CRIMINAL APPEAL NO 200 OF 2022 MASOUD IBRAHIM VS

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: JUMA, CJ „ MAIGE J.A. And MURUKE. J.A.^ CRIMINAL APPEAL NO. 200 OF 2022 MASOUD IBRAHIM....................... ..... ....................................APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from Decision of the Resident Magistrate's Court of Mwanza with Extended Jurisdiction at Mwanza) (Ndvekobora, SRM. Ext. Jur.) dated 06th day of June, 2022 in (RM. Criminal Appeal No. 27 of 2021^ JUDGMENT OF THE COURT 25th& 28th February, 2025 MURUKE, J.A.: The appellant, Masoud Ibrahim, was charged before the District Court of Nyamagana at Nyamagana (the trial court) with the offence of rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code, (CAP 16 RE 2002 now R.E 2022). It was alleged that, between 23rd December, 2018 and 23rd November, 2019 at Butimba area within the District of Nyamagana in Mwanza Region, the appellant had carnal knowledge of a girl aged 12 years, a pupil of standard seven at Ibungiro Primary School. In order to disguise her identity, we shall be referring to her as the victim or PW2. 1 The brief facts of the case are; the victim aged 12 years at the commission of the offence, was born on 30th April 2006. After her parents had separated, she went to live with her mother who was married to the appellant. On 23rd December, 2018 at 06.00 hours, while her mother was attending communal (Jumuiya) morning prayers, her step farther, the appellant, seduced her but she refused. It was followed with appellant dragging her into the sitting room, tied her hands with rope on the couch, removed her underpants and his trouser up to the knee, while covering the victim's mouth with her dress, then raped her. After the ordeal, the appellant ordered the victim to take a bath, which she complied, but promised to tell her mother. PW1 informed her mother of what happened in her absence. Her mother promised to investigate the incident. PW1 further stated that after lapse of two weeks, the appellant followed her when she was in the toilet and her mother noticed, and disclosed to the appellant that she was aware of what was going on between him and the victim. The appellant apologized to her and beg for forgiveness but the victim's mother maintained that she would disclose the ordeal to the victim's relatives. In reaction, the appellant produced a knife and warned them not to disclose the incident to the relatives otherwise he would kill them. Then, appellant continued to rape 2 PW1 for around seven times in different occasions in absence of her mother, the last one being on 23th November, 2019. In her evidence on cross examination, PW1 admitted that in June, 2019 she went to visit PW2 her sister in Dar es Salaam, where she stayed for a month but she did not disclose the incident because she was worried that she would be harmed by the appellant. She also admitted that the appellant used to give her fare to go and greet her biological father once per month but she never disclosed the incident to anyone. She said, she only told her mother believing that she could inform her relatives. In some occasions, she was home alone but did not tell any. PW1 elaborated that she felt pains in the first time when he raped her and all the time the appellant raped her on the coach and had never been raped before by anybody else. Bertha Mgaya (PW2) testified that on 27 November, 2019 while at her home place, she received a phone call from her mother informing her that PW1 was sick. On the next day, PW2 went to see PW1 and found her complaining that she was using local medicine after her mother had failed to take her to the hospital for treatment. She therefore left with the victim for treatment. However, when she recovered, PW1 refused to return to her mother. On inquiry, PW1 revealed the incident of being raped by his 3 stepfather. PW2 with her family reported the incident to Igogo Police where PF3 was issued and the victim was taken to Nyamagana Hospital where she was attended by Abigael Mhingo, the Medical Doctor (PW3). PW3 testified that he conducted physical examination using gloves and found that PW3 had lost virginity suggesting that there was a blunt object inserted to her private part. As a result, she set her for laboratory test for pregnancy, venereal decease and HIV before filling the PF3. All the above proved negative. The evidence of PW3 was also supported by PW4, WP 2762 Sgt Ester from Igogo Police Station, the one who arrested the appellant. Upon interrogation, the appellant denied to commit the offence charged. To prove his innocence, the appellant stated that, PW1 arrived with her mother to her house when she was standard IV and she did not complain until she was at Std. VII. He said, PW2 started to hate him when he began to live with their mother after being separated with their father. That, he had been together with PW2's mother for eight years as lovers. They were planning to conclude marriage, but she disappeared after the appellant had been arrested in 2019. In totality, appellant denied to have committed the offence charged. Upon hearing, the appellant was convicted and sentenced to 30 years imprisonment. His first appeal to the High Court, which