CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA f CORAM: MUGASHA. 3.A.. MWAM PASHI. J.A. And NGWEMBE. J J U CRIMINAL APPEAL NO. 740 OF 2023 SIKUJUA DEOGRATIAS MAKAMBA @ SIKU.............................. APPELLANT VERSUS THE REPUBLIC.................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Bukoba) (Mwipppo, J.~ ) dated the 19th day of August, 2022 in Criminal Appeal No. 10 of 2022 JUDGMENT OF THE COURT 18* & 24* March, 2025 MWAMPASHI. J.A.: Sikujua Deogratias Makamba @ Siku, the appellant herein, was charged in the Resident Magistrates' Court of Bukoba at Bukoba (the trial court), with the offence of rape contrary to sections 130 (1) (2) (e) and 131(1), both of the Penal Code [ Cap 16 R.E. 2019, now R.E. 2022] (the Penal Code]. The particulars of the offence alleged that, on 08.02.2021 at Kagera River area within the District of Misenyi in Kagera Region, the appellant had carnal knowledge of an eleven (ll)-year-old girl whose name is withheld to hide her identity and who will hereinafter be referred to as "the victim" or ""PW1". Having entered a plea of not guilty and after a full trial, the appellant was found guilty as charged. He was thus, duly convicted and sentenced to serve a period of thirty years' imprisonment. In addition, the appellant was ordered to suffer 12 strokes of a cane. Aggrieved, the appellant appealed to the High Court but the appeal was dismissed hence, the instant second appeal. To prove the case against the appellant, the prosecution paraded three witnesses namely; the victim who testified as PW2, the victim's mother Babili John Balk (PW3) and Dr. Lucy A. Mbendo (PW1). In addition, the prosecution case relied on a PF3 which was tendered in evidence and admitted as Exhibit PI. In the defence side, the appellant was a sole witness. According to the victim, on 08.02.2021 at the afternoon, she was washing clothes at Kagera River when the appellant whose house is located nearby, called her by her name, gave her Tshs. 500/= and sent her to go and buy him cigarettes for Tshs. 400/= and use the change money for buying sweets for herself. When she returned with cigarettes, the appellant took hold of her and forcefully pulled her to the nearby maize farm where he raped her. The victim recounted that, she felt pains when being raped but she could not scream because the appellant capped her mouth by his hand. Having finished raping her, the appellant released the victim and warned her not to disclose the incident to anyone lest he would kill her. After being released, the victim went back to the river to finish washing her clothes and when she got home, she never disclosed to anyone what had befallen her. At night, her mother (PW3) noticed that the victim was bleeding from her vagina and when she was asked what had happened, the victim remained mum. On the following day after she had returned home from school, the victim was asked by her mother to put a knife on the burning fire. Thereafter, the victim was asked to speak the truth on what had happened or else the hot knife would be put between her legs. At this point, the victim opened up and told her mother that the appellant had raped her. Thereafter, the case was reported to the police where a PF3 was issued and the victim was taken firstly, to Bunazi Dispensary on 09.02.2021 and again to Kagera Regional Hospital on 11.02.2021, for medical examination. The testimony of the victim's mother (PW3) was to the effect that the victim is her daughter born on 14.10.2010. She went on testifying that on 09.02.2021 at night she woke up to properly cover her children including the victim, with a bed sheet, when she noticed sperms oozing from the victim's vagina. She asked the victim for explanation but the victim declined and went back to sleep. In the morning, PW3 prepared the victim to go to school and when the victim came back, she asked her what had happened but the victim said there was nothing which had happened. PW3 threatened the victim by telling her that she was going to beat her and put the hot knife which was on the fire, between her legs and that is when the victim told her that the appellant raped her yesterday when she had gone to the river to wash clothes. Upon being so informed, PW3 reported the incident to the police, a PF3 was issued and while in the company of one police woman they went to Bunazi Hospital where the victim was medically examined but it was directed that the victim should be taken to Kagera Regional Referral Hospital. The victim was then taken to Bukoba Referral Hospital on 11.02.2021 where she was examined for the second time. Lastly, PW3 testified that, the appellant is her neighbour who was arrested one week after the incident. PW1, Dr. Lucy A. Mbendo, medically examined the victim on 11.02.2021 at Kagera Regional Referral Hospital. She observed that the girl had no hymen and was bleeding from her bruised vagina. PW3 concluded that the victim had