Duke Yohana Vs

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: JUMA. C. J.. LEVIRA. J.A. And MASOUD. J.A.) CRIMINAL APPEAL NO. 287 OF 2022 DUKE YOHANA..........................................................................................APPELLANT VERSUS THE REPUBLIC..................................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Mahimbali, J.) dated the 29th day of April, 2022 in Criminal Appeal No. 115 of 2021 JUDGMENT OF THE COURT 13th & 17th March, 2025 MASOUD, J.A.: The appellant, Duke Yohana, was aggrieved by the decision of the High Court of Tanzania, at Musoma in DC Criminal Appeal No. 115 of 2021. The decision sustained the conviction of rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap. 16. It also upheld the sentence of 30 years imprisonment imposed on the appellant and the compensation of TZS 500,000.00 ordered to be paid to the victim. It was alleged, at the trial court, that on 12th December, 2020 at Nyatwari Street within Bunda District in Mara Region, the appellant did have carnal knowledge of a girl of 12 years old who is herein i referred to as the victim. The conviction was, largely, on the basis of the evidence of the victim (PW1) which was found to have been corroborated with that of her mother, Mandete Hima (PW2) and the medical practitioner, Heavenson William (PW3), Jumanne Ryalona, Street chairman (PW4), and Fikiria Bagogo @ Mama Easter, a neighbour (PW5). The story emerging from the prosecution witnesses, which was vehemently denied by the appellant, and which the two lower courts believed to be true and, hence, the concurrent findings that, the prosecution proved its case against the appellant beyond reasonable doubt, is not hard to comprehend. The appellant is a fisherman. He is a young brother of the victim's stepfather. For quite some time, he had been residing with the family of the victim's stepfather along with the victim and PW2, sleeping in the living room while others sleep in bedrooms. The victim alleged that, the appellant on 12th December, 2020 at midnight stormed into her room where she slept with her siblings. She woke up as she sensed that, someone was around removing the mosquito net in her bed. She recognized the intruder as the appellant because he had a flashlight torch that he lighted once. He grabbed her throat to prevent her from raising an alarm, and took her to a nearby church where he raped her until she lost consciousness. The victim regained her conscious at 6:00 am, only to find the appellant was not there. She struggled in pains to get back home and reported the incident and named the appellant as her assailant to her mother (PW2) who right away inspected her and confirmed that she was raped. The victim was, subsequently, taken to police and later on examined by PW3 at the hospital. PW4 arrested the appellant at the lake on the same day as he was preparing his fishing nets and was, subsequently, taken to Bunda Police Station. PW4 learnt about the incident from PW5 which had prompted him to arrest the appellant. PW5 testified to have heard and seen the victim saying that he had been raped by the appellant. As far as the appellant is concerned, his defence, in which he was the only witness, was that he was framed up by PW2 due to conflicts that they had. The reason being, among other things, that he advised his brother (the victim's stepfather) not to build a house on the land belonging to the victim's mother. Nonetheless, his defence was found not to have raised reasonable doubt to the prosecution case. Seeking to challenge the concurrent findings of the two lower courts, the appellant lodged a memorandum of appeal. It consisted of eight grounds. All grounds centred mainly on sufficiency of the prosecution evidence to sustain the conviction, regard being had to complaints by the appellant that, PW1 was not sworn, evidence of PW2, PW3, PW4 and PW5 is hearsay, absence of confession, weak identification, and contradictory evidence. There was another complaint however, which sought to challenge the competency of the trial court on the reason that it conducted the trial without the presence of a social welfare officer. At the hearing, the appellant was without legal representation, while the respondent Republic was represented by Ms. Grace Michael Madikenya, learned Senior State Attorney who was assisted by Ms. Agma Agrey Haule, learned State Attorney. When we called on the appeal for hearing, the appellant opted for the respondent Republic to respond first on his grounds of appeal. Ms. Madikenya addressed us opposing the appeal. She argued that, in view of the ground of appeal raised, the appeal is devoid of merit as the prosecution evidence was watertight and proved the case beyond reasonable doubt. On the complaint that PW1 was not sworn and her testimony should not have been acted upon, the learned Senior State Attorney referring to page 8 of the record of appeal was of the submission that, the evidence of PW1, who was then aged 12 years old, was taken pursuant to section 127 (2) of the Evidence Act, Cap. 6 after promising to tell the truth and not to tell lies. Thus, the complaint is devoid of merit. On the complaint that the evidence of the rest of the prosecution evidence was hearsay and should not have been relied upon was attacked for reason that the evidence was not hearsay since it was in relation to what those witnesses saw, did and heard with regard to the incident. For that reason, we were invited to find the complaint meritless. As to the identification of the appellant as the