CRIMINAL APPEAL NO 456 OF 2020 SELEMANI MSUYA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA ATMOSHI ( CORAM: LEVIRA, 3.A., GALEBA. 3.A.. And ISMAIL. 3.A/1 CRIMINAL APPEAL NO. 456 OF 2020 SELEMANI MSUYA ..... ........ ........... ....................................APPELLANT VERSUS THE REPUBLIC.................... ............... ........................ RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Moshi) (Mkapa.3.1 dated the 17th day of August, 2020 in P. C. Criminal Appeal No. 21 of 2019 JUDGMENT OF THE COURT 5th & 14th August, 2024 LEVIRA, 3.A.: In the District Court of Moshi at Moshi, the appellant, Selemani Msuya was charged with the offence of rape contrary to sections 130 (1) (2) (e) and 131 of the Penal Code [Cap 16 R.E. 2002, now R.E. 2022] (the Penal Code). It was alleged in the particulars of the offence that on unknown dates between July, 2016 to January, 2017 at Majengo Mji Mwema area within the Municipality of Moshi in Kilimanjaro Region, the appellant did have carnal knowledge of a girl aged 9 years; who for the purpose of concealing her identity, will hereinafter be referred to as the victim or PW3. The appellant pleaded not guilty to the charge. However, after a full trial, he was convicted and sentenced to life imprisonment. Aggrieved, he unsuccessfully appealed to the High Court of Tanzania at Moshi vide D. C. Criminal Appeal No. 21 of 2019, subject of the present appeal. The background of this case albeit briefly is to the effect that, in 2009 the victim's mother was married to one Kassim Yahaya (PW1). They lived together and were blessed with two issues, one of them being the victim. Their marriage did not subsist for long time as they separated in the year 2014 and the victim went to stay with her mother. According to PW1, the mother of the victim told him that she got another man, that is the appellant, who was taking care of her and they planned to get married. In the circumstance, the victim was placed at the scene of crime. The victim (PW3) testified that she was living with her step father (the appellant) in one room together with her mother, Yahaya Hussein and Ibra. In the said room, there was only one bed and thus her mother, the appellant, Yahaya Hussein and Ibra used to sleep in the bed while, the victim and her brother called Hussein were sleeping on the floor. She testified further that her mother was selling fruits so she used to leave home early in the morning around 6:00 am. Whenever her mother left them at home, the appellant took that advantage to undress the victim and himself, apply oil on his penis and insert it in PW3's vagina. She thus decided to teil her friends about her step father's actions and they informed her mother. But, when her mother asked the appellant, he beat the victim and denied to have committed such an offence. The information about what had befallen the victim filtered out, which eventually led to the arrest of the appellant was reported to the police by Monica Michael Kimath (PW2). Explaining about how she became aware of the incident, PW2 testified that she was told by a lady known as Halirna who was the victim's neighbour that the appellant had raped the victim. PW2 called the victim and upon interrogation, she told her that whenever her mother left home, the appellant uses that opportunity to rape her. PW2 sent the victim to Majengo Police Station, reported the incident and the victim was issued with a PF3 and taken to Majengo Health Centre where she was attended by a clinical officer, one Mary Tupa (PW5). In her examination, PW5 discovered that PW3 had no hymen and her vagina was penetrated by a hard object. Another witness who testified that she was told by the victim about what had befallen her, was Laurena Konga (PW4). Basing on the prosecution account, the trial court was satisfied that the prosecution had sufficiently established a primafacie case against the appellant. Subsequently, the appellant entered his defence in which he denied the charge and claimed that the same was fabricated against him by PWl out of grudges because he (PW1) demanded his wife back, but the appellant refused. Having heard the parties, the trial court was satisfied that the charge was proved against the appellant to the required standard. Therefore, he was convicted and sentenced as alluded to above. On 16th March, 2021 the appellant lodged in the Court Registry a memorandum of appeal comprising of seven (7) grounds and on 21st November, 2023, a supplementary memorandum with nine (9) grounds of appeal was lodged, making a total of 16 grounds. At the hearing of the appeal, the appellant appeared in person, unrepresented whereas, the respondent Republic had the services of Ms. Rose Sulle, learned Senior State Attorney assisted by Mr. Isack Mangunu, learned State Attorney. Before commencement of the hearing of the appeal could take place in earnest, we screened all the grounds of appeal and discovered that some were new grounds as they were not raised and determined by the first appeilate court; others though new, but raised legal issues which we are entitled to determine and some grounds were duplicated. After that exercise, we remained with seven grounds of appeal only to be argued by the parties, The appellant adopted the said grounds of appeal to form part of his oral submission before the Court and reserved his right to rejoinder. However, for obvious reasons