CRM

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: KOROSSO. J.A.. KENTE, J.A.. And MGONYA. J.A.^ CRIMINAL APPEAL NO. 620 OF 2021 MICHAEL MAISHA @WAKASONGORO........................................ APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mbeya) (Monqella, J.) Dated the 09th day of November, 2021 in Criminal Appeal No. 62 of 2021 JUDGMENT OF THE COURT 21st & 27th February, 2025 KOROSSO, JA.: The appellant Michael Maisha @ Wakasongoro appeal has been filed in this Court against the decision of the High Court of Tanzania, Mbeya District Registry, that upheld the decision of Kyela District Court sitting at Kyela (the trial court) in Criminal Case No. 51 of 2021. To put the matter into perspective, the appellant was charged with rape contrary to sections 130(1) and (2) and 131(1) of the Penal Code, Cap 16 (Penal Code). In the alternative, Incest by male contrary to section 158(l)(a) of the Penal Code. It was alleged that the appellant, on diverse dates between 2019 and February 2021 in Nkuyu area within Kyela District in Mbeya Region, unlawfully did have carnal knowledge of a girl aged 13 years, henceforth, to be referred to as the victim or PW1, who is his biological daughter. The condensed facts leading to his arraignment in the District Court of Kyela to face the charge stated above were that the appellant lived with PW1 and a younger daughter after his wife (PWl's mother) separated. PW1 testified that the appellant began to rape her in 2019, the first time when it happened, he told her he loved her and wanted to have sex with her, but she refused. However, the night of the same day, he took her to his room, wrapped her mouth with clothes and raped her. PW1 alluded that on that night, during the sexual molestation, she suffered excruciating pain and saw blood in her vagina. The appellant continued raping the victim regularly, waiting until the younger son fell asleep. PW l's ordeal from the appellant continued even after they moved to a new house in 2020. In February 2021, the appellant again raped her, and despite her loud cries, no one came to her rescue. The next day, Bahati Gilbert (PW7), a co-tenant, cornered PW1 and asked her why she was crying the previous night. PW1 responded that she could not disclose anything to anyone as the appellant had threatened to kill her if she did. PW7 did not leave the matter as it was, and in the evening together with another neighbour, queried PW1, who then disclosed what she was enduring in the house from the appellant. The neighbours convened a meeting where the appellant was in attendance, including PW7 and Edna Kyelua (PW3). When confronted by the neighbours, the appellant admitted and apologized for having sex with PW1, his daughter. Thereafter, the Hamlet leaders and the Police were informed, leading to the arrest of the appellant, who was later interrogated and his cautioned statement was admitted as Exhibit P2. Subsequently, PW1 was taken to the hospital for medical examination and issuance of a medical examination report (PF3), which was admitted in evidence as Exhibit PI. Reshineka Mwangoka (PW2) is a Clinical Officer who examined PW1 on 8/4/2021 and observed that the victim's hymen was perforated, suggesting infiltration of a blunt object regularly. A bad odour denoting an infection was also detected. The appellant's arrest culminated in his arraignment in the trial court, as alluded to earlier herein. The appellant denied the charges against him, stating that the case was a frame-up. After hearing cases for both sides, the trial court convicted the appellant for the offence charged in the first count, convinced that the prosecution case was proven to the standard required and sentenced him to serve thirty (30) years imprisonment. Dissatisfied, his appeal to the High Court did not succeed, hence the instant appeal. In the present appeal, the appellant has lodged two memoranda with nine grounds of appeal which essentially fault the first appellate court for dismissing his appeal underscoring the following grievances: 1. Failure to properly assess and evaluate the adduced evidence and grounds in the petition of appeal. 2. Reliance on the incredible and uncorroborated evidence of PW1 in the conviction of the appellant and not calling material witnesses. 3. Failure to consider the appellant's evidence in defence, of having a bad relationship with PW5, his erstwhile wife and the possibility of the case being fabricated. 4. Propriety of admissibility of Exhibit P2 signed under a misrepresentation of what document it was and contravened section 57 of the CPA. 5. The charge sheet was improperly drafted for not specifying the date of commission of the offence charged. 6. Not considering the lack of medical expert opinion from the person who examined the appellant. 