Judgement DC

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI CRIMINAL APPEAL NO. 26594 OF 2024 (C/F Criminal Case No. 3120 of 2024 in the District Court of Mwanga at Mwanga) ALLY BRAISON MWAMBIGIJA……………............................ APPELLANT VERSUS REPUBLIC....………………………………………………….… RESPONDENT JUDGEMENT 25th November & 17th December 2024 MONGELLA, J. The appellant was arraigned before the District Court of Mwanga at Mwanga (henceforth, the trial Court) for the offence of rape contrary to Section 130 (1), (2) (e) and 131 (1) of the Penal Code [Cap 16 R.E 2022)]. The particulars of the offence were that: on 30.01.2024 at Mwaniko village within Mwanga District and Kilimanjaro Region, the appellant had carnal knowledge of a 10-year-old girl (hereinafter, the victim or PW2). The appellant denied the charge levelled against him leading the matter to proceeded to trial. To prove the case against him, the prosecution paraded five witnesses. Page 1 of 14 The evidence by the prosecution witnesses was to effect that: the Appellant is a neighbour to the victim who resides with her grandmother (PW1). On the material day of 30.01.2024, the Appellant met the victim at noon hours when she was heading home to have lunch. He told her that he had a parcel for her grandmother and required her to go to his home to pick up the alleged parcel after school hours. The victim had her lunch, went back to school and came back home at around 17:00hrs. The victim then went to the Appellant’s home. She claimed that the Appellant locked her inside his house and left her there. At around 23:00hrs, the Appellant came back to his house, told her to take off her skintight and underwear and undressed himself. He then told her to lay on his bed and thereafter penetrated her female organ with his male organ. The victim spent that night in the Appellant’s home and left in the morning. At home, she did not tell anyone about what had happened, including her grandmother, despite being asked by her of her whereabouts. She then dressed her uniforms and headed to school. At school, she was questioned by her teacher (PW4) as to why she had come to school late. She informed her teacher that she had slept at the Appellant’s home, mentioning his name as “Ally Braison Mwambigija.” PW4 then called PW1 to the school and informed her of the ordeal. He also advised her to report the matter to the Village Executive Officer (VEO). When PW1 reported the matter to the Village Officer she was referred to the police. Page 2 of 14 At the police station, PW5 received PW1’s complaint. He accompanied PW1 and the victim to Mangiyo Dispensary. The victim was examined by PW3 whereby her labio majora was found bruised. PW3 ruled out that the victim had been penetrated by a blunt object. PW3 then filled the PF3 form. On the same day, the Appellant was arrested and eventually arraigned in court. The trial court found the Appellant with a case to answer and required him to enter his defence. The Appellant stood for his defence solely. He testified that he had no relative at Ugweno ward at Mwaniko village, but was only grazing animals in the area. He claimed to be staying at one Mama Regina’s home and it was her who accused him of raping the victim. The trial Court found the case against the Appellant proved beyond reasonable doubt. It thus proceeded to convict and sentence the Appellant to serve 30 years in jail. Aggrieved, the Appellant has preferred this appeal on the following grounds: 1. That the trial court erred in law by failing to comply with mandatory provisions of the Tanzania Evidence Act, Section 127(2) CAP 6 R.E.2022 2. That the trial court grossly erred in law and facts to convict and sentence the appellant while prosecution side failure to prove their case beyond reasonable doubts. [sic] 3. That the trial magistrate erred in law and fact to convict and to sentence the appellant on relied to insufficient evidence. [sic] Page 3 of 14 4. ⁠That, trial Magistrate erred in law and facts for failure to consider the evidence adduced by defence side. 5. Trial Magistrate erred in law and facts to convict and sentence appellant on relied to contradictory evidence. [sic] Hearing of the appeal proceeded orally whereby the Appellant appeared in person while the respondent was represented by Mr. Frank Daudi Wambura, learned State Attorney. The Appellant, however did not make any submissions, rather he prayed for the Court to adopt and consider his grounds of appeal as his submission in chief. The appeal was opposed. In his reply, Mr. Wambura consolidated the 2nd, 3rd and 5th grounds. Addressing these grounds, he analysed the whole prosecution evidence arguing that the same proved the offence beyond reasonable doubt. He averred that the prosecution paraded 5 witnesses to prove the offence who were, PW1, the victim’s grandmother; PW2, the victim herself; PW3, the doctor who examined the victim; PW4, the victim’s