RAHIMUS JUDGMENT

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 14432 OF 2024 (Arising from the District Court of Mkuranga at Mkuranga in Criminal Case No. 242 of 2023 before Hon. K.P. Mroso-SRM Dated 14th November 2023) RAHIM SWAMBALI SHAHA…………………………………………………..APPELLANT VERSUS THE REPUBLIC ……………………………………………………………. RESPONDENT JUDGMENT 19th February, & 12th March,2025 MWANGA, J. Before the District Court of Mkuranga at Mkuranga, the appellant Rahimu Swambali Shaha stood charged with the count of Unnatural offense c/s 154 (1) (a) and (2) of the Penal Code, Cap. 16 [R.E 2022]. The particulars of the offense are that on different dates in March 2023 at Mkokozi Village within Mkuranga District in Coast Region, the accused did have carnal knowledge against the order of nature with a schoolboy aged 10 years old. To protect his modesty, in this judgment, he will be 1 referred to as PW1 or victim, the title under which he testified in the trial court. During the trial, the prosecution alleged that Pw1 is 10 years old, a standard IV pupil at Mkokozi Primary School, and a resident of Mwembe Mtengu within Mkuranga District. That day, while heading to school, he met Rahim/the accused person, who asked about his name whereby, the victim revealed his name to Rahim and went to school. It is alleged further that, one day, PW1 went home late as he was cleaning his classroom; on the way home, he met the accused, who was armed with a knife. The appellant dragged the victim into the unfinished house and threatened to kill him. He ordered the victim to remove his clothes and bend; the victim adhered to the accused order, fearing that he would be killed. Afterward, the appellant also removed his clothes and sodomized the victim. After he satisfied his desires, he ordered the victim to wear his clothes and go. The appellant also threatened the victim not to reveal the ordeal /act to anyone. It appeared that, during the act, some children passed and saw the victim, thus revealing the story to PW1’s headteacher, 2 who informed the chairman, and the latter informed the victim’s father. Acting on that information, the accused’s father took PW1 to the police station, where a PF3 was issued. PW1 was taken to Mkuranga District Hospital for medical examination. He was attended by Dr. Fatuma Zuberi Kulunguja (PW3) from Mkuranga District Hospital, who confirmed that there were bruises on the victim’s anus and the anal sphincter was not intact hence finding out that PW1 was penetrated. PW3 filled his report in PF3, which was admitted as Exhibit P1. To prove its case, the prosecution paraded four witnesses, including the victim and one exhibit, while the defendant fended himself. In his defense, the appellant denied knowing the victim and committing the act. Despite his denial of not knowing the incident, the trial court found the prosecution had proved the count of the unnatural offense beyond a reasonable doubt at the end of the trial. The accused was convicted and sentenced to life imprisonment; he was also ordered to pay compensation of Tsh.1,000,000. To restore his innocence and liberty, he thus appealed to this Court. He invited the Court to allow the appeal, quash his 3 conviction, set aside the sentence, and order his release from prison in consideration of six grounds of appeal as presented in the memorandum of appeal. The grounds of appeal may be paraphrased as follows; (1) That the learned trial Magistrate erred in law and fact in convicting the appellant based on the evidence of Pw1 (Victim), whose testimony was received Contrary to the provisions of section 127 (2) of Cap 6 R.E 2022, (2) The prosecution failed to parade in court the crucial witnesses to prove every fact in issue, i.e., Pw1’s friends, teachers, chairman, and/or arresting officers. (3) An Identification parade was not conducted for Pw1 (Victim) to identify the appellant before he was shown to him, an omission that renders Pw1’s identification/recognition a dock identification and Contrary to the law. (4) Defence evidence was not considered the omission, which resulted in a serious misdirection amounting to a miscarriage of justice. 