to come into light shortly, we shall not reproduce all the grounds of appeal except the following two; to wit: 1. That, both courts below grossly erred in law and fact in not considering the appellants defence evidence and by being adamant that the same did not cast a shadow o f doubts[on] the prosecution's case. 2. That, the first appellate Judge erred in both law and fact, in not finding that the rape offence was notproved beyond any reasonable doubt against the appellant Initially, while responding to the grounds of appeal, Mr. Mangunu opposed the appeal but in the course of submission, he supported it on account that the prosecution did not prove the case against the appellant beyond reasonable doubt. He came to that conclusion, having analysed the evidence of PW3 whom he said, was not credible following her story 5 on how the incident occurred and the surrounding circumstances. He stated that, according to PW3, the incident occurred in the room where six people including herself used to sleep in the presence of those relatives. Under normal circumstances, he said, it was doubtful how that could be possible. He referred us to page 21 of the record of appeal where PW3 stated during cross examination that, while she was being raped by the appellant, her brothers were there. Yet, she did not raise alarm and or tell anybody thereafter until after lapse of some days when she informed her friends. Besides, he conceded that the appellant's defence that he had grudges with PW1 was not considered by the courts bellow and was not cross examined on that defence. Instead, the victim's testimony corroborated the appellant's defence when she stated that her father told her that the appellant is not her biological father and that he would do something bad to the appellant. According to the learned State Attorney, the said piece of evidence raised doubt on the prosecution case as it remained uncleared. In the circumstances, he urged us to allow the appeal and set the appellant free. We have carefully considered submissions by the parties, grounds of appeal and the entire record of appeal. The main issue calling for our determination is whether the charge of rape against the appellant was proved beyond reasonable doubt. In determining this appeal, we shall be guided by a settled position that the second appellate court is only supposed to deal with issues of law unless there is misapprehension of substance, nature and quality of evidence resulting in an unfair conviction - see: Charles Kassim @ Kitobe v. Republic, Criminal Appeal No. 546 of 2021 [2022] TZCA 581 (TANZLII, 26 September 2022). The appellant's complaint in the first ground of appeal is that his defence evidence was not considered by both courts bellow in their judgments. This complaint was conceded by the learned State Attorney that, indeed, the defence evidence was not considered by the courts bellow. He referred us to page 37 of the record of appeal where the appellant indicated that there were some grudges between him and PW1, the former husband of his wife. According to the appellant, the case was fabricated and that is why PW1 failed to mention a person whom he alleged to have told him while at the bus stand that the appellant raped PW3. On page 36 of the record of appeal, the appellant referred to the evidence of PW3 who testified that her father told her that the appellant is not her biological father and that he promised to do bad thing to him. The appellant associated his arrest and prosecution with the said unrevealed bad thing that PW1 had been referring to. Therefore, the learned State Attorney urged us to step into the shoes of the first appellate court and consider the appellant's defence. The law is well established that failure to consider defence evidence is fatal to the conviction - see: Osca Justinian Burugu v. Republic, Criminal Appeal No. 33 of 2017 [2020] 7ZCA1873 (TANZLII, 25 November 2020). In that case, we took the view that failure to consider defence is one of the circumstances where the Court has to interfere with the concurrent findings of the two courts below. Therefore, stepping into the shoes of the first appellate court to evaluate evidence on record including that of defence, is a necessity upon Court's satisfaction that such defence was not considered. We have thoroughly gone through the decisions of both courts below and we agree with the parties that, the defence evidence was not considered in reaching their decisions. In the decision of the trial court, on page 42 the trial Magistrate only summarised what the appellant stated in his defence without making analysis. Likewise, on page 123 of the record of appeal, the first appellate court just gave a blanket statement that the trial court did not consider the defence for obvious reasons in the following terms: "Turning to the allegations by the appellant to the effect that the trial Magistrate did not accord weight to his evidence in arriving at her decision the reason is obvious to the effect that the defence evidence did not raise any doubt on the prosecution hence this ground o f appeal crumbles." As it can be observed from the above excerpt, the learned first appellate Judge, with respect, did not bother to analyse what the appellant had stated against the prosecution evidence. Particularly, in the circumstances of the present case where the appellant's claim was that there were grudges