been penetrated by a blunt object. To that effect, she tendered in evidence a PF3 which was admitted as Exhibit PI. In his sworn defence, the appellant denied to have raped the victim. It was his defence that he was at his place washing motor vehicles when he was arrested by the police and taken to the police station where he was informed that he had raped the victim. He also complained that the case was fixed on him by PW3 who owed him money. The trial court found that, based on the victim's evidence and that from PW1, there was no dispute that the victim was raped. It was also found that there was sufficient evidence proving beyond reasonable doubt that the victim was raped by the appellant. The appellant was thus, convicted and sentenced in the manner we have alluded to earlier. Aggrieved, the appellant unsuccessfully appealed to the High Court. Still protesting his innocence, the appellant has preferred the instant appeal which is premised on the following grounds of complaint: One, that the age of the victim was not proved, two, that the case was fabricated due to the existence of a conflict between the appellant and PW3, three, that the defence evidence was not considered, four, that voire dire test on PW2 was improperly conducted, five, that the victim was threatened and forced to name the appellant, six, that the evidence by PW2 and PW3 was contradictory and insufficient, seven, that no DNA test was conducted in accordance with section 395A of the Criminal Procedure Act, Cap. 20 R.E. 2022 and eight, that the case against the appellant was not proved to the required standard. At the hearing of the appeal, the appellant, who appeared in person unrepresented, adopted his grounds of appeal as listed in the memorandum of appeal. He urged us to consider the grounds and allow the appeal. For the respondent Republic, the appeal was resisted by Ms. Judith Mwakyusa, learned Senior State Attorney, who co-operated with Ms. Chema Maswi, learned Senior State Attorney and Mr. Dickson Makoro, learned State Attorney. Ms. Mwakyusa, began by responding to ground 8 in which it is complained that the charged offence was not proved beyond reasonable doubt. She argued that the charged offence was statutory rape of which the prosecution was duty bound to prove beyond reasonable doubt, firstly, that the victim was below 18 years old, secondly, that the victim was penetrated and thirdly, that she was penetrated by the appellant. Ms. Mwakyusa submitted that the fact that the victim was below 18 years of age was proved by her mother (PW3) whose evidence was to the effect that the victim was born on 14.10.2010. As regards penetration, it was argued by her that the same was proved by the victim's best evidence which was corroborated by PW1 and Exhibit PI. Ms. Mwakyusa argued further that, from the best evidence given by the victim to whom the appellant was not a stranger, it was proved beyond any reasonable doubt that it was the appellant who raped the victim. She thus, contended that the case against the appellant was proved to the hilt rendering ground 8 baseless. Having responded to the above general ground of complaint as such, Ms. Mwakyusa did also argue, albeit in brief, on the remaining grounds of complaint. Regarding ground 2, that the case was fabricated due to the alleged existing conflict between the appellant and PW3, it was Ms. Mwakyusa's argument that the complaint is an afterthought because the appellant never cross-examined PW3 in that respect. As on ground 3, it was submitted by her that the defence evidence was properly considered but was rejected for being baseless and for raising no reasonable doubt. As regards ground 4, it was conceded by Ms. Mwakyusa that voire dire test on PW2 was not conducted. However, it was argued by her that the omission had no effect to PW2's evidence because it was made under the promise by PW2 to tell the truth and not tell lies. Relying on the decision of the Court in Elia s/o Richard Shoo v. Republic (Criminal Appeal No. 196 of 2021) [2024] TZCA 422 (10 June 2024;TanzLII), it was argued by Ms. Mwakyusa that, though PW2's promise to tell the truth did not come directly from her but it was recorded in a reported speech, the same was admissible and reliable. On ground 5, it was simply contended by Ms. Mwakyusa that the victim was not threatened or forced to name the appellant. Ground 6 was also found by Ms. Mwakyusa to be baseless because there were no contradictions in the evidence given by PW2 and PW3. As regards the complaint on ground 7 that, no DNA test was conducted, Ms. Mwakyusa prescribed to the position taken by the High Court that, the circumstances of the case did not require DNA test. Finally, Ms. Mwakyusa argued that the appeal is unmerited and she thus, prayed for the same to be dismissed in its entirety. In his brief rejoinder, the appellant reiterated his prayer for the grounds of appeal to be considered and the