CRIMINAL APPEAL NO

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 000039770 REFERENCE NO. 20231213000039770 (Arising from the Criminal Case No. 27 of2023 of the District Court of Tarime at Tarime) MARWA S/O NYAMHANGA © IBAMBAYE..................................... APPELLANT VERSUS THE REPUBLIC................... RESPONDENT JUDGEMENT 17th & 24th July, 2024 M. L, KOMBA. J.; This is the decision against an appeal by the appellant who was dissatisfied by the decision of the District Court of Tarime (the trial court) where the trial Magistrate convicted the appellant for the offence of rape contrary to section 130(l)(2)(e) and 131(1) both of the Penal Code, [Cap 16 R.E. 2019] Appellant was sentenced to 30 years imprisonment. It was alleged by the prosecution that on 22/01/2023 at Magoma village within Tarime District in Mara Region at noon the appellant raped a girl (Victim or PW2) and run away. He was caught and upon completion of procedures was aligned to court where he denied the facts by plead not Page 1 of 13 guilty. Following the plea, prosecution had 4 witnesses and two (2) exhibits to prove their case. As hinted earlier, the Trial Magistrate convicted the appellant hence this appeal with six (6) grounds which are; 1. That trial Magistrate erred in law and facts to convict and sentence the appellant by relying on incredible and unsworn evidence of PW2 which was not well collaborated with other witnesses who claimed to have been present at the scene ofcrime. 2. That, the trial court erred in law and fact by convicting and sentencing die appellant by admitting the exhibit (PF3) without giving the appellant opportunity to cross examine the maker of the report and was not read in the court during the trial to know what was recorded or Its contents. 3. That, the trial Magistrate erred in laws and facts to convict and sentence the appellant by not giving sufficient consideration and weight to the defense adduced by the appellant during the trial but what the trial Magistrate did was only a freet reference to the appellant's defense. 4. That, that the learned trial Magistrate erred in law and fact by falling to accord the appellant with his rights before the court including the right to call his witnesses and the right to be treated fairly throughout the trial and the whole procedures passed by the trial court to reach its decisions were totally irregularly in the eye of the law. 5. That, the totally misapprehending the nature and quality of prosecution evidence against the appellant leave a lot of doubts in Page 2 of 13 the eye of the law since the naming of the appellant by the victim that is the one who raped her was wrong this is due to the situation of misunderstand which exist between the appellant and prosecution witnesses who told the victim to mention the appellant as the one who raped her so totally the case at hand was flamed against appellant. 6. That, the trial court erred in law and fact to convict and sentence the appellant basing on prosecution evidence which failed to prove the case at hand beyond all reasonable doubt. When the matter was scheduled for hearing, Republic had no representative although they were aware of the case schedule. The appellant fended for himself. When given the floor, appellant being a lay person in law requested his petition of appeal to be adopted and prayed to be free. The petition was adopted. I have the task of deciding whether the appeal has merit. By doing so I shall analyse each ground as listed in the petition as it the duty of the appellate court. See Firmon Mlowe vs Republic (Criminal Appeal 504 of 2020) [2022] TZCA 694 (9th November, 2022). Starting with the 1st ground about unsworn statement of PW2 who was minor. I read the record of the trial court and PW2 testified on 22/05/2023. Page 3 of 13 She was a girl of 12 years by the day she was giving her testimony. What does the Evidence Act, Cap 6 provides before the evidence of a minor is recorded; S. 127.- (1) Every person shall be competent to testify unless the court considers that he is incapable of understanding the questions put to him or ofgiving rational answers to those questions by reason of tender age, extreme old age, disease (whether of body or mind) or any other similar cause. (2) A 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 ties.' (Emphasis supplied) From the wording of the above provisions, Sub section 1 enunciates that every person is competent to testify unless where the court finds the contrary by reasons of age or state of mind. Consequently, the Court must test whether the witness is competent to testify or not. That can only be done by the court by imposing some questions to the witness as observed by the Court of Appeal in Godfrey Wilson vs Republic (Criminal Appeal 168 of 2018) [2019] TZCA 109 (6th May, 2019). Further in the case of Wambura Kiginga vs Republic Criminal Appeal No. 301 of 2018 [2022] Page 4 of 13 TZCA 283 (13th May, 2022) at page 9 Court of-Appeal of Tanzania interpreted Section 127(2) of the Evidence Act to mean that:- 'A child of tender age, which means a child of an apparent age ofnot more than fourteen (14) years as provided under section 127(4) of the Evidence Act, may legally give evidence if one of the two conditions is fulfilled. One, if before testifying the child swears or affirms; and two, if he or she promises to tell the truth and