CRIMINAL APPEAL NO 634 OF 2021 BERNARD KAZIMILI VS

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: WAMBALL J.A.. MAIGE. J.A. And MURUKE. JJ U CRIMINAL APPEAL NO. 634 OF 2021 BERNARD KAZIMILI........................................................ APPELLANT VERSUS THE REPUBLIC.............................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) ( Rumanvika, 3.1 Dated the 30th day of August, 2021 in HC. Criminal Appeal No. 79 of 2021 JUDGMENT OF THE COURT 12th & 28Ul February, 2025 WAMBALI. J.A.: The Court of Resident Magistrate of Geita convicted the appellant, Bernard Kazimili of offences of rape and impregnating a school girl age 16 years old after it was satisfied that he had contravened respectively the provisions of section 130 (1) (2) (e) of the Penal Code, Cap 16 and section 60A (3) of the Education Act, Cap 353. He was subsequently sentenced to imprisonment for 30 years for each offence, to run concurrently. The conviction of the appellant followed allegation that between July to August, 2020 at Nyankumbu area, in the District and Region of Geita, he had an unlawful carnal knowledge and impregnated a girl, who we shall henceforth refer to as the victim or PW1. The victim was by then a student at Rukaranga Secondary School. It is noteworthy that the charge which was placed before the trial court, had three counts whereas in the third count, Regina Fabian Lushike who was the second accused and brother-in-law of the appellant (the first accused), was charged for aiding a person to commit an offence contrary to section 22 (1) (b) of the Penal Code. However, at the end of the trial, she was acquitted. In this judgment, we shall refer her as the second accused. The substance of the prosecution evidence was that sometimes in August 2020, the second accused told PW1 that the appellant was in love with her and therefore he was content of establishing a relationship. PW1 was not in favour of the proposal of the second accused. However, according to PW1, one day, which was Saturday, the second accused persuaded her as she was passing near her residence, to enter into the room in which the appellant was inside and she obliged. Subsequently, the appellant undressed her and inserted his penis into her vagina and proceeded until he ejaculated. PW1 is on the record to have not raised alarm and informed anybody concerning the incident before and after she returned home. It was further disclosed that after four months had passed, PW1 was found to be pregnant and upon inquiry, she mentioned the involvement of the appellant to her parents and other village leaders. The medical examination was conducted on’ 3rd November, 2020 by Neema Maige, a Clinical Officer at Geita Town Dispensary. Apart from PW1 and PW5, the prosecution case was supported by the evidence adduced by Molo Malane (PW2), a teacher at Rukaranga Secondary School, Shija William (PW2), a father of PW1 and WP 5619 D/C Constancia (PW4), who investigated the case. In addition, the school's attendance register, the appellant's cautioned statement and the PF3 were tendered and admitted in evidence as exhibits PI, P2 and P3, respectively. The appellant contested the allegation though he admitted to have visited his friend, Simeo Onesmo Daniel, the husband of the second accused, who also testified on his side as DW3. Nonetheless, at the conclusion of the trial, the trial Senior Resident Magistrate made a finding that the appellant was guilty and concluded that the prosecution had proved the case beyond reasonable doubt. He thus convicted and sentenced the appellant as intimated above. The appellant sought to appeal to the High Court but he was not successful as the convictions and sentences were confirmed by the first appellate court. However, he did not give up the battle as he preferred the present appeal to challenge the decision of the High Court through two memoranda of appeal comprising a total of 9 grounds of appeal. Nonetheless, before hearing of the appeal commenced, it was agreed that the appeal can be determined on one ground; whether the prosecution case was proved beyond reasonable doubt as confirmed by the first appellate court whose decision is the subject of this appeal. We do not therefore, deem it appropriate to reproduce the respective grounds in the two memoranda of appeal. At the hearing of the appeal, the appellant appeared in person unrepresented. He essentially urged us to consider his general complaint that the first appellate court wrongly confirmed that the trial court rightly found that the case against him was proved to the required standard. He ultimately, beseeched the Court to allow the appeal and set him free on the contention that the evidence on the record do not support the findings of the two courts below that he is guilty of the offences he is accused to have committed against the victim. On the adversary side, Mr. Castuce Clemence Ndamugoba, learned Principal State Attorney appeared for the respondent Republic. At the inception of the hearing, Mr. Ndamugoba intimated to the Court that upon careful scrutiny of the evidence of the parties on the record, the respondent Republic had no intention to oppose the appellant's appeal because the case was not proved beyond reasonable doubt. Mr. Ndamugoba briefly explained the reasons for not supporting the conviction of the appellant. Firstly, he argued that the cautioned