CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI CORAM: MWARI3A, 3.A., KAIRO 3.A. And FELESHI J.A. CRIMINAL APPEAL NO. 447 OF 2021 LEODGARD AFRICAN MOSENGA....................................................APPELLANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Moshi) ( Mkaoa. 3.^ dated the 20th day of August, 2021 in Criminal Appeal No. 08 of 2021 JUDGMENT OF THE COURT 30th October, & 22nd November, 2024 KAIRO. 3.A.: In the District Court of Moshi at Moshi, the appellant was charged with rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, [Cap 16 R.E. 2002,] (the Penal Code). The particulars of the offence alleged that, on 10th September, 2018 at about 15.30 hrs at Kitowo Village, within Rombo District in Kilimanjaro Region, the appellant did unlawfully have carnal knowledge of a girl aged 14 years whose name is withheld but to be referred to as the victim or PW1 in this judgment. The appellant denied the charge and the case proceeded to a full trial. The prosecution side called seven (7) witnesses to prove the case against the appellant. The names of the said witnesses were; the victim (PW1), Ikunda Felix (PW2); victim's neighbour and former school mate, Kalist Matei (PW3); a watchman at Kitongoria Primary School, Innocent Sebastian Swai (PW4); the victim's father, Adelfina Kalist (PW5); a pupil at Kitongoria Primary School, Wi Ibroad Kyejo (PW6); the Medical Doctor who examined the victim, and Police officer No. D6756 D/CPL Elisamehe (PW7); who was an investigator of the case. The prosecution also tendered Police Form No. 3 (PF3) which was admitted in evidence as exhibit PI. On the other hand, the defence side had two witnesses who were the appellant (DW1) and one Festo Imanuel Shirima testified as (DW2). The brief facts of the case which led to the appellant's conviction of the offence charged are that; on 10th September 2018 at 15.00 hrs, the appellant passed at the victim's home and enticed her to accompany him to Kitongoria Primary School where he was teaching. Upon reaching there, they both entered into a closed classroom through a window. While inside the classroom, the appellant told her that he wanted to make love with her and the victim did not object. The appellant then took off PW l's pants and also undressed himself and told her to lie down on her back, to which she complied. Thereafter the appellant lied on top of her and inserted his penis into her vagina. After finishing, the appellant gave her TZS.2000.00 and warned her not to tell anyone. While making love, PW2 and PW5 were outside the window, peeping. It was the testimony of PW2 that, she saw the appellant seating on the chair and PW1 sat on the appellant's thighs facing each other, embracing, but were not naked. PW5 on her part witnessed the appellant and the victim making love (according to her, "doing tabia mbayd'). It was Anna, their friend with whom they were together peeping who stopped them from continuing watching the duo doing '‘"tabia m bayd' asserting that they will die if they will continue to watch them. However, they did not go away, instead, they stayed around and after about 15 minutes, they saw the appellant coming through the window but on seeing them, he went back in. Later, PW1 came out and pleaded with them not to inform her parents. PW2 and PW5 reported the matter to the school guard; PW3 who in turn reported the incidence to PW4. When PW4 enquired from the victim, she confessed that she made love with the appellant in the classroom at Kitongoria Primary School. PW4 reported the matter to the hamlet chairperson and later went to report the matter to Mashati Police Station where they were given a PF3 for PWl's medical checkup. It was PW6 who medically 3 examined PW1 and noted that she was not virgin. He filled the PF3 which was tendered and admitted in evidence as exhibit PI. The case file was assigned to PW7 for investigation. It was his testimony that, he interrogated PW1 who informed him that she was raped by the appellant at Kitongoria Primary School inside the classroom. He was also informed that, PW2 and PW5 witnessed the incident and upon interrogating them, they both confirmed to have seen PW1 and the appellant into entering the classroom through the window, and later made love therein. PW7 went on to testify that, he searched for the appellant and arrested him on 28th October, 2018. Later, the appellant was arraigned to court where he denied the accusations and the matter went to a full trial. In his defence, the appellant (DW1) denied having raped the victim and stated that, on 10th September 2018 at 15:30 hrs he was together with Festo Immanuel Shirima (DW2), attending a burial ceremony of a man who lived close to their school. It was his defence that he left the funeral place at around 17.00 hrs and went home. The appellant stated that, on 17th September, 2018, he heard some rumours that he raped PW1, but