not lies in tiie course of giving evidence. According to the position of this Court at the moment, if none of the two conditions is fulfilled and the evidence of the child is taken, such evidence is deemed to have no evidential value and it must be expunged from the record.' The cited case above provides two conditions of which at least one should be adhered when a child is about to testify. In appeal at hand, reading careful record of the trial court at page 9 up to 11, before the testimony trial Magistrate put some question on the witness (PW2) and ruled that she don't understand the meaning but she promised to speak the truth. Generally, testimony of witnesses is governed by the Evidence Act and the evidence/ testimony of tender age is provided for at section 127 as cited. From the record it is true that PW2 did not swear before her testimony but she promised to speak the truth and the Magistrate was satisfied that PW2 Page 5 of 13 possess reasonable ability to speak and she promised to tell the truth. This court finds the procedures were adhered. On second ground appellant complained he was not given opportunity to cross examine the maker of PF3 after it was tendered. I have read the proceedings of the trial court on 28/03/2023 PW1 tendered P3 and record shows after the witness closes his evidence the appellant put some questions to PW1 during cross examination. Further, the exhibit PF3 was read in court immediately after its admission. Appellant complained of his defence not to be considered on the third ground. From the judgment, the trial Magistrate at page 8 analysed the defence put forward by the appellant although he proceeded to convict the appellant. The important thing to know is that in criminal case it is the republic who must prove the offence, the duty of the accused is to shade doubts in prosecution evidence. In ground four the appellant complained he was given rights to call witnesses. From proceedings, after the Magistrate has read the ruling that appellant has a case to answer it shows the appellant was addressed over his rights during defence including taking an bath during testifying, exhibits and witnesses. At page 20 the appellant informed the trial Magistrate that Page 6 of 13 he shall have no witness but he shall tender two exhibits. This court is satisfied that appellant was given right to call witnesses. The prosecution evidence leaves a lot of doubts and the case was framed, it is complaint by the appellant on the fifth and six ground. It must be remembered that appellant did not submit on any ground rather he prayed his petition of appeal be adopted and considered. In the combined ground he complained of failure to prove the case beyond reasonable doubt. The legal position about proving the case was rightly stressed by the Court of Appeal of Tanzania when dealing with an appeal before it, in the case of Nkanga Daudi vs Republic, Criminal Appeal No.316 of 2013 when they say/ 'It is the principle of law that the burden of proof in criminal cases rest squarely on the shoulders of the prosecution side unless the law otherwise directs and that the accused has no duty of proving his innocence'. What was the evidence of prosecution during trial? PW2 who was the victim was supposed to build the prosecution case as PW1, a profession, confirm he does not know who raped the victim. During her testimony PW2 informed the trial court; Page 7 of 13 'He undressed his trouser, he then covered my mouth and laid me down. He then removed my underwear and skirt. He then took out his penis and put it inside my vagina,.... then Marwa Nyamhanga's wife came over at home. She called the accused and told him, Marwa you are destroying Neema's daughter. The accused stood up and started chasing his wife with machete.' In Exhibit P2 which was admitted and form part of the record, Rhobi Marwa Nyamhanga introduced herself as appellant's wife and recorded her statement as follows; '....miango uiikuwa umerudishwa tu. Niiiusukuma uie miango ukafunguka ndipo niiimkuta mume wangu amemiaiia kwa juu huku amemziba mdomo mtoto wa Piii (victim) ambaye yeye aiikuwa ameiaia chini.....nilimuullza mume wangu nini hiki unafanya ....ameniacha mimi siiaii naye had! miezi mitano aiikurupuka na kuchukua panga ambaio Uiikuwa pembeni yake na kuanza kunikimbiza naio. mimi niiijaribu kumpigia simu Pili (Victim's mother) iakinihakupatikana nikampigia Grace Wantiko..' I find difficulties in PW2 testimony that appellant after removing his trouser he covered the victim's mouth and by one hand he undresses the victim her skirt and her underwear by that time victim was not shouting. Then when appellants wife entered in that room appellant continued with his Page 8 of13 activity till when his wife uttered all those words is when he stopped and started to chase her. It is not certain what words were uttered by Rhobi when she found her husband with the victim, those narrated by PW2 or those written in Exhibit PE2. The two witnesses have different set of words uttered by Rhobi. What exactly Rhobi said when he found her husband having canal knowledge with a victim? By the way, did she really find his husband in flagrante delictol On Exh PE2, Rhobi explained that after he saw her husband, she called the victim's mother but she was not reachable. Then she decided to call Grace and was asked to convey the massage to Pili who is the