jmaes mnubi chiragwire baba ismail vs republic 2023 tzca 17540 25 august 2023

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: WAMBALL J.A., MAIGE, J.A. And MGONYA, J.A.) CRIMINAL APPEAL NO. 551 OF 2019 JAMES MNUBI CHI RAGWIRE @ BABA ISMAIL.......................... APPELLANT VERSUS THE REPUBLIC......................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Madeha, J.) Dated the 20th day of November, 2019 in Criminal Appeal No. 172 of 2019 JUDGMENT OF THE COURT 16th & 25thAugust, 2023 MAIGE. J.A.: At the District Court of Nyamagana ("the trial court"), the appellant was charged with rape c/s 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap. 16, R.E. 2019 ("the Penal Code") and unnatural offence c/s 154 (1) (a) of the Penal Code. He was accused of committing the said offences on 15th day of November, 2016 (the material date) at Nyegezi-Nyabulogoya Street, Nyamagana District in the City of Mwanza against a girl of 11 years old hence-forward, "the victirrT or PW2". He was acquitted in respect of the l second offence and convicted in respect to the first offence. Eventually, he was sentenced to 30 years imprisonment and to pay the victim Tanzania Shillings 800,000.00 as compensation. His appeal to the High Court proved futile and, therefore, the instant appeal. The brief facts upon which this case is founded can be narrated as follows. On the material date at around 18:00 hours, PW2 was at home. While there, the appellant came and took her to his home residence on the pretext that she was going to collect her school shoes and her mother's luggage. On arrival, the appellant left the victim at the sitting room and proceeded to his bedroom. Suddenly, the appellant came back and covered the victim's face with a piece of cloth and tied her hands with a rope. He, thereafter, took the victim to his bedroom where he inserted his penis in both her vagina and anus. She felt pain such that she was crying. She was bleeding in both her private parts too. She went back home and, on her way, she once fell down. At home, her sister washed her clothes which was spotted with blood stains. However, she did not tell her mother about the incident as the appellant had threatened to kill her in the event that she revealed the secrecy. 2 Vera Beatrice Magingi (PW3) an Educational Officer at Nyegezi Ward testified that, on 14th November, 2016 at between 11:00 to 12:00 hours while in her office, she was informed by the head teacher of the victim's school about the illness of the victim. She went there and inspected the victim's private parts and established that, she was bleeding and had a dug in her anus. She took the victim to police where she was issued with PF3. The victim was then taken to Sekour Toure Hospital for medical examination. Esther Otieno, the victim's mother (PW1) testified that, on 17th November, 2016 in between 13:00 and 14:00 hours while at home, she received a call from the victim's school informing her that the latter had been raped and was at police station. She went to the police station and found the victim thereat and, on inspecting her body, she established that she had been carnally known in both her private parts. The victim mentioned the appellant to have committed the offence. PW1, having procured PF3, she rushed the victim to hospital for medical check-up and treatment. At the hospital, the victim was examined by Dr. Richard Kilita (PW7) who established as per exhibit PI that she had bruises in her vagina and retraction which is a signification that she had been penetrated in her 3 vagina. As regards her anus, the finding was such that, the same was in normal condition and, therefore, the victim was not sodomized. At this juncture, it may be necessary to have a note on PW2's story about four incidents relevant to the case which happened in between October and November, 2016. According to her testimony, the first incident happened in October, 2016 at 18:00 o'clock when PW1 was on her way to Kenya. The appellant came at the residence of the victim and offered her TZS 1,000.00 which she refused. On this, PW1 confirmed to have been informed by the victim as such and advised her not in next time to refuse the money but any request for a wrong deed. The second, third and fourth incidents happened in the bedroom of PW1 on unnamed dates and times of early November of the same year. The second one was two days after the first whereas the third incident was one day after the second. The interval between the third and the fourth one is not in evidence. In all the three incidents, it is asserted, the appellant played, using his penis, with the victim's vagina until he ejaculated. And, in all occasions, the appellant, aside from threatening to kill the victim should she disclose the incident to anyone, he did give her TZS 500.00 which she received. In his defense, the appellant who was at the material time irrefutably the ward executive officer for Mkuyuni Ward and a member of the advisory board of Mkuyuni Secondary School as per exhibit D3, testified as DW1. In essence, he heavily relied on the defense of alibi, the notice containing the particulars of which was issued before commencement of the trial. He testified