WEGESA SAMO MARWA

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 000020206 OF 2024 CASE REFERENCE NUMBER 202407192000020206 (Arising from the Decision of the District Court of Tarime at Tarime in Criminal Case No. 29 of2023) BETWEEN WEGESA SAMO MARWA.................................................. APPELLANT VERSUS THE REPUBLIC................................................................ RESPONDENT JUDGMENT 18th & 19th March, 2025 M. L. KO MBA, J.: Before the District Court of Tarime, the appellant Wagesa Samo was convicted and sentenced to 30 years imprisonment for offence of rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code, CAP 16 (R.E 2022). The particulars of offence as revealed in the charge was to the effect that, on 1st September, 2022 and 30th September, 2022 at Ng'ereng'ere village in Tarime District in Mara Region, the appellant had sexual intercourse with a girl of 17 years old (victim/PWl). Appellant denied to commit the offence hence the matter went to full trial. During trial, the prosecution paraded a total number of four (4) witnesses Page 1 of 14 and one exhibit to prove their case against the appellant. To the contrary, appellant fended for himself that he committed no crime. The whole of the prosecution evidence can be recounted as follows from prosecution testimony; that on 30/9/2022 when the victim was preparation to go to bath while, on kanga, appellant went to their home and asked for a hoe, when the victim went inside to take a hoe, appellant entered in a room and took off her kanga, he undresses his trouser and covered the mouth of the victim. By that time, victim was struggling but appellant was stronger enough, with elected male organ he put the victim down who laid by her back and appellant laid over her and committed the said crime. When satisfied, appellant warned victim not to tell anyone or else will be beaten to death. On 28/01/2023 victim mother noted changes to her daughter and when asked, victim replied she was ok, nothing was wrong. On 29/01/2023 victim was taken to hospital and was found with five (5) months pregnancy. Victim told her mother (PW2) that it was appellant who raped her some days ago. The matter was reported to police and later on appellant was prosecuted. While in court, PW2 confessed that her daughter mentioned appellant to be responsible though she denied at the first place. Page 2 of 14 The trial court was satisfied that the prosecution proved their case to the hilt, and thus it went on to convict and sentence the appellant as stated early above. On the appellant side, the trial Court decision was not of his desire. He therefore knocked the doors of this court, armed with five (5) grounds of appeal to challenge the same decision. In summary, his grounds of appeal read as follows; 1. That the prosecution failed to prove the offence beyond reasonable doubt 2. The exhibit Pl did not qualify to ground conviction to appellant. 3. That the appellant defence was not considered. 4. That appellant was wrongly con victed and sentenced as prosecution side base their case on theory. 5. That there was no collaboration in testimony of PW1 and PW4. During the hearing of the appeal, the appellant was represented by Mr. Cosmas Tuthuru, the learned Advocate while on the other hand the respondent, Republic was represented by Ms. Joyce Matimbwi, the learned State Attorney. Mr. Tuthuru combined the 1st and the 3rd ground and started by analysing the testimony of PW1 and PW2 and submitted that they were not credible Page 3 of 14 witnesses whose testimony was not solid enough to warrant conviction of the appellant. He submitted that, PW1 did not mention the name of the appellant when asked by her mother (PW2) till on 29/01/2023 when she was at police. Counsel lamented that if it was true that appellant is responsible to that pregnancy and victim was threatened on September 2022, victim could mention the appellant on 28/01/2023 when asked by her mother because by that time appellant was not around. He referred this court to page 18 of the proceedings when victim mention the name of the appellant after it was discovered that she was pregnant. Basing on those facts he said prosecution evidence created doubts as the victim delay in mentioning the name of the appellant and support his submission by Shukuru Moshi @ Elimringi vs Republic (Criminal Appeal No. 29 of 2021) [2024] TZCA 1022 (1 November 2024). He went on attacking the testimony of PW2 who during cross examination she confirm not to be aware when PW1 was raped but she testified that victim was threatened to be killed that why she (the victim) did not mention the appellant. If PW2 became aware of rape when they confirm the pregnancy of her daughter, Mr. Tuthuru complained that how PW2 be able to testify that victim was threatened on that day while she knew nothing. Page 4 of 14 On proving that prosecution failed to prove the offence beyond reasonable doubt, advocate Tuthuru analyse the time spent by prosecution to charge the appellant. He submitted that the rape was alleged to take place on 16/09/2022, appellant was arrested on 29/01/2023 and was arraigned to court to on 03/03/2023. He pointed the delay in charging the appellant which, according to him it creates doubts if real it was appellant who committed the offence and supplied me with decision of Ally s/o Shabani @ Nzige vs Republic (Criminal Appeal No. 12 of 2021) [2024] TZCA 135 (23 February 2024) that un explained delay creates doubt. He was of the opinion that the combined grounds are enough to show the prosecution failed to prove the offence beyond reasonable doubt and pray the appeal to be found with merit while abandoned the rest of the grounds. Ms. Matimbwi object the appeal while insisting the conviction was right. In this case she said prosecution was supposed to prove only two things; penetration and age of the victim. She submitted that, penetration