teacher; and PW5, the investigator of the offence. He then proceeded to point out the basic elements that the prosecution had to prove in this case being: the age of the victim, penetration, that the accused is the culprit and last, that the accused did the act of rape willingly/consciously and with sound mind. Addressing the victim’s evidence, he contended that the victim (PW2) stated how the rape incident occurred. That, she explained to have been locked in the Appellant’s home from noon hours until Page 4 of 14 when he returned home at around 23:00hrs and told her to undress her underpants, undressed himself and told the victim to lay on the bed. He proceeded to submit that PW2 further testified that the Appellant inserted his male organ into her female organ whereby she felt pains and that the Appellant threatened to cut the victim’s neck with a machete if she raised an alarm. He added that the victim also said that the Appellant had raped her on several occasions. Considering the victim’s testimony, Mr. Wambura was firm that the Appellant committed the offence. He further referred the legal position that in rape offences, the best evidence is that of the victim. He fortified this stance with the case of Seleman Makumba vs. Republic [2006] TLR 379. Stressing on the credibility of the victim’s testimony, Mr. Wambura argued that the same was corroborated by that of the medical doctor who examined the victim. He explained that upon examining the victim, the doctor stated to have found bruises on the victim’s female organ and a heavy odour coming from the victim’s female organ, which indicated penetration by a blunt object. He added that the doctor also ran a HIV test and gave the victim pills to prevent HIV infection. He as well referred to the PF3 which was admitted by the trial court. In his stance, the evidence of PW2 and PW3 sufficed to prove that the appellant committed the offence. Page 5 of 14 Mr. Wambura further contended that the age of the victim is among crucial factors to be proved as settled in Elia s/o Richard Shoo vs. Republic (Criminal Appeal No 196 of 2021) 2024 TZCA 422 (10 June 2024). He alleged that PW1, who is the victim’s grandmother, explained that the victim was 10 years old and was in Standard VI. He added that the victim herself also testified to be 10 years old. Speaking about the procedure in recording the victim’s evidence, he argued that the trial court also asked the victim questions as to whether she understood the nature of oath or not which shows the victim’s age to have been well proved. Addressing the 4th ground under which the Appellant complains on non-consideration of his defence evidence; Mr. Wambura admitted the claim. He conceded that indeed the defence case was not evaluated and considered anywhere in the trial court Judgment. However, on the other hand, he argued that this Court being the first appellate Court, it has legal powers to examine and consider the evidence of both sides and issue a decision. Fortifying his averment with the case of Jafari s/o Musa vs. DPP (Criminal Appeal No. 234 of 2019) [2022] TZCA 29 (17 February 2022), 17 February 2022, he prayed for this Court to examine and consider the defence evidence. With respect to the 1st ground, on which the Appellant challenges the trial court for non-consideration of the provisions of Section 127 (2) of the Evidence Act; Mr. Wambura found no error committed by the trial court. He averred that the record shows that PW2 promised to tell the truth. That, she told the trial court that she knew about Page 6 of 14 telling the truth and about oath. In the circumstances, Mr. Wambura had the stance that the trial court adhered to the legal requirement. He finalized his submission praying for this Court to find the appeal without merit and dismiss it. Rejoining, the Appellant challenged the evidence and findings by the medical doctor who examined the victim on the ground that not tests were taken from him but from the victim alone. In his view, the doctor ought to have examined him as well. He further alleged that his employer and PW1 colluded in framing the case against him as he demanded money from his boss. I have considered the grounds of appeal and submissions by Mr. Wambura together with the record of the trial court. In resolving this appeal, I will separately resolve the 1st and 4th grounds of appeal and thereafter address the 2nd, 3rd and 5th grounds collectively, as they are interrelated. On the 1st ground, the Appellant faults the trial court for failure to comply with the requirement set under Section 127 (2) of the Evidence Act. On the other hand, Mr. Wambura countered that such requirement was observed as the trial Court asked PW2 as to whether she understood the nature of oath and knew about telling the truth and PW2 promised to tell the truth. Section 127(2) of the Evidence Act provides that a testimony by a child of tender age, a term well