CR

IN THE COURT OF APPEAL OF TANZANIA

AT MTWARA fCORAM: KEREFU, J.A.. RUMANYIKA. 3.A. And MGEYEKWA. J.A.^ CRIMINAL APPEAL NO. 621 OF 2021 JACKSON SIMON DAUDI............ .............................................APPELLANT

VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mtwara) fPvansobera, J.^ dated the 28thday of October 2021 in Criminal Appeal No. 21 of 2021

JUDGMENT OF THE COURT i 31st May & 7thJune, 2024 MGEYEKWA. J.A:. The appellant, Jackson Simon Daudi, was arraigned in the District Court of Lindi on two counts. In the first count, he was charged with rape contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code. It was alleged in the particulars of the offence in respect of the first count that the appellant on unknown dates between May and June 2020 at Nahukahuka Village within the District and Region of Lindi had carnal knowledge of a girl aged 16 years. On the second count, the appellant was charged with impregnating a school girl contrary to section 60A (3) of the Education Act Cap. 353, as amended by section 22 of the Written Laws (Miscellaneous Amendments) (No.

2) Act lMo.4 of 2016. It was alleged that on unknown dates between May and June, 2020 at the same place, the appellant impregnated a Secondary School girl aged 16 years who was a student at Nahukahuka Secondary School. To conceal the victim's identity, we shall henceforth refer to her as the "victim" or "PW1", the codename by which she testified before the trial court. The trial and conviction of the appellant resulted from facts which are not difficult to narrate. PW1 a grade two pupil who was born on 22nd February, 2004 was living with her parents at Rihoa Village. PW1 recalled that in May, 2020, the appellant approached and proposed to her, then, they headed to a bush which was near the appellant's plot. According to PW1, the appellant undressed her and inserted his penis into her vagina. From the scene of crime, PW1 went back home but she did not disclose to her parents of the ordeal. According to her, they made love three times with the appellant in different dates within the same month. It was the testimony of PW1 that, on 10th July, 2020, the school conducted a pregnancy test on female students and she was among the students who were tested. A moment later, she was taken to the dispensary for further examination. Following the said examination, it was confirmed that she was pregnant. PW1 stated that, she was engaged in sexual relations solely with the appellant. More

evidence of the encounter came from Mr. Octavian Millanzi (PW3), a Headmaster at Nahukahuka Secondary School. He recalled that, on 10th July, 2020, the school conducted periodic pregnancy tests on female students whereby PW1 was tested at Linoa Dispensary and it was discovered that she was pregnant. PW3 summoned her parents to reveal his intention to expel PW1 from school. Subsequently, her parents took her to the hospital and later, they reported the incident to the police station. According to Sabinius Gaspery Malibiche (PW4), a nurse at Linoa Dispensary, on 9th August, 2020 attended PW1 who informed her that she was two months pregnant. She examined her and found that she had malaria, then, she administered her medicine known as Alucinate. A moment later, while at the dispensary premises, PW4 noticed that PW1 was bleeding, she also discovered that PW1 had an earlier abortion. On his part, Godfrey Selestine Kambuga, a Clinical Officer (PW5) recalled that on 11th July, 2020, he examined the victim at Nyangao Hospital and found out that she was two months pregnant. The victim's mother, Amina Ahmad Dadi (PW2), testified that on 10th July, 2020, PW1 was examined by PW5 and it was discovered that she was pregnant. PW2 stated further that, PW1 suffered an earlier abortion. The defence by the appellant was actually a total denial refuting all the allegations fronted against him. He

contended that the case was framed against him due to the existing grudges between him and PWl's family. He also stated that PWl's evidence was inconsistent with the evidence of PW5. The trial court was convinced by the version of the prosecution witnesses and, accordingly, sentenced him to serve thirty (30) years imprisonment for the first count and two (2) years imprisonment for the second count. The sentences were ordered to run concurrently. Dissatisfied, the appellant appealed to the High Court of Tanzania sitting at Mtwara. His appeal was partly successful, as the first appellate court allowed the. appeal, quashed the conviction and set aside the sentence on the second count. However, the conviction and sentence for the first count were sustained. Still undaunted, the appellant has preferred the current appeal. In the memorandum of appeal lodged on 24th October, 2022, the appellant raised thirteen (13) grounds and in the supplementary memorandum of appeal lodged on 21st June, 2023 he raised nine (9) grounds. However, upon perusal of the said grounds, we have noted that all grounds contained in the supplementary memorandum of appeal are not related to this appeal as they raised the appellant's complaints on committal proceedings, cautioned statements and different witnesses namely, PW1 to PW7 and DW1 to DW3 while in this appeal, the prosecution witnesses were only five (5)

