CRIMINAL APPEAL NO 342 OF 2021 ABDUL AKWILINI MRAMBA 2 OTHES VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: KOROSSQ. J.A.. KAIRQ. 3.A.. And KHAMIS. J.A.^ CRIMINAL APPEAL NO. 342 OF 2021 ABDUL AKWILINI M RAM BA............................... ................ 1st APPELLANT OTTO PETER M USH I.............................................. ............ 2nd APPELLANT ANNANIA DOMINIC MASSAWE @CHADOGI....................... 3rd APPELLANT VERSUS THE REPUBLIC ................................................................... RESPONDENT (Appeal from the decision of the Resident Magistrate Court of Babati at Manyara) (Mkapa, 3.) dated the 16th day of March, 2021 in Criminal Appeal No. 37 of 2021 JUDGMENT OF THE COURT 09hJuly & $hAugust, 2024 KOROSSQ. J.A.: The appellants, Abdul Akwilini Mramba, Otto Peter Mushi and Annania Dominic Massawe were arraigned before the District Court of Rombo at Rombo, on three counts of rape contrary to section 130(1), (2)(e) and 131 (1) of the Penal Code, Cap 16 (the Penal Code). In the first count, the particulars of the offence were that on an unknown date and time in May 2018 at Alehi Chini Village, within Rombo District, Kilimanjaro Region, Abdul Akwilini Mramba (1st appellant) did have sexual intercourse with "the victim" or PW2 (to conceal her identity), a 12 years old girl. The second count particulars stated that Annania Dominic Massawe @Chadogi (the 3rd appellant) on an unknown date and time in June 2018, at a place, District and Region as in the first count, did have sexual intercourse with the victim. For the third count, the allegations were that, Otto Peter Mushi (2nd appellant) on an unknown date and time in July 2018 at the place, District and Region stated in the first and second counts, did have sexual intercourse with the victim. The appellants pleaded not guilty to the charges and a trial proceeded accordingly. Briefly, the background that led to the instant appeal is that on 18/7/2018, at the parents and teachers meeting of Booni Primary School that discussed access to food for students and other academic issues, concerns were raised regarding some students who practiced promiscuous habits, thus compromising their academic performance and the school's reputation. Antusa Moshiro (PW1), a teacher at the school testified that the victim, who at the time was a standard VI pupil at the school was one of the students mentioned. The allegations against the victim were that she was engaged in sexual relations with multiple male partners in the village. The victim's grandmother who had attended the meeting expressed to the teachers her concern about the victim's behaviour of spending most of the time roaming in the village instead of assisting with house chores. Thereafter, the victim and her younger sister were called and questioned about the allegations against them. According to PW1, the victim admitted being engaged in sexual activities with men and mentioned the appellants as those involved and that, they were given food and money in exchange. The school authority followed up on the information and in July 2018 summoned the appellants, questioned and then handed them over to the Police. In her testimony, the victim stated that the 2nd appellant had started to rape her when she was six years old. According to her, in May 2018, while on the way home from school, she met the 2ndappellant who invited her to go sleep with him at his home, she refused and went directly home. On arrival at home, her grandfather sent her to the 2nd appellant's house to get a "sortyd', a local cigarette. PW2 went to look for the 2nd appellant, and on finding him, upon asking him for the "sonyd' he induced her to go into the house on the pretext that he would give it to her for her grandfather. On entering his house, there was no one else inside and the 2nd appellant closed the door, took off her underpants, undressed himself, and then, laid her down on the bed, her attempts to resist ran futile, and he then pushed her and has sex with her using force and also sodomized her. During the ordeal, PW2 stated that she felt pain and her cries did not stop him from fulfilling his evil intention on her. PW2 also saw blood and heavy yellowish urine. The incident took about 30 minutes then the 2nd appellant left without giving her the promised " sonyd'. PW2 went back home and informed her grandfather what had occurred, but he did not take any action. She later informed her grandmother about what the 2nd appellant had done to her and she promised to warn him against doing that. According to PW2, the appellant continued to have sexual intercourse and sodomize her and sometimes invited his friends, the 1st and 3rd appellants to do the same things to her and her younger sister, Happiness. After some time, PW2 got used to it and when called by the 2nd appellant, she went to his house and their sexual relations continued and sometimes the other two appellants also took part by taking turns