CRIMINAL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 248 OF 2023 (Arising from the Judgement of the District Court of Kibaha (Hon. J. Lyimo, SRM) dated 17th April 2023 in Criminal Case No. 17 of 2023) _____________________________ SHUKURU MASUNZU…………………………...……….……….. APPELLANT VERSUS REPUBLIC……………………………………..…..…….………...RESPONDENT JUDGEMENT Date of last order: 1st August 2024 Date of Judgement: 9th August 2024 MTEMBWA, J.: In the District Court of Kibaha, the Appellant was arraigned for the offense of rape contrary to sections 130(1) and (2) (e) and 131 (3) of the Penal Code, Cap 16, R.E 2022 in the first count. In the second count, he was arraigned for unnatural offense contrary to section 154 (1) (a) and (2) of the Penal Code (supra). It was alleged in the first count that on an unknown date and month from the year 2021 to 4th January 2023, at Mwanalugali area within Kibaha District in Coast Region, unlawfully, the Appellant had sexual intercourse with a girl aged six (6) years old (name withheld). In the second count, it was alleged that on an unknown date and month from the year 2021 to 1 4th January 2023, at Mwanalugali area within Kibaha District in Coast Region, the Appellant had carnal knowledge of the girl aged six (6) years (name withheld) against the order of nature. For purposes of this Appeal, I shall refer to the victimized girl as “PW1” and or, where necessary, “the Victim”. The Appellant pleaded not guilty to the charge. Consequently, prosecution paraded seven (7) witnesses and tendered one (1) exhibit. The Respondent defended himself and tendered no exhibit. Having evaluated the evidence adduced during hearing, the learned trial Magistrate was satisfied that, the offences to which the Respondent was charged with were proved beyond reasonable doubt. As such, she proceeded to convict and sentence the Appellant to life imprisonment, payment of Tanzanian Shillings 1,000,000/= as compensation, and 12 strokes on the offense of rape. Dissatisfied, the Appellant has laid before this Court the following grounds of appeal and I quote in verbatim; 1. That, the learned trial magistrate erred in law and facts in convicting the appellant based on the evidence of Pw1 (victim) whose testimony was illegally and/or un-procedurally received and relied upon the omission which renders the particular evidence a nullity. 2. That, the learned trial magistrate erred in law and facts in convicting the appellant based on the evidence of Pw1 (victim) whose evidence was barely concocted and/or framed up against the appellant, thus the same evidence was incredible, 2 untruthful and unreliable to warrant the appellant’s conviction as charged. 3. That, the learned trial magistrate erred in law and facts in convicting the appellant based on the prosecution evidence which was barely weak, improbable and unreliable to establish the appellant’s conviction beyond all reasonable doubts as mandatorily and/or statutorily required. 4. That, the learned trial magistrate erred in law and facts in convicting the appellant basing on the weakness of the defence evidence, hence embraced the doubts, deficiencies and weakness in the prosecution case the omission which resulted to a serious error/misdirection amounting miscarriage of justice. 5. That, the learned trial magistrate erred in law and facts in convicting the appellant in a case where the prosecution did not prove its case against the appellant at the standard required by law, that is beyond all reasonable doubts. By consent of the parties, this Court ordered hearing of this Appeal by way of written submissions. The Appellant argued the Appeal on his behalf while Ms. Gladness Mchami, the learned state attorney, argued for and on behalf of the Republic. Arguing on the first ground of Appeal, the Appellant submitted that prosecution failed to prove the matter beyond reasonable doubt. On that, he argued that it is a principle of law that the burden of proof in criminal cases rests squarely on prosecution unless the law otherwise directs. That such duty never shifts to the Appellant (accused). It was argued further 3 that the trial Court failed to comply with section 127(2) of the Evidence Act Cap 6 R.E 2019 when receiving the evidence of PW1 (the victim), who was a child of tender age. He cited the cases of Mohamed Sainyeye vs. Republic, Criminal Appeal No. 57 of 2010 and Hassan Hatibu vs. Republic, Criminal Appeal No. 71 of 2002 (both unreported). He was of the view that since the evidence of PW1 was taken illegally, the charge ultimately was not proved to the required standards. The Appellant also compressed the second and third grounds of appeal and argued them altogether. On this, he argued that the law is now settled that a witness is under a duty to give credible evidence and not otherwise. He proceeded to argue that the victim testified that she was raped several times, but throughout the evidence, she did not say whether she informed her relative or parents. That her testimony was too general. That if the victim was raped several times, the question would be why she did