was proved by victim who explained at page 09 to 11 of the proceedings what happened on that fateful day when she was preparing to bath. She was asked to have sexual intercourse but refused and appellant used force while warned victim not to reveal to anyone. Victim was in fear and Page 5 of 14 decided to keep quiet as rape is shameful action. It was when she was found pregnant is when victim explained what happened and mentioned appellant. State Attorney submitted that immediately appellant was arrested therefore PW1 and PW2 were credible witnesses. Ms. Matimbwi did not deny that PW2 testified that victim was threatened by the appellant but state Attorney clarified that PW2 reply that she did not know when her daughter was raped during cross examination cannot be said PW2 was not credible witness because, according to her, credibility of the witness is accessed by the trial court. She insisted their witnesses were credible. On the issue that victim did not report the matter immediately, she submitted that that crime was shameful and therefore it was not possible for victim to explain what happened to her and got refuge in Wilfred Andisai Mmari vs Republic (Criminal Appeal No. 164 2020) [20231 TZCA 17666 (27 September 2023) where the Court find that action was shameful so it was not possible for the victim in the case at hand to report the matter on time. Ms. Matimbwi distinguished that case of Ally s/o Shabani @ Nziqe vs Republic (supra) where in that case Ally was arrested at the scene but he was lately charged while in the case at hand appellant was arrested on Page 6 of 14 different date. Further to that she submitted that the appellant did not explain whether he was in custody or was under police bail while set a position that appellant was on bail while investigation was conducted till when completed is when he was taken to court. Basing on the principle in Selemani Makumba vs Republic, [2006] T. L. R. 379 that best evidence in rape cases come from the victim, she submitted that Republic managed to prove the offence since Exhibit Pl show the victim was pregnant that means she was penetrated. During Rejoinder Mr. Tuthuru did not show any doubt on the two ingredients of rape case neither did he disputed that the victim was pregnant, his concerned was failure to prove that rape was done by the appellant. It was his submission that proving the offence is tested to all witnesses and exhibit. On the issue of credibility of the witnesses he insisted that even the appellate court may assess credibility as was in Ally Shaban @ Nzige vs Republic (supra). About the delay in charging the appellant he insisted that the appellant was taken to court on 03/03/2023 and on the same date he was bailed out as seen in page 2 of proceedings and by the time of his arrest, PW1 was already undergo examination so there was no need for Republic to take long to charge appellant. He submitted further that the decision in Page 7 of 14 Selemani Makumba vs Republic (supra) case was analysed by the Court in Ally Shaban @ Nzige vs Republic (supra) that evidence must be set to another test. About the issue that rape is shameful action, he was of the submission that on 28/01/2023 victim talk to her mother (PW2) and explained he was ok, he insisted that, on that day there was no threat and victim was free to mention she could mention the appellant but she did not. Further appellant explained that victim was her relative and defended on jealous issues with the mother of the victim. He reiterates his prayer that his appeal to be found with merit. Upon carefully considered the trial court record, the petition of appeal and parties' submissions, I find the crucial issue which I am called upon to decide basing on the two combined grounds as submitted, is whether the prosecution case was proved beyond reasonable doubt. In determining this appeal, I will perceive the duty of this court being the first appellate court as it is well established that, the duty of the first court is to re-evaluate the entire evidence in an objective manner and arrive at its own findings of facts, if necessary. See the case of Siza Patrice vs. The Republic, Criminal Appeal No. 19 of 2010. Counsel for the appellant is complaining of credibility of PW1 and PW2. As he set his position that he did not dispute that victim was raped. In Page 8 of 14 deed the proof of rape comes from prosecutrix herself. Other witnesses if they never actually witnessed the incident, such as medical practitioner may give corroborative evidence only. Those words are found in Godi Kasenegala vs Republic, Criminal Appeal No. 10 of 2008 and Selemani Makumba vs Republic (supra). Victim in this case testified as PW1 whose credibility is questioned by the counsel for the appellant while he prays this court to assess victims' credibility, State Attorney resist it as it is the domain of the trial court. It should be known that, demeanour which is the domain of the trial court is not the only way in which the credibility and reliability of a witness can be assessed. The credibility of a witness can be determined in other two ways that is, one, by assessing the coherence of the testimony of the witness, and two, when the testimony of the witness is considered in relation to the evidence of other witnesses. The latter may be done even at the appeal stage. See Shabani Daud vs Republic, Criminal Appeal No. 28 of 2001 and Ally Shaban @ Nzige vs Republic (supra). I had time to read all prosecution testimony in the case at hand and find the conviction was based on the PW1 testimony which was collaborated by Exhibit Pl. One of the issues framed by the trial Magistrate was if the victim was raped and if yes, who raped her. That is what is complained Page 9 of 14 by the counsel for the appellant. Trial court based its findings on the truth that victim managed to mention appellant and the identification of the