MUSA BUGUSO VS THE REPUBLIC CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MUGASHA, J.A.. MWAMPASHI. 3.A.. And NGWEMBE. 3.A.1 CRIMINAL APPEAL NO. 738 OF 2023 MUSA BUGUSO....................................................................................APPELLANT VERSUS THE REPUBLIC.............................................................................. RESPONDENT (Appeal from the judgement of the High Court of Tanzania at Bukoba) (Mwenda. Dated the 26th May, 2023 in Criminal Appeal No. 58 of 2022 JUDGMENT OF THE COURT 17th & 21st March, 2025 NGWEMBE, J.A.: The charge of rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code Cap 16 R.E. 2002 (now R.E. 2022 was preferred against the appellant. The particulars of the charge indicate that the offence of rape occurred on 18th May, 2021 at Maruku - Mishenye area within Bukoba Municipality in Kagera Region that, the appellant unlawfully had carnal i knowledge of a girl of 10 years. The victim's name is withheld, instead she will be referred to as the "victim" or "PW1" throughout this judgment. When the appellant was arraigned before the District Court of Bukoba at Bukoba, he pleaded not guilty, hence the prosecution lined up three witnesses to prove the offence of rape, while the appellant stood as a sole defence witness. After a full trial, the learned magistrate was satisfied that the case against the appellant was proved to the hilt. Consequently, convicted and sentenced the appellant to the minimum statutory sentence of thirty (30) years' imprisonment. The appellant was not amused with the decision of the trial court and unsuccessfully, appealed to the High Court, now he is in the Court to demonstrate his innocence. The brief accounts of the case is to the effect that; on the eventful date the victim while coming from school at around 14:00 hours, allegedly met with the appellant who called her and held her hand to the bush. The appellant forcefully, undressed her and had sexual intercourse with her. In the course, one Shadrack Mbelwa Joel (PW3) passed around and heard the victim and found the appellant inflagrante delicto in the act of rape. Having seen the situation, the appellant ran in the bush but PW3 did not recognize the culprit. PW3 testified further that he reported to the village chairman. 2 The mother of the victim (PW2) confirmed that the victim is her first born of ten (10) years as she was born on 29th November, 2010. To buttress her evidence, she tendered a clinic card which was admitted as exhibit PW2A. As alluded to earlier, after being found to have a case to answer, the appellant defended himself generally that he did not commit the offence and the testimony of the prosecution witnesses is unfounded as he did not know the complainant. With this body of evidence, the appellant was found guilty as charged and his first appeal to the High Court was unsuccessful, hence this appeal with ten grounds which in totality all center on one main complaint that the prosecution case was not proved to the standard required by law, that is, beyond reasonable doubt. At the hearing date, the appellant entered appearance unrepresented, while the respondent Republic was represented by Ms. Chema Maswi, learned Senior State Attorney together with Mr. Dickson Makoro, learned State Attorney. Having been invited to address us, the appellant briefly stated that his ground of appeal are comprehensive enough and he prayed the Court to consider them and let him free. 3 On the contrary, MS. Maswi strongly resisted the appeal by submitting that the offence of rape was proved to the hilt by the evidence of three prosecution witnesses. She noted that the victim (PW1) did not promise to tell the truth before recording her evidence but she sought refuge under the case of George Jonas Lesilwa v. Republic (Criminal Appeal No. 374 of 2020) [2024] TZCA 269 (16 April 2024) and the amendment of section 127 (7) of the Evidence Act which hold that failure to promise does not make the victim's evidence inadmissible. Addressing on other aspects, Ms. Maswi argued that, the appellant was identified by the victim (PW1) and PW3 at the scene referring to the testimony of PW3 at page 25 of the record of appeal, where the witness in examination in chief testified that he did not recognize the rapist at the scene but in another instance, he testified that he saw the appellant on top of the victim. The trial court remarked that the witness (PW3) had recognized the accused. Having observed the overall evidence, the learned Senior State Attorney concluded that, despite the fact that the medical doctor was not called to testify in court and PF3 was not produced, together with failure to call the chairman to whom the offence is said to have been reported earlier, yet, the evidence of the three prosecution 4 witnesses sufficiently proved the offence of rape. Thus, she implored the Court to dismiss the appeal entirely. The appellant when availed a chance to rejoin, he just reiterated his earlier prayer by insisting that he did not commit the offence and urged the Court to do justice to him. As we have alluded to earlier the main issue which disposes of this appeal is whether the offence of rape was proved and whether the appellant is responsible. However, before going further to determine the matter, it is glaring to consider the procedure followed by the trial court in recording the victim's evidence. This brings in the question as to whether or not the evidence of the victim (PW1) was received in accordance with the law. The procedure of recording the evidence of a child of tender age is provided for under section 127 (2) of the Evidence Act thus: "A child o f tender age m ay give evidence without taking an oath or m aking an affirm ation but shall, before giving evidence, prom ise to te ll the truth to the court and not to te ll any lies". The duty to promise to tell the truth and not to tell lies has been addressed sufficiently by this Court in plethora decisions which is now 5 settled law in our jurisdiction. In respect to the instant appeal, it is evident that the trial magistrate did not adhere to the above requirement before recording the evidence of PW1. At page 18 of the record of appeal, the following is reflected just after the coram of 24/02/2022: "PP: The m atter is fo r hearing, I have one witness and I am ready to proceed. Accused: I am ready to proceed. Court: Hearing proceeds by getting testim ony from PW1 (victim ) aged 12 years old lives a t Maruku, studying a t Byebya Prim ary S ch oo lS tan d ard four having been inform ed o f speaking the truth and she testified that...." Ms. Maswi appreciated that from the record, section 127 (2) of the Evidence Act was not complied with, but she sought reliance on George Jonas Lesilwa v. Republic (supra). She argued that with the amendment of section 127 which introduced a new subsection (7), the omission is of no effect. The section so amended reads: "Notwithstanding any other law to the contrary, failure by a child o f tender age to m eet the provisions o f subsection (2) sh all not render the evidence o f such child inadm issible". 6 We understand Lesilwa's case is different from the instant appeal. While in that case the witness of tender age promised to tell the truth, questions to test her intelligence were not asked before making the promise. In this appeal the witness did not promise at all. It is the learned magistrate who claimed to have informed her about speaking the truth. However, even with Lesilwa's case, the interpretation of subsection (7) cures only one aspect of admissibility, but it does not protect the weight of such evidence from depreciation thus, the weight and value of such evidence besides being the exclusive domain of the courts, may be affected by the omission. Since there is are requirement of making a promise before taking evidence is mandatory, if there is no promise, the issue of testing the credibility or otherwise of such evidence does not arise and as such, the victim's account is rendered with no evidential value. We therefore begin our consideration referring to the common principle that the prosecution bears a non-com promised duty to prove the offence against the accused. This is a golden rule of criminal justice that the burden of proof in terms of section 110 (1) of the Evidence Act, and the standard of proof of beyond reasonable doubt as provided for under 7 section 3 (2)(a) of the same Act. Therefore, the onus does not shift until it is discharged by the prosecution. Proof beyond reasonable doubt is to adduce evidence that irresistibly points to the accused as the one who committed the offence by establishing all the ingredients of the offence. See, Magendo Paul & Another v. Republic [1993] TLR. 219 and Anthony Kinanila & Another v. Republic (Criminal Appeal No. 83 of 2021) [2022] TZCA 356 (16 June 2022). In the latter case, the Court stressed further that: "It is common ground among the legal fraternity and we think we need not cite any authority to support the legal position that, in any crim inal trial, the accused person m ust not be convicted because he has pu t forw ard a weak defence but rather the evidence led by the prosecution incrim inates him to the extent that there is no other hypothesis than the fact that the accused person com m itted the offence with which he stands charged. That in b rie f is what is called p ro o f beyond reasonable doubt which is the responsibility cast on the prosecution side". Since when the so-called offence of statutory rape came into existence, without number, this Court has given a demonstrable illustration 8 on interpretation of the ingredients. Among those cases is George Claud Kasanda v. DPP (Criminal Appeal No. 376 of 2017) [2020] TZCA 76 (27 March 2020) and Godi Kasenegala v. Republic (Criminal Appeal No. 10 of 2008) [2010] TZCA 5 (2 September 2010). In the latter case, the Court illustrated as follows: "Under our Penal Code rape can be com m itted by a m ale person to a fem ale in one o f these ways. One, having sexual intercourse with a woman above the age o f eighteen years without her consent Two, having sexual intercourse with a g irl o f the age o f eighteen years and below with or w ithout her consent (statutory rape). In either case, one essential ingredient o f the offence m ust be proved beyond reasonable doubt. This is the elem ent o f penetration i.e. the penetration, even to the slightest degree, o f the penis into the vagina". In this case, the prosecution was bound to prove the age of the victim that she was below 18 years; that penetration of a male organ was made to the victim's female organ; and proof that the one who penetrated the victim is no one else but the appellant. 9 Owing to the nature of the appellant's of appeal which as earlier intimated, raise important question of whether the case was proved to the hilt, we are obliged to examine the evidence to see if the ingredients of the offence of rape were established and proved as the lower courts concurrently found. Mindful that, what is being challenged before the Court is a concurrent finding of the lower courts, we are cognizant of the established principle that a second appellate court cannot lightly interfere with such concurrent finding of fact unless it is evident that it was faulty for misapprehension of evidence, law or principle that occasioned failure of justice to any of the parties. Also, we appreciate that this Court has sparingly interfered with such concurrent finding where the flout was obvious and it would be gross injustice to leave them unattended. One of those cases where the exceptional powers were exercised by the Court is Kudura Ally @ Kijonju v. Republic (Criminal Appeal No. 2002) [2006] TZCA 72 (28 June 2006) where the appellant was convicted for attempted rape relying on very weak evidence, the Court observed that: "We appreciate that a court sitting in a second appeal does not lig h tly interfere with concurrent 10 decisions o f the tria l court and o f the first appellate court. In this case, however, the two low er courts were so obviously in error that it is necessary for this Court to interfere". In the instant appeal, we are justified to interfere with the concurrent finding of the lower courts. We have consciously perused the lower courts finding on the ingredients of the offence. Regarding penetration, it is known, penetration however slight is sufficient to prove the offence of rape. See section 130 (4) of the Penal Code. The trial court relied on the evidence of PW1 (the victim) who stated that the rapist had inserted his penis into her vagina. Also, the testimony of PW3 who saw the victim being ravished. The High Court likewise treated PW1 and PW3 as reliable witnesses who proved penetration. However, we will revert back to this point later on. Regarding the age of the victim, the victim's mother, PW2 testified that she was born on 29/11/2010 and she tendered a clinic card which was exhibited unopposed and was marked as PW2A. The exhibit reflected the same date of birth. We have seen that the charge was specific that on 18th May, 2021 when the offence occurred, the victim was 10 years old. In any li event, the age of the victim was, according to the available evidence, below 18 years as rightly found by the lower courts. Now about the penetration and identification of the rapist. Going by the specific complaints of the appellant before the High Court in his first appeal, he lamented that PF3 was not tendered, however the learned Judge dismissed it by giving reason that the PF3 does not prove rape. Another complaint was that material witnesses were not called, particularly the police investigator, the street chairman who had the earliest information of rape to the victim and the medical officer who examined the victim soon after the incident. Those complaints were dismissed and the High Court stood on section 143 of the Evidence Act that no specific number of witnesses is required to prove a fact and that even if they were called would have not helped as they did not witness the offence. Apparently, the learned Judge did not consider a scenario where a fact is not yet proved. In respect to this appeal, the learned Senior State Attorney conceded that the medical officer was not called to testify, no PF3 was exhibited at trial, yet, she insisted that in offences of this nature, the best evidence comes from the victim. Notwithstanding that the best evidence comes 12 from the victim but the court must be conscious given the tricky nature of the allegations of sexual offences that it is very easy to allege, difficult to raise appropriate defence and very hard to defend. We have already observed in many decisions that it was never intended that the word of the victim of sexual offence to be taken as gospel truth, but her testimony should pass the test of truthfulness. See. Mohamed Said v. Republic (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (23 August 2019); Said Hamisi Mchanjama v. Republic (Criminal Appeal No. 390 of 2022) [2024] TZCA 449 (12 June 2024); and Malimi Peter v. Republic (Criminal Appeal No. 480 of 2020) [2024] TZCA 65 (20 February, 2024). In the case of Tito Paulo Kuchungura v. Republic (Criminal Appeal No. 570 of 2020) [2023] 17CA 17992 (13 December 2023), the Court set out, though not exhaustive that the following elements must be proved: penetration, however slight; proof of absence of consent to a woman above the age of majority but same is not applicable to girls below 18 years; proof of age of the victim (in statutory rape); corroboration where possible including medical report; proper identification of the rapist if the offence was committed at night and there is no proper light or by a stranger; overall circumstances leading to the offence of rape; and the 13 most important is availability of watertight evidence. Those prerequisites are essential to prove rape beyond reasonable doubt because of the nature of the offence itself. Therefore, it is not always the case that the victim's evidence is the best, unless that testimony passes the requisite test of truthfulness. It is evident that the mother, PW2 of the victim received the information of rape of her daughter at the earliest time, but she did not examine her to ascertain if at all she was raped. Moreover, although PW1 and PW2 claim that the victim was taken to police and secured a PF3 which enabled her to be medically examined at the hospital, however the alleged hospital was not named and no apparent reason was assigned for not naming that hospital. More so, there is no testimony from the prosecution witnesses that indeed the victim was medically examined, in such circumstances, the element of penetration was not given deserving attention at the trial and during investigation. In the absence of reliable evidence from credible witnesses to prove penetration, it is unsafe to conclude with certainty that the victim was penetrated. We cannot agree with the lower courts and learned Senior 14 State Attorney that penetration was established and proved beyond reasonable doubt. Likewise, in the absence of proper identification of the appellant at the scene of crime when considered together with the absence of an investigator and failure to call the chairman to whom the offence was first reported, creates another serious doubt on proof of the offence of rape beyond reasonable doubt. We have further observed the following one, there is no evidence if at all the incident was reported to the alleged street chairman or even to the police; two, it is unknown how the appellant was arrested in connection of the alleged offence of rape. The testimony of PW2 create a doubt that when she went to the street chairman, she found the appellant was already arrested. The question would be who arrested him on what offence if the alleged rape was yet to be reported to the chairman. Three the alleged rape though it was alleged to have been reported to police but it was not investigated as neither the investigator nor any police officer adduced evidence at the trial. Those issues could have been cleared by the presence of the street chairman and the investigator. We therefore, find that the two were material witnesses to clear clouds of 15 who arrested the appellant in connection to this particular offence and pin him to the scene by cogent evidence. We have noted that PW3 who said to have witnessed the rape did not recognize the rapist. What he did was a dock identification of the appellant at trial while he had already narrated that he did not recognize the rapist at the scene. Besides this denting the credibility of PW3, the dock identification would not help because PW3 happened to see the appellant when he was already arrested. Although Ms. Maswi supported the position adopted by the High Court, that failure to call those witnesses and failure to exhibit PF3 did not affect the prosecution case, in our considered view, we are satisfied that the circumstances of the case led into a thick cloud in the absence of those material witnesses whose evidence would answer those glaring unanswered questions we have pin pointed above. Despite the fact that the prosecution is not obliged to bring a certain number of witnesses to prove a fact in issue as per section 143 of the Evidence Act, we have already decided in many cases that where there is material witness or material evidence, unexplained failure to bring them before the court entitles the court to draw an adverse inference, See; 16 Soda Busiga @ Shija v. Republic, Criminal Appeal No. 53 of 2012 (unreported) and maintained in Abubakar Shabani v. Republic (Criminal Appeal No. 312 of 2021) [2024] TZCA 527 (8 July 2024) where we held that: "It is settled that the prosecution enjoys discretion in deciding which witness to call. I t is also equally settled law that this discretion m ust be exercised ju d icia lly in order to advance the cause o f justice. The prosecutor, therefore, is under a prim a facie duty to ca ll those witnesses, who from their connection with the issue in question are able to testify on m aterial facts. I f such witnesses are within reach but are not called without sufficient reason being shown, the court m ay draw an adverse inference against the prosecution". In this appeal many material questions remained unanswered which would have been answered by those persons who were not called to testify, thus, poked holes in the prosecution case. We find the trial court was entitled to draw an adverse inference and the High Court with respect, ignored the legal principle in dismissing the complaint. The victim's 17 account who did not promise to tell the truth was wrongly acted upon to ground the conviction of the appellant. In total, we are satisfied that the case was not proved beyond reasonable doubt. Consequently, we allow the appeal, quash the conviction and set aside the sentence and subsequent orders made therein. The appellant shall be released from prison immediately unless otherwise lawfully held. DATED at BUKOBA this 21st 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 21st day of March, 2025 in presence of Appellant in person and Mr. Dickson Makoro, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. ■yV C. M. MAGESA M DEPUTY REGISTRAR J a jj COURT OF APPEAL 18