not report that to her parents. He insisted that the victim was not telling the truth and, as such, her testimony should be expunged. He cited the case of Marwa Wangiti Mwita & Another vs. Republic (2002) TLR 39, where it was observed that the ability of a witness to name a suspect at the earliest opportunity is an important assurance of his/her reliability. In the same way, an unexplained delay or complete 4 failure to do so should put a prudent Court to inquiry. Arguing on the fourth ground of appeal, the Appellant submitted that the defense evidence casted a doubt on the prosecution case. He cited the case of NHEMBO vs. Republic, Criminal Appeal No. 33 of 2005, Court of Appeal (unreported). To fortify further, he cited the case of Jonas Nkinze V Republic (1992) TLR 213 where it was observed that the general rule in criminal prosecution is that the onus of proving the charge against the accused beyond reasonable doubt lies on the prosecution. That the same position is traceable under sections 110,111,112 and 113 of the Evidence Act (supra). He insisted that the charge was not proved beyond reasonable doubt. The appellant had nothing to say on the fifth ground of appeal. He relied on the submissions made on the first, second, third, and fourth grounds of appeal. Lastly, he beseeched this Court to reverse the Judgement of the trial Court. In response to the first ground of appeal, Ms. Mchami submitted that the evidence of the victim was taken in compliance with section 127 (2) of the Evidence Act as amended, where she promised to tell the truth and not lie before giving her evidence. She referred this Court to page 7 of the typed proceedings, where the trial Court asked the victim questions before she promised to tell the truth. She was fortified by the 5 case of Godfrey Wilson vs Republic (Criminal Appeal 168 of 2018) [2019] TZCA 109 (6 May 2019). The learned state attorney continued to note that under the provisions of section 127 (2) of the Evidence Act (Supra) do not require the Court to follow a certain procedure to obtain the evidence of a child of tender age rather than making sure that a child of tender age gives his or her evidence under oath/affirmation or promises to tell the truth to the court and not to tell any lies. To give effect, she cited the case of Goodluck Kyando vs. Republic (2006) TLR 363, where it was observed that every witness is entitled to credence and must be believed and his testimony must be accepted unless there are good and cogent reasons for not believing him or her. Stretching further, Ms. Mchami argued that in view of section 127(7) of the Evidence Act as amended by the Legal Sector Laws (Miscellaneous Amendments) Act, 2023, failure by a child of tender age to meet the provisions of subsection (2) shall not render the evidence of such child inadmissible. Based on that, she implored this Court to revisit the said section while considering the evidence of PW1 (the victim). She considered the first ground of appeal wanting of merits. In response to the second ground of appeal, Ms. Mchami argued that the evidence of the victim was direct on how, where and at what time 6 of the day the appellant raped and sodomized her. She referred this Court to page 13 of the proceedings. She added further that the victim was coherent and consistent with what was done to her by the Appellant when she narrated the incident to PW4 (the doctor) and PW3 (the police officer). She considered the victim’s evidence to be trustworthy and cited the case of Selemani Makumba v. Republic [2006] T.L.R 379. It was submitted further that the victim named the Appellant to be the one who had been abusing her to PW3 and to PW4. The victim could not have reported the incident to his biological father because he was not living with her, the learned counsel added. Responding to the third ground of appeal, Ms. Mchami argued that prosecution proved penetration, the age of the victim, and the commission of the offenses in general to the satisfaction of the Court. The evidence adduced pointed fingers at the Appellant to be the one who committed the offenses. She referred this Court to the testimony of PW1, who testified that the Appellant inserted his “dudu lake” into her vagina. Also, the testimonies of PW4, the doctor, who examined her and filed PF3 (Exhibit P1). The victim’s age was proved by the evidence of PW2, her biological father, who testified that she was born on 15th January 2016, hence six (6) years old. The learned state attorney cited the case of Selemani Hassani vs. 7 Republic, Criminal Appeal No. 203 of 2021, [2022] TZCA 127 (22 March 2022) where it was observed that in proving the offense of statutory rape the appellant faced, predicated on sections 130 (1), (2) (e) and 131 (1) (3) of the Penal Code, the prosecution had to establish the following; one that there was vaginal penetration of the complainant; two that the complainant was under the age below ten years at the time of the sexual act; and three that the perpetrator of the sexual act was the Appellant. The learned counsel also faulted the Appellant