CRIMINAL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 19053 OF 2024 (Arising from the Judgement of the District Court of Kigamboni (Hon. S.W. Mwakalobo, SRM) dated 4th November 2024 in Criminal Case No. 4991 of 2024) _____________________________ MORIS JOHN NGAHEJE………………………..……….…….….. APPELLANT VERSUS REPUBLIC……………………………………..…..…….………...RESPONDENT JUDGEMENT Date of last order: 6th November 2024 Date of Judgement: 18th November 2024 MTEMBWA, J.: This Appeal stems from the decision of the District Court of Kigamboni in Criminal Case No. 4991 of 2024, in which the Appellant was arraigned for the offense of incest by a male contrary to section 158 (1) (a) of the Penal Code, Cap 16, R.E 2022 in the first count. It was alleged that on diverse dates between September 2022 and 22nd January 2024 at Chekechea – Mwasonga area within Kigamboni District in Dar es Salaam Region, the Appellant had carnal knowledge of his daughter (name withheld) aged fifteen (15) years. On the second count, the Appellant was arraigned for the offense of impregnating a school girl contrary to section 60 A (3) of the 1 Education Act, Cap 353 RE 2002, as amended by Written Laws (Miscellaneous Amendment) Act No. 4 of 2016. It was alleged that on the same diverse dates and place, the Appellant impregnated a school girl aged 15 years old and a student of Chekechea–Mwasonga Primary School. For purposes of this Appeal, I shall refer to the victimized girl as “PW1” and or, where necessary, “the Victim.” The Appellant pleaded not guilty to the charge on both counts. Consequently, the prosecution fronted eight (8) witnesses and tendered two (2) exhibits. The Appellant (the accused by then) relied on his sworn testimonies and tendered no real or documentary evidence. Having evaluated the evidence adduced during hearing, the learned trial Magistrate was satisfied that the prosecution proved the offense in the first count beyond reasonable doubt and proceeded to convict and sentence the Appellant to serve thirty (30) years of imprisonment. In the second count, the Appellant was acquitted. Dissatisfied, the Appellant has laid before this Court the following grounds of appeal, and I quote in verbatim; 1. That, the learned trial magistrate erred in law and fact to convict the appellant basing on an incredible evidence of the victim (Pw1) 2. The learned trial magistrate erred in law and fact in convicting the appellant by acting upon uncorroborated evidence of prosecution witnesses Pw1, Pw2, and Pw8. 2 3. The learned trial magistrate erred in law and fact in convicting the appellant based on the Evidence of Pw8, who was an incompetent witness. 4. That the learned the trial magistrate erred in law and fact to convict the appellant, whereby the prosecution side failed to prove the case beyond reasonable doubt as required. When the matter was called before me for orders on 30th September 2024, the Appellant appeared in person while Mr. Daudi Basaya, the learned counsel, represented the Respondent. By consent, parties agreed to argue this Appeal by way of written submissions. Having reviewed the records, I am satisfied that only the Appellant adhered to the agreed schedule. The Respondent/Republic unjustifiably failed to file the reply submissions. As such, this is an exparte Judgement against the Republic. Arguing on the first ground of appeal, the Appellant faulted the learned trial Magistrate for believing in the incredible evidence on PW1 (the victim). He added that assessing the evidence and ensuring it was corroborated was important. He referred to this Court on pages 15 and 16, 18 and 19 of the typed proceedings. He considered PW1 to be a lier and deceiver. He cited the case of Zakaria Jackson vs. Republic, Criminal Appeal No. 411 of 2018, where it was observed that a witness who lies about an important point cannot be believed in the other. Regarding the second ground of appeal, the Appellant 3 complained that the learned trial Magistrate erred in law and fact in convicting the appellant by acting upon uncorroborated evidence of PW1, PW2 and PW3. Arguing further, the Appellant referred this Court to the testimony of PW2 on page 24 of the proceedings, where it is indicated that she went to PW1's room by midnight and found the accused therein. The Appellant also referred this Court to page 26 of the proceedings and argued further that PW2 did not describe how she managed to recognize the Appellant because she did not tell the source of light. He insisted that the evidence was not laid as to how PW2 managed to find out that it was the Appellant who impregnated the victim. Arguing on the third ground of appeal, the Appellant complained that PW8 (medical practitioner) was incompetent. He referred this Court to page 45 of the proceedings. Stretching further, the Appellant contended that PW8 never mentioned the school she attended and the certificate awarded to her for the Court to assess her credibility and gauge whether she was qualified. He implored this Court to expunge her evidence, including Exhibit P2 (PF3). Arguing on the fourth ground of appeal, the Appellant faulted the prosecution for failing to prove its case to the required standards. He reiterated that PW1, PW2, and PW3 could not show