it was not true. He lamented that, it was not the first time for PW1 to make those accusations and that she had made similar allegations against some teachers he mentioned to be Kavishe and Thadeus. DW2 on his part testified that, on thefatefui date, he was with the appellant at the funeral of the father of one of their pupils from 12.00 hrs to 17.00 hrs. According to DW2, he was surprised to hear that the appellant had raped PW1 at that time while he was at the funeral. He concluded that, the victim was lying. After a full trial, the appellant was convicted and sentenced to serve thirty (30) years in jail. His appeal to the High Court was unsuccessful, hence the instant appeal. Initially, the appellant accessed the Court armed with 9 grounds of appeal in the memorandum of appeal and a supplementary memorandum of appeal having one ground. However, during the hearing of the appeal, the appellant prayed leave of the Court which was granted, to abandon the 1st, 2nd and 8th grounds of appeal in the memorandum of appeal. The remaining 6 grounds in the memorandum of appeal and the one in the supplementary memorandum of appeal can conveniently be clustered in the following complaints: one; that there was variance of the charge and the evidence adduced in respect of the place where the incident occurred, two; that the evidence of the victim, PW2 and PW5 were taken in contravention of the stipulated requirement in section 127 (2) of the Law of Evidence Act, Cap 6 (the Evidence Act), three; that there was delay in reporting the incident by the victim which raised reasonable doubts in 5 the prosecution case, four; that the trial court's failure to consider the strong and well supported defence evidence in its verdict, five; that the prosecution evidence was muddled/tainted with contradictions, inconsistencies and discrepancies that dented/ affected the prosecution witness' credibility, and six; that the case was not proved to the required standard. When the appeal was called on for hearing, the appellant appeared in person with no legal representation. On the other hand, Ms. Rose Sulle, learned Senior State Attorney assisted by Mr. Isaack Mangunu, learned State Attorney represented the respondent, Republic. When invited to amplify his grounds of appeal, the appellant started with complaint number one to the effect that, the charge sheet was in variance with the evidence in respect of the place where the incident occurred. Expounding, the appellant submitted that, the charge stipulates that, the incident occurred at Kitowo village while all prosecution witnesses testified that the incident occurred at Kitongoria Primary School. It was his contention that, the said variance rendered the prosecution case unproven. He referred to the case of Salim Abdallah Maganga vs. Republic, Criminal Appeal No. 285 of 2020 [2023] TZCA 17682 (2 October 2023) to back up his argument. The appellant further submitted that, the charge was required to be amended to tally with the evidence, but in the case at hand, no amendment was effected, the omission which he contended to be fatal and beseeched the Court to rule out that, the ground is with merit and be pleased to allow it. Mr. Mangunu rebutted the contention submitting that, the witnesses testified that, Kitongoria Primary School is situated within Kitowo village. He referred us to the testimony of PW7 appearing at page 23 of the record of appeal to verify his assertion. He further submitted that, even the appellant confirmed so when introducing himself before giving his testimony and referred us to page 28 of the record of appeal for verification. On that basis, he invited the Court to find the complaint baseless and reject it. We would not be detained in responding to this complaint. Principally, we are in agreement with the submission of the learned State Attorney. Indeed, there is no variance between the charge and the evidence as regards the place of incidence as contended. It is on record that, the witnesses proved so when giving their testimonies, including the appellant himself who testified as DW1. When testifying, the appellant introduced himself as follows:- "...Leodigard Africa Mosenga, 28 years, Christian , Chagga, teacher, Kitongoria Prim ary School, Kitow o." Thus, we are of firm view that, the place where the incident occurred was Kitongoria Primary School which is within Kitowo. We therefore find the complaint is unfounded. We dismiss it. Next is complaint number two on contravention of section 127 (2) of the Evidence Act. Basing on his submission, the complaint has two limbs; first that the evidence of PW1 was taken in contravention of section 127 (2) of the evidence Act. He charged that, the trial court did not satisfy itself as to whether PW1, being a child of tender age, possessed sufficient intelligence to justify the reception of her evidence. Besides, he contended, PW1 was