for failure to cross-examine PW2. She cited the case Damian Ruhele vs. Republic (Criminal Appeal 501 of 2007) [2012] TZCA 160 (2 March 2012). Concerning the fourth ground of appeal, the learned state attorney refuted the assertion that the Appellant was convicted on the weakness of the defense evidence. She referred this Court to paragraph 2 of page 11 of the typed judgment where the trial Court considered the defense evidence; however, it could not exonerate him from the accusations because it contained apologies and was too brief. She insisted that the Appellant was convicted on the strength of prosecution evidence which proved the offences charged beyond reasonable doubt. In her further submissions, the learned state attorney reminded this 8 Court of its noble duty of stepping into the shoes of the trial Court with the view to re-evaluate the entire evidence as the first appellate Court. She cited the case of Mirzai Pirbakhshi @Haji @ Ally Mizrai & Others vs. Republic (Criminal Appeal No. 490 of 2022) [2024] TZCA 454 (13 June 2024). Responding to the fifth ground of appeal, the learned state attorney submitted that the elements of the offenses charged were all proved beyond reasonable doubt, as explained in the third ground of appeal above. She cited the case of Magendo Paul & Another vs. Republic [1993] TLR 219, where it was observed that if the evidence is so strong against an accused person as to leave only a remote possibility in his favour, which can easily be dismissed, the case is proved beyond a reasonable doubt. Based on the foregoing arguments and cited authorities, Ms. Mchami implored this Court to dismiss the appeal. In his brief rejoinder, the Appellant maintained that section 127 (4) of the Evidence Act imposes a duty on the trial Court to conduct a voir dire test to ascertain whether a child of tender age understands the nature of oath and a duty to speak the truth and whether she or he possesses sufficient intelligence to justify the reception of the evidence. 9 Rejoining further and in a repetition way, the Appellant argued that when the witness involved is a child of tender age, the trial Court should conduct a voir dire examination which is done for the trial Judge or Magistrate to satisfy himself or herself that the child understands the nature of oath. He insisted that the cited section was not adhered to. Referring this Court to pages 7 and 8 of the typed proceedings, the Appellant argued that the trial Magistrate did not comply with the requirement under section 127 (2) of the Evidence Act (supra) as she did not ask questions to establish whether PW1 understood the nature of oath to justify the receipt of her evidence. He cited the case of Jafari Mohamed vs. Republic, Criminal Appeal No. 112 of 2006. He was of the view that such procedural irregularity occasioned a miscarriage of justice, thereby rendering PW1’s evidence of no evidential value. In line with the best principle is sexual cases that the best evidence comes from the victim, the Appellant cited the cases of Seleman Makumba (supra); Mohamed Ali vs. DPP, Criminal Appeal No. 255 of 2018; and George Mwanyingili vs. Republic, Criminal Appeal No. 335 of 2016. The Appellant insisted on the importance of naming the suspect as soon as possible, reciting the case of Marwa Wangiti (supra). He 10 considered the earliest time to be when PW3 started to persuade her to tell what happened. He maintained that PW1 was not speaking the truth, and that is when her credibility cames into question. While he admitted to the very fact that failure to cross-examine a witness on crucial matters amounts to admission in view of the case of Mawazo Mwankwaja vs. DPP, Criminal Appeal No. 455 of 2017, he implored this Court to dismiss the argument as the conviction was not grounded on failure to cross-examine. Lastly, he beseeched this Court to quash the convictions and sentences meted against him. Having considered the rival arguments by both parties, the question would be whether the offense of rape contrary to sections 130(1) and (2) (e) and 131 (3) and unnatural offense contrary to section 154 (1) (a) and (2) of the Penal Code (supra) were proved to the required standards of the law, that is, beyond reasonable doubt. In Ahmad Omari Vs. Republic, Criminal Appeal No. 154 of 2005, Court of Appeal of Tanzania at Mtwara (unreported), the Court observed that, in a criminal case, the burden of proof is on the prosecution, and the standard of proof is beyond reasonable doubt. This everlasting principle of law also finds refuge under Section 3(2) (a) of the Evidence Act (supra). 