assailant, the learned Senior State Attorney contended that it was not an issue since the appellant was well known to the victim. That, the appellant is not only the victim's uncle but was also residing with the victim under the same roof along with PW2 and the victim's stepfather. Thus, there was no possibility of mistaken identity. Reliance was placed on Posian s/o Ntamaboko v. Republic (Criminal Appeal No. 206 of 2022) [2024] TZCA 900 (17 September 2024). On the contradictions in the prosecution evidence, we were told by the learned Senior State Attorney that, there was none in the evidence. Elaborating, the learned State Attorney said that, whilst the thrust of the complaint was on the testimony of PW3 and PF3 (exhibit P2), there was nothing wrong with PW3's testimony and the exhibit that he filled after examining the victim which he tendered in evidence at the trial. We were asked to find that the complaint was equally devoid of merit. With regard to the complaint on the competence of the trial court which conducted the trial without the presence of a social welfare officer, the learned Senior State Attorney relied on the case of Medson s/o Manga v. Republic (Criminal Appeal No. 259 of 2019) [2021] TZCA 163 (3 May 2021). She asked us to be guided by the position obtaining from that case to the effect that, it is not a requirement of the law for the trial court to conduct a trial in the presence of a social welfare officer when a child is a witness or victim. She urged us to find that the complaint lacks merit. At this juncture, Ms. Madikenya summed up that looking at the prosecution evidence as a whole, it is evident that the case against the appellant was proved beyond reasonable doubt. That, as the appellant was charged with statutory rape given the victim's age of 12 years old, it was incumbent upon the prosecution to prove penetration and the age of the victim. According to the learned Senior State Attorney, the first element was proved by the victim (PW1) and her testimony was corroborated by that of the medical practitioner (PW3), PF3 (exhibit P2), her mother (PW2), and the neighbour (PW5). As to the second element, the learned Senior State Attorney submitted that it was duly proved by the victim's mother (PW2) who testified that the victim was 12 years old and tendered the victim's clinic card bearing her date of birth (exhibit P2). With that submission, Ms. Madikenya urged us to find that, the prosecution case was proved beyond reasonable doubt and that, the appeal is devoid of merit. The appellant on his part had nothing useful to submit in rejoinder. He urged us to consider his appeal, resolve it in his favour and let him free. We have examined the record of appeal before us in relation to the complaints raised by the appellant and the submission by the learned Senior State Attorney. We hereunder embark on resolving them, before considering whether the prosecution case against the appellant was proved beyond reasonable doubt. In view of what we found on the record, we agree with the learned State Attorney that the victim's testimony was, at page 7 through 10 of the record of appeal, taken after the victim who was then 12 years old had promised to tell the truth and not to tell any lies in accordance with the provision of section 127 (2) of Cap. 6. As that provision was complied with, we agree with the learned Senior State Attorney that the complaint is meritless and we dismiss it. As to the complaint of hearsay evidence, we agree with the submission by the learned counsel for the respondent Republic that the complaint is without merit. We entertained no doubt that PW2, PW3, PW4 and PW5 testified on the facts relating to what they saw, heard being said by PW1 and on what they did in relation to PW1 and the incident. See, Diamon Malekela @ Maunganya v. Republic, (Criminal Appeal No. 205 of 2005) [2010] TZCA 178 (8 November 2010). It therefore means that, the complaint that their evidence was merely hearsay is of no avail. We accordingly find it devoid of merit. On the complaint challenging the competence of the trial court conducting the trial in the absence of a social welfare officer, we think this complaint need not detain us. It is now settled that it is not a requirement of the law for the trial court to conduct a trial in the presence of the social welfare officer when a child is a witness or victim. See, Medson s/o Manga (supra); and Alex Ndendya v. Republic (Criminal Appeal No. 207 of 2018) [2020] TZCA 202 (6 May 2020). We thus find that the complaint is without merit. We undertake now to tackle the complaints on the identification of the appellant as the assailant and the contradictions of the prosecution witnesses together, as we ponder on whether the prosecution case was proved beyond reasonable doubt. Since the appeal seeks to fault the concurrent findings by the two lower courts that found him guilty of the offence of rape and sentenced him accordingly, we endeavoured to find out whether in view of those complaints, there is anything that entitles us to disturb the findings in the favour of the appellant. See, D.P.P v. Jaffari Mfaume Kawawa [1981] T.L.R 149 and Musa Mwaikunda v. Republic [2006] T.L.R Based on the record of appeal before us, PW1 is the victim of sexual offence who was 12 years old when the offence was committed. Thus, her testimony may be acted upon to sustain the conviction if found to be credible and worth of being believed. See for instance, Juma Antoni v. Republic (Criminal Appeal No. 571 of 2020) [2022] TZCA 250 (9 May 2022); and