was heard by a Senior Resident Magistrate with Extended jurisdiction, was not successful. Undaunted, the appellant is before the Court on a second appeal with two set of memorandum of appeal. In the first set, he has raised a total of eleven (11) grounds and on second set, he has raised five (5) grounds of appeal which both raise the following paraphrased six points of complaint, that; one, the victim (PW1) evidence was received in contravention of section 127 (2) of the Evidence Act; two, the evidence of PW1 was not properly scrutinized to prove penetration; three, the charge is defective as the victim is Jenipher Mjaya while the one appeared and testified is Jenipher Mgaya; four, failure by trial court to consider difference evidence; five, failure of the prosecution to call material witness: six, failure of the prosecution to prove the case beyond reasonable doubt. At the hearing of the appeal, the appellant appeared in person without legal representation, whilst the respondent/Republic had the services of Ms. Rehema Mbuya, learned Senior State Attorney assisted by Adam Murusuli, learned State Attorney. When given the floor to argue his appeal, the appellant prayed to adopt his grounds of appeal to be part of his submission in support of his appeal, reserving right to make rejoinder, if need be. It is worth noting that, the appeal at hand being a second appeal, the power of the Court to disturb the concurrent findings of the lower courts on points of fact is very limited. As stated in Director of Public Prosecution Vs. Jaffari Mfaume Kawawa [1981] TLR 149, it can only be intervened where the lower courts misapprehended the evidence or where there is a misdirection or non-direction on essential principle of law. We shall be guided by the said principle. The complaint in the first ground relates to the mode the trial court used in taking the evidence of PW1, being a child of tender age. It was the appellant's argument that, the trial court did not adhere to the provisions of section 127 (2) of the Evidence Act. The provision requires the court to first examine the child to establish whether she understands the meaning and the nature of an oath and secondly, if she does not understand the nature and meaning of an oath, then she should promise to the court to tel! the truth and not to tell lies. In its inquiry of PW1, the trial court did not establish whether or not she knew the nature and meaning of an oath before it. 6 In reply to ground one, the learned Senior State Attorney submitted that, it is not true that, Section 127 (2) of the Evidence Act has not been complied with. The Section requires a child below the age of 14 years to promise to tell the truth if she does not understand the meaning of an oath. Respondent counsel argued that PW1 at page 11 to page 12 of the record of appeal promised to tell the truth as the law requires, she then, prayed for dismissal of ground one for lack of merit. Our starting point in respect of this ground will be section 198 (1) of the Criminal Procedure Act [Cap. 20 R.E 2022] (the CPA) which requires every witness in a criminal case, subject to the provisions of any other written law, to give evidence upon oath or affirmation in accordance with the provisions of the Oaths and Statutory Declarations Act. This provision states thus: "Every witness in a criminal cause or matter shall, subject to the provisions o f any other written law to the contrary, be examined upon oath or affirmation in accordance with the provisions o f the Oaths and Statutory Declarations Act." One of the exceptions to this provision relates to a witness of tender age whose procedure is provided under section 127 (2) of the Evidence Act which states as follows: "A child o f tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence’ promise to tell the truth to the Court and not to tell lies”. In its interpretation of this provision, the Court had deduced that if the child of tender age understands the nature and meaning of an oath, he/she should give evidence an oath or affirmation or otherwise, if she does not, she shall be required to promise to the court to tell the truth and not to tell lies. That means, in the situation where a child witness is to give evidence without oath, she must make a promise to tell the truth and not lies. In the matter at hand, PW1 was the victim aged eight (12) years old while giving her testimony, she promised to tell the truth as reflected at page 11 of the record of appeal. Under the circumstances, it is our view that PWl's evidence was recorded in compliance with section 127(2) of the Evidence Act, hence this ground is dismissed for lacks of merit. On ground two, the complaint is failure by the two courts below to scrutinize the evidence of PW1 to prove penetration. Learned Senior State 8 Attorney submitted in this ground that, penetration was proved by PW1, the victim, as seen at page 11 up to 13 of the record of appeal, citing the case of Selemani Makumba v Republic, [2006] TLR 384 - 385, that insists that, inrape cases, the evidence of the victim is the most important evidence to prove penetration. Evidence of PW3, medical doctor corroborated the evidence of victim PW1 and victim's sister PW2, this ground lacks