CRIMINAL APPEAL NO 198 OF 2022 JOSEPH PAUL ANDREA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: JUMA, C.J.. WAMBALI. J.A. And MAIGE- J.A/> CRIMINAL APPEAL NO. 198 OF 2022 JOSEPH PAUL ANDREA................. ........................................APPELLANT VERSUS THE REPUBLIC................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Mnvukwa. J.^ Dated the 14th day of March, 2022 in Criminal Appeal No. 168 of 2021 JU D G M EN T OF THE CO URT 21st & 27th February, 2025 WAMBALI. J.A.: The appellant, Joseph Paul Andrea was charged under section 130 (1) (2) (e) of the Penal Code, Cap 16, tried and convicted of the offence of rape of a girl aged 15 years by the District Court of Misungwi at Misungwi, and in terms of section 131 (1) of the Act, he was sentenced to thirty years imprisonment. In this judgment, we will conveniently refer to the girl as the victim or PW3. The particulars of the offence contained the allegation that on 31st August, 2021 at Misasi Village within Misungwi District in Mwanza Region, the appellant had unlawful sexual intercourse with the victim. The substance of the prosecution evidence is traced from four witnesses namely, Paschal Gerald Kalinga (PW1), Aisha Ahmada Kabagandi (PW2), the victim (PW3) and G. 7476 P/C Johnson (PW4). The PF3 was also tendered and admitted as exhibit PI. It was the evidence of PW3 that on 31st August, 2021, while she was from the shop accompanied by her friend, who she did not disclose her name, she met the appellant whom she knew well since 2019 because he worked at her mother's (PW2) restaurant. She testified that the appellant held her hand and drag her to a dark place where he told her that he had been looking for an opportunity to talk to her for quite some time. Suddenly, she stated, the appellant took her inside his room, undressed and had sexual intercourse with her. Later, police officer entered the place and found her on the bed naked as her clothes had been torn apart by the appellant when he forcefully undressed her before sexual intercourse. PW3 testified that police officers sent her and the appellant to Misasi Police Post while wearing the appellant's clothes because her's had been torn apart as intimated earlier. On the next day, she went for medical examination at Misasi Health Centre after she was given a PF3 at the police post. PW2, the victim's mother, testified that on 31st August, 2021, the victim (PW3) left home to an unknown place and when she inquired from her friends, she was informed that the appellant was lastly seen with the victim. PW2 reported the matter at Misasi Police Post and search was mounted in which at around 00.00 hours, they found the appellant in bed with the victim while naked in his room. She disclosed that both were taken to the police post and on the next day, the victim was sent to hospital for examination. PW4, a police officer at Misasi Police Post testified that, on 31st August, 2021 at 23:30 hours while on duty, he met PW2 who complained that her daughter (PW3) was missing since 19:00 hours after she went to the shop with Zulfa. He stated that PW2 informed him that after inquiry, Zulfa told her that she left PW3 with the appellant and that she knew the location of his residence. PW4 went to the appellant's house accompanied by PW2 and her male relative. When they arrived at the said place, they knocked the door and a woman opened it but when they entered inside, they only found children and not the appellant. They thus left. However, while on the way, they discussed among themselves and returned to the said house and found a woman outside with an elderly man who took them to the house where the appellant resided. After the woman knocked the door, the appellant opened because he thought she was her mother. They immediately entered inside the room and found a girl (PW3) sleeping on bed naked while the appellant wore a short trouser. That, PW3 told them that she had gone there to read books. They subsequently arrested the victim and the appellant and sent them to the police post. The appellant was locked up while the victim was issued with a PF3 and went to Misasi Health Centre for medical examination. According to the testimony of PW1, a doctor at Misasi Health Centre, he examined PW3 and found bruises and sperms in her vagina and therefore, he concluded that she had sexual intercourse. He thus filled the PF3 which was tendered and admitted as exhibit PI at the trial. The appellant denied the allegation leveled against him by the prosecution. His defence against the charge was to the effect that the case was fabricated by PW2, who was her employer at the restaurant from December 2020 to July 2021 for a salary of TZS. 40,000.00. However, he narrated that PW2 had not paid his salary from March to July 2021 and when he claimed it on 12th June 2021, he was told to continue working. Nonetheless, he stopped working in July 2021. He testified further that on 30th August, 2021, he was arrested at his work place and sent to Misasi Police Post and was surprised to be accused of committing the offence of rape. At the height of the trial, the trial