Criminal Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 25578 OF 2024 (Originating from Criminal Case No. 3071 of 2024 of the District Court of Ruangwa at Ruangwa) JUMA SAID SELEMANI @ MUSHIZO............................ APPELLANT VERSUS THE REPUBLIC........................................................ RESPONDENT JUDGMENT 18h & 21st February, 2025 MPAZE, J.: On 7th February, 2024 Juma Said Selemani @ Mushizo (the appellant herein) was arraigned before the District Court of Ruangwa at Ruangwa, facing a charge of rape, contrary to section 130(1), (2)(e) and 131(1) of the Penal Code [Cap. 16 R.E 2022] (the Penal Code). The charge alleged that; 'On the lCfh day of January, 2024 at KiHmahewa Village, within Ruangwa District, in Lindi Region, Juma Said Selemani @ 1 Mushizo did have carnal knowledge of SNR (name withheld to protect her identity), a girt of 4 years old.' The charge was read over and explained in a language the appellant understood, upon which he pleaded not guilty. His plea of not guilty prompted the prosecution to call witnesses to substantiate the appellant's guilt. To prove its case, the prosecution called five witnesses; Laizer Mussa Kuzumari (PW1), H.4670 D/CPL Fadhili (PW2), Pelagia Felix Michael (PW3), SNR (the victim) (PW4), and Dr. Innocent Duttu Calvin (PW5). The evidence given by these witnesses led the trial court to find that the prosecution had successfully proven the charge against the appellant, resulting in his conviction and a sentence of life imprisonment. The evidence that led to the appellant's conviction established that on 10th January, 2024 PW1 the stepfather of SNR, returned home from work and found SNR asleep. When he inquired why she was sleeping at that hour, PW3, the victim's mother, responded that she was likely tired from playing. According to PW1, he instructed PW3 to wake the child so she could eat. However, upon doing so, it became apparent that PW4 (the victim) was not well. Both PW1 and PW3 observed that she was complaining of 2 pain in her private parts, prompting PW1 to instruct PW3 to examine the child. In her examination, PW3 stated that upon inspecting PW4's private parts, she discovered bruises and traces of sperm. She then called PW1, who also observed the same. Realizing that PW4 had likely been raped, they decided to report the matter to the police. They were issued with a PF3 and took PW4 to the hospital for a medical examination. At the hospital, PW4 was examined by PW5, who confirmed signs of slight penetration in PW4's vagina. He observed bruises, which he concluded were caused by a blunt object. After conducting the examination, PW5 filled out the PF3, which was tendered in court and admitted as Exhibit P2. Regarding who committed rape against PW4, both PW1 and PW3 stated that after questioning PW4 about her pain and what had happened, she revealed that Mushizo (the appellant) had inserted his genital organ into her vagina while they were at Narung'ombe Pub. As for PW4's presence at Narung'ombe Pub on that day, PW3 provided an explanation. Here, I quote PW3's statement; '... On 10/1/2024 at 19:00hrs, I went to take my child who was playing at Narung'ombe Pub area, I took her and come back with her at home, later on my child went again to Narungombe 3 Pub she went to play. I decided to live her playing, so she was praying at Narung'ombe pub area. When I went for the first time to take my child, I found two people who were Mushizo and Designer...’ Apart from this evidence, there is also the testimony of the victim, which is considered the best evidence in rape cases. In her testimony, she stated and I quote as recorded in the trial court's proceedings; 'I know Mushizo, I don't know where Mushizo is living. I see Mushizo at Narung'ombe. I used to pass at Narung'ombe. I used to go Narung'ombe with my friend Jane to watch Music people dancing. Mushizo' aliniingizia dudu kwenye kukojelea, kwenye bodo yangu. Dudu lake Hiitoka kwenye suruali. He penete (sic) dudu yake to my bodo ya kukojo/ea. I4fe were at Narung'ombe. Mushizo took me and we went went inside Narung'ombe. Mushizo aiininyakua akanipeieka ndani Narung'ombe. When Mushizo penetrate his penis to my vagina I feei pain, I cried then I ran away to home. At home I found mother she gave me food but I was feeling pain huku'. Regarding the time PW4 was raped, PW1, when cross-examined by the appellant, responded; V reached home at 19:00 hours, and that is when I realized she had been raped.’ During re-examination, PW1 further stated; ' The child was raped at night because when she complained of pain in her vagina, it was 19:00 hours.’ 