merits, insisted the learned Senior State Attorney. The appellant alleged that the prosecution case failed to prove penetration, attacking the evidence of PW3. Having gone through the record, it is crystal clear that penetration was proved. PW1 in her testimony at page 12 to 13 of record of appeal testified that: "On 23/12/2018at 6.00 hours morning I was outside that house washing clothes and my step father (the accused) called me inside and told me he used to love me but I told him how you can love me while you are married to my mother? He then dragged me to the sitting room and tightened me with rope on my hand to the coach and put dress on my mouth then put o ff my skirt and underwear and started to rape me after dropped his trouser to his knee. I felt pain. I failed to raise alarm because the mouth being blocked by piece ofdoth/dress. He then wanted me 9 to get shower. I did it but promised him to inform my mother in her return from the Jumuiya." Moreover, PWl's evidence was corroborated by PW3, the medical doctor who examined PWI and confirmed that there was penetration in PWl's vagina. PW3 found PWl's vagina enlarged as against the normal size and no hymen. PW3 tendered a PF3 which was not objected to by the appellant and was admitted as exhibit PI. It is thus our decided view that, the allegation regarding proof of penetration has been substantiated by the two prosecutions witnesses as correctly argued by the Senior State Attorney Ms. Mbuya, thus ground two lacks merits. Complaint in ground three is on defective charge relating to different names of the victim. Learned Senior State Attorney rightly submitted in our view that it is a minor error that has no any effect in evidence. More so, in our view, the appellant knew PWI as he had been living with her for more than 3 years. Appellant managed to cross examine PWI, PW2 and managed to mount his defense. In totality, evidence of the appellant while cross examining PWI and PW2 challenged the credibility of the prosecution evidence for late reporting of the incident which was considered. Thus ground three lack merit. 10 On ground four complaint is failure by the trial court to consider defence evidence. On this respondent counsel submitted correctly in our view that appellant defence was not considered. Apart from reproducing what appellant said in his defence, nothing was said in relation to four prosecution witnesses to prove the charge against the appellant, we are in agreement with the appellant thus allow it. Complaint in Ground five is on failure to call victim's mother as material witness. According to the evidence of PW1, she reported to her mother when she was raped for the first time. The mother promised to investigate, but she did not do anything. It was expected that, as a mother, she would inspect her daughter but did not. She did not even take the victim to the hospital for further investigation, she just kept quiet. After elapse of two weeks, victim's mother witnessed the appellant following the victim inside the toilet. It is at this juncture, she stopped the appellant while informing him that she had received complaint from the victim that he had raped her. The appellant apologized, asked for forgiveness, however victim mother promised to inform victim's relatives. Appellant reacted by threatening both the victim and her mother that he would kill both of them if they disclosed the rape incident to the relatives. This Court wonders why the victim's mother was not called as witness at the trial court because she was 11 in a position to fill the missing link left by the victim on late reporting of the incident. In the case of Boniface Kundakira Tarimo vs. Republic, Criminal Appeal No. 350 of 2008 (unreported) the Court was faced with the issues of failure to call material witness and held that:- "It is thus now settled that, where a witness who is in betterposition to explain some missing links in the party's case, is not called without sufficient reason being shown by the party, an adverse inference may be drawn against that party, even if such inference is only permissible. " Much as we agree with the learned Senior State Attorney that, it is upon the prosecution to decide who should be called as witnesses and that number of the witnesses does not matter, it is our opinion that, if a person who is unreasonably not called as a witness is a material witness, the prosecution is bound to produce him and if not, the Court may, as we hereby do, draw an adverse inference for the omission (See Aziz Abdallah vs. Republic (1991) TR. 71. In totality ground five has merits, thus allowed. Ground six relate to the proof of the offence. In her submissions, Ms. Rehema Mbuya contends that, the evidence of PW1 as corroborated by PW2 12 and PW3 was credible enough to establish that, it was the appellant who committed the offence. In her view, the trial magistrate was justified to place reliance on such evidence because in rape cases, the evidence of the victim is the best evidence. We were referred to the case of Selemani Makumba vs. Republic, [2006] T.L.R. 379 which is in support of that proposition. She submits further that, under section 127 (7) of the Evidence Act, the trial court may solely rely on the