CRIMINAL APPEAL NO 4 OF 2022 GOROBAN BRAND KATUMBO V REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: SEHEL. J.A., KAIRO, J.A. And KHAMIS. J.A.l CRIMINAL APPEAL NO. 4 OF 2022 GOROBAN BRAND @ KATUMBO..................................................APPELLANT VERSUS THE REPUBLIC............................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Mahimbali, J.) dated the 24th day of November, 2021 in (DC) Criminal Appeal No. 86 of 2021 JUDGMENT OF THE COURT 19th & 27th February, 2025 KHAMIS, J.A.: The appellant, Goroban Brand @ Katumbo, was arraigned, tried and convicted by the District Court of Serengeti on two counts, rape contrary to section 130 (1) and (2) (e) and 131 (1) of the Penal Code, Cap 16, R.E 2002 and impregnating a school girl contrary to section 35 (3) and (4) of the Education Act, Cap 353 R.E 2002 read together with section 5 of the Education Imposition of Penalties to Persons who Marry or Impregnate a School Girl Rules, 2003, Government Notice No. 265 of 2003. i The particulars of the charge on the first count were that, on the 7th day of October, 2015 at about 2100 hours at Mugumu Township within Serengeti District in Mara Region, the appellant unlawfully had sexual intercourse with one "XD" aged 17 years. On the second count, the prosecution alleged that, on the same date, time and place, after having a sexual intercourse with one "XD", a school girl of Serengeti Secondary School, the appellant impregnated her. For the purpose of this judgment, the real name and identity of the victim are withheld but shall be referred to as "XD" or the victim. Upon his conviction, the appellant was sentenced to thirty years in imprisonment on the first count and to pay a fine of TZS 300,000.00 or serve three years' imprisonment in default on the second count. Following the conviction and sentence, the appellant initiated the first appeal to the High Court, Musoma which was partly dismissed on 26th day of November, 2021 thereby setting aside the conviction and sentence on the second count and confirming his conviction and sentence for the offence of rape. Aggrieved, the appellant landed in this Court on a second appeal centred on the conviction only in line with the requirements of section 6 (7) (a) of the Appellate Jurisdiction Act, Cap 141 R.E 2019 (the AJA). The relevant section provides that, any person aggrieved by a decision of the High Court in its appellate jurisdiction over criminal matters originating from the subordinate courts other than a subordinate court exercising extended jurisdiction, may appeal to this Court on a matter of law excluding severity of sentence but not on a matter of fact. A sentence can only be challenged if it is illegal or irregular (See Kashima Mnadi v. Republic, Criminal Application No. 1 of 2009 (unreported). Before probing into the appeal, the factual background of the case is inevitable. The victim was a 17 years old form two student and testified in the trial court as PW2. She was induced to have sex with the appellant and the two became lovers. For the first time they had sex inside the appellant's room on 7th October, 2015. They did not use any protection. The relationship continued and the love birds had sex on several occasions. On 3rd February, 2016 the appellant and PW2 travelled to Sarakwe where they stayed up to 10th February, 2016. The two moved to Shinyanga where they stayed until 9th day of March, 2016 when the victim travelled back to Mugumu. On cross examination, PW2 said the appellant and her mother spoke over the phone when she (the victim) was in Shinyanga. On 17th March, 2016 the victim was taken to a police station at Mugumu and issued with a PF3 for medical examination. On 18th March, 3 j 2016 the victim and her mother (PW1) visited the District Designated Hospital Mugumu (DDH Mugumu) where Dr. Albert Kasanga Mnalimi (PW3) subjected her to a thorough medical scrutiny. PW3 filled in the PF3 (exhibit P2) indicating the victim was pregnant for five months. PW1 testified that, the victim was a form three student and born on 22nd September, 1999. The victim went missing from home on 2nd February, 2016 and the incident was reported at Mugumu Police Station. On 6th May, 2016 PW1 learnt of the victim and the appellant's presence in Shinyanga. On 7th March, 2016 she travelled to Shinyanga and made follow ups. The appellant was arrested on 9th March, 2016 and the victim travelled to Mugumu on the same date. PW1 recalled that the PF3 was issued on 17th March, 2016 and the victim was eventually examined by a medical doctor and found with five months' pregnancy. PW5 Detective Corporal Masoud, a police officer who investigated the case, said the victim's abduction was reported at the police station on 2nd February, 2016 and the appellant arrested on 9th February, 2016. According to him, on 16th March, 2016 the victim travelled from Shinyanga to Mugumu and visited the police station on 17th March, 2016. 