that, on the material date, he was in his office as from 6:59 hours making some preparations for the intended District Commissioner's visit at the office. He then handed over the office to Merdald Mathew Kiyamazinge (DW3) and went to attend DCC meeting which was scheduled to be at 10:00 hours as per exhibit D4. However, the meeting started at 14:00 hours. At the end of the meeting, he went back to the office wherein Medard handed over the office to him. Thereafter, he together with DW3, Nuru and John Masilanga, went to Mkuyuni market where they played card until 20:30 hours. Edward Mboje (DW2) testified that he was among the persons who attended, on the material date, in the DCC meeting. He was invited to the meeting as a representative of UDDP. In the said meeting which ended up at 17:00 hours, the appellant was among the members. 5 (DW3) whom was mentioned by the appellant to be the one in whose custody the appellants' office was left; testified that, at the material time, he was working as health officer at Mkuyuni Ward. He confirmed that the appellant handed over the office to him on the material date at 8:00 hours and went to attend DCC meeting. He testified further that although the office was to be closed at 15:30 hours, he could not do so because it was not until 17:56 hours when the appellant came back. After the handover, he, together with the appellant, went to the market to play cards. On cross examination, he testified that, he departed from the area at around 18:55 leaving the appellant and one Juma playing cards. Juma Sadick Samizzoe (DW4), a businessman at Mkuyuni, testified that on the material date he was at his business premises near Mkuyuni bus station from 7:30 hours. At around 18:30 hours, the appellant came in a company of DW3 and a person called Nuhu. They played cards while watching television until 20:30 hours. In his judgment, the learned trial magistrate believed the evidence of the victim (PW2) as corroborated by PW1, PW3 and PW7 to be credible and probable as to leave no reasonable doubt. On the appellant defense of alibi, the trial magistrate while accepting the proposition that; the appellant was, on the material date until 17:30 hours attending DCC meeting as credible, he was of the view that the defense did not raise any doubt as the offence was committed from 18:00 hours. In his own words, the trial magistrate stated as follows at page 170 of the record of appeal: "In his defence, the accused raised a defense o f alibi that on 15/11/2016 as the Ward Executive Officer o f Mkuyuni Ward attended the meeting o f the District Council Committee (DCC) at Nyamagana. The Meeting started at 10:00 hours to 17:30 hours. After there he went back to his office. The meeting was about budget and other street charges. The fact that the accused person had attended the DCC meeting was supported by DW2, a Businessman and DW3, the Health Officer Mkuyuni Ward. Hence no doubt the accused attended the referred meeting. However having looked at the defence evidence, it appears to me that, the accused person failed to account the time period from 17:30 hours to when he reached the office. It was the evidence by the victim (PW2) that she was raped at around 18:00 hours. In my view, the defence of alibi raised no doubt against the prosecution case." i The first appellate court concurred with the decision of the trial court in all fours hence the present appeal. In the initial memorandum of appeal which he filed in person on 25th January, 2021, the appellant raised eight grounds of appeal. On 11th August, 2023 however, the appellant, through his counsel filed a supplementary memorandum of appeal constituting three grounds of appeal as follows. First, the learned appellate Judge erred in not taking into consideration the appellant's defense thereby wrongly upholding the conviction for the offence of rape. Second, the evidence adduced by the prosecution was too weak to ground a conviction. Third, in dismissing the appellant's appeal, the learned appellate Judge erred in relying on the PF3, Exhibit PI which was wrongly admitted into evidence. When the appeal came up for hearing, Mr. Anthony Nasimire, learned advocate, represented the appellant while Ms. Revina Tibilengwa, learned Principal State Attroney assisted by Ms. Mwanahawa Chang'wale, learned State Attorney appeared for the respondent Republic. In his submissions, Mr. Nasimire having made a consultation with his client, abandoned the initial memorandum of appeal and submitted on the grounds in the supplementary memorandum of appeal. In the course of his submissions, and, upon being probed by the Court, he dropped the third ground of appeal and solely relied on the first and second grounds of appeal. At the end, he invited the Court to allow the appeal and set the appellant free. Ms. Tibilengwa on her part fully supported the concurrent decision of the courts below and urged us to dismiss the appeal. We will start our deliberation with the second ground of appeal as to whether there was sufficient evidence to warrant conviction. However, before doing so, we find ourselves unable to do without having a note on a settled principle of law that, in a second appeal like this, the Court