JASON LUCAS KAMSANGA VS THE REPUBLIC CRIMINAL APPEAL NO 26 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. 26 OF 2023 JASON LUCAS @ KAMSANGA....................................................... APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Bukoba) (Mwenda, J.^ dated the 8th day of July, 2022 in Criminal Appeal Case No. 1 of 2022 JUDGMENT OF THE COURT Iff* & 20hMarch, 2025 MUGASHA, J.A.: Before the District Court of Karagwe at Kayanga, the appellant was arraigned as hereunder: "STATEMENT OF OFFENCE RAPE; Contrary to Sections 130 (1), (2) (a) and 131 (1) o f the Penal Code [Cap. 16 R.E 2019] PARTICULARS OF OFFENCE JASON S/O LUCAS @ KAMSAGA, on the 28the day o f March, 2021 at Nyabishenge village within Kyerwa District in Kagera Region\ had carnai knowledge o f one A. M without her consent". As stated in the charge the girl shall be referred to as PW1 or the victim in order to conceal her identity. When the charge was read the appellant he pleaded not guilty. In order to establish its case, the prosecution paraded three witnesses and tendered one exhibit, PI namely the PF3 of the victim. On the part of the defence, the appellant was the sole witness. At the end of the trial, the appellant was convicted as charged and sentenced to a jail term of thirty (30) years. The appellant's appeal to the first appellate court bore no fruits hence, the present appeal. In the memoranda of appeal, the appellant has fronted a total of ten (10) grounds of complaint. Before determining the appeal, it is crucial to give a brief factual account underlying the arraignment and conviction of the appellant as hereunder: On the fateful day the victim went to fetch water accompanied by two neighbours namely, Tumsime Edson and Baraka Elisha. Upon returning home at 19:00 hrs, she was chased away by her father on accusations that she had returned home late. As the victim's mother Susana Msafiri, PW2 was not around as she was in the church, the appellant accommodated the victim to his house. Thereat, each slept in a different room in the same house. However, it is alleged that later at night the appellant demanded to have sexual intercourse with the victim. As the victim declined and attempted to disembark, she was grabbed by the appellant who was naked and was raped. The victim raised no alarm because the appellant had covered her with a bedsheet while raping her. Then, the appellant told the victim not to reveal about the incident and he promised to give her money. According to the victim, she was bleeding but returned in her room and slept until in the morning when she went to school and narrated the incident to her friend, Anisia Julius who is not among the prosecution witnesses. Upon returning home she narrated the ordeal to her mother, PW2 who upon inspecting the victim, reported the incident to Kaisho Police Station and later the victim was taken to Isingiro Hospital for medical examination. The Medical Assistant Vaileth Kaihula, PW3 who examined the victim a day after the alleged rape, found that the victim was actually raped. PW3 filled the PF3 which was tendered at the trial as exhibit PI, but was expunged in the first appeal as it was not read out to the appellant. Thus, we shall only make reference to the oral account of the Doctor, PW3. The victim's mother was informed about the victim being chased away by her father by the appellant who called her vide a mobile phone and she told him to give the victim a bedsheet so that she sleeps in her room. On following morning, while on the way from church met the victim who was going to school. However, the victim did not reveal about the rape incident until when she came back from school in the afternoon. Upon learning what befell the victim she informed her husband and reported the matter to the police. A PF3 was issued and the victim was taken to the hospital for examination. We have gathered that, the account given by the victim's mother differs with that of the victim, particularly on the victim's mother meeting the victim going to school in the morning which is not in the victim's account. We shall address this at a later stage. The appellant denied the accusations levelled against him by the prosecution. He testified that on the fateful day, the victim slept at the neighbour's house. She had left at 20.30 hours and returned at 05.00 hours. He added that, there was bad blood between him and the victim because he had reported to the victim's mother on the victim's habit of conversing with boys using his mobile phone. As earlier alluded to, the trial magistrate believed the prosecution to be true and proceeded to convict the appellant as charged. In the present appeal, the appellant seeks to impugn the conviction and sentence which were sustained by the first appellate Court. As earlier stated, although the appellant has fronted ten grounds of appeal, the major complaint is that, his conviction is based on the prosecution account which did not prove the charge at the required standard. At the hearing, the appellant who appeared in person unrepresented, adopted the grounds of appeal, urged us to consider them and set him at liberty. On the other hand, the appeal was opposed by the respondent Republic who had the services of Ms. Chema Maswi, learned Senior State Attorney assisted by Mr. Dickson Makoro, learned State Attorney who addressed us in this appeal. According to Mr. Makoro, the elements of the offence were proved to wit, penetration as per the evidence of the victim and that of the doctor. Secondly, the rape was not consensual because according to the victim, she was forcefully raped by the appellant. Moreover, Mr. Makoro submitted that, the victim mentioned the appellant at the earliest moment to her friend and later to her mother. In this regard, it was argued that the evidence of the victim is entitled to credence because she gave a credible account as to how she was raped by the appellant. We probed him on the effect of the failure by the investigator to adduce evidence although the matter was reported to the police. Besides conceding that investigator did not adduce evidence, he argued that his absence is inconsequential given the credible prosecution account which remained unimpeached on the occurrence of the rape incident. When probed if the victim utilised the earliest opportunity to mention the appellant, he replied that the victim had mentioned the appellant to her friend and later to her mother on the following day because on the fateful night, her mother was at the church. The learned State Attorney concluded his submission by urging us to dismiss the appeal. In determining this appeal, at the outset, it is not in dispute that the victim was raped and that the requisite elements such as, penetration and absence of victim's consent to the rape were established as per the evidence of the victim, the doctor and her mother. What is in dispute and the basis on which