victim's mother. However, the victim's mother testified as PW3 and informed the trial court that she received a phone call from appellant's wife and was informed that her husband (appellant) raped her daughter. How did the message reach the mother. That being not enough, PW4 informed the trial court that she recorded the statement of the witness called Rhobi, appellant's wife. PW4 is investigator in this crime. From the PW2 testimony the crime took place on 22/01/2023 during day time. Rhobi and PW2 were living nearby as per PW2 testimony Page 9 of 13 regardless of their closeness, Rhobi who accused her husband (the appellant) having love affairs with the victim mother and who saw her husband in flagrante delicto with the victim, recorded statement three weeks later, that is, after 22 days from the incidence. Prosecution did not register any reason why they lately record statement of an eye witness. Delay in interrogate eye witness creates doubts. See Case Laurent s/o Rajabu vs Republic (Criminal Appeal No. 270 of 2012) [2013] TZCA 364 (20th September, 2013). On top of that, I studied exhibit PE2 itself which was explained it was recorded by investigator, PW4. In that exhibit a witness, an eye witness narrating how she finds her husband having sexual intercourse with the victim. The statement was recorded under section 34B of the Evidence Act, Cap 6. The statement was recorded by WP 8110 but she did not sign to prove that she is the one recorded it although there is declaration that the one who wrote read to the witness. PW4 informed the trial court that she signed the statement but, in the exhibit, there is no signature of the recoding officer, Exh PE2 has only the name and Force number. Exhibit PE2 lacks qualities of exhibit as per law. Its remedy is to expunge from Page 10 of 13 record as I did. What remains in prosecution evidence to warrant conviction is the matter of concern. In Mohamed Said vs Republic, Criminal Appeal No. 145 of 2017 the Court stated: "We think it was never intended that the word of the victim of the sexual offence should be taken as gospel truth but that her or his testimony should pass the test of truthfulness. We have no doubt thatjustice in cases of sexual offences requires strict compliance with the rules of evidence in general, and s. 127 (7) of Cap 6 in particular, and that such compliance will lead to punish offenders only in deserving cases.' Further in Juma Antoni vs Republic, Criminal Appeal No. 571 of 2020 the court further said; "where the only evidence is that of the victim or a witness of tender age the court is required to receive such evidence notwithstanding that it is not corroborated. However, the court is cautioned not to act on such evidence to convict an accused person, unless it assesses the credibility of the victim’s account or of the witness of tender age and satisfy itself that such evidence is truthful.' In dual cited authority the Court insisted on collaboration of the evidence of the witness of tender age and in the case at hand she was a victim. Testimony of the victim is seen at page 09 to 11 of the typed proceedings. Page 11 of 13 She elaborated that she went inside their home and find appellant who raped her there after appellant went to his home. Victim did not shout before, during and even after the rape. Later on, appellant left the house in which the victim was. Still, the victim did not make any alarm to call for any assistance because by that time, the appellant left with the said machete. Was she really raped? Was she raped by the victim? First of all, the incident was not reported to street chairman neither the Ward Executive Officer as per exh. DEI. I know it is not the requirement of the law to report to Street leader or Ward Executive Officer but so far as the crime is said to take place within their area of administration, I belief they were supposed to have information. ' Victim explained that after she was raped, appellant went home, changed his clothes and went back to the house where the victim was and started to coach the victim what to answer when somebody ask what happen. This time appellant had no machete and the victim was silent again? How this minor had a courage to face the man for the second time who raped her and who hurt her without shouting or running away. Being the first appellate court, this court has advantage of analysing the entire evidence and come up with its finding. See. The Registered Trustees of Joy in Page 12 of 13 The Harvest vs Hamza K. Sungura, Civil Appeal No. 149 of 2017. I subscribe to the principle annunciated in Selemani Makumba vs Republic, Criminal Appeal No. 94 of 1999; however, the circumstance of this case shows the victim was not telling truth and therefore, I find the prosecution failed to prove the case beyond reasonable doubt that it was the appellant who raped the victim. The doubts pointed has to benefit the appellant. See Halfan Ismail @ Mtepela vs Republic, Criminal Appeal No. 38 of 2019. In the upshot I find the appeal has merit, I hereby order immediate release of the appellant from prison unless he is lawful detained. DATED at MttSj^MAthis 24th day of July, 2024. M. L. KOMBA JUDGE Judgment detwsretr in the presence of appellant who was remotely connected from Tarime prison and in the absence of respondent. Right of appeal explained. M. L. KOMBA Judge 24th July, 2024 Page 13 of 13