appellant at the scene was perfect as it was day time and victim know accused before. However, evidence adduced by the same victim need to be analysed. PW1 claim to be raped on September 2022 and remain silent till 29th January 2023 when she was tested pregnant. Before that test, she refuses to tell her mother that she was raped and that she was pregnant. How comes a girl of 17 years don't know that she was five (5) months pregnant? When was tested positive on pregnancy and when she was asked who is responsible, she decided to name the appellant. I said she decide to name him because a day before, victim was asked if she has any problem and informed her mother that she has no any problem. She was not willing to say that she was raped and who raped her. In these circumstances, I join hand with Mr. Tuthuru that victim had time on 28/01/2023 to explain to her mother what happened but she did not. What was she hiding. She decided to mention the appellant on the second day of inquiry but after five months from when the crime was committed. I am aware that every witness is entitled to credence and must be believed as was in Iddi Shaban @ Amasi vs The Republic, Criminal Appeal No. 2006 and Goodluck Kyando vs Republic, (supra). Page 10 of 14 However, there are exceptions, where there are good and cogent reasons not believing a witness. Prosecution maintained that victim was shameful to say anything due to the nature of the crime as was in Wilfred Andisai Mmari vs Republic (Criminal Appeal No. 164 2020) (supra). It is true that rape is not a good thing, however, the incident took place many months ago and by the time her mother was asking her, they were only two then to whom she was hiding that shameful action. Even after some months, victim was not able to reveal not only that she was raped, but she was raped by the appellant. The inability of the witness to disclose the name of the perpetrator at the earliest time following the commission of the offence puts to question the reliability and assurance of such evidence and casts doubt to her evidence and prosecution case as a whole. It is settled that ability of the witness to mention the accused/appellant prove her credibility and the vise versa creates doubts. See Shukuru Moshi @ Elimrinqi vs Republic (supra). Victim had time to inform her mother but decided to not to mention the appellate. Why victim did not mention the appellant on first place creates doubts if it was appellant who raped her. Page 11 of 14 While I subscribe to principle in Selemani Makumba vs Republic (supra), in Mohamed Said vs Republic, Criminal Appeal No. 145 of 2017 the Court stated: '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 the rules of evidence in general, and s. 127 (7) of Cap 6 in particular, and that such compliance will lead to punish offenders only in deserving cases.' From the record, a trial Magistrate tested the testimony of the victim as seen at page 6 of the judgment, however the test was not exhausted as it based on identification of the appellant without making consideration of other facts including her failure to mention appellant when her mother asked her. Another area which leaves the gap on the prosecution side is unexplained delay in arraigning the appellant in the court for the said offence as submitted by Mr. Tuthuru. It was the testimony of PW3 who was investigator that appellant was arrested on 29/01/2023 and on 30/01/2023 when he started investigation the appellant was in lock up. From the proceedings, appellant was first taken to court on 03/03/2023 and was informed his right to bail. That means he was not on bail. From 29/01/2023 when he was arrested to 03/03/2023 when he was arraigned to court is more than one month and prosecution decided to keep quiet. Page 12 of 14 Court of Appeal has dealt with similar issue in a number of cases including Ramson Peter Ondile vs Republic (Criminal Appeal 84 of 2021) [2022] TZCA 608 (6 October 2022) and Shabani Salimu vs The Republic, Criminal Appeal No. 519 of 2021. As stated, the unexplainable delay which is featured in this case is linked with the appellant's defense story that he has grudges with the mother of the victim and that a person who raped the victim needed the victim and was ready to pay dowry for her. The same created a reasonable doubt in the prosecution case which the appellant claimed was framed against him. See in Ally Shaban @ Nzige vs Republic (supra). Further in Ramson Peter Ondile vs The Republic, Criminal Appeal No. 84 of 2021 [2022] TZCA 608 (6th October 2022) the Court held that: 'It is therefore our considered view that the unexplained delay to arraign the appellant in court creates doubt in the prosecution case as to whether the incident occurred as alleged [Emphasis added]' In the case at hand, I may add that delay to arraign appellant create doubt if it was appellant who raped the victim. Generally, there are gaps in the prosecution testimony which confirm the offence was not proved to the required standard. In the criminal case the standard of proof is beyond reasonable doubt and proving beyond Page 13 of 14 reasonable means the prosecution evidence must be strongly as to leave no doubt to the criminal liability of an accused person. See Samson Matiga vs Republic, Criminal Appeal No. 205 of 2007. In our jurisdiction doubts are decided in favour of the accused person as was in Sebastian Michael & Another vs DPP, Criminal Appeal No. 145 of 2018. I find the appeal has merit; the prosecution failed to prove their case beyond reasonable doubt. I allow the appeal and I order the release of the appellant forthwith unless he is otherwise lawful held. It is so ordered. DATED at MUSOMA this 19th day of March, in the year 2025 is % M. L. Komba JUDGE Judgment *^d in chamber in the presence of the appellant and Mr. Michael Kayombo State Attorney for respondent. iW M. L. Komba JUDGE 19th March, 2025 Page 14 of 14