not subjected to the requirement of testing her knowledge on the nature of oath and the duty to speak the truth before swearing her and proceeded to take her evidence. He cited the case of John Mkorongo James vs. Republic, Criminal Appeal No. 498 of 2020 [2022] TZCA 111 (11 March 2022] to support his argument. In response, Mr. Mangunu conceded that PW1 who was a child of a tender age, was sworn in by the court before satisfying the requirement under section 127 (2) of the Evidence Act as she did not promise to tell the truth nor was she tested whether or not she knew the nature of oath 8 before being sworn in. He however contended that, the infraction is curable under section 127 (6) of the Evidence Act and beseeched the Court to find that the evidence of PW1 was nothing but the truth and credible one which was also corroborated by the evidence of PW2 and PW5. The issue for our determination in this complaint is whether or not the evidence of PW1, P2 and PW5 offended the requirement under the provision of section 127 (2) of the Evidence Act. It is undeniable fact that, the victim was a witness of a tender age as per section 127 (4) of the Evidence act. Further that, such a witness is required under section 27(2) to be tested if he/she knows the nature of oath or not. If the answer is in affirmative, he/she will give a sworn evidence, if not, then, he/she should promise to tell the truth to the court and not lies. In the case at hand, PW1 was sworn in and the court proceeded to record her evidence without first testing her if she knew the nature of oath. Neither did she promised to tell the truth to the court. The appellant contended that, the omission was fatal to which position, we are not in agreement with. According to the argument of Mr. Mangunu to which we subscribe to, the pointed-out infraction is curable under the provision of section 127 (6) of the Evidence Act. The provision stipulates that, the court may proceed to convict even where section 127 (2) of the Evidence Act was offended, provided the court is satisfied that, the child is telling nothing but the truth. The law is long settled that, the evidence of the victim of sexual offence is the best one [see: Wambura Kiginya vs. Republic, Criminal Appeal No. 301 of 2018 & Selemani Makumba vs. Republic, [2006] T.L.R. 379]. But further to that, the Court in Goodluck Kyando vs. Republic [2006] T.L.R. 363 has ruled out that, every witness is entitled to credence and must be believed, unless there are cogent reason to disbelieve him/her. Basing on the victim's consistent and coherent testimony, we find no reason to disbelieve her and we are firm that, the victim was telling nothing but the truth. That aside, the victim's evidence was corroborated by PW2 and PW5. We are aware that, the appellant has in the second limb complained that, the testimonies of PW2 and PW5 were also recorded in contravention of the provision of section 127 (2) of the Evidence Act as they only promised to tell the truth to the trial court but omitted to promise not to tell lies. To him, the omission is an incurable defect and rendered their testimonies inadmissible thus, unable to corroborate the evidence of the victim. To say the least, we do not want to be-labour on this argument and we are not hesitant to state that, the argument is a misconception on the part of the appellant. We are of the view that, once one promises to tell the truth, indirectly/ impliedly he/she is also promising not to tell lies. We thus find the complaint is devoid of merit and disregard it. In complaint number three, the appellant submitted that there was delay in reporting the incident by the victim. He contended that, the said delay raised an apparent and reasonable doubts which ought to have been resolved in favour of the appellant. Refuting the contention, Mr. Mangunu submitted that the record reveals that, PW1 had agreed to have sex with the appellant on a promise of getting some money, which suggests that, she had no intention of reporting the incident. The record further reveals that, she disclosed the matter after being quizzed by her father. Thus, the issue of delay in reporting the incident does not arise and the complaint is baseless. We wholly subscribe to Mr. Mangunu's submission on this aspect. Indeed, the victim agreed to have sexual intercourse with the appellant and thus she was not prepared to disclose the incident. The following passage from the victim's evidence is very loud on this aspect: - "On 10/9/2018 a t is 15 hours I was a t home washing clothes... the accused came and told me 11 to follow him , I follow ed him up to Kitongoria Prim ary School... when we reached the school, the accused passed through the window to the classroom, he asked me to pass through the window too, I passed and follow ed the accused... he told me he wanted to make love with me. I did not say anything. He took o ff