7. Failure to consider the contradictions in the evidence of PW1 and other prosecution witnesses and delay in disclosing the molestation. When the appeal was called for hearing before us, the appellant appeared in person, unrepresented and began by adopting his written statement and proceeded to amplify his grounds of appeal. On grievance one, although the appellant did not address it in his oral submission, our perusal of the written statement shows he laments that the first appellate court ignored his petition of appeal, and he thus prayed we do the needful to rectify the anomaly. On the part of the respondent, who had the services of Ms. Caroline Matemu, learned Senior State Attorney, she commenced stating that she was resisting the appeal and supporting the conviction and sentence meted out to the appellant. Confronting grievance number one, she argued that when the record of appeal is revisited, it shows that all the grounds of appeal were considered and determined and the evidence was analysed. She stated that the appellant might be confused because the first appellate Judge consolidated all the grounds into one issue of whether the prosecution's case was proven beyond reasonable doubt and proceeded to determine this ending upholding the conviction and sentence against the appellant. She, therefore, urged us to find that the grounds of appeal were fully deliberated by the first appellate court and prayed we find the complaint barren of merit, devoid We have considered the submissions from both parties and the record of appeal related to this complaint, and we are of the view that the pertinent issue for our determination is whether the first appellate court considered and determined the grounds in the petition of appeal lodged by the appellant. Indeed, as argued by the learned Senior State Attorney, the first appellate Judge did summarize all the grounds of appeal before her on pages 89 and 90 of the record of appeal. On page 98 of the record of appeal, she stated: "After considering the arguments by both parties, I find all grounds o f appeal can be condensed and determined on one major ground being 'whether the prosecution proved the case against the appellant beyond reasonable doubt" Thereafter, the first appellate Judge proceeded to analyze the adduced evidence, both prosecution and defence at pages 94-97 of the record of appeal. In doing so, we are of the view that the learned first appellate Judge addressed all the obtaining complaints. We therefore dismiss complaint number one. Amplifying grievance two, the appellant contended that the first appellate court failed to properly evaluate the credibility of PWl's evidence despite relying on her evidence to convict him for the offence charged. He questioned the absence of any other witness, such as her younger brother, with whom she slept in the same room to adduce evidence to support her claims that the appellant raped her. It was thus his contention that in the absence of any evidence to corroborate that of PW1, her evidence should be assessed with caution and be found wanting. The appellant also raised another concern about the delay in reporting the molestation to anyone. He submitted that PW1 was surrounded by various people to whom she could have reported to, including Uncle Sadick or her younger brother; however, she did not until almost two years later. He urged us to find that PWl's evidence was unreliable. He contended that in the absence of any eyewitness, there remained no evidence to link him to the offence charged because any other evidence, including that of PW3 and PW7, was hearsay evidence and urged us to so find. In reply to this complaint, Ms Matemu argued that the law does not prescribe the number of witnesses to call to prove one's case. For the prosecution, all the important witnesses were called, including PW3 and PW7, who were the ones, the respondent reported to the abuse from the appellant. The learned Senior State Attorney submitted that the victim had narrated to PW7 why she had not reported earlier, that it was for fear of her father, who had threatened to kill her and deny her money for food and other essentials of life if she was to disclose what transpired in their house. She argued that PW7 and PW3 were co- tenants of the appellant and PW1. She wondered what the said Uncle Sadick would have testified on to supplant the evidence of PW1, PW3 and PW7. She maintained that from the adduced evidence, the concurrent findings of the trial and first appellate courts, doubting her credibility is an afterthought on the part of the respondent. She urged us to find the ground undeserving the Court's attention. In addressing complaint number two, suffice it to say, it is a trite law that every witness is entitled to credence and must be believed and testimony accepted unless there are good and cogent reasons not to believe the witness (see, Goodluck Kyando v. Republic [2006] T.L.R. 363). Moreover, the