Senior Resident Magistrate made a finding that the prosecution had proved the case against the appellant to a hilt. He found as a fact, that the appellant was found in bed in his room with PW3 where he committed the offence of rape. He also found that the issue of penetration, an important element of the offence of rape, was corroborated by PW1 and exhibit PI (the PF3) whereby bruises and sperms were noted in the victim's vagina. As a result, the trial Senior Resident Magistrate convicted and sentenced the appellant as intimated above. The appellant attempted in vain to assail the conviction and sentence of the trial court as his first appeal was dismissed by the High Court in its entirety, hence this second appeal. In support of the appeal, initially, the appellant lodged before the court a memorandum of appeal comprising ten grounds of appeal. Later, on the date of hearing of the appeal, he presented before the Court a supplementary memorandum of appeal containing six grounds of appeal. He appeared in person and urged us to consider his grounds of appeal and allow the appeal on the contention that the prosecution evidence did not demonstrate that he committed the offence of rape. However, at the hearing, it was apparent that the appellant's grounds of appeal in the two memoranda of appeal can be compressed and paraphrased into the following grounds. One, that the evidence of PW1 and exhibit PI was wrongly relied as corroborative evidence because of uncertainty of the date in which PW3 was examined at Misasi Health Centre. Two, that the prosecution evidence was contradictory, inconsistent, uncorroborated, unreliable and incredible. Three, that the failure by the prosecution to summon material witnesses weakened its case against the appellant. Four, that the appellant's defence was not considered, and five, that the prosecution case was not proved beyond reasonable doubt. In response to the appellant's grounds of appeal, Ms. Lilian Erasto Meli, learned Senior State Attorney, assisted by Ms. Sarah Perias, learned State Attorney, who appeared for the respondent Republic strongly contested the appeal. With regard to the first ground of appeal on the unreliability of the evidence of PW1 and the PF3 (exhibit PI), Ms. Meli stated that the evidence on the record shows that the PF3 was issued on 1st September 2021. That fact is supported by the evidence of PW2 and PW3 who testified that after the incident of rape on 31st August, 2021, the victim was issued with the PF3 and went to hospital on the next day. She contended that though the testimony of PW1 to the effect that he examined PW3 on 31st August, 2021 and filed the PF3 on 7th September, 2021 contradicted the evidence of PW2 and PW3, the contradiction is not material and did not go to the root of the case. She argued that the fact remains that according to the evidence on the record, PW3 was examined by PW1 who found that she had been penetrated in her vagina on the material date. She thus urged us to dismiss the complaint in the first ground of appeal. It is not contested that the evidence of PW1 that he examined the victim on 31st August, 2021 contradicted the evidence of PW2 and PW3 who testified that examination was done on 1st September, 2021 which was the next day after the date of the incident. We have perused the original file of the proceedings of the trial court and found that the indication in the testimony of PW1 that he examined PW3 on 31st August, 2021 is not a typing error. We further note that the PF3 indicates that it was issued at Misasi Police Post on 1st September, 2021. Therefore, the testimony of PW1 that he examined PW3 on 31st August, 2021 at his work place, that is, Misasi Health Centre, cannot be true. This creates doubt on when PW1 examined PW3. The doubt is further strengthened by the fact that the PF3 indicates that it was filled by PW1 on 7th September, 2021. Besides, there is no indication in his testimony as to why the PF3 was filled on that date instead of the date when he allegedly examined PW3. Indeed, in his testimony, he did not mention the said date as it was only indicated by the trial Senior Resident Magistrate when he admitted the PF3 as exhibit PI. The evidence of PW2 and PW3 who went together at Misasi Health Centre do not also show whether they were given the PF3 on the same date or it was issued some days after the examination. The evidence of PW4, a police officer who arrested the appellant and oversaw the issuance of the PF3 at the police post, is also silent on the issue surrounding the uncertainty of the date the victim was examined and when the PF3 was returned to the police post at Misasi. In the circumstances, we hold that the evidence of PW1 and exhibit PI cannot be wholly relied upon in corroborating the evidence of PW3 with regard to penetration as held by the trial court and affirmed by the first appellate court. We accordingly allow the first ground of appeal. Responding on the second ground of appeal, Ms. Meli submitted that the evidence of the prosecution witness was not inconsistent and contradictory as alleged by the appellant. She argued that PW3 