in the sexual activities. On 20/7/2018 at 14.27 hours, Dr. Wilbroad Kyejo (PW3) examined the victim and found bruises on her female sexual parts. He also determined that she was not a virgin and that her vagina was too wide beyond her age and that blunt objects had penetrated the area. PW3 filled the PF3 (exhibit PI) which was admitted by the trial court and expunged by the first appellate court. It is the arrest of the three appellants which culminated in their arraignment before the District Court of Rombo to face the offence charged as described earlier. At the end of the trial, all of three appellants were convicted of the offence charged and each sentenced to thirty (30) years imprisonment. Discontented, their joint appeal to the High Court was found to be want of merit and dismissed. Still Disgruntled/ they have preferred an appeal to the Court and filed a total of 16 grounds of appeal found in three memoranda: the memorandum of appeal with 7 grounds filed on 27/7/2021 (original memorandum); the supplementary memorandum of appeal fronting 7 grounds filed on 14/8/2023 (supplementary one); and supplementary memorandum of appeal with 2 grounds filed on 4/7/2024 (supplementary two). Having scrutinized the grounds found in all the memoranda filed, we have discerned that they essentially raise the following eight grievances: One, variance between the charge and adduced prosecution evidence; Two, Impropriety of the charge in terms of the language used; Three, failure to prove the age of the victim (PW2); Four, non-compliance of section 127(2) of the Evidence Act; Five, Non- compliance of section 210(3) of the CPA; Six, failure to properly assess the credibility of prosecution witnesses based on the inconsistent, contradictory and unreliable evidence they adduced; Seven, failure to draw an adverse inference against prosecution evidence for not calling material witnesses such as PW2's grandmother and Happiness; and eight, failure to prove the offence charged beyond reasonable doubt. On the date set for the hearing of the appeal, the 1st, 2nd and 3rd appellants, were present in person, each fending for himself. The respondent Republic had the services of Ms. Verdiana Mlenza, learned Senior State Attorney, assisted by Mr. Peter Utafu and Ms. Edith Msenga, learned State Attorneys. Upon being accorded time to elaborate their grounds of appeal, the 1st appellant adopted all of them together with the joint written submissions in support of the appeal filed on 4/7/2024 and urged us to consider them and allow the Appeal. On their part, the 2nd and 3rd appellants subscribed to the submissions and prayers by the 1st respondent and beseeched us to set them at liberty. In the determination of the appeal, we shall consider both the oral and written submissions by the rival parties in light of the drawn grievances above and determine each of the grievances in seriatim. On the first complaint on the variance of the charge and adduced prosecution evidence, in the written submissions jointly filed by all the appellants, they fault the trial and first appellate courts for; first, not addressing incompatibility of the evidence relating to the date of commission of the offence charged and the dates found in the charge sheet. They contended that while the particulars of the third count alleged that the 2nd appellant committed the offence charged in July 2018, the evidence of PW2 was essential that, the last time the appellants raped her was on 18/6/2018. Tine evidence of PW2, that she was raped when she was 6 years old, is before the date mentioned in the charge they contended. The appellants also complained that no evidence proved that the offence charged against the 1st and 3rd appellants took place in May and June 2018 as found in the charge sheet. The second concern raised by the appellants on this grievance was that, while the evidence of PW2 alluded that she was sodomized by the appellants, the charge did not reflect this aspect since there was no charge of unnatural offence preferred against them. The appellants argued that, given the stated variance in the charge and evidence, the proper remedy should have been for the prosecution to seek to amend the charge under section 234(1) of the CPA, which they did not do. According to the appellants, failure to amend the charge on the prosecution's part meant the charge was unproven and thus acquittal for them, otherwise, justice would be compromised. They cited the case of Abel Masikiti v. Republic, Criminal Appeal No. 24 of 2015 (unreported). On her part, Ms. Mlenza who took the lead in submitting for the respondent Republic, commenced by informing the Court that the appeal was resisted and that the conviction and sentence meted to all the appellants was proper as the prosecution had proved the offence charged against the appellant to the standard required. Responding to the complaint on the variance of the charge and adduced prosecution evidence, the learned