intrinsic nature of any sexual offence where only two persons are usually involved in the act, the complainant's testimony, while crucial and important, must be scrutinized cautiously, hence, the need to gauge the credibility of such a witness. This is because once it is determined that such a witness is credible, the evidence can be acted upon as the sole basis of conviction. The general principle is that, in a second appeal such as the instant one, the Court is not expected to interfere with the concurrent finding of facts made by the lower courts unless there is a misapprehension of evidence by misdirection or non-directions or when it is clearly shown that there has been a miscarriage of justice or violation of some principles of law or procedure. (See, Ramadhan Hamisi vs Republic, Criminal Appeal No. 121 of 2017 (unreported)). In the instant appeal, both the trial and the first appellate courts found PW1 to be a credible witness and relied on her evidence to convict the appellant. Notably, the evidence reveals that the sexual abuse meted to PW1 started when she was about 11 years old in 2019 and continued when she was 13 years old in 2021 when the appellant was arrested. There is also the fact that she lived with her father and younger brother alone after the departure of her mother. On the concern related to the delay by PW1 to report the alleged rape from the appellant, although it is a concern, we find any doubts, defeated when the circumstances of the case are taken into account. PW1, an 11 to 13-year-old at the time, living with the perpetrator, who was her father, it goes without saying that it is difficult to apportion blame on her for the delay in revealing the ordeal. Those circumstances, together with the fact that she was also threatened with being killed if she was to divulge the secret to anyone is a situation we have carefully considered. Certainly, early reporting of such incidents is encouraged and widens the chance of being believed as held in various decisions of this Court. However, each case must be decided taking account of its peculiar circumstances. In the instant case, our finding that the credibility of PW1 cannot be doubted is fortified by the fact that first, when narrating her story to PW3 and PW7, she had told them she could not speak out earlier due to threats from the appellant and the threats extended to being denied food. Such circumstances have, on previous occasions, been addressed by this Court. In the case of Selemani Hassan v. Republic, Criminal Appeal No. 203 of 2021 (unreported), which cited a decision from the Supreme Court of the Philippines in Philippines v. SP O l Arnulfo A. Aure and SP O l Marlon H. Ferol, G.R. No. 180451, October 17, 2008, which held: "Delay in reporting an incident o f rape due to death threats and shame does not affect the credibility o f the complainant nor undermine the charge o f rape. The silence o f a rape victim or her failure to disclose her misfortune to the authorities without loss o f material time does not prove that her charge is baseless and fabricated..." Second, PW1 was of very young age at the time, as stated herein above, and being dependent on the appellant for her livelihood in the absence of her mother; and third, having no reason to depart fromthe concurrent findings of the lower courts on the fact that she was a witness of truth. Therefore, we find nothing in the record to warrant us to depart from the concurrent findings of the lower court that PW1 is a credible witness. This grievance lacks substance. On grievance three, on failure to consider the appellant's evidence that the case was concocted due to the bad relations he had with his separated wife, mother to the victim, he argued that the trial and first appellate court did not bear in mind the circumstances which led to being charged which he had explained at the trial and he urged us to consider those and agree with him that the case was nothing but a frame-up. Regarding complaint three, the learned Senior State Attorney argued that the allegations by the appellant that the case is fabricated is an afterthought and cannot in any way dent the strong evidence adduced by the prosecution witnesses. In determining the ground, we have found no evidence on either side to address this issue. There is no evidence that PW5, the appellant's ex-wife and mother to his children, had any contact with PW3 and PW7 or even PW1 prior to the matter being reported to the Police. We have also found no connection between PW5 and the police who investigated the case or the Clinical officer who examined PW1 and found that her private parts were loose and showed having been inserted with a blunt object for some time. In light of the strong evidence from the prosecution expounded earlier in, we are of the view that this complaint has no legs to stand on. Moving to