Said Hamisi Mchanjama vs Republic Criminal Appeal No

IN THE COURT OF APPEAL OF TANZANIA AT MTWARA (CORAM: KEREFU, 3.A.. RUMANYIKA. J.A. And MGEYEKWA, 3.A.1 CRIMINAL APPEAL NO. 390 OF 2022 SAID HAMISI MCHAN3AMA................. ................. ..................... APPELLANT VERSUS THE REPUBLIC............... ................... .................................... RESPONDENT [Appeal from the Decision of the High Court of Tanzania at Mtwara] (Muruke. 3) Dated the 28th day of March, 2022 in Criminal Appeal No. 33 of 2021 JUDGMENT OF THE COURT 12thJune, 2024 MGEYEKWA. J.A. Said Hamisi Mchanjama, the appellant was arraigned in the District Court of Kilwa at Kilwa Masoko on two counts of rape contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code. In both counts, it was alleged that in 2018 to November, 2020 at different times at Mkwanyule Village within Kilwa District in Lindi Region, the appellant raped a girl child of 15 and 13 years respectively. Both were studying at Mtanga Primary School. To i conceal the victims' identity, we shall henceforth refer to them as the "victims" or "PW1" and "PW2", the codenames by which they testified before the trial court. The appellant pleaded not guilty to the charge. However, after a full trial, he was convicted and sentenced to thirty (30) years imprisonment on each count. The sentences were ordered to run concurrently. The brief facts of the case that led to the appellants arraignment, conviction and sentence as obtained from the record of appeal are not complicated. They go thus, PW1, a pupil of standard six at Mtanga Primary School was living with her parents and her siblings. It was her testimony that her stepfather, the appellant was a breadwinner in their family. However, their relationship turned sour when her stepfather had sexual intercourse with her. PW1 testified to the effect that on divers' dates between the year 2018, she had sexual intercourse with the appellant. PW1 recalled that in 2020, when she was in standard IV, the appellant called her into his bedroom and told her that he wanted to give her medicine. The appellant took a medicine and rubbed it into her vagina and on his penis and had sexual intercourse with her. At that time, her mother was not around, she went to fetch water. The appellant warned her of the consequences if she would report the ordeal to her mother. That was not all. She recalled that the appellant repeatedly had sexual intercourse with her. PW1 testified that in the second week of November, 2020, around 19:00 hours, the appellant told PW1 to sit down and ordered her to undress herself. Then, he removed his trouser and inserted his penis into her vagina. After that, PW1 abstained from school for two weeks; her father reported her to Mohamed Abdulharman Njaule (PW6) the teacher that the victim slept to her boyfriend. On the following day, the appellant took her to the police station. Subsequently, the teacher took PW1 to Mpala Dispensary for a pregnant test At the hospital, she was medically examined and it was discovered that she was pregnant. PW1 said that her stepfather also had sexual intercourse with PW2, and he told her that PW2 was jealous of their relationship. His brutal behaviour towards her daughters ended in 2020, when PW2 had to take the bull by the horns by reporting the matter to her teacher. Subsequently, the appellant was arrested. PW2 had a similar story to that of PW1. She said that she started to have sexual intercourse with her stepfather since the year 2019 and she had sexual intercourse with him for more than ten times. PW2 testified that it reached a time when she was not pleased with her stepfather's bad behaviour. Therefore, she reported the matter to her teacher one Chalala. Following the saga, on 23rd November, 2020, the appellant chased them from his house, and they spent the night at Said's home. Then, the appellant reported them to their teacher, and later, they were taken to the police station. More evidence comes from Dr. Daudi Hassani Selemani (PW3), a medical doctor at Masoko Health Center. On 23rd November, 2020, he examined PW1 and PW2 and found that PWl's vagina was perforated and she was pregnant. The PF3 to that effect were tendered and admitted as exhibit PI and P2 respectively. PW3 also examined PW2's vagina and found that her hymen was perforated, but she was not pregnant. Dottor Abdallah Moyoweni (PW4), a teacher at Mtanga Primary School testified that on 23rd November, 2020 he was assigned to escort the victims' parents and the victims to the nearby dispensary. The medical doctor examined PW1 and PW2 and found that PW1 was pregnant. PW4 interrogated PW1 and she revealed that the appellant was responsible for the pregnancy and PW2 said that they had sexual intercourse with the appellant. PW6, had a similar story to that of PW4. He confirmed that PW1 and