4 Similarly, PW3, when cross-examined, stated; 'The child was raped at 19:00 hours on 10/01/2024.' In his defence, the appellant did not deny being present at Narung'ombe Pub on the day of the incident. He also admitted that SRN and other children were playing near the pub that day. However, he strongly denied raping her, stating that he left the area to watch a football match and later returned home at around 22:00 hours, where he went to sleep. His testimony was supported by the defence witnesses he called namely; Aziza Selemani (DW2), Hamidi Abdul Igala (DW3), and Muwazi Swalehe Munga (DW4). Despite his defence, it did not hold weight, as the trial court was fully satisfied beyond any reasonable doubt that the prosecution had successfully proven the charge against the appellant. Consequently, he was found guilty, convicted, and sentenced to life imprisonment, as previously stated. Unhappy with this decision, the appellant filed an appeal before this court, raising five grounds of appeal. However, upon examining all the grounds, this court finds that they essentially revolve around one central issue; 5 ' That the trial court erred in law and fact by convicting the appellant on a charge that was not proven beyond a reasonable doubt.' The hearing of this appeal was conducted through written submissions. However, I will not reproduce the parties' submissions in full but will refer to them where necessary when discussing the issue for determination. Based on the appellant's grievance, in resolving this appeal, I will be guided by the key question; Whether the prosecution proved the case beyond reasonable doubt. In his submission, the appellant, who was unrepresented, submitted that the case was not proven beyond reasonable doubt by highlighting contradictions in the prosecution's evidence. He began by pointing out inconsistencies in the testimony of PW1, who stated that upon returning home, he found PW4 asleep. When cross­ examined about the exact time he arrived home, PW1 responded that he returned at 19:00 hours. However, PW3 stated that she fetched PW4 from the place where she was playing at 19:00 hours. The appellant questioned this contradiction, arguing that if PW1 returned home at 19:00 hours and found PW4 already asleep only for her to wake up and complain of pain in her private parts, while PW3 claimed 6 to have gone to pick her up at the same time, then at what time exactly did the alleged rape occur? The appellant further argued that the prosecution's case was riddled with doubts that undermined the claim that the offence was proven beyond reasonable doubt. First, he pointed to the testimony of PW2, the investigator of the case, who stated during cross-examination that the victim had informed him she was raped during the daytime. The appellant contended that this contradicted the testimonies of PW1 and PW3, who insisted that the incident occurred at night. Given this inconsistency, he argued that the prosecution failed to establish when the alleged offence actually took place, making it a serious doubt. Secondly, the appellant raised another doubt regarding the evidence of PW3, who testified that when PW4 returned home, she went straight to sleep without mentioning any pain or identifying the perpetrator. The appellant questioned why the victim would not immediately report such a serious ordeal upon arriving home, suggesting that this silence created reasonable doubt. Another doubt noted by the appellant was the delay in his arrest. He argued that, despite remaining in the village from the alleged date of the offence, he was only arrested a month later. He questioned why, if he 7 had committed such a serious crime, he was not apprehended sooner, viewing this delay as a major weakness in the prosecution's case. Furthermore, the appellant criticized the prosecution for failing to conduct a DNA test that could have directly linked him to the alleged offence. He asserted that this omission weakened the case against him and further demonstrated that the trial court erred by disregarding his defence while convicting him based on a weak prosecution case. Based on all these arguments, the appellant urged the court to find merit in his appeal, quash the conviction, and set aside the sentence imposed against him. In its response, the Respondent/Republic supported the appeal on the basis that, although penetration was proved, the prosecution failed to establish who was responsible for the act. The Republic acknowledged that the medical evidence confirmed penetration; however, the prosecution's case failed to conclusively prove the identity of the perpetrator. Given these weaknesses, the Republic conceded to the appeal, agreeing that the conviction could not stand in the absence of clear and credible evidence linking the appellant to the offence. After considering the submissions of both parties, the evidence provided before the trial court, and the charge against the appellant, for 8 it to be established that the case was proven beyond reasonable doubt, the prosecution was duty bound to prove three essential elements; the age of the victim, penetration, and the perpetrator. Various cases have provided guidance on how the age of the victim in statutory rape can be proven. This can be established through the testimony of a parent, a birth certificate, a doctor, a relative, or a guardian. See Shani Chamwela Suleiman v. R (Criminal Appeal No 481 of 2021) [2022] TZCA 592 (28 September. 