11 In the case of John Makolobela Kulwa Makolobela & Another alias Tanganyika Versus Republic (2002) TLR 296, the Court observed that a person is not guilty of a criminal offense simply because his defense is not believed; rather, a person is found guilty and convicted of a criminal offence because of the strength of the prosecution evidence against him, which established his guilt beyond reasonable doubts. Being the first appellate Court, it has a duty to re-evaluate the evidence on records and put it under critical scrutiny and come out with its own conclusion. In the course of discharging such noble duty, it may concur with or depart from the findings of the trial Court. However, the issues related to the witness's demeanor will always remain within the exclusive jurisdiction of the trial Court (see Mapambano Michael @ Mayanga vs. Republic, Criminal Appeal No. 258 of 2015). In this case, the victim (PW1) gave her evidence in piecemeal, although on the same day. It is glaring from the records that on 6th March 2023, having been arraigned to testify, PW1 cried emotionally. She failed to answer any question during examination in chief. The learned trial Magistrate adjourned the matter to allow the social welfare officer to talk to her. Later on, she was ready to proceed. She testified that the Appellant, the stepfather, whom she knows by another name of Devi, used to 12 remove her clothes and insert “dudu lake” on her vagina and at the back. He used to do that at home in the bedroom in the afternoon when her mother was at the club. She used to scream, and neighbors came there several times to beat the Appellant (baba). The neighbors were mentioned to be Mama Aziza, Mama Salma and Mama Taslima. She happened to tell her teacher and aunt too. She added further that the last time the Appellant raped her was on 2nd January 2023. The Appellant was recognized in Court to be the one who had been raping and sodomizing her. She pointed at him straight. She testified further that on 18th January 2023, she was examined on her vagina and anus. When cross-examined, PW1 testified that Mama Salma and Mama Razia were there when the Appellant raped her. The learned trial Magistrate noted that she started to cry when the Appellant cross- examined her. She said she felt sorry for the Appellant because he is her father. The learned trial magistrate then had to break for ten (10) minutes to allow the social welfare officer to talk to her. When resumed, the Appellant could no longer cross-examine her. The testimony of PW3, the police officer, nearly corroborated PW1’s evidence. She testified that on 16th January 2023, while at home, she was informed by Inspector Matias that in her area, there was a child who was 13 sexually abused (the victim). On 17th January 2023, she got hold of the victim and her friend on the way from school through her secret informer. She then informed the street chairman (PW7) in case the parents were in search of her. They passed through Mji Mdogo Police Station and were issued with PF3 (Exhibit P1). She called the educational officer (Afisa Elimu Kata) and both went to Tumbi Hospital. At Tumbi Hospital, PW4 (the doctor) started questioning the victim, but she was not ready to cooperate. They had first to use a convincing mechanism by buying her food. At around 16:00 hours, PW4 wanted to perform some tests. Before taking blood sample, PW1 started to cry. When encouraged, she said that she was afraid of the Appellant, who threatened to kill her and her mother. She added further that the Appellant normally rapes and sodomizes her daily when he comes from drinking. He normally comes with chips and mishikaki before raping and or sodomizing her. She then refused to be examined. On 18th January 2023, PW3, together with the victim and her grandmother, went back to Tumbi Hospital to collect the results. This time, she was ready for a medical examination, but she wanted PW3 to be inside the room. PW4 (doctor) asked her as to why she was ready for examination and she replied that her fellow students at school normally laugh at her because she smells bad. She removed her clothes and PW4 14 examined her vagina and anus. PW3 was the one holding the touch. PW4 resolved that PW1’s state was not well because he could see faeces coming out of her anus uncontrollably. Her pant had faeces. PW4 confirmed that she was raped and sodomized. PW3 testified further that when she took PW1, she was smelling bad like a toilet chamber or trench. PW4 was the medical doctor on duty at Tumbi Hospital on 17th January 2023. In company of education officer and a police officer, she received a girl dressed in the School uniform aged between six to seven years old. She was required to examine her to see if she was raped and or sodomized. She introduced herself to the victim and requested her to perform an examination, but she was not ready that day. She only managed to ran some other tests including HIV and gave her some preventive medicines and they left. PW4 continued to testify that on 18th January 2023, they returned to the Hospital around 11:00 hours in the morning. This time, PW1 was ready to be examined. PW4 asked her as to what happened and she replied that her father (the Appellant) had been raping and sodomizing her several times. PW1 also said that she once happened to tell her mother, who said she would jail him (the Appellant). She then agreed to be examined. When she opened her legs, bad smell came out. She examined her vagina and anus could not see bruises. She was no longer 15 a virgin. When told to bend to