described under Section 127(4) of the Same Act, should be taken upon the child promising to speak Page 7 of 14 the truth. I hereunder reproduce the two provisions for ease of reference: “(2) A child of tender 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 lies.” A child of tender age is defined under Section 127(4) of the Evidence Act, which states: “127(4) For the purposes of subsections (2) and (3), the expression “child of tender age” means a child whose apparent age is not more than fourteen years.” The requirement set under Section 127(2) of the Evidence Act has been well interpreted by the Court of Appeal in its plethora authorities. The provision requires the court to inquire on whether a child witness understands the nature of oath. If the answer is in the affirmative then the court should proceed to take his evidence on oath. If in the negative, then the court should require the child to promise to tell the truth. These details were better explained by the Apex Court in George Lucas Marwa vs. Republic (Criminal Appeal No.382 of 2019) [2023] TZCA 17424 TANZLII, where the Court held: “It is our conviction that where a witness is a child of tender age, a trial court should at the beginning ask a few pertinent questions, so as to determine whether or not the child witness understands the nature of oath. If he replies in the affirmative, then he or she can proceed to give evidence on oath or affirmation, Page 8 of 14 depending on the religion professed by such child witness. If such child does not understand the nature of oath, he should, before giving evidence, be required to promise to tell the truth and not to tell lies. The procedure explained should be reflected on the proceedings of the trial court.” See also; Hosea Geofrey Mkamba vs. Republic (Criminal Appeal No.37 of 2020) [2023] TZCA 17588); Mathayo Laurance William Mollel vs. Republic (Criminal Appeal 53 of 2020) [2023] TZCA 52; Shomari Mohamed Mkwama vs. Republic (Criminal Appeal No. 606 of 2021) [2022] TZCA 644; and Ramson Peter Ondile vs. Republic (Criminal Appeal No. 84 of 2021) [2022] TZCA 608 (all from TANZLII). In this case, contrary to the argument by the Appellant, PW2, the only child witness, promised to tell the truth. This fact is well reflected in the proceedings of the trial court. I will reproduce the excerpt of conversation leading to the promise and the promise itself hereunder: Court: • Do you attend the church? • PW2 Yes I attend to the church. (sic) • Do you understand the nature of oath? • PW2 I don’t understand • Do you understand meaning of telling truth? • PW2 yes I understand meaning of telling truth is to speak things which are true and correct. • Do you promise to tell the truth to the court and not to tell lies? • PW2 Yes I promise to tell the truth and not to tell lies before the court. Page 9 of 14 Court: Section 127 (2) of The Tanzania Evidence Act [CAP 6 RE 2022] complied with. SGD; A.S. HAYATA-RM 21/2/2024 As seen, the Hon. trial Magistrate inquired on whether PW2 understood the nature of oath and when the answer was in the negative, she proceeded to secure a promise to tell the truth from PW2. In consideration of this observation, this ground is found to lack merit. Under the consolidated grounds, the appellant challenges two issues: one, that the prosecution evidence was contradictory; and two, the prosecution evidence was insufficient to procure his conviction. In his stance, the case was not proved beyond reasonable doubt. On the other hand, Mr. Wambura had the stance that the case against the appellant was proved beyond reasonable doubt. Since the Appellant did not submit on these grounds, it is difficult to point out the exact areas of controversy within the prosecution evidence. However, this Court being the first appellate Court, it shall analyse and examine the evidence on record and make its own findings. The law is settled that where there are contradictions, the same should be weighed by the Court. Where the contradictions go to the root of the case, they are considered to be major. When the contradictions do not go to the root of the case, they are considered minor and should not be considered to vitiate the findings of the court. See, Dickson Elia Nsamba Shapwata and Page 10 of 14 Another vs. Republic (Criminal Appeal 92 of 2007) [2008] TZCA 17 (30 May 2008) TANZLII, in which the Court of Appeal stated: “The court has to decide whether the inconsistencies and contradictions are only minor, or whether they go to the root of the matter. (See: Mohamed Said Matula v Republic [1995] TLR3). The learned authors of Sarkar, The Law of Evidence 16th edition, 2007, have this to say at page 48 – "Normal discrepancies in evidence are those which are due to normal errors of observation; normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a parties’ case, material discrepancies do." Upon observing the prosecution evidence, I found some