statement which was basically relied upon by both courts below to ground and confirm the conviction of the appellant was recorded by PW4 beyond the period of four hours after the appellant was arrested and sent to the police station, contrary to the provisions of section 50 (1) (a) of the Criminal Procedure Act, Cap 20 (the CPA). He submitted that the appellant was arrested on 3rd November, 2020 at around 09:00 hours but the statement was recorded on 4th November, 2020 at 08:15 hours. He added that the testimony of PW4 that there was no electricity at the police station and thus it was not practicable to record the cautioned statement is not plausible. In this regard, he argued that the cautioned statement (exhibit P2) was wrongly relied in evidence by the two courts below to ground the appellant's conviction. In the result, he prayed that the cautioned statement be discounted from the prosecution evidence. We entirely agree with the learned Principal State Attorney that according to the evidence on the record, PW4 left no doubt that the cautioned statement was recorded contrary to the requirement of section 50 (1) (a) of the CPA and that, the explanation given for the delay is not tenable. The Court has consistently held that the irregularity is fatal and renders the statement inadmissible. For this stance, see for instance, the decision in Moses Mwakasindile v. The Republic (Criminal Appeal No. 15 of 2017) [2019] TZCA 275 (30 August 2019, TANZLII). In the circumstances, we discount the cautioned statement for being inadmissible. Secondly, Mr. Ndamugoba submitted that there is material contradiction in the evidence of the prosecution witnesses, particularly, PW2 and PW3 with regard to date when they became aware of the fact that PW1 was pregnant. He submitted that while PW2, a teacher at Rukaranga Secondary School testified that on 4th January, 2020 during evening hours, he was approached by PW3, the father of the victim, and informed that she was pregnant, PW3 testified that in September, 2020, he received a call from PW2 to report to the school and when he responded, he was told that the victim was pregnant. He thus casted doubt on the credibility of the respective witnesses. For our part, having considered the evidence of PW2 and PW3 on the record and the rest of the evidence, we are satisfied that the contradiction is material. Considering the evidence of PW2 and PW3, it is not certain who informed the other concerning the victim being pregnant. Moreover, the testimony regarding the date on which PW2 allegedly informed PW3 concerning the issue of the victim's pregnancy cannot be reliable. This is because, the allegation in the charge is that the offence was committed between mid-July and August, 2020 and not before 4th January, 2020 when PW2 allegedly informed PW3 concerning the matter. Equally important, the evidence of PW3 is unreliable because by September, 2020 the issue of the victim being pregnant had not been disclosed to any other person including the victim. On the contrary, according to the victim (PW1), she was raped in August, 2020 and she did not disclose to her parents when she returned home until after four months when her mother discovered that her heartbeats were abnormal. Besides, it was until her mother insisted that she might have been pregnant that PW1 agreed and mentioned the involvement of the appellant. More importantly, according to the evidence on the record, the fact that the victim was pregnant was revealed on 3rd November, 2020 after PW5 conducted the examination at Geita Town Dispensary. It is in this regard that the appellant was arrested on the same day, that is, 3rd November, 2020 at night as per the evidence of PW4. We further note a contradiction between the evidence of PW2 and PW3 with regard to the steps taken after the information was revealed to each other. While PW2 testified that he advised PW3 to report the incident to the Social Welfare Office, PW3 testified that after he met PW2 and got the information, he decided to report the incident to the ten-cell leader, whose name he did not disclose, and that he was accompanied by the victim who also revealed the involvement of the appellant in committing the offence. PW3 testified further that he was also advised by the ten-cell leader to report the incident to the chairman, which he did, and the said chairman facilitated the arrest of the appellant and conveyed him to the police station. However, PW3 did not acknowledge the fact that he was also advised by PW2 to report the incident to the Social Welfare Office. It is indeed unfortunate that the mother of the victim who was allegedly the first person to prompt her on her health condition and the probability of being pregnant, the ten-cell leader and chairman were not called to testify during the trial. The evidence of PW2 and PW3 therefore remain surrounded by material contradictions rendering the same incredible and unreliable. Thirdly, the learned Principal State Attorney argued that the evidence of the victim (PW1) cannot be solely relied upon to ground conviction of the appellant. He stated that the time taken by the victim to report the incident to the parents weakened her evidence. He added that the acquittal of the second accused of the offence of aiding a person to commit an offence further weakened the victim's evidence. This is because, he explained, in her