examine her anus, PW4 could see faeces. Her splitter muscles were loose that why faeces were coming out. Having completed the exercise, he filled in PF3, which was tendered by her in Court as Exhibit P1. PW5 narrated how he arrested the Appellant. Earlier on, PW2, the biological father of the victim, confirmed that she was born on 15th January 2016 at Mkoani Hospital at Kibaha. He testified further that on 17th January 2023, he received a call and was informed of the disappearance of the victim. By then, the victim was living with her mother at Mwanalugali. Few minutes later, he was informed that the victim was found at Tumbi Hospital. On 18th January 2023, he appeared before Mji Mdogo Police Station having received a call. Upon arrival, he found the victim together with her grandmother. He asked the victim what had happened, and she told him that she had been raped by her stepfather (the Appellant). PW6 was instructed to investigate this case on 18th January 2023. She relied on the testimony of PW4 (the doctor) who confirmed that the victim was raped and sodomized several times. She recorded witnesses’ statements. She also had an opportunity to visit the victim’s school. As an investigator, she was of the view that PW1 was raped, considering the evidence on record. The Appellant defended himself. However, he was not certain. On 16 one hand, he begged for forgiveness for raping PW1, and on the other, he denied to have raped her. He admitted to have been called Devi. He also conceded to be aware of the fact that PW1 had a problem earlier where faeces were coming out uncontrollably, having been so told by her mother. He prayed for forgiveness so that he could visit his daughter, Ester. I dispassionately examined the evidence of PW1 (the victim) and noted that she was telling nothing but the truth. She was coherent, direct, and consistent on what the Appellant did to her several times. For the reason to be advanced later on, I am satisfied that the Appellant raped and sodomized the victim several times. Her testimony was nearly corroborated by the testimony of PW2, who testified that PW1 told him that the Appellant raped her. In the presence of PW3, the victim also repeated the same story before PW4 (the doctor). PW4 examined the victim’s anus and vagina in the presence of PW3 and resolved that she was raped and sodomized several times. PW4’s evidence is corroborated by Exhibit P1. PW3 and PW4 witnessed faeces coming freely from the victim’s anus uncontrollably. That she was smelling bad. This aspect was also corroborated by the evidence of the victim herself, who testified that her fellow students had been laughing at her because she smelled bad. 17 Although it sounds like hearsay evidence, the Appellant admitted to have been aware of that fact. PW7 also testified to have inquired why PW1 was not going to school. He was told that PW1 had a problem where faeces came out freely and that is why she stopped going to school. As said before, PW1’s testimony was in piecemeal. She seemed emotional, and she cried most of the time. The learned trial Magistrate had to adjourn the hearing to allow her to talk to the social welfare officer. In my opinion, considering the circumstances, the abuse demoralized her, and she was dragged into fear, depression, anxiety, and emotional feelings. She was no longer comfortable. She could no longer hold the situation that’s why she was healing through crying. According to Bravehearts Website (www.bravehearts.org.au), the child victim of sexual abuse may have the following short-term effects; increased illness, body aches, or other physical complaints; Poor attendance or performance at school; Difficulty concentrating or memory loss; Mood changes, Regressive behaviors; Sleeping and eating disorders; Lack of self-esteem; Nightmares; Self-harm or suicidal thoughts; Self-hatred or reduced self-esteem; Disinhibited behavior; and Zoning out or not listening. Research has repeatedly shown that child sexual abuse can have a severe impact on physical and mental health, as well as later sexual 18 adjustment. Depending on the severity of and number of traumas experienced, child sexual abuse can have wide-reaching and long-lasting effects. Those who have suffered multiple traumas and received little parental support may develop post-traumatic stress disorder, depression, and anxiety. Their ability to trust adults to care for them may also be jeopardized. Sadly, when children do not disclose sexual abuse and/or do not receive effective counseling, they can suffer difficulties long into the future (see also the National Child Trauma Stress Network Website). In this case, the victim reported the incident to her teacher. When she screams, Mama Aziza, Mama Salma and Mama Taslima (the neighbors) used to come and beat the Appellant (Baba). According to PW4, the victim also happened to tell her irresponsible biological mother, who promised to jail the Appellant. She also informed her teacher and aunt. It is for this reason I hold the view that the victim, considering her age, could no longer hold it. She felt