4 DW5 further testified that, upon being questioned, the appellant denied to commit the offence. On cross examination, PW5 admitted that, he was not involved in the arrest of the appellant in Shinyanga. On further cross examination, the investigator admitted lack of knowledge on whereabouts of the victim for the days she did not report at the police station following her return from Shinyanga. In his sworn testimony, the appellant denied the charge and disassociated himself from the accusations. He said during the period the incidents were alleged to happen in 2015 and 2016, he was in Mwanza and Shinyanga working in a security company. On 9th March, 2016 two unknown men visited his work place in Shinyanga and required him to report at a police station. He complied. On 13th March, 2016, he was transported to Mugumu where he stayed in a lockup until 17th March, 2016 when his statement was recorded. Subsequently, he was arraigned. As earlier on stated, on strength of these facts, the appellant was charged, convicted and sentenced. In the memorandum of appeal lodged on 22nd day of December, 2022, the appellant raised basically four grounds of appeal faulting the trial and the first appellate courts for: one, dismissing the appeal while the prosecution case was not proved beyond reasonable doubts; two, failure to consider the uncorroborated, doubtful evidence of the prosecution and the delay to report the incident at the police station; three, lack of evidence to prove penetration; and; four, failure to consider that the trial court's proceedings were tainted with irregularities and confusion. When the appeal was placed before us for hearing, the appellant appeared in person, unrepresented, while Mr. Isihaka Ibrahim Mohamed, learned State Attorney, dutifully acted for the respondent Republic. The appellant being a lay person, preferred to respond to the submissions by the Republic. At the outset, Mr. Mohamed expressed stance of the Republic to support the appeal. In his view, the first ground of appeal was sufficient to dispose of the appeal and submitted that, the charge was not proved beyond reasonable doubt. Expounding, he made highlights on the ingredients of the offence of statutory rape, namely: penetration; age of the victim; and; responsibility of the accused for the crime. He contended that, in that regard, the prosecution failed to prove that the appellant was responsible for the alleged rape. The learned State Attorney referred us to page 27 of the record where the appellant denied to have carnally known the victim and asserted that, following the denial, the prosecution failed to cross examine him. He cited the case of the Director of Public Prosecutions v. Mohamed Said & Another, Criminal Appeal No. 432 of 2018 [2020] TZCA 1915 (18 December 2020, TanzLII) where the Court held that, failure to re- examine a witness left his answers intact. He submitted that, on account of the prosecution's failure to cross examine the appellant on his denial, his evidence stood unchallenged and accepted as the truth. Mr. Mohamed equally addressed us on the lack of corroboration. He faulted the two lower courts for holding that there was adequate evidence to corroborate the testimony of the victim. He contended that, contrary to that finding, there was no corroboration in the evidence of PW1 and PW2 which created doubts on what exactly transpired. On that path, he drew our attention to the discrepancies in the evidence of PW1 and PW2 as featured at pages 12 and page 13 of the record of appeal. He invited us to hold that, the evidence of the two key prosecution witnesses was not consistent. Further, the learned counsel faulted the two lower courts for failure to address themselves on the victim's delay to report the incident at the police station and to undergo timely medical examination. He contended that, there was an unexplained delay by the victim and her mother to report the incident at the police station as shown at pages 12, 13 and 14 of the record of appeal. He submitted that, such delay was confirmed by PW3 and PW4 at pages 20 and 23 of the record of appeal. In his view, the eight days' delay created reasonable doubt on the prosecution case. The learned State Attorney spotlighted the findings of the first appellate Judge at page 71 of the records of appeal where he concluded that, the incident was reported on 2nd February, 2016 and the appellant arrested on 9th March, 2016. He submitted that, the learned Judge erroneously overlooked the eight days' delay to report the incident at the police station. He further faulted findings of the first appellate court regarding penetration as cloned at page 72 of the record, and strongly submitted that, the view adopted by the first appellate Judge that, the appellant and the victim were involved in sexual intercourse while in Shinyanga was not backed by the evidence on record, particularly the testimony of PW2. Lastly, the learned State Attorney attacked the evidence of PW2 and contended that, from the way it was recorded, it left doubts on whether the victim had taken her evidence under oath, without oath or under a voire dire procedure. He asserted that, at the time of testimony, PW2 was not a child of tender age but the record was silent on her taking an oath. He urged the Court to allow the appeal and release the appellant from prison on the ground that, the prosecution did not establish both charges of rape and impregnating a school girl. When given a chance to address the Court, the appellant briefly prayed to be released from prison. He had nothing to add. We have carefully scanned the record of appeal, considered the grounds of appeal and the counsel submissions. We have also taken into account the appellant's brief remarks on the appeal. The main issue for our determination is whether the prosecution proved its case against the appellant beyond reasonable doubt. It is trite law that in criminal trials the burden of proof lies on the prosecution and the standard of proof is beyond reasonable doubt. We have subjected the evidence to fresh evaluation and on that expedition we came to a conclusion that, indeed, as rightly submitted by the learned State Attorney, the prosecution evidence was shaky to sustain a conviction or in upholding it. We have considered the learned Judge's analysis and assessment of the evidence