4 (5) That the learned trial Magistrate erred in law and fact in convicting the appellant based on PW1’s evidence, which was barely improbable, incredible, untruthful, and unreliable enough to warrant the appellant’s conviction beyond all reasonable doubts (6) That the learned trial Magistrate erred in law and fact in Convicting the appellant in a case that was not proved beyond all reasonable doubts by the prosecution against the appellant as required by law. The appeal was heard in form of written submission, in which the appellant appeared in person while Mr. Clarence Mhoja, the State Attorney, represented the respondent. In his submission, the appellant submitted his grounds seriatim except for the 5th and 6th grounds of appeal, the style that the respondent adopted. To better determine this appeal, I will address the 5th and 6th grounds of appeal first, and if need be, I will deal with the remaining grounds. Submitting on those grounds, the appellant contended that determining a witness's credibility could not be made in isolation 5 of other pieces of evidence on the record and the circumstances surrounding the case, as referred to in the case of Shaban Daud V.R, Criminal—Appeal No. 28 of 2000 (Unreported). “The credibility of a witness can also be determined in two other ways: one when assessing the coherence of the testimony of that witness. Two, when the testimony of that witness is considered about the evidence of other witnesses, including that of the accused person.” He asserted that in sexual offenses, the best evidence comes from the prosecutrix (Victim) themself, but such Victim’s evidence must be credible and truthful against the accused person. In the present case, he argued, the prosecution had left several unanswered questions that destroyed the credibility, truthfulness, and reliability of PW1’s evidence against the appellant. For instance, why the said Watoto, who saw PW1 and the alleged assailant at the scene of the crime, were not called to testify in court and prove the facts in issue? Then why was the headteacher who received the information not called to testify in Court? Above all, why were the chairman and arresting officers not called to testify in court? He added that no identification 6 parade was conducted for PW1 (Victim) to identify his assailant, who then facilitated the appellant's apprehension. According to him, this case is full of doubts, which doubt the court of justice is duty-bound to resolve in the appellant’s favor. He thus urges the court to find this appeal to have merit as the prosecution did not prove its charge against the appellant beyond all reasonable doubts. In response, Mr. Mhoja was in the same line of argument as that of the appellant; she submitted that, despite the rule that the victim's evidence is the best, such evidence should not be taken as a biblical version to be believed wholesome, rather credibility of the victim must be tested and proved. The court must be satisfied that what the victim testified in court is nothing but only the truth of what happened to her. To cement his points, he cited to the court the case of Malimi Peter vs Republic (Criminal Appeal No. 480 of 2020) [2024] TZCA 65 (20 February 2024) TanzLII. She asserted that in the present appeal, the victim is recorded on page 6 to have stated that the appellant penetrated him six times at the same “jumba.” But in his evidence in chief, 7 he only said one day, and it was only on that day when he was threatened by the appellant to be stabbed by a knife. The victim was not led to say on the remaining fifth time whether he was also threatened. Nor was he led to say what prevented him from revealing the appellant to be the man behind the ordeal on the remaining fifth times, as he suggests. Moreover, it is not clear in the prosecution’s evidence whether the victim and the appellant were known to each other. This was important in establishing whether or not it was mandatory to hold an identification parade so that the victim could have been able to identify the man behind the ordeal. In addition, he said, it is not clear as to why the prosecution did not amend the charge after the PW1 finished to testify that he was penetrated six times in March and April 2023 to harmonize the evidence and the charge, which reflected him being carnally known against the order of nature in March 2023. In his view, leaving the said variance unattended had the effect of rendering the charge unproven. He referred the court to the case of Francis Fabian @ Emmanuel vs Republic (Criminal 8 Appeal No. 261 of 2021) [2023] TZCA 17936 (12 December 2023) TanzLII page 5. He added that it is not being spoken as to what led to the arrest of the Appellant and how he was arrested. And if the incident occurred in March 2023, why was the accused arrested in April 2023? What caused the delay in arresting him? Further, why was he charged after almost a month after his arrest? According to him, all these were supposed to be addressed by the arresting