like living alone in this World. The only remaining healing avenues were crying, distrusting and avoiding adult people. In her testimony, PW1 testified that the Appellant used to undress her and insert his “dudu lake” into her vagina and back. Although the testimony does not expressly refer to the “male organ” or “anus,” in my 19 considered observations, penetration into the vagina and anus was proved. It is not necessary that the words penis, vagina or anus should be used. It depends on the cultural and religious beliefs and upbringing of the victim. The scope of section 130 (4) (a) in so far as proof of penetration in sexual offenses is concerned has been expounded. This scope is now settled that in proving that there was penetration, it does not, in all cases, expect the victim of alleged rape to graphically describe how the male organ was inserted into her female organ. (see Baha Oagari vs. Republic, Criminal Appeal No. 39 of 2014). In Hassan Kamunyu vs. Republic (Criminal Appeal No. 277 of 2016) [2018] TZCA 259 (21 August 2018), the Court said; Thus words like "[he] removed my underwear and started intercoursing me" in Matendele Nchanga @ Awilo (supra), "sexual intercourse" or "have sex" in Hassan Bakari @ Mamajicho (supra), "[he] undressed me and started to have sex with me" in Nkanga Daudi Nkanga (supra), "kanifanyia tabia mbaya" in Athumani Hassan (supra), "alinifanya matusi" in ]umanne Shabani Mrondo (supra) or "he put his dudu in my vagina" in Simon Erro (supra) or "did sex me by force", "this accused raped me without my consent", "While this accused was sexing me I alarmed" and "fortunately one B sio T came to my home and he found this accused stili sexing" in Baha Dagari (supra) were, though not explicitly described, taken by the court to make reference to penetration of the penis of the accused person into the vagina of the victim. 20 In view of the authorities cited, I have found it apposite to borrow a leaf, by the victim referring to “He used to remove my clothes and insert dudu lake and on back” PW1 was simply referring to the Appellant's act of undressing her and inserting his penis into her vagina and her anus. In Onesmo Laurent @ Salikoki Vs. Republic, Criminal Appeal No. 458 of 2018, Court of Appeal at Moshi, the Court observed at page 12, this; ….. we are cognizant that in view of the inherent nature of the offence of rape or any other sexual offence where only two persons are usually involved when it is committed, the testimony of the complainant is very crucial and must be examined and judged cautiously. Indeed, in this context, we held, for instance, in Selemani Makumba (supra), that the best proof of rape (or any other sexual offence) must come from the complainant. Consequently, the complainant's credibility becomes the most important matter for consideration. The Court continued to note at pages 12 and 13, thus; If the evidence of the complainant is credible, convincing and consistent with human nature as well as the ordinary course of things, it can be acted upon singly as the basis of conviction - see section 127 (6) of the Evidence Act. In sexual offenses, the victim’s credibility becomes an important matter for consideration. If the victim is coherent, consistent, and credible, the Court may proceed to convict, notwithstanding the absence 21 of other corroborative evidence. The conviction becomes even quicker if such evidence is given by a child of tender age. In this case, PW1 (victim) did not seem to have been telling lies. His evidence was corroborated closely by PW2, PW3, PW4, PW5, PW6, PW7 and Exhibit P1. Arguing on the first ground of Appeal, the Appellant submitted that prosecution failed to prove the case beyond reasonable doubt. It was argued further that the trial Court failed to comply with section 127(2) of the Evidence Act Cap 6 RE 2019 when receiving the evidence of PW1 (the victim), who was a child of tender age. First, for the reasons stated hereinabove, I need not overemphasize that the offenses were proved beyond reasonable doubt. Second, I looked at page 7 of the typed Proceedings and noted that the learned trial Magistrate accordingly conducted the Voire Dire test by asking questions to PW1. The questions and answers were perfectly recorded. At page 8 thereof, she was satisfied that PW1 had promised the Court to tell the truth and not lies. In my opinion, Section 127(2) of the Evidence Act (supra) was complied. However, as correctly alluded by the learned state attorney, even if there was something wrong; still the anomaly would have been cured by section 127(7) of the Evidence Act (supra) as amended by the Legal Sector Laws (Miscellaneous Amendments) Act, 2023. Based on the foregoing, I 22 find, therefore, no merit in the first ground appeal and I dismiss it. On the second and third grounds of appeal, the appellant attacked the victim's credibility and associated it with failure to name the Appellant at the earliest possible opportunity. Indeed, credibility involves the issue of whether the witness appears to be telling the truth as he believes it to be. In