PW2 were enrolled and registered at Mtanga Primary School. It was his further testimony that on 23rd November, 2020, PW1 and PW2 absconded from school, and the headmaster directed that, the victims be taken to hospital for a pregnant test. After being examined, it was discovered that PW1 was pregnant. As to who was the perpetrator of the crime, PW1 did not reveal it to PW4. A moment later, when their parents left the teacher's office, PW1 told them that the appellant was responsible for her pregnancy. The headmaster reported the matter to the police. Subsequently, the appellant was arrested. Amina Omari Mkumbalu (PW5), the victims' biological mother testified to the effect that normally after school hours, the victims helped them with house chores and cultivating crops. She said one day, PW1 and PW2 went out but did not return home. She testified that PW1 and PW2 had bad behaviours; they did not obey their stepfather and had absconded from school. PW5 noticed that PWl's had changed but she did not tell her if she was pregnant. She said she tried to warn the victims even beat them but they did not listen, thus, she decided to throw out their clothes from their house and the appellant reported the matter to the school and the police. WP896 DC Zainabu (PW7), who was at the material time working at Kilwa Masoko Police Station, investigation department, recalled that, on 23rd November, 2020 around evening hours, he was instructed to arrest the appellant. After his arrest, on 24th November, 2020, he interrogated the victims, and they told him what had befallen them. They said, the appellant raped them. He prepared a charge and the appellant was arraigned before the court. In his defence, the appellant denied to have committed the offence. He testified that on 13th November, 2020, PW1 and PW2 returned home around 8:00 hours; he asked them where they were coming from, and they replied that they were coming from their boyfriends. He decided to take them to the army camp, the solider interrogated them and they maintained their answer that they spent the night at their boyfriends. It was his further testimony that on the following day, they took the victims to school, and their teacher asked them where they spent the night; they replied that they slept at Said Kumchinja's house, who was their friend. Subsequently, the appellant took them to a Health Centre for medical examination. Astonishing, he was informed by their teacher that he was responsible for the pregnancy of PW1. Thereafter, he was arrested and arraigned before the court. In its judgment, the trial court established that the victims were, indeed, raped. It also held that PWl's and PW2's evidence were corroborated by the medical evidence adduced by PW3 and supported by exhibit PI. As to the perpetrator of the crimes, the trial court gave credence to the testimonies of PW1 and PW2 pointing an accusing finger at the appellant. The appellant was aggrieved by the decision of the trial court and thus appealed to the High Court. His appeal was unsuccessful. The learned first appellate Judge dismissed the appeal, it was convinced that the unnatural offence was established to the hilt. Thus, he dismissed the appeal. Aggrieved further by the decision of the High Court, the appellant preferred this second appeal which is predicted on six grounds which can be paraphrased as follows: one, the appellant was convicted while he pleaded not guilty to the charge; two, there was no any eyewitness who confirmed that he committed the alleged offence; three, the prosecution evidence was not watertight; four, the trial court erred to convict him while PW1 and PW2 mentioned another person who they had sexual intercourse with; five, the prosecution case was not proved beyond a reasonable doubt, and six, the trial court entered conviction against him while PW1 did not understand the meaning of telling the truth. We heard the appeal on 4th June, 2024. Before us, the appellant, who was seif-represented, adopted the grounds of appeal and opted to hear first the submissions of the respondent. On the other hand, Ms. Faraja George, learned Senior State Attorney, represented the respondent, determinedly opposed the appeal. Starting with the second ground of appeal, Ms. George drew our inspiration from the decision of the Court in Selemani Makumba v. Republic (2006) TLR 374 and submitted that, the trial court in convicting the appellant based on the best evidence of the victims. She clarified that PW1 and PW2 narrated how the appellant on different occasions raped them. She continued to argue that their stepfather started to rape PW1 since 2018 and PW2 since 2019. She valiantly contended that the victims' evidence were trustworthy, thus, there was no need for an eyewitness to corroborate their testimonies. She implored us to dismiss this ground of appeal. With