2022) and Matiko Mwikwabe Mwita v. R (Criminal Appeal No 412 of 2021) [2025] TZCA 28 (18 February 2025). In proving this element, the prosecution relied on the testimony of PW3, the victim's mother, who stated the victim's age during her oral testimony, asserting that PW4 was born on 29th August, 2019. Additionally, she tendered a birth certificate as Exhibit. However, due to procedural irregularities in its admission, the birth certificate is expunged from the record. Nevertheless, since PW3, as the victim's mother, testified under oath regarding her child's age, and her testimony was not effectively challenged by the defence, it follows that the prosecution successfully established that the victim was under 18 years of age. Accordingly, this element was sufficiently proven. 9 Moving to the second element, which is penetration, the law is well settled that even the slightest penetration amounts to rape. This is clearly provided under section 130(4) of the Penal Code, which states; 'For the purposes of proving the offence of rape penetration however slight is sufficient to constitute the sexual intercourse necessary to the offence; ' Generally, in sexual offence cases, it is a well-established legal position that the best evidence of rape must come from the victim. If the victim is an adult, they must testify to penetration and the absence of consent. However, in cases where consent is irrelevant, such as statutory rape, the prosecution only needs to establish penetration. This principle has been reaffirmed in various judicial decisions, including Selemani Makumba v. R [2006] TLR 379 and Ally Selemani v. R (Criminal Appeal No. 303 of 2022) [2025] TZCA 16 (11 February 2025). In the present case, while the prosecution asserts that penetration was proved, the appellant refutes this claim. The issue of penetration was addressed through the testimony of PW3, PW4, and PW5, who provided their respective accounts on the matter. To establish the element of penetration, PW4 stated that; 'Mushizo aliniingizia dudu kwenye kukojelea, kwenye bodo yangu. Dudu lake lilitoka kwenye suruali. He penete (sic) dudu yake to my bodo ya io kukojoiea... When Mushizo penetrate his penis to my vagina I fee! pain, I cried then I ran away to home. At this juncture, I will briefly discuss the words used by PW4, specifically W^"and "dodo" after examining various cases interpreting words that victims of sexual offences may use considering cultural and customary factors the Court in Hassani Kamunyu v. R (Criminal Appeal No. Til of 2016) [2018] TZCA 259 (25 July 2018) held; 'In view of the authorities respecting the offence of rape from which we have found it apposite to borrow a leaf, by the victim referring to a 'dudu, 'PW1 was simply referring to the appellant's penis. By saying 'anaingiza dudu lake kwenye mkundu wangu,' he simply meant the appellant inserted his penis into his (PWl's) anus. '[Emphasis added] In her testimony, PW3, the victim's mother, informed the court that she had taught her daughter that, in their community, the vagina is referred to as "bodo". Accordingly, based on these interpretations, when PW1 used the word dudd, she was referring to a penis, and when she used the word bodd, she meant vagina. To further establish penetration, PW3 stated that she observed some fluid on the victim's private parts, which she believed to be evidence of sexual intercourse. Additionally, PW5, the doctor who examined PW4, 11 testified that although he did not find spermatozoa, he observed bruises on the vagina and labia minora. He further explained that he did not examine the hymen, as doing so might have removed it, considering the victim was a child. However, he noted signs of slight penetration and concluded that the child had been penetrated by a blunt object. In the case of Selemani Makumba v. R {supra), the Court emphasized that; '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' Applying the principles set out in Omary Rashid @ Milanzi v. R (Criminal Appeal No. 298 of 2021) [2023] TZCA 167 (31 March 2023), which underscored that penetration, however slight, is sufficient to establish the offence of rape. Thus presence of bruises and the doctor's conclusion that slight penetration had occurred provide compelling medical evidence corroborating PW4's testimony. See also Maligile Mainqu v R (Criminal Appeal No. 432 of 2021) [2023] TZCA 17303 (5 June 2023]. 12 Since the law does not require the presence of spermatozoa to prove penetration, the absence of such findings does not negate the conclusion that penetration took place. With the two elements having been established, the next crucial question is whether it was the appellant who perpetrated the act of penetration against PW4. While the law is well settled that the most credible evidence of rape must come from the victim, such testimony should not be taken as absolute truth without proper scrutiny. The court must carefully assess the victim's evidence in light of the surrounding circumstances, consistency with other evidence. This is because, like any other witness, a victim's testimony may be influenced by factors such as fear, external pressure, or even mistaken recollection. Therefore, while the victim's account is crucial, it must be tested against the principles of credibility and reliability before forming the basis of a conviction. See the case of Mohamed Said v. R (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (23 August, 2019). In this case, several inconsistencies arise regarding the identification of the perpetrator, particularly concerning the time and place of the alleged offence. 