Mohamed Said v. The Republic, (Criminal Appeal No. 145 of 2017) [2019] TZCA 252. These cases, amongst many, insist on the need to subject the evidence of such victims, as is that case at present, to scrutiny in order for courts to be satisfied that what they state contain nothing but the truth. In the light of statement of principle in Shaban Daudi v. Republic, Criminal Appeal No. 28 of 2000 (unreported), we assessed the coherence of the victim's testimony and considered it in relation with the evidence of the other witnesses and in particular PW2 and the appellant (DW1). We did so in order to determine whether PWl's testimony is credible and can be acted upon to sustain conviction and whether the concurrent findings by the two lower courts that found the appellant guilty of the offence of rape as charged stand. The identification of the appellant as the assailant who allegedly, grabbed the victim from her bed and, eventually, raped her at the church raises issues that point to doubts in the prosecution case as there is no evidence from any witness of the prosecution side that resolved them. According to the victim, she identified the appellant because she knew him as her uncle. However, this testimony is not fully supported by the rest of the prosecution evidence on the record. Notably, PW1 was in her testimony as to identification of the appellant, seriously challenged by the appellant during cross- examination. In relation to the foregoing, we noted that there is no evidence from the victim as to the source of light and its intensity that enabled her to identify the appellant as the assailant. The only source of light mentioned is a torch which the appellant, allegedly held, and which according to the victim was switched on only once. Given that the torch was held by the appellant towards her direction, it is clear that it could not have enabled her to identify him. If we may add, whether or not there was a torch at material time is questionable given the response by the victim during re-examination that the torch belonged to her and not to the appellant. The testimony raises an issue as to how and when the assailant who is alleged to be the appellant got it and how did the victim recognise the torch as the one that belong to her. The issues are not resolved by the evidence on the record. 11 There is clearly nothing in the victim's testimony as to why and how the said torch which the appellant had and which was switched on once enabled her to identify and recognise the appellant as the assailant whilst it was held by the appellant towards her direction. Our concern is fortified by the fact that there is no testimony by the victim as to how she was grabbed out of her bed, taken outside the house, and dragged to the church before she was raped. That piece of evidence is missing. Accordingly, although the victim knew the appellant before and named him to PW2 as the assailant, we still entertain doubt whether he was positively identified. Furthermore, looking at the testimony of PW1 as a whole and in relation with other witnesses, particularly PW2, it is clear that it raises issues of her credibility and whether the appellant was at home and if so, whether he was the one that grabbed the victim on her bed at the midnight of 12th December 2020 as alleged. While in her testimony in chief PW1 said that the incident took place at midnight; when she was cross-examined by the appellant, she stated that he raped her at about 2.00 am, and went on further to say that it was at 2:00 am that the appellant returned home from work. When re-examined by the prosecutor, she stated that the appellant came back home at 11.00 pm. Notably, earlier on in her testimony in chief which is even 12 contradictory and confusing, the victim had it that they all, inclusive of the appellant, went to bed at 8:00 pm on 11th December, 2020 before she was raped at midnight of 12th December, 2020 by the appellant. The foregoing doubt is fortified further by PW2 whose testimony in chief is largely in harmony with the testimony in chief of PW1 that they all, inclusive of the appellant, went to bed at 8:00 pm on 11th December, 2020. The contradiction emerged and is parent in what PW2 said when she was cross-examined by the appellant and gave a completely different story as a result. She testified that they had dinner together with the appellant at 8:00 pm, and immediately thereafter, he left for his work at the lake, only to come back at about midnight, before he was awakened at about 4:00 after midnight in order to go back to the lake. The totality of the above, in our considered view, raises reasonable doubts to the prosecution case which entitle us to interfere with the concurrent findings by the two lower courts in order to resolve them in the favour of the appellant. In so doing, we find that the evidence of the victim was not credible enough to sustain the conviction. With the foregoing, we find that the case against the appellant was not proved beyond reasonable doubt. In the result, we allow the appeal. Consequently, the appellant's conviction is quashed and the sentence meted out to him is set aside. We, henceforth, order the immediate release of the appellant from prison if he is not otherwise retained for some other lawful cause. DATED at MUSOMA this 16th day of March, 2025. I. H. JUMA JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 17th day of March, 2025 in the presence of the appellant in person via video link from Musoma District Prison and Mr. Jonas Samwel Kivuyo, learned State Attorney for the