on record and particularly, his conclusion at pages 71 and 72 of the record of appeal where he reasoned that, the incident was reported at the police station on 2nd February, 2016 and the appellant arrested on 9th February, 2016. The learned counsel submitted extensively on the victim's delay to report the incident and the learned Judge's findings on the issue. It is not out of context to observe that a delay in reporting a criminal incident can significantly weaken the prosecution case as it raises doubts on credibility of the victim's testimony, potentially impacting on the prosecution's ability to secure a conviction due to concerns on the evidence deterioration and potential inconsistencies in the narrative over time. In Director of Public Prosecutions v. Juma Chuwa Abdallah & Another, Criminal Appeal No. 85 of 2018 [2023] TZCA 17800 (2 November 2023, TanzLII) we took the view that, a delayed reporting dents credibility of the evidence of the victims. In the present case, the record speaks loud and clear that, the victim arrived in Mugumu from Shinyanga on 9th March, 2023 and formally reported the incident on 17th March, 2023. Despite of being issued with a PF3 on that day, she subjected herself for medical examination at DDH - Mugumu on 18th March, 2023. This fact was stated by PW1, PW2 and PW3. Neither PW1 nor PW2 offered to explain the delay. This delay concerned the accused and was a subject of cross examination as exhibited at page 24 of the record where PW4 stated that, he did not know where the victim had been before reporting the incident at the police station. We should also comment on the learned Judge's finding that the incident was reported at the police station on 2nd day of February, 2016. With due respect, PW4 clearly testified that on 2nd February, 2016 PW1 made a report of abduction which triggered an investigation by the police to know the victim's whereabouts. The complaint of rape against the appellant was reported by the victim herself (PW2) at Mugumu Police Station on 17th March, 2016 as evidenced by the PF3 (exhibit P2) which was issued on that same date coupled with the oral testimony of PW4. Therefore, we are satisfied that indeed, there was an unexplained delay by PW1 and PW2 to report the alleged rape at the police station li for about eight days. We think, this unexplained delay adversely affected the prosecution case which was also marred with contradictions and inconsistencies that go to its root. The contradictions and inconsistencies stated are reflected in the evidence of PW1, PW2 and PW3. PW1 informed the trial court that the victim disappeared from their home on 2nd February, 2016 hence a report of abduction at the police station on that day. Contrasting that evidence, PW2 stated that, she eloped with the appellant on 3rd February, 2016 meaning that she was at home on 2nd February, 2016. Worse still, PW4 said PW1 reported at the police station that her daughter was abducted on 2nd February, 2016. Who is telling the truth between PW1, PW2 and PW3? This question remains unresolved. We have also considered the appellant's evidence on record. In the impugned judgment, the first appellate Judge addressed himself limitedly on the defence of alibi as presented by the appellant during his testimony and out rightly rejected it on the ground that no prior notice was issued by the appellant. However, the learned Judge did not re­ examine the appellant's evidence in totality. In our view, the appellant was prejudiced by the omission to consider his evidence in totality bearing in mind our stance in Hussein Iddi & Another v. Republic 12 [1986] T.L.R 166 thus, it is a serious misdirection on the trial Judge or magistrate to deal with the prosecution evidence on its own and arrive at the conclusion that it was true and credible without considering the defence evidence. Our attention was drawn on the appellant's testimony at page 26 and 27 of the record. Our perusal of the relevant pages shows when the appellant testified as DW1, he made clear that, during the period alleged, he was not in Mugumu Township where the offences are alleged to occur. He maintained that he was in Mwanza and Shinyanga. Further to that, the appellant stated that, he never had sex with the victim as alleged by the prosecution witnesses or at all. Surprisingly, the appellant was not cross examined by the prosecution on this categorical denial of the charge. In Director of Public Prosecutions v. Mohamed Said & Another (supra), we restated the law that, a failure to cross examine or re-examine a witness on a relevant fact leaves his evidence intact. In this context, we agree with the learned State Attorney that the failure of the prosecution to cross examine the appellant on the alleged rape and impregnating a school girl, left his evidence unchallenged. Having resolved the concerns raised in the grounds of appeal and addressed by the learned State Attorney in the affirmative, we find no need to determine the issue regarding the testimony of PW2. In the result, we find the appeal meritorious and accordingly allow it, quash the conviction and set aside the sentence meted out against the appellant. Finally, we order the immediate release of the appellant from custody unless he is continually held for other lawful cause. DATED at MUSOMA this 27th day of February, 2025. B. M. A. SEHEL JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 27th day of February, 2025 in the presence of the appellant in person via virtual Court from Musoma Prison and Mr. Michael Kayombo, learned State Attorney for the Republic/respondent; is hereby certified as a true copy of the original.