my pants and took o ff his trouser, he told me to sleep on the floor "nililala chali", he came over my chest and took his penis and entered my vagina ...he told me not to te ll anyone, he gave me TZS. 2000.00..." Flowing from the passage above quoted, it is true that the issue of delay in reporting by the victim does not arise as correctly argued by Mr. Mangunu. It follows that, the contended doubts in that respect do not arise. We reject the complaint. On complaint number four, the appellant faulted the 1st appellate court court to uphold the decision of the trial court which failed to consider his defence of alibi which according to him, was well supported by DW2. In his response, Mr. Mangunu dismissed the complaint arguing the same to be untrue. He argued that, the a lib i defence is governed by section 194 of the Criminal Procedure Act, Cap 20 (the CPA) which obligates a person who wants to rely on a defence of alib i to give notice of such intent to the court and prosecution side before the hearing of the case. He added that, in the circumstances where such notice was not given, then he who wishes to rely on it is required to furnish the particulars of his defence before the closure of the prosecution case. He contended that, the appellant in this case did not comply with the said requirement and thus, it was proper for the courts below to reject it. That notwithstanding, he contended, the prosecution witnesses (PW1, PW2 and PW5) testified consistently that, the appellant was at the place of incident at that particular time, which negates his a lib i defence. As correctly submitted by Mr. Mangunu, the matters pertaining to the defence of a lib i are regulated by section 194 (4), (5) and (6) of the CPA. The said provisions provide as follows: - "194 (4) Where an accused person intends to rely upon an a lib i in his defence, he sh all give to the court and the prosecution notice o f his intention to rely on such defence before the hearing o f the case; (5) Where an accused person does not give notice o f his intention to reiy on the defence o f a lib i before the hearing o f the case, he sh all furnish the prosecution with the particulars o f the a lib i a t any tim e before the case for the prosecution is dosed; and (6) I f the accused raises a defence o f alib i without having first furnished the prosecution pursuant to 13 this section ; the court may in its discretion, accord no weight o f any kind to the defence.'1[Emphasis added]. The said provision was well interpreted in the case of Charles Nanat vs. Republic, Criminal Appeal No. 286 of 2017 wherein the Court relying in the case of Haris Bakari Labani vs. Republic, Criminal Appeal No. 108 of 2012 (both unreported) prescribed the steps to be taken by a person who intends to rely on the defence of alibi: - "The /aw requires a person who intends to rely on the defence o f a lib i to give notice o f that intention before the hearing o f the case (section 194 (4) o f the Crim inal Procedure Act, Cap 20). I f the said notice cannot be given a t that early stage, the said person is under obligation, then, to furnish the prosecution with the particulars o f the a lib i a t any time before the prosecution doses its case, short o f that the court may on its own discretion accord no weight to that defence." [Emphasis added]. In view of the above therefore, we agree with Mr. Mangunu that, the evidence of PW1, PW2, and PW5 sufficiently dislodged the appellant's a lib i that, he was not at the scene of crime at the time when PW1 was raped. In addition, it is clear from the evidence on record that, both courts below were justified to accord no weight to the appellant's plea of alibi because 14 it offended the statutory requirement underlined above. On that account, we dismiss the complaint for being devoid of merit. As regards complaint number five which is to the effect that, the prosecution case was muddled with contradictions, inconsistencies and discrepancies that affected the credibility of the prosecution witnesses the appellant's illustration was twofold: first that, the victim at page 11 of the record of appeal testified that, she had no grudges with the appellant. However, at page 12 of the record of appeal, the victim stated that, she had a case against the appellant at Mashati, Rombo. In view of the above, the appellant contended that the witness was not speaking the truth and her credibility suffered. Responding to the contention, Mr. Mangunu submitted that, the presence of the said case did not mean that the victim had grudges with him. He however argued that, even if that is considered to be a contradiction, the same does not go to the root of the case, thus, baseless. In the second limb, the appellant stated that, what PW2 and PW5 testified to have witnessed at the place of incident was contradictory to one another. He illustrated that, while PW2 testified that