officer. Mr. Mhoja insisted that failure to address the questions hurt the prosecution’s case. He further contended that the Headteacher was a crucial witness in the prosecution case to clear the air on the allegations against the Appellant. Thus, failure to summon him had the effect of dismantling the prosecution’s case. He therefore prayed the court to allow the appeal. Having considered the party's arguments and thoroughly perused the trial court’s record and the case laws relied on to establish the merit or demerit of the grounds, I note that both parties are at one on the trite law that the best evidence in sexual offenses comes from the victim as stated in several authorities such as Seleman Makumba Vs. R, [2006] T.L.R 379. and 9 Wambura Kiginga Vs. R, Criminal Appeal No. 301 of 2018 (CAT- unreported), and that every witness is entitled to credence and must be believed and his testimony accepted unless there are compelling and good reasons for not believing the witness, which includes the facts that the witness has given improbable or implausible evidence or evidence has been materially contradicted by another witness. See the cases of Goodluck Kyando vs R (2006) TLR 363 and Mathias Bundala Vs. R, Criminal Appeal No 62 of 2004 (CAT-unreported). However, the words of the victim of sexual offenses should not be taken as the gospel truth, but the same should pass the test of truthfulness. This principle was underscored in the case of Mohamed Said Vs. R, Criminal Appeal No. 145 of 2017 (unreported). In the instant appeal, the victim’s evidence suggests the incident happened one day, where he was threatened to be killed in case he revealed the awful act done to him by the appellant. However, he later stated that the appellant penetrated him six times in the same building. The victim was not led to state whether the remaining fifth time was also threatened. It is thus 10 questioning as to whether he was threatened once or every time the appellant sodomized him. Apart from that, in his evidence, Pw1 did not state clearly if he knew the appellant; his evidence suggests that he met the appellant, who inquired about his name and later took him to an unfinished house and sodomized him. Yet, no identification parade was conducted to prove that the victim identified the appellant. Further, in his evidence, Pw1 did not characterize the perpetrator of the crime. That aside, the prosecution failed to call important witnesses who could link the accused with the offense. Thus, the students who witnessed the incident, the headteacher, and the chairman whose incident was reported to them acted on that information to inform the victim’s parent. Moreover, the record is silent regarding how and when the appellant was arrested. The documents reveal that he was arraigned to court in May 2023 while the incident occurred in March 2023, and the victim was examined on 12 th April 2023; there is no explanation for such a delay. Worse enough, the arresting officer who could address those questions was not summoned to testify. Failure by the prosecution to call such an 11 essential witness without explanation would have prompted the trial court to draw an adverse inference against the prosecution. This sound principle was enunciated in the case of Boniface Kundakira Tarimo v. Republic, Criminal Appeal No. 350 of 2008 (unreported). When considering a similar matter, the Court stated that: "...It is thus now settled that, where a witness who is in a better position to explain some missing links in the party's case is not called without any sufficient reason being shown by the party, an adverse inference may be drawn against that party, even if such inference is only a permissible one." In that respect, I fully agree with the parties’ submission that the appellant’s conviction was based on a prosecution case that was not proved to the hilt. It is the law that once the court finds evidence tendered by the prosecution is doubtful, such doubts must be resolved in the accused's favor, which course I hereby take and proceed to see that the appellant’s conviction was wrongly arrived at. 12 Consequently, this appeal has merit, and it is allowed. The appellant’s conviction is hereby quashed, and the sentence meted on him set aside. I order his immediate release from prison unless otherwise lawfully held. It is so ordered accordingly. H.R. MWANGA, JUDGE 12/03/2025 COURT: Judgment delivered at Dar es Salaam on March 12, 2025, in the presence of the appellant and Ramadhani Kalinga, learned State Attorney for the Respondent. H.R. MWANGA. JUDGE 12/03/2025 13 14