Senior State Attorney argued that there is no such variance. She submitted that while it is true that each count in the charge shows that the offence charged was committed by one of the appellants on a different month between May and July 2018, there is no variance since they are founded on evidence as PW2 testified that she was raped by the three appellants in those three months. She contended that in drafting charges, it is at the discretion of the prosecution to decide which offence to charge and whom to charge given the evidence they have on hand. Concerning the evidence of PW2 revealing she has also been sodomized though not reflected in the charge, the learned Senior State Attorney submitted that, in their exercise of discretion, the prosecution preferred not to include the charge of unnatural offence against the order of nature, based on the evidence they had on hand. She thus argued that in those circumstances, there was no need to amend the charge under section 234(1) of the CPA. She further argued that the issue for discussion should then be whether the offences charged in all three counts were proved and not to wonder about other possible offences not part of the s charge. She cited the case of DPP v. Lengai Ole Sabaya and Others, Criminal Appeal No. 155 of 2022 (unreported) to cement her contention. Having heard the contending parties and gone through the record of appeal and the cited cases, indeed section 128 of the CPA provides the procedure of making a complaint. A charge is framed according to the complaint presented to either the magistrate or the police. As stated in Athanas Ngomai v. Republic, Criminal Appeal No. 57 of 2018 (unreported), there is no provision of the law that requires the prosecution to prefer a certain charge. This is because, as stated by the learned Senior State Attorney, preference on which offence to be charged has to consider whether the prosecution has reasonable and probable cause to believe that such an offence has been committed depending on the collected evidence. Since after all, at the end of the day, it is the prosecution with the burden to prove their case beyond reasonable doubt. It is pertinent to understand that, a proper charge must comply with the requirements provided under section 132 of the CPA. What a charge should include was lucidly expounded in the case of Musa Mwaikunda v. Republic [2006] T.L.R.387 which held: " The principle has aiways been that an accused person must know the nature o f the case facing him. This can be achieved if a charge discloses the essential eiement o f an offence” In the present case, the charge sheet alludes to three counts, and each appellant is charged with a separate count for the offence of Rape contrary to section 130(l)(2)(e) and 131(1) of the Penal Code. The particulars are as stated earlier. Delving further, we find the complaint by the appellants that the adduced evidence does not augur with the dates stated in the third count on when the offence charged was occasioned, is misconceived. The appellants' argued that while the particulars of the third count alleged that the 2nd appellant raped PW2 on an unknown date and time, the testimony of PW2 states otherwise since she stated it was in June 2018, when she was last raped by the appellants. We revisited the record, and are of the view that the disputation is not supported by evidence. The record of appeal shows that at page 9 PW2 states: "From May - July 2018 Otto 3 daccused told me twende ukafafe na mimi nyumbani kwangu. ... Hi nikupe sonyo ya babu, he toid me to enter his house so as to take that sonyo, I entered his house there was only him, he entered and dosed the door he was forcing me to steep with him, he took o ff my clothes a skirt and underpant "chupi" 10 he also took o ff his trouser and under pant and told me to go on bed, I denied and toid him to give back my ciothes, when I wanted to touch them, he took them under mattress, he took me on bed by force and started raping me...." At page 10 she further states: "If Otto is entering me the rest hoid Happiness outside when he finished they brought Happy and Otto did the same to her (he entered her) when I asked Happy she said he entered his anus "mkundu". The iast time the three entered it was on June 18 at Otto's house” In our reading of the second passage, we are convinced that, in stating the above, PW2 referred to Happiness's situation and not her own. It is thus incorrect to contend that PW2 stated that no one raped her after June 2018. Notwithstanding the above, we are aware of the deficiencies in the charge in that it does not reflect and cover all the alleged rape incidents occasioned by the appellants against PW2 from May to July 2018 as reflected in her evidence. Inspired by the holding in Jamali Ally @Salum v. Republic, Criminal Appeal No. 52 of 2017 (unreported), that anomalies in the charge may be cured by the particulars of the offence or the evidence on record, we are of the