respect to the fourth ground, the learned Senior State Attorney conceded that the victims mentioned Said as their friend but she made an alternate approach and argued that Said gave them shelter on the night when the appellant chased them away from his house. She insisted that the only person who raped them was the appellant in exclusion of any other person. Ms. George urged us to find that this ground of appeal is devoid of merit. On sixth ground, Ms. George was brief and straight to the point, she argued that the appellant's complaint is unfounded because the law under section 127 of the CPA on voire dire test requires a child below fourteen years to promise to tell the truth, while in the case at hand, PW1 was sixteen years old, therefore, she was not required to promise to tell the truth. She concluded by stating that this ground is misconceived, thus, she implored us to dismiss it. Submitting on the last ground, Ms. George contended that this ground is unfounded, she defended the decision of the first appellate court as sound and fair. The learned Senior State Attorney elaborated that PW1 and PW2 proved that the appellant raped them since 2018 and as a result, PW1 became pregnant. It was her further submission that the victims were able to describe their stepfather male organ to prove that it was him who raped them. She added that, the evidence of PW1 and PW2 were corroborated by the medical doctor who examined them and discovered that they were raped. Upon being probed by the Court on whether the description of the appellant's male organ was the same, she conceded that the description differed between PW1 and PW2, however, she took a different swipe and argued that since the contradiction is minor, it does not go to the root of the case. Upon being probed further on whether the trial court tested the credibility of PW1 and PW2, Ms. George admitted that the trial court did not test the victims' credibility. However, she defended the trial courts findings as sound and reasoned because the prosecution proved the case to the hilt. She clarified that the prosecution established that penetration took place, the victims age at the time of the sexual act were below 18 years and the perpetrator of the sexual act was the appellant. To reinforce her submission, she cited the case of Mzee Ally Mwinyimkuu @ Babu Seya v. Republic, Criminal Appeal No. 499 of 2017) [2020] TZCA 1776 (17 September 2020 TanzLII). The learned State Attorney admitted that the victims' mother (PW5) testified that she was the one who chased them away from his house but in her view, she thought that, PW5 was defending her husband. When she was probed by the Court on the behaviour of the victims, the learned State Attorney submitted that PW1 and PW2 behaviours were uncouth, and PW5 testified the same that the victims were misbehaving. In conclusion, the learned Senior State Attorney beckoned upon the Court to dismiss the appeal in its entirety. In his rejoinder, the appellant had nothing to rejoin; he urged us to adopt his grounds of appeal and find that it was a framed - up case by the victims. It is now our turn to determine the appeal by considering the competing arguments made by the parties. We have chosen to start addressing the third, fourth, and fifth grounds of appeal. These grounds relate, to credibility and reliability of the victims' evidence, contradictions of evidence between PW1, PW2 and PW4 and the appellant. All of them seek to establish that the case was not proved beyond reasonable doubt. They will therefore be determined conjointly. We are alive to the principle that, as the second appellate court, we are only supposed to deal with questions of law. However, that position depends on the requirement that the findirig of facts by the courts below were based on correct appreciation of the evidence in the record. In our previous decision Jafari Mohamed v. Republic, Criminal Appeal 112 of 2006 [2013] TZCA 344 (15 March 2013 TanzLII), we held that: li "An appellate court, like this one, will only interfere with such concurrent findings of fact only if it is satisfied that "they are on the face o f it unreasonable or perverse" leading to a miscarriage o fjustice, or there had been a misapprehension o f the evidence or a violation o f some principle o f law: see, for instance, Peters v. Sunday Post Ltd. [1958] EA. 424: Daniel Nguru and Four Others v. R., Criminal Appeal No. 178 of 2004, (unreported); Richard Mgaya (supra)..." See Michael Elias v. Republic, Criminal Appeal No.243 of 2007 (unreported). As rightly submitted by Ms. Geroge, it is the settled law that best evidence in sexual offences cases comes from the victim, this was the standing of the Court in the celebrated case of Selemani Makumba (supra). The principle was reiterated in the case of Mohamed Haji AM v. Director of Public Prosecution, Criminal