essence, this entails reliability, worthiness and or accuracy of the information given during hearing. The information given can be acted upon having assessed the trustworthiness, demeanor, and or credibility of the witness. In this case, I am satisfied that PW1 was credible and was accordingly believed by the trial Court. In Salum Ally Vs Republic, Criminal Appeal No. 106 of 2013 (unreported) the Court stated 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 of 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 Abbdalla Teje @ Ma lima Mabula Vs Republic, Criminal Appeal No. 195 of 2005 (unreported), to be: (i) Whether it was legally obtained; 23 (ii) Whether it was credible and accurate; (iii) Whether it was relevant, material and competent; (iv) Whether it meets the standard of proof requisite in a given case, otherwise referred to as the weight of evidence or strength or believability. The allegation that the victim failed to name the Appellant at earliest possible time is misconceived. First, it was not clearly established when the Appellant started to rape and sodomized the victim. Second, the victim testified that she was raped for the last time on 2nd January 2023. The Appellant did not cross-examine on this crucial, incriminating, and damaging aspect. In addition, she testified that she reported the incident to her teacher and aunty (see page 13 of the proceedings). Third, according to PW3 and PW4, the Appellant was named on 18th January 2023, two weeks after the last incident. More so, the neighbors also were fully informed as they used to beat the Appellant after she screamed. Considering her age, I am satisfied that she adequately reported the incident to the irresponsible persons who would have forwarded the information to the proper authority. She may not have known the proper forum to report the incident, but it suffices here to note that the Appellant was named at the earliest possible time. According to PW3, the victim was in a state of fear, having been 24 threatened by the Appellant. It was established that the Appellant promised to kill both the victim and her mother. She was hesitant to name the Appellant before PW4. In the state of fear, depression, and anxiety, no reasonable man would have expected the naming of the Appellant at the earliest stage. That said, the second and third grounds of Appeal are hereby dismissed. Arguing on the fourth ground of appeal, the Appellant submitted that the defense evidence casted doubt on the prosecution case. On her part, the learned state attorney refuted the assertion and referred this Court to paragraph 2 of page 11 of the typed judgement where the trial Court considered the defense evidence however, it could not exonerate him from the accusations because it contained apologies and was too brief. She insisted that the Appellant was convicted on the strength of prosecution evidence which proved the offences charged beyond reasonable doubt. She also reminded this Court of its noble duty of stepping into the shoes of the trial Court with the view to re-evaluate the entire evidence as the first appellate Court. As said before, PW1 was coherent, direct, and consistent on what the Appellant did to her several times. Her testimony was nearly corroborated by the testimony of PW2, who testified that PW1 told him that the Appellant raped her. In the presence of PW3, the victim also 25 repeated the same story before PW4 (the doctor). PW4 examined the victim’s anus and vagina in the presence of PW3 and resolved that she was raped and sodomized several times. Exhibit P1 corroborates PW4’s evidence. In my conviction, the offenses were proved to the required standards, that is, beyond reasonable doubt. The Appellant’s defense did not cast any doubt on prosecution evidence. As said before, the defense evidence was full of uncertainties. On one hand, he begged for forgiveness for raping PW1, and on the other, he denied to have raped her. He was, therefore, convicted on the strength of the prosecution evidence, which proved the offenses beyond a reasonable doubt, and not on the weakness of defense evidence. In the premises, the fourth ground of appeal is devoid of merit, and I dismiss it. The Appellant submitted nothing on the fifth ground of appeal. He relied on the submissions on the first, second, third, and fourth grounds of appeal. The learned state attorney insisted that the elements of the offenses charged were all proved beyond reasonable doubt, as explained in the third ground of appeal above. In any case, I emphasize here that the crimes to which the Appellant was charged were proved beyond reasonable doubt as indicate above. The fifth ground of appeal is therefore dismissed. 26 From what I have indevoured herein above, I wholesomely endorse and agree with the learned trial Magistrate that the offenses to which the Appellant was charged were proved beyond a reasonable doubt. To that end, the Judgement of the trial Court is hereby upheld. I order accordingly. Right of appeal fully explained. DATED at DAR ES SALAAM this 9th August 2024. H.S. MTEMBWA JUDGE 27