view that the fact that the charge ii outlined the fact that in May 2018 the 1st appellant raped PW2, June 2018, the 3rd appellant raped PW2 and in July 2018, the 2nd appellant raped PW2, who was 12 years of old at the time, did disclose the essential elements of the offence charged for all the three counts against each of the appellants as underscored in the case of Isidory Patrice v. Republic, Criminal Appeal No 224 of 2007 (unreported). The same argument above also addresses the concern of not having charges against the appellants outlining the other alleged incidents or other offences, as revealed in PW2's evidence. As argued by the learned Senior State Attorney and discussed above, the prosecution has the discretion of who to charge and what offence to charge him with, relying on what evidence they have on hand to substantiate the said charge. Moreover, we are inspired by the reasoning in the case of Jirani Maarufu v. Republic, Criminal Appeal No. 193 of 2011 (unreported), where faced with the situation of a victim who had been raped several times, and the Court decided to consider only the period indicated in the charge sheet, which is the approach we have also taken in this case. The period for consideration is the one found in the charge sheet. In those circumstances, we find no variance between the charge and the evidence to warrant amendment of the charge as argued by the appellants. For the foregoing, we find that the first ground is meritless. 12 Regarding the second complaint on the impropriety of the charge for the reason of the language used therein, we find it to be misguided. According to the appellants, writing the words "sexual intercourse" in the particulars of the offence in each count in place of "had carnal knowledge" rendered the charge defective. They also flawed the action by the first appellate Judge of altering the said words in each count to read, "carnal knowledge" and argued that the infractions rendered the charge unproven. On their part, the learned Senior State Attorney argued that the wording used in the charge, that is, "sexual intercourse" and also "carnal knowledge" do not render the charge defective. She contended that the words found in section 130 of the Penal Code are "sexual intercourse". According to her, the first appellate Judge's action in the trial court's judgment, of changing the words "sexual intercourse" to "carnal knowledge" when summarizing the allegations against the appellants found in the three counts, did not affect the context of the charge and the appellants have not shown how such change in words prejudiced them. Our reading of the relevant ground addressing this dissatisfaction with the words drafted in the charge and the rephrasing by the trial judge as aiiuded to above led us to revisit the record of appeal. We are of the view that, in the judgment of the first appellate court at page 67, the trial 13 judge essentially summarized the three counts in the charge and stated that the "appellants had unlawful carnal knowledge o f the victim". We are of the firm view that the said action cannot be flawed as undoubtedly the intention was to reveal what the charge before her was founded on and there is nowhere where she finds that the words "sexual intercourse" used in the charge were erroneous. The words "sexual intercourse" are used in section 130 of the Penal to expound circumstances that shall constitute rape. The words "carnal knowledge" are found in the Second Schedule of the CPA in the forms stating offences in information, which guide how to draw charges. Ultimately, one of the important elements in proving rape is penetration, as stated under section 130(4)(a) of the Penal Code which is sufficient to constitute sexual intercourse sometimes referred to as carnal knowledge (See, Hakizimazana Syrivester v. Republic, Criminal Appeal No. 181 of 2007 and Minani Evarist v, Republic, Criminal Appeal No. 123 of 2007 (both unreported). For the foregoing, we find that the language used by the trial judge as expounded above did not in any way detract the appellants from understanding the substance of the charge or prejudice them. The appellants have aiso not shown how they were prejudiced. The complaint is thus unmerited, 14 In exploring the third complaint that alleges failure of the prosecution to prove the age of the victim beyond reasonable doubt, the appellants argued that in a charge of statutory rape, proof of age is an essential requirement and that the prosecution failed to adduce evidence to prove that the victim was 12 years old at the time of the incident as alleged. To buttress this contention, they cited various cases, including Genes Arisen Tarimo @Kaput v. Republic, Criminal Appeal No. 337 of 2019, Amani Yusuph v. Republic, Criminal Appeal No. 124 of 2019, Andrea Francis v. Republic, Criminal Appeal No. 173 of 2014, Nalongwa John v. Republic, Criminal Appeal No. 588 of 2015 and Samwel Nyerere v. Republic, Criminal Appeal No. 65 of 2020 (all un reported). According to the appellants, the fact that no parent, guardian, or teacher of the victim testified on the victim's age disproves the age stated in the charge to be of the victim at the time of the alleged incident. Additionally, the fact that PW3 the doctor who examined the victim testified that she was 8 years old was queried by the appellants arguing that it further enhanced doubts about the victim's age especially since it remained unresolved by the prosecution evidence. 