stated categorically what transpired on the material date on the rape incident and that, PW2 and PW4 corroborated the fact that the appellant was found with the victim in his room and were later arrested and sent to Misasi Police Post. She added that the appellant did not shake the respective prosecution witnesses on the fact that he was found with the victim in the bedroom when he was given opportunity to cross examine them. Besides, she argued, the appellant did not contest that he was arrested on 31st August, 2021 though he contended that the case was fabricated by PW2. She therefore pressed us to dismiss the second ground of appeal. We have thoroughly revaluated the evidence of both sides on the record of appeal. We are however aware that being a second appellate court, we are only entitled to do so to ascertain whether there are misapprehension of facts by both the trial and first appellant courts. See Wankuru Mwita v. The Republic, Criminal Appeal No. 219 of 2012 and Seif Mohamed E.K. Abadan v. The Republic, Criminal Appeal No. 320 of 2009 (both unreported). In the former case, it was stated that: " ... The law is well settled, on second appeal, the court will not readily disturb concurrent findings of facts by the trial court and first appellate court unless it can be shown that they are perverse, demonstrably wrong or clearly unreasonable or a result of a complete misapprehension of the substance, nature and quality of the evidence; a violation of some principle of law or procedure or having occasioned a miscarriage ofjustice". In this regard, we note the following inconsistences and contradictions in the evidence of the prosecution witnesses. One, while in her testimony, PW3 did not mention the presence of her mother (PW2) when they were arrested in the appellant's room, PW2 testified that she accompanied PW4 and entered inside the said room where she found the victim naked. Two, though PW3 testified that the victim's clothes were torn apart by the appellant during the incident of rape and thus she was compelled to ware the appellant's clothes whose type were not stated, when they were sent to the police post, PW4 who accompanied PW2 did not say anything concerning the issue. It is thus surprising how PW4 10 could omit such an important fact while he was the one who arrested the appellant and the victim while naked as alleged and sent them to the police post. Three, both PW2 and PW3 did not mention the name of the victim's friend being Zulfa. Both described her as the victim's friend. On the contrary, it was PW4 who disclosed the name of the said friend as Zulfa and contended that he was told by PW2. That he had been told by Zulfa that she left the appellant with PW3 and that she knew where the appellant resided. Four, while PW2 did not disclose the time when PW3 disappeared from her home after she went to the shop, PW4 testified that he was informed by PW2 that she disappeared at about 19:00 hours. Unfortunately, even PW3 did not state the time she left home and when she met the appellant on 31st August, 2021. Five, though PW4 stated that when they went to the appellant's residence they were accompanied by PW2's male relative and the police officer incharge of the police post, PW2 did not say that they were accompanied by any other person apart from the police. Besides, PW2, did not disclose the fact that at the scene of the crime, they were accompanied by a woman who led them and knocked the door of the ii appellant who opened it thinking that she was her mother. It is thus doubtful how could PW2 who was allegedly at the scene of the crime with PW4 fail to disclose such an important fact in connection to the offence with which the appellant stood charged at the trial court. Sixth, the testimony by PW4 that he was told by PW2 that Zulfa knew where the appellant resided is not evident on her evidence. Indeed, if Zulfa knew the said place as testified by PW4, it was expected that she would have been the one to take PW2 and PW4 to the respective residence. On the contrary, there is no indication from the evidence of both PW2 and PW4 that they were accompanied by Zulfa when they went to that place where they found the appellant with PW3 in the room. Seven, while PW4 testified that they went to the targeted place twice after the first attempt had not succeeded, PW2 said nothing about the matter. Having regard to the exposed inconsistences and contradictions in the evidence of PW2, PW3 and PW4, it is clear that the same are material to the extent of denting the credibility of their evidence rendering them incredible and unreliable concerning the incident of rape and the involvement of the appellant. It was thus the duty of the two courts below to resolve the inconsistencies one way or the other to clear the doubts because the complaint also featured in ground four at the first appellate court. In Mohamed Said Matula v. The Republic [1995] T.L.R. 3 the Court stated that: " Where the testimony of witnesses contains inconsistences and contradictions, the court has a duty to address the inconsistences and try to resolve them where possible, else the