testimony of a child of tender age to sustain conviction if it establishes that, the same is credible. We understand it is an elementary position of law that in criminal cases, the burden to prove the allegation beyond reasonable doubt is on the prosecution. Where a reasonable doubt exists, it has to be applied in favour of the accused person. In this case, the victim of the rape is alleged to be a child of tender age. We subscribe to the learned Senior State Attorney that, under section 127 (7) of the Evidence Act, conviction may be based on the sole evidence of the child of tender age if the court is satisfied that she is credible. The respective provision provides as follows: 11Notwithstanding the preceding provisions o f this section, where in criminal proceedings involving sexual offence the only independent evidence is that o f a child o f tender years or a victim o f the sexual 13 offence, the court shall receive the evidence, and may, after assessing the credibility o f the evidence o f the child o f tender years as the case may be or the victim o f the sexual offence on its merits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceedings; the court is satisfied that the child o f tends years or the victim is telling nothing but the truth." It has however to be emphasized that, the court cannot base its conviction solely on the evidence of a child of tender years or the victim of the crime unless it satisfies itself that, the same is credible and leaves no doubts. This position was held, in among authories, the case Mohamed Said vs. the Republic, Criminal Appeal No. 145 2017 (unreported) where it was observed as follows:- "We think it was never intended that the word o f the victim o f the sexual offence should be taken as gospel truth but that her or his testimony shouldpass the test o f 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 14 particular, and that such compliance will lead to punishing the defends only in deserving cases. " As we understand the law, determination of credibility of a witness cannot be made in isolation of other pieces of evidence on the record and the circumstance surrounding the case. Therefore, in Shabani Daudi v. R., Criminal Appeal No. 28 of 2000 (unreported), the Court stated that:- "The credibility o f a witness can also be determined in two other ways: One, when assessing the coherence o f the testimony o f that witness. Two, when the testimony o f that witness is considered in relation with the evidence o f other witnesses, including that o f the accused. " In the case at hand, we have resolved on ground five that victim mother was material witness who was not called by the prosecution, and no reason available in the court records for not calling her. Looking at the evidence of PW1, although the law says that her evidence as a victim of rape may be used to ground conviction, yet cannot be taken a whole sale, on the following reasons: one, victim reported the incident after one year from 23/11/2018 to 27/11/2019 when she told her sister PW2 at Mwanza. It is surprising, while the victim spent a month with PW2 at Dar es Salaam in June, 2019, she did not disclose the incident. During cross examination, she 15 was questioned on that and replied that, she did not do so because she knew that she would go back to the residence of the appellant. However, according to the record, it is her biological father who received her from Dar es Salaam, before going to the appellant. Two, PW1 was free to go and visit her biological father every end of the month or any other date wherever need arose, she would have told her father of the incident, and refuse to go back to the appellant as she did after December, 2019. Three, the victim's father was present when the victim revealed the incidence in accordance with the evidence of PW2, but did not testify in court. Four, there is contradiction in the evidence of PW1 and that of PW2 as to the place where the incident took place. PW1 said it was at Mahina while PW2 said the incident took place at Butimba. It is a serious contradiction which goes to the proof of the charge levied against the appellant. In our view, the defense evidence when weighed with the evidence of PW2 and PW1 and the time taken by the victim to name the appellant would raise reasonable doubt on the credibility of the story of PW1 and her sister PW2 about the incident. Worse enough, the prosecution failure to call victim's mother, a material witness, raises doubts in the prosecution case. In turn, such doubts would have been applied against the prosecution. 16 In view of the foregoing discussions, we think that, the case against the appellant was not proved beyond reasonable doubt. The appeal is thus with merit and it is accordingly allowed. We consequently quash the judgment and conviction of both the lower courts and set aside the sentence. We order that the appellant be released forthwith from prison custody unless held there for some other lawful cause. DATED at MWANZA this day of February, 2025. I. H. JUMA CHIEF JUSTICE 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 appellant in person, learned Counsel for the appellant and Ms. Neema Kibodya, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original.