15 Replying, the learned Senior State Attorney conceded that no witness for the prosecution testified that the victim was aged 12 years old at the time of the incident as found in the charge against the appellants. She however referred us to the testimony of PW2 and PW1 that the victim was a standard VI pupil and invited us to draw an inference of her age from this as it was done in the case of Elibariki Naftali Mchomvu v. Republic, Criminal Appeal No.332 of 2019 (unreported). She prayed that we find that the age of the victim was proven and find the ground unmeritorious. Having revisited the record of appeal, no witness for the prosecution indeed testified on the age of the victim apart from PW3 who in his testimony mentioned the age of the victim he examined in passing as an 8-year-old. This is an issue the appellants have invited us to find inconsistent with the age stated in the charge. It should be understood that the testimony of a doctor as to age, is based on estimation and not necessarily actual and is opinion evidence. Nevertheless, we are conscious of the essence of the age of a victim in establishing statutory rape under section 130(l)(2)(e) of the Penal Code. It is also well established that the evidence to prove the age of a victim may be given by the victim, relative, parent, medical practitioner, or where available a birth certificate as stated in various decisions of this Court including Issaya Renatus v. Republic, 16 Crimina! Appeal No. 542 of 2015 (unreported) and Elibariki Naftari Mchomvu (supra). Section 122 of the Evidence Act is also relevant, it prescribes: "5.122 The court may infer the existence o f any fact which it thinks likely to have happened, regard being had to the common course o fnatural events, human conduct and public and private business, in their relation to the facts o f the particular case. ” We thus find that in the circumstances, and considering the evidence by PW1 and PW2 that the victim was a standard VI pupil at Booni Primary School and the testimony of PW3 that the victim was 8 years old, further suggests he saw the victim as a child. Given the circumstances, we can infer that the victim was within the domain of a person under the age of eighteen years. Ultimately, we find this ground to be unmeritorious. Complaint number four relates to non-compliance with section 127(2) of the Evidence Act. The essence of the grievance was that the evidence of PW2 was taken contrary to section 127(2) of the Evidence Act. The appellants contended that the trial magistrate did not conduct a test preceding her testimony as expected for a witness under the age of 14 years in compliance with the law. They referred us to various decisions that have discussed the proper procedure to be taken, including; Rashid Said Masumai v. Republic, Criminal Appeal No. 162 of 2020, Faraji Said v. Republic, Criminal Appeal No. 172 of 2018, Godfrey Wilson v. Republic Criminal Appeal No. 168 of 2018 and John Mkorongo Janies v. Republic, Criminal Appeal No. 498 of 2020 (all unreported). Ms. Mlenza responded that the complaint was misconceived since at the time evidence of PW2 was recorded, it was no longer a requirement to conduct the said test before recording the evidence of a witness of tender age under section 127(2) of the Evidence Act. She argued further that nevertheless, on page 9 of the record of appeal, it shows that PW2 gave evidence under oath and the trial court made a finding that this was sufficient in line with the decision of the Court in Ally Ngozi v. Republic, Criminal Appeal No. 216 of 2018 (unreported). The learned Senior State Attorney argued that even if the Court were to find that there was a contravention of section 127(2) of the Evidence Act, given the amendments to the provision ushered in by Legal Sector Laws (Misc. Amendments) Act No. 11 of 2023, where under section 127(7) of the Evidence Act, non-compliance of the provision, does not invalidate the evidence of a child of tender years and thus prayed that the complaint be found to lack merit. We have considered the arguments from the rival sides, and are conscious that the record of appeal plainly shows that, there was no voire dire test conducted before recording the testimony of PW2. Suffice it to say at the time her evidence was recorded that is on 30/8/2018, it was no longer a requirement for voire dire test to be conducted given the amendments to section 127(2) ushered in by the Written Laws (Miscellaneous Amendments) (No. 2) Act, 2016, Act No. 9 of 2016. After the said amendment of the law, a witness of tender age is permitted under section 127 (2) of the Evidence Act to give evidence on oath or affirmation or without oath or affirmation but if such evidence is given without oath or affirmation the witness must promise to tell the truth and undertake to tell no lie (see, Issa Salum Nambaluka v. Republic, Criminal Appeal No. 272 of 2018 and Elibariki Naftali Mchomvu (supra)). We have revisited the record of appeal and at page 9 it reveals that PW2 evidence was taken under oath. Therefore, in essence, there was no requirement for her to promise to tell the truth and not to tell lies. Nevertheless, it should be noted that the amendments to the Evidence Act ushered in by the Legal Sector Laws (Miscellaneous Amendment) Act, No. 11 of 2023, which amends section 127 by adding subsection (7) which reads: 19 11Notwithstanding any other faw to the contrary, failure by a child o f tender age to meet the provisions o f subsection (2) shafi not render the evidence o f such child inadmissible." This defeats any contention to render such evidence of a child of tender age, such as PW2 inadmissible. Therefore, the complaint is misconceived and baseless. The fifth complaint addresses noncompliance with section 210(3) of the CPA and the appellants did not amplify the complaint either through oral or written submissions. In response to this ground, Ms. Msuya conceded to the anomaly of failure to comply with section 210(3) of the CPA about the testimonies of all witnesses who testified for the prosecution and the defence (PW1 to PW5 and DW1 to DW3). She, however, argued that the infraction was not prejudicial to the appellants. She asserted that none of the witnesses or appellants who testified raised the issue of non-compliance with section 210(3) of CPA or showed how they were prejudiced. She urged the Court to find the anomaly curable under section 388 of the CPA since the appellants were not prejudiced. She cited the decision of this Court in Emmanuel Denis Mosha and 2 Others v. Republic, Criminal Appeal No. 188 of 2018 (unreported) to support her stance and urged us to dismiss the complaint. 20 Section 210 (3) of the CPA elucidates that; "The magistrate shaii inform each witness that he is entitled to have his evidence read over to him and if a witness asks that his evidence be read over to him, the magistrate shall record any comments which the witness may make concerning his evidence. " Essentially, section 210(3) of the CPA instructs the magistrate presiding over a trial to accord a chance to every witness to have his evidence read over to him upon recording it and then keep notes of any comments the witness makes after the testimony is read over with aim to ensure that every testimony is properly recorded essentially to prevent against falsification, distortion and suppression of evidence (see, DPP v. Hans Aingaya Macha, Criminal Appeal No. 449 of 2016 and Fiano Alphonce Masalu @Singu and 4 Others v. Republic, Criminal Appeal No. 366 of 2018 (both unreported), Having revisited the record of appeal, and as conceded by the learned State Attorney, we have discerned that the trial magistrate did not show compliance to section 210(3) of the CPA for all prosecution and defence witnesses (PW1- PW5, DW1-DW3) whose testimonies were recorded. That being the position, the issue is what are the consequences? We are guided by our decision in Jumanne Shaban 21 Mrondo v. Republic, Criminal Appeal No. 282 of 2020 (unreported), which when confronted with a similar anomaly, we held that every procedural irregularity, has to undergo a test of whether it has occasioned a miscarriage of justice. We have noted that the authenticity of the record has not been questioned and based on the principle of sanctity of record, and taking into account that no witness including the appellants who had the right to have the evidence read over to them made any comment or query on their evidence, we are of the view that no miscarriage of justice was occasioned to the appellants for the said omission. We thus hold that the irregularity is curable under section 388 of the CPA. Therefore, the complaint lacks merit. The sixth grievance by the appellants addressed the failure of both lower courts to properly assess the credibility of prosecution witnesses given what they alleged is inconsistent, contradictory, and unreliable evidence. The appellants questioned the credibility of the evidence of the victim considering her shortcomings such as one, the delay in reporting the incident at the earliest time to her grandmother and cited the case of Pascal Yoya @Maganga v. Republic, Criminal Appeal No. 248 of 2017 (unreported); two, the fact that she was far from being a girl of moral 22 standing; and three, inconsistencies in her adduced evidence; and four, that she had told lies failing even to give proper dates of when the alleged incident