13 According to PW1 and PW3, the alleged incident occurred at night at a pub where the victim had been left at different points before eventually returning home. PW3 testified that she first took the victim from where she had been praying at 19:00 hours and brought her home. However, she later followed the victim again when she returned to the area, and on a third occasion, she decided to leave her there as she found Mushizo (the appellant) and another person named Designer. This version of events raises multiple doubts. If PW3 herself left the victim at the pub in the presence of Mushizo and Designer, this creates uncertainty about when the alleged offence took place and under what circumstances. Additionally, the charge sheet itself does not specify the exact time the offence was committed, making it even more difficult to determine the precise sequence of events. Moreover, the prosecution did not lead evidence from PW4, the victim, to clarify at what time the alleged offence took place. The record is silent on whether PW4 was guided to explain when the incident occurred, leaving the court with conflicting versions from other witnesses rather than direct testimony from the victim. This omission is critical because, in cases of this nature, the victim's account is often central to determining crucial aspects such as time, place, and identity of the perpetrator. 14 Further complicating matters is the inconsistency in witness testimonies regarding the time of the offence. While PW1 and PW3 claimed the incident occurred at night, PW2, the investigator, testified during cross-examination that PW4 told him she was raped during the daytime. This contradiction raises a fundamental question; Was the offence committed during the day or at night? The prosecution failed to resolve this inconsistency, which significantly weakens the reliability of the identification evidence. Additionally, there is no evidence to establish whether the appellant was alone with the victim at any point or whether other people were present at the time the offence allegedly took place. This is because PW3, the victim's mother, stated that on the third occasion when she went to check on PW4, she decided to leave her there after finding her with Mushizo (the appellant) and Designer. However, the evidence remains silent on the whereabouts of Designer at the time the alleged act took place. The prosecution also failed to provide any evidence regarding the lighting conditions at the scene. If the offence occurred at night, as stated by PW1 and PW3, then the type and intensity of lighting available were crucial factors for ensuring proper identification. The record does not indicate whether the area was illuminated by electricity, lanterns, or any 15 other light source. The absence of such evidence is detrimental to the prosecution's case because, in criminal law, proper identification is crucial, especially where the offence is alleged to have occurred at night. The importance of lighting in identification was emphasized in Waziri Amani v. R [1980] TLR 23 where the court held that in cases of visual identification, particularly at night, the nature and intensity of the light must be clearly established. Moreover, the delay in arresting the appellant also raises doubts about the strength of the case against him. The evidence shows that despite the appellant remaining in the village, he was arrested one month after the incident. This delay was not explained, yet in cases of serious offences such as rape, one would expect an immediate response from the authorities if the suspect was clearly identified from the outset. The lack of urgency in arresting the appellant suggests that the prosecution itself may have had doubts about his involvement. The appellant also raised concerns about the failure to conduct a DNA test that could have scientifically linked him to the offence. However, it is well settled in law that DNA evidence is not a mandatory requirement to prove rape. Conviction can be sustained based on credible witness testimony and other corroborative evidence. Therefore, the appellant's claim regarding the absence of a DNA test lacks merit. 16 From the analysis of the evidence, it is apparent that the prosecution failed to establish a coherent and reliable case against the appellant. In criminal law, where reasonable doubt exists, the benefit must always be given to the accused, as enshrined in the principle set out in Boniface Thomas Mwimbwa & Another v. R (Criminal Appeal No. 325 of 2019) [2023] TZCA 192 (19 April 2023). The inconsistencies and doubts in this case are substantial and cannot be ignored. As such, the conviction was unsafe, and the prosecution failed to meet the required standard of proof beyond reasonable doubt that it was the appellant who raped PW4. Accordingly, the appeal is allowed, the conviction is quashed, and the sentence is set aside. The appellant is to be released forthwith unless otherwise lawfully held. It is so ordered. 17 Court: Judgment delivered in Mtwara on this 21st day of February, 2025 in the presence of Ms. Farida Kiobya State Attorney and the appellant. M.B. Mpaze Judge 21/2/2025 18