grievance number four about propriety in the admissibility of exhibit P2, the appellant stressed that the trial court erred in relying on the cautioned statement, which it had found had been procured illegally, in contravention of section 57 of the CPA as it was not read over to him upon being recorded and thus did not deserve to be admitted into evidence by the trial court. He prayed for us to expunge it. Concerning whether exhibit P2 was properly admitted found in grievance number four, the learned Senior State Attorney submitted that while it is true that when it was tendered, the appellant had objected to its admissibility, the trial court proceeded according to procedure thereafter. A trial within trial was conducted, and it overruled the objection finding the cautioned statement was procured voluntarily and ensured that it was duly read to him thereafter. She argued that the evidence adduced ruled out noncompliance with section 57 as asserted by the appellant. The learned Senior State Attorney implored us to find the grievance unmeritorious. In determining the complaint we first venture into discussing the import of section 57(4) of the CPA. The section requires, among others, for the cautioned statement to be read to the accused person after his statement has been recorded to afford him a room to correct its contents if need be. Having gone through the record, we have found nothing to lead us to conclude that section 57(4) of the CPA was not complied with. Suffice it to say, the objection raised by the appellant on the admissibility of his cautioned statement led to the conduct of an inquiry by the trial court to ascertain its voluntariness as revealed on page 37 of the record of appeal. At the end of the inquiry, the trial court was satisfied that it was recorded voluntarily and hence admitted it as exhibit P2. Nevertheless, even if we were to hold otherwise, as also observed by the first appellate court on page 95 of the record, which we agree with, that: " 7/7 my view, even if the cautioned statement is expunged, there is still overwhelming evidence against the appellant. PW1, who is the victim, testified clearly as to the calamity she went through for almost two years at the hands o f her own biological father. The law is trite to the effect that the best evidence in rape cases comes from the victim as she is in the best position o f knowing what happened to her..." For the foregoing, we find the complaint to raise no doubts about the prosecution case and thus to be unmeritorious. In amplifying grievance five, which castigates the charge as being improperly drafted for failure to specify the date of commission of the offence charged, the appellant submitted that by not specifying the respective dates or time of commission of the alleged rape incidents in the charge sheet denied him the opportunity to prepare and build up his defence properly on the basis of the specific dates if they had been there and cited the case of Mayala Njigailele v. Republic, Criminal Appeal No. 490 of 2015 (unreported). The response by the learned Senior State Attorney was that failure to specify the dates is not an issue which should take time, since the evidence of PW1 is clear that she was raped many times from 2019 and the time it came to the knowledge of others and the appellant was taken in the hands of the law it was in 2021. She argued that from the start of the trial, the appellant knew the fact that he was charged for the commission of the offence frequently and for some time. Therefore, the argument that this limited his scope to prepare a defence should not be considered or entertained in light of the evidence and circumstances of this case, was an afterthought, she argued. She implored us to find the complaint want of merit. In determining this ground, it is pertinent to underscore the fact that it is undeniable that the particulars of the offence for which the appellant was convicted had no specific dates, as alluded to by the appellant and it read: "Michael Maisha Wamasongoro on diverse time between 2019 and February 2021...." The evidence of PW1 was clear in that the appellant started raping her in 2019 and that the last time he raped her was in February 2021. Therefore, with that evidence, at the time of giving his defence, the appellant was clearly aware of the specific time he was alleged to have committed the offence charged. In the case of Jamal Ally @ Salum v. Republic, Criminal Appeal No. 52 of 2017 (unreported), discussing the import of a defective charge, the Court, though discussing non-citation of the relevant provision, had this to say which we find also relevant in this appeal: "...The particulars o f the offence gave the appellant sufficient notice about the date when the offence was committed, the village where the offence was committed, the nature o f the offence; the name o f the