is not expected to interfere with the concurrent factual findings of the two lower courts, unless there are misdirection or non-directions on the evidence or violation of some basic principles of law. See for instance, the DPP v. Jaffar Mfaume Kawawa, [1981] T.L.R. 149. Submitting on the second grounds of appeal, Mr. Nasimire pointed out some doubts in the prosecution case which if considered in line with the defence evidence would raise reasonable doubt on the credibility of the evidence of the victim. One, while PW2 claims to have been admitted at Sekour Toure hospital for 31 days and at Bugando Hospital for 16 days where he underwent operation as well, no medical documentation was 9 tendered to establish the same. Two, while the victim claimed to have been penetrated both in her vagina and anus, the medical evidence in exhibit PI establishes that her anus was in normal condition. Three, while the victim claimed that she had, before the incident, her hands tied with a rope, in the similar three incidents which she alleged to have happened at her home residence, her hands were not tied as such. In any event, he submitted, no evidence was led to establish who removed the rope from her hands. Four, the PF3 was filled in four days after the incident without any explanations. Five, while in her evidence the victim claimed that the appellant had bruises mark on his stomach, in his evidence in chief the appellant was inspected and found not to have such a mark. In his submission, therefore, the prosecution evidence was too weak to warrant conviction. In rebuttal, it was submitted for the respondent Republic that; the evidence of the victim (PW2) upon which the trial court relied in convicting the appellant was credible enough to warrant conviction. Contrary to the expression from Mr. Nasimire, it was her submission that the evidence of PW7 establishes the victim's admission at Sekour Toure Hospital in as much as it is at Bugando hospital. She submitted further that, penetration having been proved by the evidence in exhibit PI, the fact that the victim was 10 subsequently admitted at hospital was immaterial in proving that the victim was raped. She contended further that, the victim's delay to report the incident to her mother is justified in evidence as the victim said consistently that the appellant threatened to kill her if she disclosed what happened. Contradictions in the prosecution evidence if any, she submitted, was so trivial that it could not affect the substantial credibility of the evidence of PW2 as corroborated by the evidence of PW1, PW3 and PW7. She prayed, therefore, that the second ground of appeal be dismissed. From the rival submissions on the second ground, we think, the issue which we have to resolve is whether or not there was sufficient evidence to prove the case beyond reasonable doubt. In this case, it is clear that the conviction of the appellant was essentially based on the evidence of the victim (PW2) as supported by the evidence of her mother (PW1), the doctor (PW7) and partly the educational officer (PW3). In reaching to the said decision, the trial magistrate just as it was for the High Court Judge had in his mind the well settled position of law that the best evidence in rape cases comes from the victim. Much as it is true that the position of the law is as such, it is our understanding that, for a court to rely on the testimony of a child or the 11 victim of the crime to sustain conviction in respect to sexual offences, it must satisfy itself, upon assessment of credibility of such evidence that, the witness in question is telling nothing but the truth. See for instance, Imani Charles Chimango v. Rv Criminal Appeal No. 382 of 2016 [2019] TZCA 30 (20th February, 2019 TANZLII) (unreported). The issue, therefore, is whether the evidence of the victim (PW2) was credible and probable enough to establish that it was the appellant and no one else who committed the offence. As we held in Mathias Bundala v. R, Criminal Appeal No. 62 of 2004 (unreported), the test involved in determining credibility of a witness is " whether his or her testimony is probable or improbable when judged by the common experience o f mankind." As we said above, the evidence of PW2 had its foundation from four incidents which happened in between October, 2016 and November, 2016. In the first incident which is alleged to have happened in October, 2016 wherein the victim refused the appellant's offer of TZS 1,000.00, the victim informed her mother. The latter advised the former not again to refuse the offer. She should only refuse request for a bad deed. As it may appear at page 33 of the record of appeal, PW1 claimed to have no close relation with 12 the appellant. On cross examination at page 34 of the record of appeal, she claimed to have known the appellant for the first time in 2016 sometime before September. It is, in our view, very uncommon for a mother to give such an advice to a young girl like this in respect to an adult male she was not in close relation with. On the same point, though the prosecution evidence does not suggest that the appellant was such close to PW1 and her family to the extent of knowing the geography of her