occurred. The appellants' other grumble was that the prosecution evidence is highly incredible and unreliable, contending that there are inconsistencies in the evidence of PW1, PW5 and PW2 on what transpired between the victim and the appellants. They argued that while PW1 stated that when they interrogated PW2's grandmother she complained that PW2 does not do house chores and roams around with men after school. PW5 stated when the grandmother was questioned, she mentioned the 2nd appellant to have come at night while drunk and taken her grandchildren to rape them. It was thus the appellants' argument that if the allegations against the appellants were true then there were no reasons why they were also not charged with sodomy or why PW2's younger sister was also not part of the charge. They thus prayed we find the prosecution evidence unreliable and that the prosecution case is unproven. Ms. Msuya responded regarding the complaint on the victim's unexplained delay in reporting the incident at the earliest opportunity, she argued that the complaint has no merit. She invited us to revisit PW2's evidence on pages 8 and 10 of the record of appeal where it is stated that 23 the first time the 1st appellant raped her she reported the incident to her grandfather and then later to her grandmother who unfortunately did not take any action. Ms. Mlenza urged us to find that the prosecution produced witnesses of truth and that there were no material inconsistencies or contradictions in their evidence, and that the two lower courts found them to be credible and reliable witnesses. She argued that the complaints by the appellants even if considered address minor inconsistencies in their evidence which do not go to the root of the case and should thus be ignored. She thus urged us to find the ground meritless. On the issue of the credibility of witnesses, the complaint targeted the evidence of the victim and then questioned that of other prosecution witnesses. In addressing this concern, it is apposite to consider the following principles. First, the credibility of witnesses is best assessed by the trial court which had the opportunity to hear and watch when the witnesses testified and the Court, as a second appellate court, interference with concurrent findings of lower courts on credibility is rarely done (see, Aloyce Maridadi v. Republic, Criminal Appeal No. 208 of 2016 and Ayubu Andimile @ Mwakipesile v. Republic, Criminal Appeal No. 503 of 2017 and Wambura Kiginga v. Republic, Criminal Appeal No. 301 of 2018 (All unreported)). Second, every witness is 24 entitled to credence and belief in his evidence unless there exist good reasons to find otherwise, see Goodluck Kyando v. Republic [2006] T.L.R. 363. It suffices that essentially both the trial and first appellate courts found the prosecution witnesses reliable witnesses. The trial court found PW2's evidence to be corroborated by PW3 on the issue of penetration and found she did not need to lie on the issue of the appellants being the perpetrators of the offence charged. It is stated in the judgment at page 31 of the record of appeal: "... despite the girl being a small child, my hunches are dear that what she stated is true to the best o f her own knowledge and I am bound to believe her through her demeanor the way she was explaining what happened..." We find no need to depart from the concurrent findings of the two lower courts on the reliability of PW2's evidence. The concern of delay in reporting the incident is not justified since the evidence shows otherwise. PW2 stated that the first time she was raped she first reported to her grandfather and then to her grandmother who both did not respond adequately. Regarding her behaviour, which the appellants called immoral behaviour, we are of the view that, whether true or false, it does not detract that the victim was raped especially taking into account that she 25 was 12 years of age, and the offence charged against the appellants is statutory rape, where consent is not an issue for consideration in proving the offence charged. We have also failed to see any material contradictions in the evidence of PW1, PW2 and PW5 as complained against In our view, there are no contradictions or inconsistencies as PW2 named all three appellants to have raped her from May to July 2018. The issue of specific dates we have already addressed hereinabove. It should also be noted the fact that in sexual offences the best evidence is derived from the evidence of the victim (see, Selemani Makumba v. Republic, [2006] T.L.R. 379). We thus agree with the learned State Attorneys that if there are any contradictions and inconsistencies, there are minor which do not detract from the evidence of the prosecution in proving the case against the appellants. Therefore, this complaint fails. The appellants' seventh complaint faults the lower courts for failing to impute adverse inference against the prosecution for failing to call