and defence side had only one witness (DW1). Therefore, since the supplementary memorandum of appeal is not related to this appeal, we will only consider the appellant's grounds of appeal contained in the substantive memorandum of appeal lodged by the appellant on 24th October, 2024. As intimated, the said memorandum raised thirteen (13) grounds which can conveniently be paraphrased as follows; one, the victim's evidence was doubtful, hence, her credibility is questionable; two, the trial court did not comply with the requirement of section 235 (1) of the CPA; three, the PF3 (exhibit P3) was wrongly procured and unprocedurally admitted in evidence contrary to the mandatory provisions of the law; four, the prosecution failed to prove the ingredients of rape; five, the prosecution failed to conduct DNA test; six, the prosecution failed to take a sample of fingerprints of the appellant; seven; the prosecution failed to tender a sketch map of the L scene of the crime as an exhibit in order to prove the circumstantial evidence that the appellant had sexual intercourse with PW1, and eight, the testimonies of PW1 and PW5 were contradictory. We shall therefore determine the grounds of appeal in the same manner as indicated above. When the appeal was placed before us for hearing, the appellant appeared in person, unrepresented while the respondent Republic had the services of Ms. Faraja

George, learned Senior State Attorney. When allowed to amplify on his grounds of appeal, the appellant, besides adopting the grounds of appeal opted to hear first the submissions of the respondent. On the adversary side, at the outset, Ms. George expressed that she did not support the appeal. On the first ground, Ms. George contended that PW1 was a credible witness. She clarified that the appellant and PW1 were familiar to each other; they were lovers. She added that the appellant approached PW1 in May, 2020 and they had sexual intercourse three times within the same month, and the romantic entanglements rendered PW1 pregnant. She cemented that PWl's evidence was supported by a Clinical Officer (PW5) who examined the victim in July, 2020 and confirmed that PW1 was one month pregnant. To reinforce her submission, she referred us to page 39 of the record of appeal and argued that, the trial court reached a final conclusion that it was the appellant who raped and impregnated PW1. When the Court prompted Ms. George to submit on whether PW1 revealed that she had ah abortion, she conceded that PW1 did not reveal that she had an abortion, but other prosecution witnesses informed the trial court that PWl's had an abortion. However, the learned Senior State Attorney took a different swipe, she asserted that the prosecution did not lead her to testify on that issue. She implored us to

dismiss the first ground of appeal. On the second ground, Ms. George contended that the trial court complied with the requirement stated under section 235 (1) of the CPA. She clarified that, the trial court having heard the prosecution and defence witnesses proceeded to convict the appellant on two counts; rape and impregnating a school girl then entered a sentence of 30 years imprisonment. Therefore, she contended that, the appellant's complaint is unfounded and urged us to dismiss this ground. The learned Senior State Attorney next argued on the third ground wherein the appellant faulted the admission of PF3 which was tendered as exhibit P3. The learned Senior State Attorney contended that the Clinical Officer was a proper and qualified person to tender PF3. She elaborated that the Clinical Officer was the one who attended the victim at the hospital, examined her and prepared the PF3. Thus, she urged us to dismiss this ground of appeal for being devoid of merit. Lastly, Ms. George submitted on the fourth, fifth, sixth, seventh and eight grounds conjointly wherein the appellant complained that, the testimonies of PW1 and PW5 was contradictory and the prosecution has failed to prove the case beyond reasonable doubt. The learned Senior State Attorney generally argued that the prosecution case was proved to the hilt through the evidence of PW1. She submitted that, in proving the