appeal to be allowed. He insisted that he did not rape the victim. Having heard the submissions for and against the appeal, the ball is now in our court. In the determination of the appeal, we propose to consider the grounds of complaint one by one. Beginning with ground 1 that the age of the victim was not proved, we agree with Ms. Mwakyusa, that the complaint is baseless. As rightly argued by her, the fact that the victim was 11 years old and hence below 18 years of age, was 8 sufficiently proved by the victim's mother (PW3) who told the trial court that the victim was born on 14.10.2010. The law is settled that proof of age of the victim can come from a parent. See- Mussa Sebastiani v. Republic (Criminal Appeal No. 406 of 2018 [2021] TZCA 119 (15 April 2021;TanzLII) and Wambura Kiginga v. Republic (Criminal Appeal No.301 of 2018) [2022] TZCA 283 (13 May 2022;TanzLII). As on ground 2 that, the case was fixed on the appellant due to the alleged malice of the victim's mother (PW3) who allegedly owed the appellant some amount of money, again, we are in the agreement with Ms. Mwakyusa that, since the said allegation was late raised in defence evidence and as the appellant did not cross-examine PW3 in that respect, then the complaint was nothing but an afterthought. That being the case, ground 2 fails. Concerning ground 3 that, the defence evidence was not considered, while we agree with the appellant that the trial court did not consider the defence evidence at all, we however, note that the High Court, being the first appellate court, considered the defence. At page 56 of the record of appeal, the High Court, in its judgment, found that the claim that the case was a fabrication was raised late in defence evidence. It was further found that, the claim could not defeat the strong prosecution evidence which proved that it was the appellant who raped the victim. We thus, find ground 3 baseless and dismiss it accordingly. Turning to ground 4 regarding voire dire test, it is our observation that, in fact, as it is evident at page 13 of the record of appeal, no voire dire test on the victim (PW2) was conducted by the trial court. After recording the personal particulars of PW2, the trial court indicated that, PW2 had "promised to tell the truth and not tell lies" and thereafter, it proceeded recording PW2's evidence. There was therefore, an omission to conduct a voire dire test. However, in the wake of the amended section 127 (2) of the Evidence Act [Cap. 6 R.E. 2022] (the Evidence Act], the omission to conduct a voire dire test, is not fatal. Under that provision, all what is required where a witness is a child of tender years and where it is found that the said child witness is not capable of giving evidence on oath or affirmation, is to require the witness to promise to tell the truth and not tell lies, before taking his evidence. It is provided by section 127 (2) of the Evidence Act, that: "/4 child offender 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 any lies". It is a mandatory requirement of the law under the above cited provision, that the promise to tell the truth and not tell lies must come from the victim upon which the trial court's finding must be based. In the instant case and in regards to the evidential value of PW2's testimony, we shall revert to it in a later stage when considering ground 8. As for grounds 5 and 6, it is our considered view that the two grounds of complaint can conveniently be dealt with in conjunction with ground 8 which is to the effect that the case against the appellant was not proved to the hilt. That being the case, the next ground for our consideration is ground 7 regarding the failure to conduct DNA test. On this complaint we again agree with Ms. Mwakyusa that, under the circumstances of the case at hand, the failure to conduct DNA test was of no prejudicial effect. As it was concluded by the High Court, DNA test is not mandatory in proving rape charges. Ground 7 is thus, baseless and it is accordingly dismissed. Turning to the core complaint on ground 8 as to whether the case against the appellant was proved beyond reasonable doubt which, as we have alluded to earlier, is to be determined conjointly with grounds 4, 5 and 6, it suffices to begin by restating that the duty to prove the case against an accused person beyond reasonable doubt is cast upon the prosecution. The duty in question does not shift and is discharged when the prosecution evidence adduced against the accused person irresistibly point to him as the one who committed the offence in question. As we held in Anthony Kinanila & Another v. Republic (Criminal Appeal No. 83 of 2021) [2022] TZCA 356 (16 June 2022;TanzLII), the accused person cannot be convicted because of his weak defence but rather the evidence led against him by the prosecution must incriminate him to the extent that there is no other hypothesis suggesting that the offence in question