how they recognized the one who entered the room at midnight. He questioned how a woman 4 like PW2, who lived with PW1 from when she was three years old up to when she was fifteen years old, was unable to realize that she was pregnant until her pregnancy was five months and two weeks old. He considered the case to have not been proved beyond reasonable doubt. Based on the foregoing arguments and cited authorities, the Appellant implored this Court to allow the appeal and set aside the conviction and sentence meted against him. That is what I have briefly gathered from the Appellant’s submissions in chief. As said before, the Respondent or Republic unjustifiably failed to file the reply submissions. I will, therefore, determine the Petition of Appeal in line with the Appellant’s written submissions in chief. Having considered the Petition of Appeal and the submissions in support thereof by the Appellant, the question would be whether the offense of incest by male contrary to section 158 (1) (a) of the Penal Code (supra) was proved to the required standards of the law, that is, beyond reasonable doubt. In Ahmad Omari vs. Republic, Criminal Appeal No. 154 of 2005, Court of Appeal of Tanzania at Mtwara (unreported), the Court observed that, in a criminal case, the burden of proof is on the prosecution and the standard of proof is beyond reasonable doubt. This is in consonant with Section 3(2) (a) of the Evidence Act 5 (supra). It follows, therefore, that a person is found guilty and convicted of a criminal offense because of the strength of the prosecution evidence against him, which establishes his guilt beyond reasonable doubt (see also John Makolobela Kulwa Makolobela & Another alias Tanganyika vs. Republic (2002) TLR 296). In determining this Appeal, I shall also seek the guidance of the Court of Appeal of Tanzania in Mapambano Michael @ Mayanga vs. Republic, Criminal Appeal No. 258 of 2015, where it was observed that the first appellate Court must subject the entire evidence on record to a fresh re-evaluation to arrive at a decision that may coincide with the trial Court or may be different altogether. Arguing on the first ground of appeal, the Appellant faulted the learned trial Magistrate for believing in incredible evidence on PW1 (the victim). He added that assessing the evidence and ensuring it was corroborated was important. It must be noted, however, that credibility involves the issue of whether the witness appears to be telling the truth as she believes it to be. In essence, this entails reliability, truthfulness and or accuracy of the information given during hearing. The information given can be acted upon after assessing the witness's trustworthiness, demeanor, and/or credibility. However, demeanor is in the exclusive monopoly of the trial Court. In Salum Ally vs. Republic, Criminal 6 Appeal No. 106 of 2013 (unreported), the Court stated; on whether or not, any particular evidence is reliable, depends on its credibility and the weight to be attached to such evidence. We are aware that at its most basic, credibility involves the issue whether the witness appears to be telling the truth as he believes it to be. In essence, this entails the ability to assess whether the witness's testimony is plausible or is in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in the circumstances particularly in a particular case. The test for any credible evidence is supposed to pass, were best summarized in the case of Abbdalla Teje @ Ma lima Mabula Vs Republic, Criminal Appeal No. 195 of 2005 (unreported), to be: (i) Whether it was legally obtained; (ii) Whether it was credible and accurate; (iii) Whether it was relevant, material and competent; (iv) Whether it meets the standard of proof requisite in a given case, otherwise referred to as the weight of evidence or strength or believability. In this case, PW1 (the victim) testified on various incidents that happened involving the Appellant as a rapist. She recalled the first incident to be sometime in September 2022, when she was in grade six. Lucidly, she stated; My father started to have sexual intercourse with me when I was in grade 6, it was on September, 2022. I was living at my aunt’s house at Mwasongwa area, then my father made a phone call to my aunt and told her that he needed me to go to his house to take school stationeries. When he called my aunt, I was not at 7 home, when I returned home, my aunt told me that my father needed me to go to his place to take school stationaries, I prepared myself and went to my father. When I arrived there, I did not find step mother or my siblings. I knocked the door and my father told me to enter inside the house. I entered inside the house, when I entered there, I found my father and he told me that he wanted to have sex with me but I should not tell anybody. We were in my father’s bedroom, I resisted to do that, then he forced me, he pulled me and undressed my dress and underwear “alifunua gauni langu na chupi”. I was wearing a gown and underwear “nilikuwa nimevaa gauni na chupi, he undressed my underwear then he grabbed my neck by force and used his other hand to undress his trouser “alitumia mkono wake mwingine kuvua suruali yake aliyovaa ikaishia mapajani” then