offence of statutory rape the prosecution had to establish the ingredients of statutory rape the appellant faced as predicted under sections 130 (1), (2) (e) and 131 (1), (3) of the Penal Code. She clarified that the prosecution had to establish; one, whether there was vaginal penetration of the complainant; two, that the complainant's age at the time of the sexual act is below 18 years; and three, that the perpetrator of the sexual act was the appellant. She exemplified that PW1 narrated how the appellant inserted his male organ in her vagina. She added that, PW1 was sure that it was the appellant who impregnated her. 8 Ms. George continued to submit that, the proof of age may come from either the victim or her relative, parent, medical practitioner, or by producing a birth certificate. She clarified that during trial, the victim stated her age and even her mother in her testimony testified that PW1 was 16 years old. To bolster her proposition, she referred us to the case of William Kasanga v. Republic, Criminal Appeal No. 90 of 2017 [2021] TZCA 145 (15 April 2021 TanzLII). In addition, she referred us to page 17 of the record of appeal where PW2 stated that the victim was born on 22nd February 2004. Upon being probed by the Court on whether the evidence of PW1 and PW5 were contradictory, she admitted that there was a slight contradiction which does not go to the root of

the case. She stressed that the evidence of PW1 was found to be credible by both lower courts. On the strength of her submission, the learned Senior State Attorney beckoned upon the Court to dismiss the appeal in its entirety. In his brief rejoinder, the appellant stressed that the evidence of the prosecution casted doubts. He clarified that PW1 evidence was contradictory to the evidence of PW5, PW5 testified that in July, 2020, he examined PW1 and discovered that she was one month pregnant. While PW1 claimed that she was two months pregnant. He valiantly argued that the inconsistency raised doubt on whether or not PW1 was telling the truth. He urged us to allow the appeal and set him free. Having heard and considered the submissions from either side, we have chosen to start addressing the first, fourth, and eighth grounds of appeal. These grounds relate to contradictions of evidence between PW1, PW4 and PW5, credibility and reliability of the victim's evidence. All of them seek to establish that the case was not proved beyond reasonable doubt. They will therefore be determined jointly. We have gone through the record of appeal and noted that the only evidence that directly implicates the appellant is that of PW1. It is evident on the record as per the evidence of PW1 that, they made love in May, 2020 and on 10th July, 2020, she was examined and discovered that she was

pregnant. The trial court's assessment of PWl's was based on the best evidence of the victim; it believed the testimony of PW1. It is apparent, at page 69 of the record of appeal that, the first appellate court had no any scintilla of doubt that the victim was testifying on what she knew and saw, hence, sustained the trial court findings and conviction upon the appellant. The apposite question which the trial and first appellate courts never addressed their attention to and come up with an answer, is whether PW1 was credible. We are mindful of the settled law that the best evidence in sexual offences comes from the victim, this was the standing of the Court in the celebrated case of Selemani Makumba v. Republic (2006) TLR 374 which has been cited with approval in numerous decisions of this Court including the case of Mohamed Haji Ali v. Director of Public Prosecution, Criminal Appeal No. 225 of 2018 [2018] TZCA 332 (13 December 2018 TanzLII). However, this position is general, it is not to be taken wholesale without considering other important factors, such as the credibility of the prosecution witnesses, reliability of their evidence and the circumstances relevant to the case in point. In determining whether PW1 was a credible witness, we will be . guided by the settled principle that the best test for quality evidence is based on the credibility of a witness. In Shabani Daudi

v. Republic, Criminal Appeal No. 28 of 2001 (unreported), the Court stated that: "...The credibility of the witness can also be determined in two other ways. One, when assessing the coherence o f the testimony o f that witness and two, when the testimony o f that witnesses is considered in relation to the evidence o f other witness including that o f the accused person. In those two occasions, the credibility o f a witness can be determined even li by a second appellate court when examining the findings o f the first appellate court" We made corresponding remarks in Yohana Msigwa v. Republic (1990) T.L.R. 143 and Anangise Masendo Ng'wang'wa v. Republic (1993) T.L.R.