court has to decide whether the inconsistencies and contradiction are minor or whether they go to the root o f the matter". In the event, we allow the second ground of appeal. With regard to the complaint of the appellant in the third ground of appeal, the learned Senior State Attorney submitted that there was no need for the prosecution to have summoned other witnesses to support its case because those who testified, that is, PW1, PW2, PW3 and PW4 were key witnesses. She contended that PW2 and PW4 found and arrested the appellant in the room with the victim who was naked, and therefore they were properly found to be trustworthy witnesses by both courts below. She added that the victim herself testified on how the incident of rape occurred and the involvement of the appellant on the material date. On the other hand, she submitted that under section 143 of the Evidence Act, Cap 6 the prosecution is not bound to bring before the trial court a specific number of witnesses to prove a fact because, evidence is weighed and not counted. She concluded her submission on this ground by arguing that those who were not called to testify at the trial court are not material witnesses and therefore the complaint of the appellant is baseless. We are aware of the position of the law that the prosecution is not compelled to parade before a trial court a specific number of witness to support its case as submitted by Ms. Meli. However, it is equally appreciated that failure by the prosecution to call a material witness who may be in better position to explain or fill the lacuna in the evidence on the record, may entitle the court to draw an adverse inference to its case. For this stance, see for existence the decisions of the Court in Hemedi Said v. Mohamedi Mbilu [1984] T.L.R. 113 and Aziz Abdaliah v. The Republic [1991] T.L.R.71. In the former case, the Court stated: "Where for undisclosed reasons a party falls to call a material witness on his side, the court is entitled to draw an adverse inference that if the witnesses were called they would have given evidence contrary to his interests". In the case at hand, considering our deliberations in the second ground of appeal regarding the inconsistences and contradictions in the evidence of PW2, PW3 and PW4, we hold that Zulfa, a friend of PW3 who was with her on the alleged date of the incident and a woman who allegedly accompanied PW2 and PW4 when they arrested the appellant in the company of the victim in his room, are material witness who would have filled the gaps left by the respective prosecution witnesses who testified at the trial. It is indeed surprising why Zulfa was not summoned to testify at the trial while she was listed among the witnesses during the preliminary hearing. In this regard, we allow the third ground of appeal. Next, we find it appropriate to consider and determine together the fourth ground of appeal regarding failure by the two courts below to consider the appellant's defence and the fifth ground of appeal on whether the prosecution case was proved beyond reasonable doubt. The learned Senior State Attorney conceded that the appellant's defence was not adequately considered by both the trial and first appellate courts as required by law. She therefore urged us to consider it and come to the conclusion on its substance. However, she submitted that, for her part, having subjected the defence of the appellant to the evidence of the prosecution on the record, she was content that the same did not raise doubt to the prosecution case. Regarding proof of the case, Ms. Meli stated that the evidence of the victim left no doubt that rape was proved to the required standard. She explained that PW1 proved that she was penetrated in her vagina by the appellant on 31st August, 2021. She added that the evidence of PW2 proved that PW3 was aged 15 years and thus the offence of statutory raped was proved as the victim was below 18 years. She relied on the decisions in Donald Mwanawima v. The Director of Public Prosecutions (Criminal Appeal No. 352 of 2019 [2023] TZCA 17735 (6 October 2023, TANZLII) in which reference was made to the case of Isaya Renatus v. The Republic (Criminal Appeal No. 542 of 2015) [2016] TZCA 218 (26 April 2016, TANZLII) and Kidai Magembe v. The Republic (Criminal Appeal No. 228 of 2021) [2022] TZCA 346 (13 June 2022, TANZLII), to support her position that PW2 being a parent, was empowered to prove the age of the victim. She argued further that the evidence of PW1 regarding the incident of rape was corroborated by that of PW2 and PW4 who found the appellant with PW3 in the room having sexual intercourse. The learned Senior State Attorney emphasized that, both the trial and first appellate courts properly found the evidence of PW3 credible and believed her because as stated in the case of Seleman Makumba v. The Republic [2006] T.L.R. 379, the best evidence in sexual offence cases comes from the victim. Ultimately, she implored us to find PW3 a credible witness and that the circumstances in the case at hand is similar to those in Donald Mwanawima v. The Republic (supra) and dismiss the appellant's