victim and her age..." On the evidence adduced at the trial and the victim gives a detailed account of how the appellant raped her, the Court held: "... the particulars o f the offence o f rape facing the appellant, together with the evidence o f the victim (PW1) enabled him to appreciate the seriousness o f the offence facing him and eliminated all possible prejudices. Hence we are prepared to conclude that the irregularities over non-citations or inapplicable provision in the statement o f offence are curable under section 388(1) o f the CPA." The essence of the above holding is that since the accused is expected to fully understand the substance of his charge, where there are defects in the statement of the offence, the content of the particulars may cure the defects if they fully reveal the nature of the offence charged. The evidence adduced in court also enables the accused to fully understand the charge itself so as to enable him to prepare his defence. We are of the firm view that the adduced evidence was clear on the period the appellant was accused of committing the offence charged to enable him to prepare his defence. The evidence of PW1 was to the effect that the rape was a regular occurrence for the two years outlined; therefore, stating it was at diverse times during the outlined period was not prejudicial to the appellant. We thus find the complaint not to have substance. The appellant did not amplify grievances number six and seven, only to say that the lack of a medical report that had examined him cast doubts and that there was a contradiction between the evidence of PW1 and other witnesses regarding the last time the incident was said to have occurred. In response, Ms. Matemu prayed we find the complaint to have substance since the prosecution fulfilled its role of proving the case beyond a reasonable doubt. She contended that penetration was proved through evidence of PW1, who narrated the first incident when the appellant raped her. She argued that there is also evidence of the oral admission of the appellant, as alluded to by PW3, relied on the case of Rashid Roman Nyerere v. Republic, Criminal Appeal No. 105 of 2014 (unreported) on the value of oral confession. The age of the victim was proved through the evidence of the victim's mother, Amina Jackson Kapwela (PW5) and PW2. She thus argued that the evidence left no doubt that it was the appellant who committed the offence from the evidence of PW1, PW7 and PW3 on the oral confession the appellant made to them and apologized. We are inclined to agree with the learned Senior State Attorney since an offence of rape for which the appellant was charged and convicted is proved as expounded, that is there must be proof of penetration, the age of the victim and that it is the accused who was the perpetrator, which as submitted by the learned Senior State Attorney was proved to the hilt, and not through the medical history of an accused person. The complaint lacks merit. The learned Senior State Attorney argued that the submission addressing the credibility of PW1 and failure to call material witnesses to the issue of contradictions was addressed since there are none, and if any, very minor, which do not go to the root and substance of the case. She thus implored us to dismiss the appeal. We are of the view that we need not take much time on this concern since we have discussed its elements when determining some of the complaints above. Nevertheless, section 143 of the Evidence Act provides that there is no specific number of witnesses to prove a fact in issue (see, William Kasanga vs Republic, Criminal Appeal No. 90 of 2012 (unreported)). The discretion lies on the prosecution on the number of witnesses to call to prove its case. In the case of Aziz Abdallah vs Republic [1991] T.L.R. 71, it was held: "... the prosecution is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify to material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution." In the instant case, considering what we have ventured to address above, we agree with the learned Senior State Attorney that the witness who testified managed to prove the case for the prosecution beyond a reasonable doubt, and bearing in mind that neither the said Uncle Sadick nor PWl's younger brother were eyewitnesses to the commission of the offence, their evidence would not have given anything in addition to the evidence already adduced by those witnesses who testified. In the event, in light of what we have endeavoured to discuss above, we find the appeal devoid of merit. We accordingly dismiss it. DATED at MBEYA this 27th day of February, 2025. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 27th day of February, 2025 in the presence of Appellant in person and Mr. Rajabu Msemo, for the Respondent/Republic through virtual court, is hereby certified as a true copy of the original.