contradictions. One, PW2 initially stated during examination in chief that the Appellant came back to his home at 23:00hrs and raped her. However, during cross examination, she stated that he arrived home at 21:00hrs. This is in accordance with the electronically generated proceedings as printed out from the eCMS. On the other hand, the hand written excerpt, as the record was also generated in their physical form, shows that during cross examination PW2 stated that the Appellant came back to his home at 01:00pm. Considering that the contradictions as to the time of commission of Page 11 of 14 the offence involves two different days, I find the same being material and going to the root of the matter. Now on whether the case was proved beyond reasonable doubts; it is clear that the offence against the appellant is that of statutory rape to which consent is immaterial. See, George Claud Kasanda vs DPP (Criminal Appeal 376 of 2017) [2020] TZCA 76 TANZLII; and Elia s/o Richard Shoo vs. Republic (supra). With respect to the ingredient of penetration, PW2 stated that the Appellant told her to undress her skin tight and underwear. He also undressed himself and inserted his male organ into her female organ. PW3, the medical examiner, who examined PW2 on the next day found bruises on her labio majora although her hymen was intact. The situation suggests slight penetration. I am aware of the position of the law that penetration however slight proves rape. See, Bariki Israel vs. Republic (Criminal Appeal 444 of 2007) [2011] TZCA 33 (18 February 2011). I am further aware of the settled position that the best evidence in rape cases comes from the victim. However, the law is also settled that the victim’s evidence is not to be taken wholesale. Its credibility still has to be scrutinised by the Court before relying on the same. See, Straton s/o Steven Mboya vs. The Republic (Criminal Appeal No. 576 of 2020) [2024] TZCA 349 TANZLII. Upon observing the victim’s evidence and that of the other witnesses, I find the same wanting in credibility. I am of this observation on the following grounds: Page 12 of 14 First, in consideration of the doctor’s testimony whereby it was said that the victim’s hymen was found intact, it is obvious that the penetration, if any, was slight. However, the victim testified to have felt pains which suggests that the penetration was deep. This creates material contradiction between the witnesses’ evidence. Second, I observed troubling details which I find important to address. The entire ordeal under which the incidence occurred is rather strange. This includes: the fact that PW2 disappeared from home since 17:00hrs; how she stayed locked in at the Appellant’s home until he came back home later and raped her. It is questionable as to how she never screamed for help, how PW1 never reported her going missing when she did not find her home around 19:00hrs or how no neighbour or relative appeared to attest to PW1 searching for PW2. The absurdity of the events raises questions as to the plausibility of the prosecution evidence, taking into account that the victim was just a girl aged 10 years. I find it implausible that PW1 would just sit at home relaxed while her 10 years old granddaughter was going missing till the next morning. This renders the testimony implausible. Third, it should also be recalled that the victim testified that the incident in the charge was not the first. That, the Appellant had raped her on several occasions before the incident forming the subject of the charge. The victim did not even state if they were in a love relationship rendering her to keep it a secret. The law is clear that mentioning a suspect at the earliest possible opportunity is an all assurance of the credibility of such a witness. The same as the Page 13 of 14 delay in mentioning the suspect diminishes the credibility of the witness. See, Jaribu Abdallah vs. Republic [2003] TLR 271 and Marwa Wangiti Mwita & Another vs. Republic [2002] TLR 39. In the matter at hand, the victim never reported any of the incidences until when she was allegedly scolded by her teacher at school for arriving late. She claimed in her testimony that the Appellant had threatened to harm her if she had revealed the incident. As much as this could be a reason for not reporting early, I find the version rather questionable as the victim appears to have gone back to her assailant on several occasions after being ravished for the first time. This removes the element of threat alleged. Considering the observations made hereinabove, I am of the opinion that the prosecution case was not proved beyond reasonable doubt. I therefore quash the conviction and sentence by the trial Court and order for the immediate release of the Appellant, unless held for some other lawful cause. Dated and delivered at Moshi on this 17th day of December, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 14 of 14