parties locked horns is whether or not it is the appellant who raped the victim. Whereas the appellant disassociated himself with the charge, the prosecution argued that, the victim's account on how she was raped by the appellant is credible and entitled to belief. In the premises, this entails revisiting the evidence adduced at the trial in order to determine if the prosecution account was credible and it proved the charge at the required standard. In this second appeal, the Court can still determine the credibility of the prosecution account by assessing the coherence and consistency of the testimony of witnesses when compared to other witnesses including the appellant and arrive at its own findings if need arises. See: See: GOODLUCK KYANDO VS REPUBLIC [2006] TLR 363, YASIN RAMADHANI CHANG'A VS REPUBLIC [1999] TLR 489 and SHABANI DAUD VS REPUBLIC, Criminal Appeal No. 28 of 2001 (unreported). Having subjected the evidence of PW1 to scrutiny, we found her testimony wanting and not credible. We shall explain. In her testimony which appears at pages 9 and 10 of the record of appeal, she recounted to have narrated what befell her and mentioned the appellant to her friend Anisius Julius at school. This was apparently the initial earliest moment, but what the victim told her friend who was not paraded as a witness cannot salvage the plight of the prosecution case. The next opportune moment was when the victim met her mother while going to school. Apparently, this piece of evidence by PW2 does not feature in the victim's account who never disclosed to have met PW2 when she was going to school in the morning after being raped on the previous night. Besides, the victim did not mention the appellant during morning hours which was the earliest moment and instead, did so in the late afternoon. Yet, the victim had another opportune moment to mention the appellant to the school teacher where she had spent a whole day after being raped on the previous day. A burning question here is what made the appellant not to grab the earliest opportunity to mention the appellant to her mother and the teacher. This leaves a lot to be desired and failure to mention the appellant at the earliest moment rendered the victim's evidence not credible in the wake of a very well-settled principle of law that the ability of the witness to mention the suspect at the earliest possible opportune is an assurance of the witness's reliability and credibility- See: WANGITI MARWA MWITA AND ANOTHER V. REPUBLIC, [2002] T.L.R. 39. Furthermore, although it is settled law that in sexual offences; the best evidence comes from the victim. However, such evidence cannot be acted upon unless the court is satisfied that it is credible and reliable. In this regard, the courts are by law enjoined to determine credibility before acting on the evidence of the victim which is embraced in the provisions of section 127 (6) of the Tanzania Evidence Act [CAP 6 R.E. 2019] which stipulates as hereunder: "127 (6) Notwithstanding the preceding provisions o f this section, where in criminal proceedings involving sexual offence the only independent evidence is that o f a child o f tender years or o f a victim o f the sexual offence, the court shall receive the evidence, and may, after assessing the credibility o f the evidence o f the child o f tender years or as the case may be the victim o f sexual offence on its own merits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceedings, the court is satisfied that the child o f tender years or the victim o f the sexual offence is telling nothing but the truth" [Emphasis ours] The essence of the courts acting on credible account of the victim in sexual offences was underscored in the case of HAMIS MAHENDI VS REPUBLIC, Criminal Appeal No. 2 of 2020 (unreported) as then Court said: 'We cannot condone such incredible account o f PW1 to sustain the conviction as that is tantamount to going against the dictates o f section 127 (6) o f the Evidence Act which enjoins the courts to receive and act on the evidence o f the victims o f sexual offences after assessing the credibility o f such evidence. In a nutshell and for the sake o f averting a failure o fjustice, the law frowns on acting on incredible evidence o f the victims o f sexual offences to ground the conviction" Given that the victim's account was not credible we decline the suggestion by Mr. Makoro to act on it and it was highly unsafe to rely on the victim's account to ground the conviction of the appellant. Had the first appellate court re-evaluated the trial evidence, it would not have sustained the conviction of the appellant. Besides, the prosecution case was further weakened by the absence of the investigator who was indeed a material witness to clarify to the court the following: One, whether the victim had named the appellant to Anisia Julius and why was she not paraded as a prosecution witness: Two, circumstances surrounding the arrest of the appellant given that the record is entirely silent as to when and why was he arrested. Notwithstanding that section 143 of the Evidence Act gives a leeway to the prosecution to consider number of witness to be paraded as witnesses that is not applicable where a material witness is not produced to adduce evidence. We are fortified in that regard because in this case, the absence of material witnesses such as Anisia Julius and the investigator, besides poking holes in the prosecution case,entitles the Court to draw an inference adverse to the prosecution case. See: AZIZI ABDALLA VS REPUBLIC [ 1991] TLR 71 at page 72 the Court stated: "The general and well-known rule is that the prosecutor is under prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify to material facts. I f such witnesses are within reach but are not called without sufficient reasons being shown, the court may draw an inference adverse to the prosecution" See also: MASHIMBA DOTTO @ LUKUBANJA VS REPUBLIC, Criminal Appeal No. 317 of 2013, PETER MWAFRIKA VS REPUBLIC, Criminal Appeal No. 413 of 2013 and YOSIALA NICHOLAUS MARWA AND TWO OTHERS VS REPUBLIC, Criminal Appeal No, 193 of 2016 (all unreported). In the premises on account of what we have endeavored to demonstrate, although the victim was raped, the incredible account of the victim and the unexplained missing material evidence in the prosecution account does not link the appellant with the alleged rape which tells in loud voice that the accusations against him were not proved to the hilt. Thus, the appeal merited, we allow it, quash and set aside the conviction and meted sentence. Consequently, we order immediate release of the appellant unless held for some other lawful cause. It is so ordered. DATED at BUKOBA this 19th 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 20th day of March, 2025 in the presence of the appellant in person and Mr. Dickson Makoro, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the