he took his male organ and entered into my vagina “alafu akatoa uume wake akaingiza kwenye uke wangu”. When I was trying to scream, he was covering my mouth “Kila nilikuwa nikitaka kupiga kelele akawa ananifunika mdomo”. He had sexual intercourse with me in his bed then later on after he finished, he told me not to tell aunt that he raped me, he told me that he would come to aunt’s house later on to talk to her. PW1 also testified on how the Appellant used to enter the room she used to sleep in with PW3 at midnight hours. She also informed the trial Court that on an unknown date, the Appellant happened to rape her sister (PW3) on the same bed she was sleeping on. One day, PW1 and PW3 reported to their mother (PW2) about the Appellant’s habit of entering their room at midnight and having sexual intercourse with them. On an unknown date, the Appellant, as usual, entered the PW1 and PW3’s room 8 at midnight. Having realized that the two locked the door outside and informed PW2(the mother), who, with the help of the solar bulb, witnessed the Appellant in the room covering himself with a bedsheet. PW1 also testified on how the Appellant took her to the Hospital for a pregnancy test and how she was intimidated, not to mention his name as the one responsible for the pregnancy. Stretching further, PW1 testified on how she was raped on 22nd January 2022 and how the Appellant tore his dressing and underwear. Having been raped, PW1 ran to PW4, who then called the ten-cell leader (PW6). She also informed the trial Court on how PW6 took her to the street chairman (PW7) and how he arrested the Appellant to the police station. The testimonies of PW2, PW3, PW4, PW6, PW7 and PW8 corroborated PW1’s evidence. Specifically, PW3 testified on how the Appellant used to secretly enter their room at midnight and how PW2 reacted after finding him in their room. She also admitted to have been raped in January 2023 by the Appellant. She was aware that the Appellant was responsible for PW1’s pregnancy. Both PW1 and PW3 testified to have been threatened by the Appellant if they dared to mention his name to anyone. PW4 testified on how PW2 informed her of the Appellant’s habit of entering the girls’ room at midnight. PW4 testified on how she attended PW1 on 22nd January 2024, 9 having been raped by the Appellant. She added that on the said date, she had noises from the Appellant House. After that, PW1 came to her crying for help and explained how the Appellant raped her. PW4 testified further that PW1's dress and underwear were torn as a result of the rape incident by the Appellant. She gathered the neighbors and, having thought about it, she called the ten-cell leader (PW6), who, upon arrival, took PW1 to the street chairman (PW7). PW6, the ten-cell leader, and PW7, the street chairman, testified on how PW1 named the Appellant as a rapist soon after the incident. They both testified on how the Appellant was arrested, having been seen passing near the street offices where they were interviewing PW1 soon after the incident. They also participated in taking PW1 to the police station and hospital for medical examination. PW8 was a medical officer. He testified on how she examined PW1 (victim) and resolved that she was penetrated. He also examined her womb and resolved that she was pregnant by 5 months and 22 weeks. He tendered the PF3 form and was admitted as Exhibit P2. I examined the evidence adduced during hearing and was satisfied that PW1 (victim) was telling nothing but the truth. She was direct, consistent, credible, and coherent about what the Appellant did to her. I dispassionately followed her testimony and noted that she knew what she 10 was talking about. The collective prosecution evidence adduced during hearing directly points fingers to the Appellant to be the one who committed the offense contrary to section 158 (1) (a) of the Penal Code Cap (supra). The section provides as follows; Any male person who has prohibited sexual intercourse with a female person, who is to his knowledge his granddaughter, daughter, sister or mother, commits the offence of incest, and is liable on conviction- (a) if the female is of the age of less than eighteen years, to imprisonment for a term of not less than thirty years; (b) N/A From the testimony of PW1, PW2 and PW3, I have no doubt that the Appellant is the victim's biological father. Their testimonies revealed further that the victim was born on 28th March 2009 and thus was below the age of eighteen in 2024. It is a cardinal principle that in view of the inherent nature of the offense of rape or any other sexual offense where only two persons are usually involved when it is committed, the testimony of the complainant or victim is very crucial and must be examined and judged cautiously. It has been held times without number that the best evidence normally comes from the victim. In this case, in view of the testimony of PW1 and given the inherent nature of the sexual offenses, it sounds convincing that 11 the Appellant was responsible for the alleged offense of incest by male. The Court of Appeal of Tanzania in Mohemed Said vs. Republic, Criminal Appeal No. 145 of 2017, having referred to the decision of the Supreme Court of Philippines