house, the evidence of PW2 suggests that, when the appellant went at her home residence on the second incident, he right away took her into the bed room of PW1 where he committed the alleged sexual abuse against the victim. He repeated the same two times after. This sounds highly improbable more so considering PWl's evidence that, in the house, she was living with three other daughters apart from the victim. We have also noted with curiosity that, in the incident which happened in October, 2016 just as it is in the incident at issue, the victim was able to clearly mention the particular time when the incident happened. Perhaps incidentally, in both the incidents, it was around 18:00 hours. If she was able to recall the time in which she refused the appellant's offer of TZS 13 1,000.00 which was much earlier, why shouldn't she recall the time in the subsequent days where she was sexually abused by the appellant. Why didn't she narrate to her mother about the three incidents of sexual abuse even after she had disclosed to her about the rape in question. We now reappraise the victim's story on what transpired on the material date and time. She says, the appellant came at her home and asked her to go with him to collect her school shoes and her mother's luggage. She appears to have accepted without any worry. Considering the fact that the appellant had committed sexual abuses against her three times before, it sounds improbable for the victim to accept the call that much easier. It is more so sounds improbable for the appellant in all five times that he visited the victim's home, the victim was alone despite the family having five members. Considering the timing of the incident, explanation of where PW1 and her other daughters had been at that particular moment in time, was necessary in clearing doubt on the probity of the story. Whereas PW2 claimed to have been raped and sodomized at the same time, the medical report in exhibit PI much as is the oral evidence of PW7 suggest that her anus was in a normal condition. That is so, notwithstanding her evidence and that of PW3 that, on 17th November, 14 2016, the same day when she was medically examined, she was bleeding in both of her private parts and she had a dung in her anus. In view of the condition the victim was in on the said date as portrayed in the prosecution evidence, it is highly improbable for the medical report to show that her anus was in normal condition. Equally so, it was near to impossibility for the medical report to indicate that there was no blood in her private parts. Besides, the appellant's evidence as supported by that of the victim suggests of there being about ten houses in between the residence of the victim and the appellant. There are shops, bar and a market like area according to the evidence of Kefa Dickson Otieno (PW5), the street chairman of the area. There is also evidence from the appellant that his house was fenced out and surrounded with shops and a bar. We note that, in her evidence, the victim refused the proposition that the appellant's house was fenced. We note as well that at page 78 of the record of appeal, the appellant through his counsel asked the trial court to visit the locus in quo to ascertain the fact but it was successfully objected by the prosecution. In the circumstance, we think, the two courts below should have drawn an inference, as a point of fact, as we hereby do that, the appellant's house was, contrary to the claim by the victim, fenced out. 15 The victim's evidence also suggests that the appellant had bruises like mark on his stomach. How possible could she see what was on the appellant's stomach while her face was covered by a piece of cloth raises a doubt on the probability of the assertion. In view of the geography of the area surrounding the locus in quo as above portrayed, we wonder how possible would the victim come out from the appellant's house at that time and walk out to her home residence while bleeding and crying, without any of the neighbors noticing. This is more so considering the victim's testimony that due to the pain and injury, she did fall down as she was on her way home. She was challenged on that by way of cross examination and claimed to have met with a person called Dotto who was not produced as a witness anyway. The evidence also suggests that after reaching home, the victim's clothes which had stains of blood were washed by her sister whose name was not disclosed. If the condition of the victim was as portrayed in her evidence, as a matter of common sense, her sister would have noticed of there being something wrong with the victim. She would have more so noticed as she was washing the victim's clothes, in her evidence, the victim claims that she did not disclose the incident to her mother as she was afraid 16 of being killed by the appellant. This may suggest that her mother was present at home. Couldn't she in the circumstance notice that something bad had happened with her young daughter. Why is her evidence absolutely silent on what happened on the material date and a date thereafter? In her evidence appearing at page 39 of the record of appeal, the victim, explaining on what happened on 17th November, 