Appeal No. 225 of 2018 [2018] TZCA 332 (13 December 2018) TanzLII). However, this position is general, it is not to be taken wholesale without considering other important factors, such as the credibility of the prosecution witnesses, reliability of their evidence and the circumstances relevant to the case in point. See Majaliwa 12 Ihema v. Republic, Criminal Appeal No. 197 of 2002 [2021] TZCA 304 (15 July 2021 TanzLII). We are also mindful of the settled position that the best test for the quality is based on the credibility of a witness. See Elisha Edward v. Republic, Criminal Appeal 33 of 2018) [2021] TZCA 397 (24 August 2021 TanzLII). Thus, it is deficient for the trial court to state that it trusted the credibility of a witness or is satisfied with the demeanor of a witness. The reason for its decision must be recorded as that would assist the appellate court to determine whether indeed the trial court considered the credibility of a witness. See the case of Shabani Daudi v. Republic, Criminal Appeal No. 28 of 2001 (unreported) and Abraham Wilson Kaaya v. The Republic, Criminal Appeal No. 54 of 2020) 2023] TZCA 17655 (26 September 2023 TanZLII). It is our view that, this appeal can conveniently be disposed of by a thorough scrutiny of the evidence in the record to ascertain whether or not PW1 and PW2 were credible and worth of believe on the incident or the alleged rape. In doing so, we will determine whether the two courts below applied the correct litmus test before concluding that PW1 and PW2 were credible witnesses. 13 In the present case as intimated earlier, the trial magistrate took PWl/s and PW2's narrations as true without testing them against the version given by other prosecution witnesses such as the victims' mother (PW5), the medical doctor (PW3) and the appellant. On the other hand, the first appellate Judge assessed the credibility of PW1 and PW2 and concluded that they were credible and best witness who proved that they-were raped by the appellant. We understand that in proving whether or not there was penetration; PW1 testified that the appellant undressed her and he removed his trouser and inserted his male organ in her vagina. PW2 stated that the appellant had sexual intercourse with her. The Court had an occasion to exemplify the victim's expressions in rape cases. In the case of Mathayo Laurance William Mollel v. Republic, Criminal Appeal No. 53 of 2020 [2023] TZCA 52 (20 February 2023 TanzLII), where the Court cited the case of Hassan Kamuya v. The Republic, Criminal Appeal No. 277 of 2016 [2018] TZCA 259 (25 July 2018) TanzLII, the Court observed penetration phrases like "[he] removed my underwear and started intercourse me", "sexual intercourse" or "have sex". This proves that, in the instant case, both victims proved that penetration took place. 14 Next, the question which came to our mind is whether or not the victims gave a credible account on who was responsible of the offence of rape. It is noteworthy that the credibility of a witness in rape cases refers to how believable or trustworthy their evidence is in court regarding the alleged offense. Therefore, it is crucial for the court to assess the credibility of witnesses to determine the truth and make a just decision. In the case of Salum Ally v. Republic, Criminal Appeal No. 106 of 2013 (unreported), we held that: "...on whether or not any particular evidence is reliable, depends on its credibility and the weight to be attached to such evidence. We are aware that at its most basic, credibility involves the issue whether the witness appears to be telling the truth as he believes it to be. In essence, this entails the ability to assess whether the witness’s testimony is plausible or is in harmony with the preponderance o f probabilities which a practical and informed person would readily recognize as reasonable in the circumstances particularly in a particular case. The test for any credible evidence is supposed to pass, were best summarized in the case of Abdallha Teje @ Malima Mabula v. Republic, Criminal Appeal No. 195 o f2005 (unreported)." 15 See also Elisha Edward v. Republic, Criminal Appeal 33 of 2018) [2021] TZCA 397 (24 August 2021,TanzLII). In the case at hand, PW1 and PW2 testified to the effect that, their stepfather carnally known them, and this was the only evidence that directly implicated the appellant. It is apparent on record of appeal at page 18, PW5's informed the trial court that the victims were notorious, she warned them but they did not listen. Thus, she decided to throw out their clothes, and they went to sleep to Said's house. PW5 was one of the prosecution witnesses who had a different story from PW1 and PW2, but the trial court gave no reason why it did not believe the evidence of PW5. We, think that the trial court ought to state reasons for not believing PW5's evidence since it is established principle that every witness is entitled to credence and belief to his evidence unless there are good and cogent reasons to hold otherwise. See the case of Goodluck Kyando v. Republic [2006] T.L.R 363. Therefore, it is our view that the prosecution evidence was shaken by PW5's evidence, who cemented that the evidence of PW1 and PW2 was untruthful. Therefore, it was unsafe for the trial court to base its findings on the evidence of PW1 and PW2 which, we find to be not credible. 