she saw the appellant sitting on the chair and the victim was on his thighs looking at each other and embracing but not making love, on the other hand, PW5 testified to have seen the appellant and the victim making love on the table. He went on that, worse, the victim on her part testified that they made love on the floor inside the class room. It was his argument that, the pointed-out contradictions have dented the witnesses' credibility and casted doubts on the prosecution case. Responding, Mr. Mangunu denied the presence of contradictions in the testimonies of PW2 and PW5 who were eye witnesses to the offence. He argued that according to the record of appeal, PW2 and PW5 witnessed the incident at different span of time and each testified on what she saw when peeping at the window to see what was going on. But further to that, he argued, even if their testimonies are considered to be contradictory to each other, the same are minor and do not go to the root of the matter as they do not affect the established case of rape. The issue to be addressed in respect of the pointed-out complaint is whether PW2 and PW5 evidence were contradictory to each other. The law is long settled that, the inconsistences are bound to occur in the testimonies of the witnesses for various reasons like lapse of time etc. What the Court is required to resolve in the circumstance is whether they are material and they go to the root of the matter or not. [See: Mohamed Matula vs. Republic (1995) T.L.R 3]. In the case at hand the wanting question is whether the pointed- out inconsistencies are material thus, go to the root of the case to which we readily answer negatively and we will explain: We are in agreement with Mr. Mangunu that the two witnesses (PW2 and PW5) were peeping at different span of time and that explains why PW2 just saw the victim sitting on the thighs of the appellant facing each other embracing. But when PW5 was peeping, the victim and the appellant had already started making love. That apart, the victim testified that she was told to lie down on the floor and the appellant penetrated his penis into her vagina, which suggests that, they had sexual inter course on the floor. As alluded to earlier, the best and true evidence of the alleged sexual offence, has to come from the victim who in this case is PW1. We are mindful that, the applicability of the principle laid in Selemani Makumba's case (supra) presupposes that the victim is credible, is the case with PWl's evidence. We have found nothing in the record of appeal which suggests otherwise. Further to that, the victim's evidence as regards penetration was corroborated by PW6 and exhibit PI as above analysed. As who was the offender, we findPWl's evidence was corroborated by PW2 and PW5. 17 The analysis above also answers the appellant's complaint number six as regards to the proof of the offence beyond reasonable doubts. It is long settled that, for the offence at issue, the prosecution is required to prove that, there was penetration and the accused was the offender. In the circumstances, it is plain that, the prosecution managed to prove both elements. Basing on the above analysis, we are of a firm view that, the appellant raped the victim. It is immaterial in our view, as to whether the offence was committed on the table or on the floor. On that account, the pointed-out contradictions even if exist, are not material and do not go to the root of the matter to corrode the credibility of the witnesses as contended by the appellant. Thus, complaints number five and six are devoid of merit and they are accordingly dismissed. Being a second appeal, we are aware that, this court will not interfere with the concurrent findings of facts by the High Court and the trial court unless it is shown that, there has been a misapprehension of evidence, or miscarriage of justice or violation of a principal of law or practice. [See: Amratlal D.M. t/a Zanzibar, Silk Stores vs. A. H. Jasiwalla t/a Zanzibar Hotel [1980] T.L.R 31, Mussa Ally Onyango vs. Republic, Criminal Appeal No. 75 of 2016 (unreported). The appellant in the case at hand, has failed to point-out to the Court any of 18 the described mishaps, and also on our part we could not find any to justify an interference with the concurrent findings of the two courts below as far as the complaints raised by the appellant are concerned. In the ultimate event, this appeal fails and is accordingly dismissed in its entirety. DATED at DAR ES SALAAM this 19th day of November, 2024. A. G. MWARIJA JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 22nd day of November, 2024 in the presence of Appellant in person and Mr. Ruth Emmanuel Kamola learned State Attorney for the Respondent/Republic connected through video conference from High Court Moshi, is hereby certified as a true copy of the original. F. A. MTARANIA DEPUTY REGISTRAR COURT OF APPEAL