might have been committed not by him but by any other person. Furthermore, we are mindful that, in sexual offences, the evidence of rape has to come from the victim. See- Seleman Makumba v. Republic [2006] T.L.R. 379 and section 127 (6) of the Evidence Act. We are also alive that, every witness is entitled to credence and must be believed and his evidence accepted unless there are good and cogent reasons for not believing such a witness. See- Goodluck Kyando v. Republic [2006] T.L.R. 363. Equally important is the general principle that, it is the trial court which is in a better position to asses the credibility of a witness during trial. That notwithstanding, it is also settled that credibility of a witness can also be determined by an appellate court by assessing the coherence of the evidence of the witness and also by considering the evidence of such a witness in relation to the evidence given by other witnesses. See- Shabani Daud v. Republic (Criminal Appeal No. 28 of 2001) [2004] TZCA 84 (11 March 2004TanzLII). In the determination of ground 8 that, the case against the appellant was not proved to the hilt, we will be guided not only by the above restated principles, but also by the long-time settled law that, where there are concurrent findings of facts by two lower courts, the Court should not readily interfere with the findings unless it is clearly shown that there has been a misapprehension of the substance, nature and quality of the evidence, a miscarriage of justice or a violation of some principles of law or procedure. See- DPP v. Jaffar Mfaume Kawawa [1981] T.L.R. 149 and Alphonce Bisege Mwasandube v Republic (Criminal Appeal No. 630 of 2020) [2024] TZCA 28 (12 February 2024;TanzLII). In the event that the victim (PW2) did not, by her own words, promise to tell the truth and not tell lies as required by the law under section 127 (2) of the Evidence Act, her testimony is of no evidential value as is the settled position of the law in this jurisdiction. However, and without prejudice to the above position of the law, even if the victim's evidence was properly before the Court, still the evidence was required to be scrutinised and subjected to the test regarding its truthfulness. It is settled law that, although the best evidence in sexual offences cases comes from the victim, such evidence cannot be acted upon unless the court is satisfied that the evidence is credible and reliable. Before acting on such evidence, the court is enjoined to determine and satisfy itself on the credibility and reliability of such a witness. The obligation by the court to scrutinise the victim's evidence in sexual offences and not to take it as gospel truth before acting on it, was emphasized by the Court in the case of Abiola Mohamed @ Simba v. Republic, Criminal Appeal No. 291 of 2017 (unreported), where it was stated that: "There is a need to subject the evidence o f the victim to scrutiny in order for courts to be satisfied that what they testify is nothing but the truth. The testimony o f the victim o f sexual offence should not be taken as gospel truth but has to pass the test o f truthfulness. It is only through this litmus test that courts will ensure that only deserving offenders are kept behindbars.. [Emphasis added] See also Mohamed Said v. Republic (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (23 August 2019;TanzLII) and Said Hamis 14 Mchanjama v. Republic (Criminal Appeal No.390 of 2022) [2024] TZCA 449 (12 June 2024;TanzLII). Coming back to the instant case and having in mind all of the settled law and principles as stated above, we have subjected the victim's testimony as well as the evidence from other two prosecution witnesses, to a very serious scrutiny in order to satisfy ourselves on the credibility and reliability of such evidence. Having done so, we have come to the considered view that the prosecution evidence from the three witnesses, particularly from the victim's evidence, was not such credible and reliable. The evidence left a lot to be desired. Firstly, the victim, after allegedly being raped by the appellant, she went back to the river and proceeded washing her clothes. We think, ordinarily, the victim would have rushed back home without thinking of finishing washing her clothes. Worst still, after getting home, the victim disclosed to no one that she had been raped by the appellant. She proceeded with her daily business and at night when her mother (PW3) allegedly suspected that something bad might have been done on her after observing sperm and blood oozing from her vagina, the victim refused to disclose what had befallen her or name the appellant. In the morning, the victim went to school as usual. When she came back home from school she was again asked by her mother (PW3) if something bad had befallen her but the victim refuted and said nothing had happened to her. It was not until when her mother threatened to put a hot