in the case of PEOPLE OF THE PHILIPPINES vs. BENJAMIN A. ELMANCIL, G. R. No. 234951, dated March 2019, noted as follows; In reviewing rape cases, this Court has constantly been guided by three principles, to wit: (1) on accusation of rape can be make with facility; difficult to prove but more difficult for the person accused though innocent to disprove; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits and cannot draw strength from the weakness of the evidence for the defence. And as a result of these guiding principles, credibility of the complainant becomes the single most important issue. If the testimony of the victim is credible, convincing and consistent with human nature and the normal course of things the accused may be convicted solely on the basis thereof. In Onesmo Laurent @ Salikoki vs. Republic, Criminal Appeal No. 458 of 2018, Court of Appeal at Moshi, the Court observed at page 12, thus; ….. we are cognizant that in view of the inherent nature of the offence of rape or any other sexual offence where only two persons are usually involved when it is committed, the testimony of the complainant is very crucial and must be examined and judged 12 cautiously. Indeed, in this context, we held, for instance, in Selemani Makumba (supra), that the best proof of rape (or any other sexual offence) must come from the complainant. Consequently, the complainant's credibility becomes the most important matter for consideration. The Court continued to note at pages 12 and 13, thus; If the evidence of the complainant is credible, convincing and consistent with human nature as well as the ordinary course of things, it can be acted upon singly as the basis of conviction - see section 127 (6) of the Evidence Act. In sexual offenses like the one at hand, the victim’s credibility becomes an essential matter for consideration. If the victim is coherent, consistent, and credible, the Court may proceed to convict, notwithstanding other corroborative evidence. In this case, PW1 (victim) did not seem to have been telling lies. She was credible. Her evidence was corroborated closely by PW2, PW3, PW4, PW6, PW7, PW8 and Exhibit P2. In the circumstances, the allegations that PW1, PW2, and PW3 were not credible witnesses in the first and second grounds of appeal are devoid of merit. Similarly, the allegation that the case was not proved beyond reasonable doubt in the fourth ground of appeal is, in the same way, meritless. That said, the first, second, and fourth grounds of appeal are devoid of merit, and I dismiss them. In Arguing on the third ground of appeal, the Appellant complained that PW8 was incompetent. He contended that, as a medical practitioner, 13 he never mentioned the school she attended and the certificate awarded to him so that the Court could assess her credibility and gauge whether she was qualified. I don’t think the complaint holds water, considering that PW8 introduced herself as a medical doctor in charge stationed at Mwasonga Health Centre with five years of experience. He testified to have received PW1 on 22nd January 2024 and resolved that her vagina was penetrated. He also performed a pregnancy test and resolved that PW1 was pregnant by five months and 22 weeks. Cross-examined by the Appellant, PW8 testified that his duty was only to examine PW1 as per the PF3. In my opinion, mentioning the school he attended was not an issue by then. The trial Court was satisfied with his demeanor and found him credible and a witness of the truth. I examined his testimony, including Exhibit P2, and was satisfied that he was credible. Even if the evidence of PW8 is disregarded and Exhibit P2 is expunged, considering the available evidence, the offense was proved to the required standards. This is because, in sexual offenses, an expert opinion or medical report does not prove the offense itself, but rather, it is the evidence of penetration. It follows, therefore, that a person may be convicted notwithstanding the absence of a medical report or PF3. Conviction in sexual offenses heavily depends on the credibility of the 14 Victim and the credence of the evidence adduced. In the famous case of Seleman Makumba vs. Republic, Criminal Appeal No. 94 of 1999, Court of Appeal at Mbeya, the Court noted; A medical report or the evidence of a doctor may help to show that there was sexual intercourse but it does not prove that there was rape, that is unconsented sex, even if bruises are observed in the female sexual organ. True evidence of rape has to come from the victim, if an adult, that there was penetration and no consent, and in case of any other woman where consent is irrelevant, that there was penetration. In the circumstances, I find the third ground of appeal devoid of merit, and I dismiss it. To that end, I wholesomely agree with the trial Court that the offense to which the appellant was charged was proved beyond reasonable doubt, and thus, the grounds of appeal raised in the Petition of Appeal are devoid of merit. That said, I uphold and sustain the conviction entered, and the sentence meted out against the Appellant by the trial Court. I order accordingly. Right of appeal fully explained. 15 DATED at DAR ES SALAAM this 18th November 2024. H.S. MTEMBWA JUDGE 16