202. We are aware that, this being a second appeal, the Court should rarely disturb concurrent findings of facts by the lower courts. However, there is an exception to the rule, the above alluded position depends on the requirement that the finding of facts by the courts below was based on correct appreciation of the evidence in the record. In Michael Elias v. Republic, Criminal Appeal No.243 of 2007 (unreported), the Court emphasized that: "... this approach rests on the premise that the findings o f facts are based on a correct appreciation o f the evidence. I f both courts completely misapprehended the substance, nature and quality o f evidence resulting in an unfair convictionf this Court must, in the interest o fjustice, interfere." Applying the above settled position in the case at hand, we will thoroughly scrutinize the evidence in the record to ascertain whether or not the prosecution witnesses were credible and worth of belief on the 12 incident of rape. It is evident that in convicting the appellant, the trial court relied on the evidence of prosecution witnesses, in particular, the victim's (PW1) evidence. This can be evidenced at pages 38 and 39 of the record of appeal. The record reveals that, PW1 differed with PW4 and PW5 on the issue of age of pregnancy. It is apparent on record, at pages 16, 21 and 26 that during the trial, PW1 testified to the effect that she

made love with the appellant three times within the same month of May, 2020, and as a result, she became pregnant. While PW5 examined PW1 on 11th July, 2020 and after examination he discovered that PW1 was one month pregnant. It was further testimony of PW4, that on 9th August, 2020, PW1 informed him that she was two months pregnant. The doubt on the weeks of pregnancy in connection to the evidence on record and offence charged, shows that PWl's testimony was shaken by PW4's and PW5's testimonies. Moreover, the doubt on whether PW1 had an abortion was not clarified by the prosecution. It is on the record that, PW2 testified that PW1 suffered an earlier abortion. Her testimony was supported by PW4, who confirmed that PW1 had an earlier abortion, a fact which was not disclosed by PW1. While the appellant in his defence, denied that he had no sexual relationship with PW1. We think that it was important for the prosecution to build their case by leading PW1 to testify on all matters 13 that had befallen her in order to assist the trial court to reach a fair conclusion which was not done in this case. Going by the above findings, it is vivid that the inconsistency of the PWrs evidence raises doubt. In the case of Mathias Bundala v. Republic, Criminal Appeal No. 62 of 2004 (unreported) the Court held that: "Good reasons for not believing a witness include the fact that the witness

has given improbable evidence, or the evidence has been materially contradicted by another witness or witnesses" [Emphasis added] The bolded expression justifies that the testimonies of the witnesses on the issue of rape were a major contradiction which casted doubt on the prosecution on what really transpired, and diminishes the credibility of PW1 on the involvement of the appellant. We find and hold that, PWl's credibility is questionable, it is uncertain whether she was telling the truth. In a similar situation, the Court in Salum Ally v. Republic, Criminal Appeal No. 106 of 2013 (unreported) stated that: "...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 teiiing 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 o f 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 AbdaUha Teje @ Maiima Mabuia v. Republic, Criminal Appeal No. 195 o f2005 (unreported), to be: (i) Whether it was legally

obtained; (ii) Whether it was credible and accurate; (Hi) Whether it was relevant, material and competent; (iv) Whether it meets the standard o f proof requisite in a given case, otherwise referred to as the weight o f evidence or strength or believability." [Emphasis added] Having revised the testimonies of PW1 in the light of the concurrent findings of the courts below, we find ourselves unable to share the certitudeof the trial and first appellate courts to theeffect that PW1 was reliable. We have no other option but hold that the 15 prosecution failed to provide enough evidence to substantiate their case. In the circumstances, we think it is unnecessary to deal with the remaining grounds of appeal. Consequently, we allow the appeal, quash the conviction, and set aside the sentence imposed on the appellant. We, accordingly, order that the appellant be released from prison unless lawfully held for other causes. Order accordingly. DATED at MTWARA this 7th day of June, 2024. R. J. KEREFU

JUSTICE OF APPEAL S. M. RUMANYIKA

JUSTICE OF APPEAL A. Z. MGEYEKWA

JUSTICE OF APPEAL The Judgment delivered this 7th day of June, 2024 in presence of the Appellant in person unrepresented and Mr. Wilbroad Ndunguru, learned ey for the Respondent/Republic is hereby certified as A. L. KALEGEYA

DEPUTY REGISTRAR

COURT OF APPEAL 16