between him and PW1 which evidence was corroborated by the victim. The appellant explained in relation to the conflict between him and PW1 in his defence as follows: 7 met my wife and [she] told me that she was married and have children. I also told her that I have children. Her mother assured me that my wife divorced and permitted me to live together. We stayed together, her husband found out that I was living with his divorcee, he came to me and told me that if we are living together, we have to separate, I disagreed, he sent his sister who asked me to separate with my wife and threatened me that if I will not separate with her, they will show me. I went to my mother-in-law and told her what happened.... The reason for me to be charged 9 with this case is my wife. .... PW1 said that he saw me with hisw ife,.... He also said that he was giving Tshs. 3,000/= to 4000/= to his wife who asked him to stay far from her, when I asked him, he said that she told him that I was giving her Tshs. 10,000/= per month.... Victim's mother was not interrogated, aiso she did not go to the hospital with her daughter. Victim also testified that their father [PW1] toid them that I am not their father and he w ill do bad thing to me." The above appellant's piece of evidence was not analysed by both courts below. As it can be observed, the appellant tried to indicate that PW1 promised to do bad thing to him due to the conflict they had over their wife who is the mother of PW3. He was not cross examined on that aspect. Instead, as he said, his testimony was corroborated by PW3 who testified on page 22 of the record of appeal that her father told her that he will do bad thing to the appellant Worse still, the mother of the victim was not called as a witness to testify. We are of the view that, had the first appellate court considered the alleged grudges it would have arrived at a different conclusion. More so, as even the testimony of PW3 proved existence of the same and the bad promise made by PW1 against the appellant, which in our analysis created reasonable doubt to the prosecution case as far as guilt of the appellant is concerned, was not considered. We thus find merit in the first ground of appeal. 10 In the second ground of appeal, the appellant complains that the case against him was not proved beyond reasonable doubt. This ground was supported by the learned State Attorney to the extent that some of the prosecution witnesses were not credible and in particular, he mentioned PW3. According to him, the environment updn which PW3 testified that she was raped is doubtful because such an offence is normally committed secretly/ in private. Nonetheless, PW3 said that, she was being raped in the presence of other people who for unknown reasons were not called to testify. It is settled position that he who alleges must prove. In the circumstance, it was incumbent upon the prosecution to procure credible witnesses so as to prove the alleged fact against the appellant. Equally, it is settled law that the best evidence in rape cases, like in the case at hand, comes from the victim whose quality of her evidence is tested through her credibility - see: Elisha Edward v. Republic, Criminal Appeal No. 33 of 2018 [2021] TZCA 379 (TANZLII, 24 August 2021), Assessment of credibility of a witness is done in various ways. One, it can be assessed through his/ her demeanour, coherence of the testimony of that witness and two, when the testimony of the witness is considered in relation to the evidence of other witnesses including that of the accused person - see: Shabani Daudi v. Republic, Criminal Appeal No. 28 of 2001 (Unreported). This means that, even the appellate court can assess credibility of a witness except in relation to his or her demeanour, as what we are about to do in this appeal. In the present case, the respondent alleged that the appellant raped PW3. For the offence of rape to be established three elements must be proved beyond reasonable doubt. One, age of the victim; two, penetration and, three that an accused person is the one who committed the alleged offence. As a matter of law, proof of age of the victim is important for the purpose of ascertaining whether or not consent by the victim was required at the time of commission of sexual intercourse, which in the end assists to determine the nature and extent of punishment to be effected on the offender. We take note that, the age of the victim was not at issue in the present case, so we do not need to overemphasise that, the victim was a child of tender age since she was 9 years old at the time when the offence was committed. As regards penetration and whether the appellant was involved, PW3 testified that she was penetrated by the appellant and we shall let her speak through her testimony oh page 21 of the record of appeal, with a view of assessing her credibility, as follows: 12 W e were living in Makaburini Njoro with my mother, Yahaya Hussein and baba called Selemani [the appellant] and Ibra. Selemani is not my biological father, we were living in one room, all o f us, there was one bed; mother, Ibra, Yahaya and Selemani were sleeping in the bed, I was sleeping on the floor with my brother Hussein, .... My mother was selling fruits at stand, she was leaving early [from home] around 06:00 a.m and ask me to go and sleep with myyoung brother. .... When my mother leaves the house, Selemani was