material witnesses such as PW2's grandmother and young sister, Happiness, and cited the case of Yust Lasa v. Republic, Criminal Appeal No. 337 of 2015 (unreported) to augment their concern. In the written submissions they argued that the two persons were material witnesses 26 and that failure to call them without explaining should lead the Court to draw an adverse inference against the prosecution guided by the case of Pascal Yoya@Maganga (supra). They concluded by urging the Court to find that the case against the appellants was not proven to the standard required and thus allow the appeal and set them free. The learned Senior State Attorney invited us to find this to be a new ground that was not considered and addressed in the lower courts, and that it is based on a factual concern and thus we should disregard it. Having perused the record of appeal, we are satisfied that, it is a new ground but with a legal connotation. This is because, while in section 143 of the Evidence Act, no particular number of witnesses is required to prove a fact in any case, courts can take adverse inferences where material witnesses are not called to testify. In the case of Gabriel Simon Mnyele v. Republic, Criminal Appeal No. 437 of 2007 (unreported), the Court emphasized that: - "... under section 143 o f the Evidence Act (Cap 6- RE 2002) no amount o f witnesses is required to prove a fact - See Yohanis Msigwa v. Republic, (1990) T.L.R. 148. But it is a/so the law (section 122 o f the Evidence Act) that the court may draw adverse inferences in certain circumstances against the prosecution for not calling certain 27 witnesses without showing any sufficient reasons - See Aziz Abdaita v. Republic (1991) T.L.R. 71/' In light of the evidence adduced by PW2 and supported by PW3 on material facts, we are of the view that failure to call PW2's grandmother and Happiness did not create any gaps in the prosecution case against the appellants. This is because as stated earlier, the evidence of the victim is the most crucial in proving a sexual offence as stated herein. Therefore, we reject the invitation to draw adverse inferences for their absence to testify for the prosecution case. This ground of contention lacks substance. The eighth complaint advances that the prosecution failed to prove their case, the appellants contending that with all the shortfalls highlighted against the prosecution evidence, we should find that the cases against them were not proved beyond reasonable doubt. The learned Senior State Attorney argued that to prove the offence charged, the prosecution was required to prove, one, that the victim was under the age of 18 years, which she contended they have proved as argued herein. Two, prove penetration, which she argued was proved through the evidence of PW2 whose evidence was found by the trial and first appellate courts to be credible and reliable. According to the learned Senior State 28 Attorney, there was also the evidence of PW3 whose testimony corroborated the evidence of PW2, her examination having found that PW2's private parts were enlarged beyond normal for a girl of her age proving that there was penetration. On the third element, she argued that the evidence of PW2 that the appellants raped her between May to July proved the offence, especially since she was the victim, and the best evidence in sexual offence is that from the victim who adduces credible evidence, as the case of PW2, she argued. The learned Senior State Attorney implored us to find that the prosecution proved the offence charged against the appellants. She prayed for the appeal to be dismissed. Having gone through the evidence and record, we agree with the learned Senior State Attorney that the prosecution proved the offence charged against the appellants to the standard required. As demonstrated in response to the complaints addressed above, the prosecution through the evidence of PW2 and PW3, proved penetration of a male organ into PW2's private parts, and proved the age of the victim as 12 years at the time of the incident, as addressed herein. The third element that the prosecution proved to the standard required is the fact that, it is the appellants who had sexual intercourse with the victim as stated in the charge. The evidence adduced by PW2, 29 the victim herself, categorically pointed to the appellants as the perpetrators who between May and July 2018 had sexual intercourse with her, a 12-year-old girl. In the end, the appeal is dismissed in its entirety. DATED at DAR ES SALAAM this 30th day of July, 2024 W. B. KOROSSO JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 9thday of August, 2024 in the presence of the Appellants in person/unrepresented via video linked from Kisongo Prison Arusha and Mr. Innocent Ng'asi, learned State Attorney for the respondent/Republic via video linked from High Court Moshi, is hereby certified as a true copy of the ori W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL 30