2016, she testified as follows: "On 17/11/20161 did fall down while on my way to school. I was rescued by my fellow pupil who took me to a school gate where my class leader or monitor took me to a teacher on duty. The teacher on duty took me to the staff's office where I was examined by a teacher on duty my vagina and anus. The teacher decided to examine me because I was bleeding." In their judgments, the two courts below took it that the teacher who examined the victim at the school on 17th November, 2016 was PW3. It is quite incorrect. In his clearly and unambiguous evidence appearing at page 44 of the record of appeal, PW3 introduced herself as an Education Officer at Nyegezi Ward. She was clear that she was informed of the incident by a head teacher of the victim's school called Tabu. The said teacher was not 17 called as a witness. Nor the teacher whom is mentioned by the victim to have inspected her private parts. The involvement of PW3 in the incident is not in the evidence of the victim at all. We wonder how can PW3 be linked with the victim's story. The victim was asked by way of cross examination about her teachers and she reacted as per page 39 of the record of appeal as follows: 7 don't' know the name o f the Head teacher Nyabulogoya Primary School. I don't remember the names o f the teachers thereat" In view of the flow of her evidence, we do not think that, the victim who was then a standard two student could not recall any of the names of the teachers at the school. We have also observed from her evidence appearing at page 37 of the record of appeal that, the victim was on the date of her testimony, studying at Starahe while prior thereto at Nyabulogoya. Conversely, at page 33 of the record of appeal, her mother asserts that "She do undertake her studies at Village o f Hope English Medium Primary School'. Was there no need to have evidential clarification on this discrepancy is a question which leaves much to be desired. Last on this aspect is the issue of the victim being admitted at hospitals for more than 50 days and subsequently underwent operation. We are in agreement with the learned State Attorney that the evidence may not be necessary in proving penetration in as long as there is irrefutable evidence in exhibit PI. That aside, we think, the evidence could be relevant in determining the credibility and probity of the victim's story. As it is clear from the evidence, both PW1 and PW2 were cross examined on the admission of the victim in different hospitals and admitted that they did not have any documentation establishing as such. In his evidence in defence, the appellant claimed which was supported by PW1 and PW2 that, his blood sample was taken for medical tests. While PW1 and PW2 claim that the sample was for the purpose of DNA test, the appellant claims at page 67 of the record of appeal that the same was for the purpose of establishing the prosecution's allegation that the appellant had transmitted venereal disease to the victim. This would find support from the evidence of PW7 at page 57 of the record of appeal where he said: "A sample o f blood was taken to our laboratory and others ...to the Government Chemistry Office. In our laboratory we did test WR, HIV and UPI. The victim had no HIV the other results I don't' remember." In a situation like this, evidence connecting the victim's hospitalization with the appellant alleged criminal wrong was material in filling in the missing links in the prosecution case. Otherwise, a doubt may arise if the victim was admitted due to the injuries arising from the rape in question or venereal disease as suggested in the evidence in defence or any other extraneous complications. Before we conclude whether the doubts in the prosecution case above pointed out are material enough to raise reasonable doubt in the prosecution case, we find it necessary to consider the first ground of appeal as to the correctness of the concurrent findings of the two courts below on whether the defence of alibi, weighed with evidence in totality would raise a reasonable doubt in the prosecution case. On this, Mr. Nasimire started his submissions by reminding the Court of the principle that, where a defence of alibi is timely raised, the burden to prove its falsity is on the prosecution and not the defence. He submitted, therefore that, as the appellant, right from the beginning, gave a detailed notice of alibi showing where and with whom he had been on the material time, the prosecution was expected to investigate into the truthfulness of the defence and come out with evidence which rebut the same. He 20 submitted, making reference to the defense evidence that, the appellant sufficiently proved that he was not at the scene of the crime at the material date, and therefore, he could not commit the offence. In his humble submission, the defence did raise reasonable doubts which would have been used to set the appellant free. In reaction, Ms. Tibilengwa submitted that the two courts below were correct in holding that the defense of alibi did not raise any reasonable doubt as the appellant failed to account where had he been from 17:30 hours to 18:00 hours when the offence was committed. We agree