appeal for lacking merit. At this juncture, we wish to state that considering our deliberation and conclusion in the first and second grounds of appeal above with regard to the credibility and reliability of the evidence of PW1, PW2, PW4 and exhibit PI amid the raised inconsistences and contradictions, we hold that their evidence on the record cannot support or corroborate that of PW3. Reverting to the evidence of PW3, we equally find that it did not prove that the appellant was involved in sexual intercourse with her on the material date. We hold this view for the following reasons apart from those raised when dealing with the second ground in respect of PW3. First, PW3 did not state the time when she met the appellant and name of the place which she simply described as dark. PW3 did not also state the location of the place where the appellant took her in the room. Second, PW3 did not describe the type of the appellant's clothes she put on when she was sent to the police post together with the appellant. Unfortunately, as complained by the appellant, her alleged torn clothes were not mentioned by PW4 and they were also not tendered in evidence at the trial. Third, PW3's failure to mention the name of her friend who accompanied her when they met the appellant on the material date dented her credibility. As intimated above, the name of Zulfa was disclosed by PW4 who also claimed to have been told by PW2. The anomaly is enhanced by the fact that Zulfa did not testify at the trial to confirm PW3's on what transpired on the material date. Fourth and more importantly, PW3's failure to disclose whether her mother (PW2) accompanied PW4 when they allegedly found her with the appellant in his room raised further doubt on the credibility and reliability of her evidence regarding the incident and the involvement of the appellant in committing the offence. We do not disregard the settled position of law, as stated by Ms. Meli relying in our decision in Seleman Makumba v. The Republic (supra) that, the best evidence in sexual offences emanates from the victim who is in better position to disclose how the incidence occurred. We are also alive of the position of the law under section 127 (6) of the Evidence Act that, a conviction for sexual offence may be grounded solely on the uncorroborated evidence of the victim. However, it is also a position that the evidence of such witness must be scrutinized to the satisfaction of the court that the witness stated nothing but the truth. In this regard, in Mohamed Said v. The Republic (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (23 August 2019, TANZLII), the Court stated that: "We think that it was never intended that the word of the victim of sexual offence should be taken as a gospel truth but that her or his testimony should pass the test of truthfullness. We have no doubt thatjustice in cases of sexual offences requires strict compliance with rules of evidence in general... and that such compliance will lead to punishing the offenders only in deserving casef. In the event, having regard to what we have stated above, we do not respectfully support the concurrent findings of fact by the trial and first appellate courts that the evidence of PW3 is credible and reliable to ground the conviction of the appellant. We also find that the circumstances in the present case are distinguishable with those in Donald Mwanawima v. The Republic (supra) to lead us come to the same conclusion contrary to the contention of the learned Senior State Attorney. Reverting to the failure to consider the appellant's defence, we hold that we are entitled to step into the shoes of the two courts below and consider it and come to our own conclusion (see Joseph Leonard Manyota v. The Republic (Criminal Appeal No. 485 of 2017) [2017] TZCA 261 (11 August 2017, TANZLII). To this end, having considered the appellant's defence and given our re-evaluation of the prosecution evidence on the record, we are satisfied that it raised doubt on whether the case was not framed up because of the misunderstanding between PW2 and the appellant regarding the claim for unpaid salary as it was not disputed that PW2 was her employer at the restaurant. Thus, we are of the view that had the trial and first appellate courts properly considered the appellant's defence and the evidence of prosecution on the record as a whole, they would have come to the conclusion that the prosecution case was not proved beyond reasonable doubt. In the result, we allow the fourth and fifth grounds of appeal. In the end, we allow the appeal, quash conviction and set aside the sentence imposed on the appellant by the trial court and confirmed by the first appellate court. Ultimately, we order that the appellant be released from custody, unless held for other lawful cause. DATED at MWANZA this 27th day of February, 2025. I. H. JUMA CHIEF JUSTICE F. L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL The Judgment delivered this 27th day of February, 2025 in the presence of the appellant in person and Mr. Christopher Olembile, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. *