16 Moreover, in common ground, it is not easy for a child of good manners to utter shameful or direct words in front of the people. They used uncouth words in reference to their stepfather's private part. During their testimonies, PW1 at page 8 of the record of appeal, without a tinge of shame, described the appellant's male organ as thick, not short or long. On the opposite, PW2 at page 11 of the record of appeal without an audacious nerve described the appellant's male organ as tall not thick and short. From the inconsistency of evidence of PW1 and PW2, these questions are inescapable. If PW1 and PW2 were credible witnesses. Also, it creates doubt if they were involved in sexual relationship with the appellant in the exclusion of other men, considering the fact that they were not girls of good moral standing. In Mathias Bundala v. Republic, Criminal Appeal No. 62 of 2004 (unreported) the Court held that: "Good reasons for not believing a witness include the fact that the witness has given improbable evidence, or the evidence has been materially contradicted by another witness or witnesses." [Emphasis added] Applying the above authority, in the case at hand, it is plain that, PW1 and PW2 contradictory evidence diminished their credibility on the 17 involvement of the appellant. In our previous decision in Salum Ally v. Republic, Criminal Appeal No. 106 of 2013 (unreported), where we dealt with a similar complaint, we held that: "...on whether or not any particular evidence is reliable, depends on its credibility and the weight to be attached to such evidence. We are aware that at its most basic, credibility involves the issue whether the witness appears to be telling the truth as he believes it to be. In essence, this entails the ability to assess whether the witness's testimony is piausibie or is in harmony with the preponderance of probabilities which a practical and informedperson would readily recognize-as reasonable in the circumstances particularly in a particular case. The test for any credible evidence is supposed to pass..." [Emphasis added] We are aware that every witness is entitled to credence and must be believed. See Iddi Shaban @ Amasi v. Republic, Criminal Appeal No. 2006 (unreported) and Goodluck Kyando v. Republic, (2006) TLR 363. However, there are exceptions where there are good reasons not to believe a witness. In the case at hand, we think that, the words of the victims should not be taken as gospel truth, but their testimonies should pass the test of 18 truthfulness. In our previous case of Mohamed Said v. the Republic, Criminal Appeal No. 145 of 2017 (unreported), we observed that: "We think it was never intended that the word of the victim o f the sexual offence should be taken as gospel truth but that her or his testimony should pass the test of truthfulness. We have no doubt that justice in cases o f sexual offences requires strict compliance with rules o f evidence in general, and S. 127(7) o f Cap. 6 in particular, and that such compliance will lead to punishing the offenders only in deserving cases. "[Emphasis added] In the end, for the reasons we have shown, we find that the evidence of PW1 and PW2 were taken as gospel truth without passing the test of truthfulness. In our settled view, had the courts below correctly assessed the prosecution witnesses' evidence, and addressed themselves to these unsatisfactory features in the evidence of PW1 and PW2, they would not have readily taken them as witness of truth. For the aforementioned reasons, we are of the firm opinion that the appellant's conviction was rested on weak and unreliable evidence which should not be left to stand. In the circumstances, we think it is unnecessary to deal with the remaining grounds of appeal. 19 Consequently, we allow the appeal, quash the conviction and set aside the sentence imposed on the appellant. We order for the appellant's immediate release from the prison, unless he is being held for another lawful cause. Order accordingly. DATED at MTWARA this 11th day of June, 2024. R. J. KEREFU JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 12th day of June, 2024 in the presence of the Appellant in person unrepresented and Mr. Justus Revocatus Zegge, State Attorney for the Respondent/Republic is hereby certified as a true copy of the pL. KALEGEYA REGISTRAR OF APPEAL 20