evidence, the victim was firm that the second accused was the one who enticed her to be a lover and have sexual intercourse, respectively with the appellant before and on the alleged date. To this end, he submitted that, as the evidence of PW5 cannot be of much assistance to corroborate PWl's evidence, there is no further evidence on the record to ground the conviction of the appellant rendering the case of the prosecution to have not been proved beyond reasonable doubt. We agree with the submission of the learned Principle State Attorney that the evidence of PW1 is insufficient to rescue the prosecution case from falling apart. We wish to add that though PW1 stated that the second accused directed her to enter into the room where she met the appellant and had sexual intercourse with him, she did not state whether after she came out of room, she met her before she went home. It is thus not clear whether the second accused was outside the house when the appellant raped the victim. Moreover, the victim's testimony on the involvement of the second accused and the revelation that the incident occurred at her home where the appellant also resided is suspicious. This is because, according to the evidence of the second accused (DW2) and her husband (DW3), they parted company with the appellant since June 2020 because of the misunderstanding between them concerning the business they were involved in together and that the appellant went to stay with her uncle at another place. The fact was supported by the appellant in his defence. Besides, this piece of evidence was not contradicted by the prosecution during cross-examination. In the circumstances, the testimony of the victim that the incident of rape occurred in August 2020 at the residence of DW2 and DW3 where the appellant resided is doubtful and dented her credibility. On the other hand, the evidence of PW5 cannot be helpful in proving the offence of rape and impregnating a school girl because of the apparent contradictions. It is noted that though PW5 testified that the pregnancy test of the victim revealed positive result, she did not find any bruises or seamen on her vagina and filled the PF3 on what she discovered, the remark part of the PE3 simply indicated that the victim was found to be pregnant. Therefore, there is nothing shown on the offence as an indication that the victim had lost her virginity or that she was penetrated by a blunt object. PW5 did not also indicate the stage at which the pregnancy had reached in order to gauge the allegation in the charge that the victim was raped and impregnated between mid-July and August, 2020, and the evidence of PW1 that it was the appellant who committed the offence of rape and made her pregnant. Unfortunately, even the victim said nothing on whether she was told after medical examination by PW5 the stage of her pregnancy. Besides, the victim did not also testify on the fact that she went for medical examination at Geita Town Dispensary on 3rd November, 2020 whereby she was examined by PW5. Interestingly, though PW5 testified that the victim was accompanied by her parents, the relevant part of the PF3 does not show who escorted her. In Mohamed Said v. The Republic (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (28 August 2019, TANZLII), we reiterated the importance of the evidence of victims in sexual offence cases to be subjected to careful scrutiny before grounding conviction on the suspect, though it is settled that the best evidence emanates from the victim. We further made reference to a persuasive decision of the Supreme Court of Philippines in the case of People of the Republic of Philippines v. Benjamin A. Elmancil, G.R. No. 234951, dated March, 2019, where it was held: "In reviewing rape cases, this Court has constantly been guided by three principles, to wit: (1) an accusation of rape can be made with facility; difficult to prove but more difficult for the person accused though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits and cannot draw strength from the weakness of the evidence for the defence. And as a result of these guiding principles, credibility of the complainant becomes the single most important issue. If the testimony of the victim is credible, convincing and consistent with human nature and the normal course of things the accused may be convicted solely on the basis thereof. In the case at hand, it cannot be said that the victim (PW1) gave the best evidence to implicate the appellant with the offence of rape and impregnating a school girl. In the circumstances, considering our deliberations above, we have no hesitation to state that the totality of the evidence of the prosecution and the defence of the appellant leads us to a finding that the case against the appellant was not proved beyond reasonable doubt contrary to the concurrent findings of the trial and first appellate courts. Consequently, we allow the appeal. In the end, we quash the conviction and set aside the sentence imposed on the appellant and order that he should be released from custody unless his incarceration is connected to other lawful cause. DATED at MWANZA this 28th day of February, 2025. F. L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Judgment delivered this 28th day of February, 2025 in the presence of the appellant in person and Ms. Neema Kibodya, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL