JUMA ANACLETH VS THE REPUBLIC CRIMINAL APPEAL NO 381 OF 2023

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MUGASHA. J.A.. MWAMPASHI. J.A.. And NGWEMBE. J.A/1 CRIMINAL APPEAL NO. 381 OF 2023 JUMA ANACLETH..............................................................................APPELLANT VERSUS THE REPUBLIC........................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Bukoba) (Mwipopo. 3.) dated the 25th day of February, 2021 in Criminal Case No. 75 of 2020 JUDGMENT OF THE COURT 14th& 17th March, 2025 MUGASHA. J.A.: In this appeal, the appellant is challenging conviction and sentence of life imprisonment after being found guilty of the offence of rape. He was arraigned before the District Court of Ngara at Ngara, in the charge containing seven counts whereby it was alleged by the prosecution that, on 28/2/2020 at Mugoma village, Ngara District in Kagera Region, the appellant did unlawfully have carnal knowledge of several girls and sexually harassed them. The charge was predicated under sections 130 (1), (2) ( e), 131 and 138D, all of the Penal Code Cap 16 R.E.2019. One of those girls and subject of the present appeal was nine years old. To conceal her identity, the girl shall be referred to as the victim. The appellant did not plead guilty. Subsequently, in order to prove its case, the prosecution paraded seven witnesses and tendered documentary exhibits which included the PF3s of the victims and the Clinic Card of the victim herein. After a full trial, he was acquitted of the six counts and found guilty and convicted of the first count of raping the victim and sentenced to life imprisonment. His appeal before the High Court bore no fruits hence the present appeal. Before determining the appeal, it is crucial to briefly state the factual account underlying the arraignment and conviction of the appellant. As earlier stated, since the appellant was acquitted for other counts, of relevance in the present appeal is the portion of evidence in relation to the alleged rape of the victim herein. On this, the prosecution account came from the victim, her parents, teachers and the doctor who conducted medical examination. According to the victim's father Aggrey Brasion who testified as PW3, recalled that it was on 24/2/2020, when he noticed that her daughter, the victim, was not walking properly. Upon being probed, the victim claimed to have fallen down. Then PW3 told the victim's mother Edina Aggrey, PW7, to check the victim and she was found with bruises and was complaining to experience pains when she walked. Then on a certain Monday, on unknown date PW3 was summoned by the victim's teacher and the victim narrated that she was raped by Juma in the forest and given 100 shillings. PW3 reported the incident to the police and was told to go home and return back on 4th. The record is silent if PW3 returned to the Police as directed and if the victim was taken to the hospital. Whereas PW3 noticed the victim on 24/2/2020 that she was not walking properly, the victim recalled that it was on 28/2/2020 while she was going to school on reaching around the forest area, she was raped by the appellant and reported the incident to the school teacher. Then when she went home in the afternoon, upon being asked by the father as to what befell her, she was mute and her father PW3, told her mother PW7 to check her. After being checked by her mother, they went to the Dispensary and later to the Police Station. The victim's teacher Jenina Ikwetaki, PW6, recounted that, it was on Friday morning when the victim told her that she was raped by the appellant near the houses of teachers and given shillings 100. According to PW6, the victim revealed that the appellant was not a stranger to her. PW6 reported the incident to the Head teacher and on the following Monday when the victim was taken to the Head teacher, she revealed that, several students were being abused by the appellant. Thus, on 5/3/2020 the matter was reported to the police and later to the hospital where the Doctor established that the victim had signs of being raped. Apparently in the evidence of the victim's mother, PW7 she said nothing on what transpired on 24/2/2020 and if the victim's father had asked her to inspect the victim. She recalled that, it was on 28/2/2020 in the afternoon when she saw the victim not walking properly. When she asked the victim, the response was that she felt pains in the vagina because the appellant had raped her. She checked her and found bruises on the vagina, and they opted to go at the police station. They were issued with the PF3 and the victim was taken to Nyamiaga Hospital. A clinical officer Pontian Ruhimingunge who testified as PW5 examined the victim on 5/3/2020 and found the victim to have signs of being raped. Although the matter was twice reported to the police, apparently there is no police officer who was paraded as a witness. We shall address this matter at the later course of this decision. In his defence, the appellant denied the accusations levelled against him by the prosecution. He testified that, it is on 3/3/2020 when he was arrested by the police being accused of raping the victim. He was put in the lock up and after two days he was taken to Ngara Police Station and on 9/3/2020 arraigned in court. As earlier stated, after a full trial, the appellant was convicted and sentenced to life imprisonment which was sustained by the first appellate court. As earlier stated, it is against the said backdrop the appellant has approached the Court seeking to impugn his conviction and sentence in an attempt to demonstrate his innocence. In the Memorandum of Appeal, the appellant has fronted seven grounds which hinge mainly on the complaint which is twofold: one, that the charge was not proved beyond reasonable doubt; and two, that his defence was not considered. At the hearing of the appeal, the appellant appeared in person unrepresented and adopted the grounds of appeal and urged us to consider them and proceed to set him at liberty. On the other hand, in appearance for the respondent Republic was Ms. Ajuaye Bilishanga, learned Principal State Attorney, Ms. Chema Maswi, learned Senior State Attorney and Mr. Dickson Makoro, learned State Attorney. It is Ms. Chema Maswi who addressed us on the appeal and opposed it on the ground that the charge of rape was proved to the hilt against the appellant. Besides, submitting that the entire elements of the charged offence were proved, she added that, the victim gave a credible account as to how she was raped by the appellant who was not a stranger to her. That apart, she added, on the same day and very morning, the victim reported the incident to the teacher and mentioned the appellant to be a person who raped her. Besides, conceding that the defence of the appellant was not considered, she was of the view that, his denial was just too general and it did not impeach the prosecution account. With this submission, she urged us to dismiss the appeal and sustain the conviction and the sentence meted on the appellant. The appellant who was a layperson had nothing useful in rejoinder besides urging us to set him at liberty because he did not commit the offence. After a careful consideration of the record of appeal and the contending submissions from both sides, the issue for determination is whether the charge of rape was proved against the appellant beyond reasonable doubt. We think the determination of the issue we have raised, depended very much on the credibility of witnesses and it is the trial court which was best placed to assess the witnesses at the trial. We are fortified in that regard, because every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing a witness. See: GOODLUCK KYANDO VS REPUBLIC [2006] TLR 365. Good reasons for not believing a witness, include established motive on the part of the witness to misrepresent facts; a demonstration of bias and prejudice and or if she or he has given fundamentally contradictory or improbable evidence or has been irreconcilably contradicted by another witness or witnesses. See: MATHIAS BUNDALA VS REPUBLIC [2007] TLR 53. Although assessing the credibility of witness is the domain of the trial court, yet on appeal, the credibility of a witness can be determined by assessing the coherence and consistency of the testimony of a witness when compared to the testimony of other witnesses including that of the accused person. In this regard, we shall re-evaluate the entire evidence to a very objective scrutiny. We have subjected the evidence of the victim, PW3, PW6 and PW7 and found the same to be improbable on account of what we are about to explain in order to establish if the charge of rape levelled against the appellant was proved beyond reasonable doubt. It really taxed the mind of the Court as to when did the rape incident occur and what measures were taken. At the outset, it is crucial to point out that in the entire prosecution account there is nothing to suggest that the victim was raped on two different occasions. Although, PW3 is the one who first noticed the victim not walking properly and directed PW7 to inspect the victim, it is glaring that, in his testimony, PW3 concealed what transpired thereafter because it can be discerned in the victim's account that she was taken to the hospital after she was inspected by her mother. That apart, victim's mother that is, PW7, in her testimony did not disclose that on 24/2/2020 she was directed by PW3 to inspect the victim and took her to the hospital. Besides, that initial report from the hospital was not exhibited in the evidence. In the premises, it cannot be ascertained if the rape incident was on 24/2/2020 or 28/2/2020 which clouds the prosecution case with a serious doubt. Furthermore, while the evidence of the victim and that of PW3 suggests that the victim was raped in the forest area, it is glaring that the rape purported to have occurred on 28/2/2020 was at entirely a different place where the teachers houses are located according to the evidence of PW6 who stated to have been so told by the victim. In the premises, it cannot be safely vouched if the rape incident occurred in the forest or near the teachers' houses. Yet, it is on record that the victim was on two different occasions taken to the hospital for medical examination. However, while the record is silent on the outcome of the examination when the victim was taken to the hospital by her mother, the later report is the one which was exhibited in the evidence. The unanswered question is why was the initial report if any, not exhibited in the evidence. It is our considered view that the initial report was equally important and material evidence to establish if the victim was actually raped on 24/2/2020 and or 28/2/2020. However, the record only shows that the victim and her mother visited the police, went to the hospital and nothing transpired thereafter. In the circumstances, although it is settled law that it is the victim's evidence is the best to prove the occurrence of a sexual offence, unfortunately, in this matter that is not practicable on account of the incredible account of the victim herself. Whereas her evidence and that of his father suggest that the rape incident was on 24/2/2020, the victim shifted the goal post stating that the incident was on 28/2/2020. However, she testified on the circumstances showing that the alleged rape was on 24/2/2020 because that is when she was inspected by PW7 as directed by her father. This dents the credibility of the victim and as such, it was unsafe to rely on her testimony to ground the conviction of the appellant. The evidence of other prosecution witnesses also leaves a lot to be desired as it is marred with contradictions on the place and the date of occurrence of the rape as earlier alluded to. That apart, another unanswered question which is the gist of the appellant's complaint on his delayed arrest cast doubt on the prosecution case. According to PW6, it is on 28/2/2020 when the victim told her that she was raped by the appellant who was not a stranger to the victim. However, the appellant who resided in same neighbourhood was not arrested until on 3/3/2020 which was either a week or three days after the incident. It is settled law that, the delayed arrest of the appellant renders the prosecution account incredible and unreliable. See: ROBINSON MWANJISI VS REPUBLIC [ 2003] TLR 218. Thus, since the appellant was not a stranger to the victim and he was mentioned at the earliest and in the absence of any evidence that he had escaped, the delay to arrest him clouded the prosecution case with a heavy doubt. Another setback in the prosecution account is that, the record bears out that the incident was reported to the police on two different occasions. However, the police investigator is not among those who adduced evidence. Given the unanswered questions we have raised earlier on which all cast doubt as to the date and place of occurrence of the rape incident, we think the investigator was a material witness whose absence entitles the Court to draw an inference adverse to the prosecution. See: AZIZI ABDALLA VS REPUBLIC [ 1991] TLR 71. The investigator would have clarified on the date and place of occurrence of the offence and the initial findings of the medical doctor who examined the victim when she was first taken to the hospital by her ii mother. Unfortunately, the unanswered questions have turned out to cast doubts on the prosecution case which must benefit the appellant. Finally, on account of what we have endeavoured to discuss, we are satisfied that, the charge was not proved to the hilt against the appellant and the appeal is merited. We allow the appeal, quash and set aside the conviction and the sentence meted on the appellant and order his immediate release from prison unless if held for some other lawful cause. DATED at BUKOBA this 17th 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 17th 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. C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL 12