with Mr. Nasimire that the position of law is such that where the defence of alibi is timely and properly raised, the burden to prove beyond reasonable doubt of the falsity of the claim is on the prosecution. They have to prove that, despite the alibi, the facts alleged by the prosecution are nothing but true. What the accused is required to do is to raise a doubt on the prosecution case however slight it may be that, he was not at the scene of the crime at the material date and time. We considered this aspect in the case of Abas s/o Matatala v. R, Criminal Appeal No. 331 of 2008 (unreported) at page 9 thereof where we stated: 21 " The requirement in iaw is that the appellant did not have to prove his alibi to be true. He only needed to raise even the slightest doubt on the prosecution case that he was not at the scene of the crime. The emphasis is on raising the slightest doubt that, given the particular circumstances of the case, the person raising the alibi may not have been where the prosecution alleges that he was." A similar position was stated in case of Richard Otieno @ Gullo v. R, Criminal Appeal No. 367 of 2018 [2021] TZCA 120 (14th April, 2021 TANZLII) where the following statement of the Court of Appeal of Kenya in the case of Jane Wanjiru Kinyua v. R [2006] eKLR Criminal Appeal was given recognition at page 27 thereof: " Once again, the learned Judge clearly appreciated that once the appellant had raised the defence o f alibi, the evidential burden shifted back to the prosecution to prove beyond reasonable doubt that the appellant's alibi was false. We would repeat and we shall continue to assert that there is no burden upon the accused person who raises the defence o f an alibi to prove the truth o f that defence." To establish that the accused has raised such a defence as to oblige the prosecution to prove its falsity beyond reasonable doubt, the test is not 22 that of actual truthiness of the alibi but probability of the same being true. That is what we said in Hamis Saidi Buture v. R, Criminal Appeal No. 489 of 2007 (unreported). It is the law also that where the prosecution evidence weighed in line with the defence evidence is found to be credible and probable as to leave no doubt, the defense of alibi is deemed to be untrue. See Abas s/o Matatala v. R (supra). In this case, the notice of alibi was raised right from the outset and the particulars thereof clearly stated. Both the two courts below did not doubt the defence evidence that on the material date the appellant was in attendance of the DCC meeting until 17:30 hours when the meeting came to an end. Equally so, it was not in doubt that at the end of the meeting, the appellant went to his office where he met with DW3. The defence was only jected for want of account as to where the appellant had been from 17:30 hours and 18:00 hours when the offence was committed. We agree with Mr. Nasimire that, the two courts below did not correctly asses the evidence. They would have not come to such a conclusion. We have two reasons to justify this view. In the first place even if it was to be assumed for the sake of argument that the period between 17:30 hours and 18:00 has not been accounted for, yet the courts below 23 would have taken cognizance from exhibit D4 that the venue of the meeting was at "Ukumbi Mkubwa wa Halmashauri ya Jiji". They would have further considered the time spent by the appellant moving from the venue of the meeting to his office which is at Mkuyuni within the city of Mwanza. They should have as well considered how much time would reasonably be spend from the appellant office at Mkuyuni to the home residence of the victim. We think, it is highly improbable that all these would have been concluded within such a short period of half an hour. As that is not enough, the claim by the appellant right from the notice of alibi was that upon leaving the office, he went at bus station to play cards where he stayed until 20:30 hours. His evidence which was neither contradicted by way of cross examination nor by independent evidence was fully supported by the evidence of DW4 which again was not shaken. In view of the foregoing discussions, therefore, we are firm, in our view that, the defence of alibi considered in line with the doubts in the prosecution case as above pointed out, raises a reasonable doubt in the prosecution case which should have been used against the prosecution. Both the first and second grounds of appeal, therefore, have merit. 24 Consequently, we find the appeal with merit and allow it. We thus quash the conviction and set aside the sentence thereof. We accordingly order for immediate release of the appellant from prison unless he is withheld for some other lawful causes. DATED at MWANZA this 24th day of August, 2023. F. L. K. WAMBAU JUSTICE OF APPEAL I. J. MAIGE 3USTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 25th day of August, 2023 in the presence of Mr. Steven Makwega holding brief of Mr. Anthony Nasimire, learned advocate for the Appellant and Mr. Castuce Ndamugoba, learned Senior State Attorney for the respondent, is hereby certified as a true copy of the original. A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL 25