knife between her legs, when the victim stated that the appellant had raped her the day before. Although the victim had claimed that she was warned and threatened by the appellant not to disclose the incident to anyone lest she would be killed, still her conduct and the fact that she refused to disclose the incident to her mother even after being persistently asked to do so and also the fact that she named the appellant after her mother had threatened to put the hot knife between her legs, leaves a lot to be desired in regards to her truthfulness and that the disclosure was forced. Under these circumstances, the possibility that the threat from her mother (PW3) forced the victim to name the appellant just for the sake of saving her skin and avoiding being punished by her mother using the hot knife, cannot be negligible. In the case of Peter Benard @ Bad Funza v. Republic, Criminal Appeal No. 136 of 2011 (unreported), the victim's credibility was found questionable because she concealed the name of the assailant until when she was punished by her mother and pressurized by other relatives. In the instant case, besides being forced to name the appellant, the victim did also delay to disclose not only that she had been raped but also that it is the appellant who had raped her. It is settled principle of the law that the ability of a witness to mention a suspect at the earliest possible opportunity is an all assurance of his credibility. See- Wangiti Marwa Mwita v. Republic [2002] T.L.R. 39. It is for the above given reasons that we find the victim's credibility and reliability doubtful. Apart from the above, the fact that the victim's mother (PW3) allegedly noticed sperm and blood oozing from the victim's vagina at night and in the morning, she prepared the victim and let her go to school, has greatly exercised our mind. We cannot comprehend how a mother can see her daughter in that alleged state at night and prepare her to go to school in the morning, instead of taking her to the hospital. We think that if the victim was really in that alleged state, the first thing PW3 could have done in the morning, was to rush the victim to the hospital regardless of the fact that the victim had refused to disclose what had befallen her. Undoubtedly, this conduct by PW3 had an effect of denting the prosecution case against the appellant. In addition to the above, we have also noted that while the PF3 (Exhibit PI) issued by the police was directed to Bunazi Health Centre and whereas the victim was sent and medically examined there, the results of that examination were concealed. What we have in record is the PF3 (Exhibit PI) filled by PW1 who examined the victim at Kagera Regional Referral Hospital, four days after the fateful date. There is no explanation as to why the victim had to be examined twice and why the result of the first examination at Bunazi Health Centre had to be concealed. There was also an unexplained delay in arresting the appellant. According to PW3, the appellant was arrested one week after the incident. If the appellant was named by the victim and he was reported to the police on 09.02.2021 as claimed by PW3, why was he not immediately arrested given the fact that there is no evidence that the appellant had fled. These unanswered questions could have been resolved by the investigator of the case if at all the case was so investigated. The investigator and also the police women who allegedly accompanied the victim to Bunazi Health Centre and also to Kagera Regional Referral hospital were thus, material witnesses the prosecution was required to call. Failure to call them entitled the trial court to draw an adverse inference against the prosecution side. It is thus, our conclusion that, as demonstrated above, it was not only the victim's evidence which was, to our settled view, not credible and reliable as such, but the remaining prosecution evidence from PW1 and PW3 was also doubtful. Had the lower courts properly assessed and comprehended the victim's evidence as well as that given by PW1 and 18 PW3, they might have not failed to see that the prosecution case against the appellant was marred by reasonable doubts which ought to have been resolved to the benefit of the appellant. Based on what we have discussed and demonstrated above, we find that the case against the appellant was not proved beyond reasonable doubt as the law requires. That being the case, the appeal is accordingly allowed. Consequently, we quash and set aside the conviction and the sentence imposed on the appellant and order that the appellant be released forthwith from prison unless he is so held for some other lawful cause. It is so ordered. DATED at BUKOBA this 24th day of March, 2025. S. E. A. MUGASHA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 24th day of March, 2025 in presence of Appellant in person and Ms. Mgeni Mdee, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.