pulling my legs, undress my clothes and he undress his clothes, he applies oil on his penis and moved me on his side and hug me, thereafter he took his penis and enter into my vagina here.... I toid my friends, they told my mother, .... She told baba Selemani he beat me.... I told my mother that baba Seie raped m e.... Mama Paschal and mama Tena were the ones who took me to the hospital." When cross examined, PW3 stated: 'We are living six people in one room... when you rape me my brother and young brother were there. ... I did not raise alarm during that time, I did not tell my aunties, ... I did not see any person who waspassing on the road.... My father[biological father] told me that you are not my father, he will do something bad to you." 13 [Emphasis added]. On the face of it, the above excerpt indicates that PW3 was penetrated by the appellant. Much as we are quite aware that the best evidence in rape cases comes from the victim as indicated above and that there is no specific number of witnesses required to prove a fact in terms of section 143 of the Evidence Act, [Cap 6 R. E. 2019], we are equally aware that, the said position of the law need not be applied blindly, see: Wambura Marwa Wambura v. Republic, Criminal Appeal No. 115 of 2019 [2022] TZCA 429 (TANZLII, 14 July 2022). Being guided by those principles, we need to ascertain the credibility of the evidence of PW3. We agree with the learned State Attorney that, sexual offences are normally committed in secrecy and more often than not they require privacy. In her testimony, PW3 stated that the appellant committed that offence in the presence of her siblings. Just like the learned State Attorney, we are wondering whether it was conducive for such an act to take place in a stated manner; and if at all it was true, why none of the said brothers, particularly, the elder brother who used to sleep with the victim on the floor, was not called to testify in that respect. We as well note that PW3's friends, mother of the victim, mama Paschal and mama Tena who sent the victim to the hospital after the incident, none of them was called to substantiate what was stated by PW3. We think these were material witnesses. It is established law that, failure to call a material witness entitles the Court to draw adverse inference, as we accordingly do against the prosecution case. As a result, we hold that had such witnesses been called, they would have given evidence not in favour of the prosecution - see: Aziz Abdallah v. Republic [1991] T, L. R. 71 and Wambura Marwa Wambura v. Republic, Criminal Appeal 115 of 2019 (Unreported), Apart from that, PW3's conduct was inconsistent with common sense as having been raped, she preferred to tell her friends, who in turn had to tell her mother about what had befallen her. It is not certain in her testimony as to why she did not tell her mother immediately after the incident. It is also surprising that, she did not seek assistance to be rescued by her brother who allegedly witnessed when the appellant was raping her or raise an alarm so that other people could come to her rescue. Besides, although PW3 stated that she only told her friends and mother regarding what had befallen her, in her testimony, PW2 stated that PW3 told her that her father raped her and he applied oil and soap before rapping her. That, she was telling her mother but her mother beat 15 her and asked her not to tell anyone because her father will not feed them. The question that follows is why PW3 did not reveal in her evidence that she was interrogated by PW2 and gave her such an information? Another witness was PW4 who testified that towards the end of the year 2016, PW3 told her that her father was having sexual intercourse with her but she was scared to tell her mother. This statement creates doubt on the prosecution case and shakes credibility of the testimony of PW3 because, if at all PW3 told PW4 that she was scared to tell her mother about what was happening to her, why then she did not tell PW2 that she told her mother about the incident? It is also not clear as to why PW3 did not disclose in her evidence that she told PW2 and PW4 about the incident? What other prosecution witnesses alleged to have been told by PW3 regarding the incident was inconsistent with her own testimony. Had it been that, all the identified inconsistencies were considered by the courts bellow, we think, they Would not have found PW3's evidence credible enough to ground the appellant's conviction. In totality, it is our finding that the prosecution case was flawed in the sense that, the courts bellow failed to consider the appellant's defence case, the evidence of PW3 as a key witness was not credible and the prosecution failed to call material witnesses to prove the allegations 16 against the appellant. Therefore, we agree with the parties that the prosecution failed to prove the charge of rape against the appellant beyond reasonable doubt. Consequently, we allow the appeal, quash conviction and set aside the appellant's sentence. We order immediate release of the appellant from prison unless lawfully held for other causes. DATED at MOSHI this 13th day of August, 2024. M. C. LEVIRA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 14th day of August, 2024 in the presence of the Appellant in person - unrepresented and Ms. Bertina Tarimo, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL