonable doubt of the prosecution case. In Mwita and Others vs Republic [1977] LRT 54 it was held that; "The appellants' duty was not to prove that their defense was true. They were simply required to raise a reasonable doubt in the mind of the magistrate and no more." I shake hands with the learned State Attorney that as per the trial court record, PW2 was not cross-examined by DW1 on the family conflict or the reasons for fabricating this case. However, it is noteworthy that a failure to cross-examine is merely a consideration to be weighed up with all other factors in the case in deciding the issue or the truthfulness or otherwise of the unchallenged evidence. The failure does not necessarily prevent the court from accepting the version of the omitting party on the point. See Kwiga Masa vs. Samwel Mtubatwa [1989] T.L.R. 103 and Zakaria Jackson Magogo v. The Republic, (Criminal Appeal No. 411 of 2018) [2021] TZCA 207(19 May 2021) Tanzlii. In the latter, the Court of Appeal was inspired by the former case of the High Court and held that the rule that the failure to cross-examine a witness on a particular point is tantamount to an acceptance of unchallenged evidence as accurate is not absolute. Even if we assume for the sake of argument that the case was proved beyond reasonable doubt, the sentence meted against the appellant by the 30 trial court was improper. Section 131 (3) of the Penal Code provides that subject to the provisions of subsection (2), a person who commits an offence of rape of a girl under the age of ten years shall on conviction be sentenced to life imprisonment. In the upshot, I am constrained to allow the appeal and, respectively, quash the conviction and set aside the sentence of thirty (30) years meted against the appellant. I further order for an immediate release of the appellant from prison custody unless he is held for some other lawful cause. It is so ordered. Dated at Mwanza, the 14th day of March, 2025. E.L. NGIGWANA JUDGE 31 Judgment delivered this 14th day of March, 2025 in the presence of the appellant in person, Ms. Sara Perias, learned State Attorney for the Respondent/ Republic, and Ms. Gladness Mnjari, B/C. E.L. NGIGWANA JUDGE 13.3.2025 32