MOHAMED AYOUB VS

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA ARUSHA SUB - REGISTRY CRIMINAL APPEAL NO. 15842 OF 2024 (C/F Criminal Case No. 185 of 2019 in the Resident Magistrate's Court of Arusha, at Arusha) MOHAMED AYOUB....................................................................... APPELLANT

VERSUS THE REPUBLIC........................................................... RESPONDENT

JUDGMENT 23rd September & 6th November, 2024 KAINDA, J.: In the Resident Magistrate's Court of Arusha, the appellant, Mohamed Ayoub was charged with two charges. In the first count he faced an offence of rape contrary to Sections 130 (1) and (2) (e) and 131 (1) of the Penal Code, [Cap 16 R.E 2002]. In the second count, he faced on offence of impregnating a school girl contrary to Section 60A (3) of the Education Act, [Cap 353 R.E.2002]. It was alleged that on unknown date of June, 2018 at Kambi ya Mkaa area within Arumeru District and Region of Arusha, the appellant did have sexual intercourse with one F.L, a girl of sixteen years old; in the second count, it was alleged that on unknown date and month of the year 2018 at Kambi ya Mkaa area within Arumeru District and Region of Arusha i did have sexual intercourse with F.L, a girl of sixteen years old and a school girl at Sokon II Secondary School as a result he impregnated her. After a full trial, the appellant was found guilty in the first count. He was consequently convicted and sentenced to serve twenty-seven years imprisonment. Aggrieved by the conviction and sentence, he has appealed to this court against the said decision fronting the following seven grounds of appeal; one that, the learned trial magistrate erred in law and facts in not finding that, the charge sheet is incurably defective; two that, the learned trial

magistrate erred in law and fact in failing to assess the credibility of the victim of the offence; three that, the learned trial magistrate erred in law and fact when he convicted and sentenced the appellant despite the evidence from the prosecution witness which was tainted with inconsistencies and discrepancies which ought to be solved for the favour of the appellant; four that, the learned trial magistrate erred in law and fact for failing to summon material witness; five that, the learned trial magistrate erred in law and fact in not finding that there was a delay in reporting the incident; six that, the case against the appellant was not proved beyond reasonable doubt; seven that, the learned trial magistrate erred in law and fact in not considering the defence of the appellant. 2 The background giving rise this case can briefly stated as follows; It is a prosecution case that; sometimes in June, 2018, the appellant had love affair with the victim, a sixteen years girl, and that in the due cause they have been having sexual intercourse, the victim became pregnant. The victim was a form 1 student at Sokoni 2 Secondary School. Following the incident, report was made at police and the appellant was arrested, interrogated and taken to court. The prosecution evidence consisted of five witnesses. PW1 victims' mother whose testimony was to the effect that the victim is 16 years

old. PW2 is the victim of the alleged rape. She testified that on 6.6.2018 had sexual intercourse with the appellant and became pregnant. She named the appellant as responsible for her pregnancy. PW3 a Police who investigated this case. His testimony is to the effect that sometime in October, 2010, he was handed the case for investigation. He took over from Detective Damas who was transferred. He is the one who made a follow up to the Government Chemist, obtained and kept the DNA report. PW4 is a Government Chemist who tendered exhibit Pl, the DNA report. PW5, is a medical doctor who tendered exhibit P2, a medical report which shows that the victim was seven months pregnant. 3 In his defence, the appellant exculpated himself from the offences charged. He testified that he was arrested for impregnating a school girl the offence which he did not commit. DW2 is a village Executive Officer who attended the matter after it was reported by PW1. He is the one who reported the matter at Police. In its judgement, the trial court found that the prosecution had proved its case against the appellant beyond reasonable doubt. The trial Resident Magistrate had this to say at page 10 of the typed proceedings I quote; " The most common way that most people get pregnant is through sexual intercourse. And this is what FJ has stated before this court, that she had sexual intercourse with the

accused three times. Exhibit Pl is a corroborating proof of what FJ has stated before this court. This court is satisfied that the accused person had sexual intercourse with FJ, while she was 17 years old". Consequently, the appellant was found guilty of the offence of rape in the first count while, the second count of impregnating a school girl was found not proved and the appellant was acquitted on the said second count. 4 The hearing of the appeal was by way of written submission. Arguing on the first ground of appeal, that the learned trial magistrate erred in law and facts in not finding that the charge sheet is incurably defective, the appellant submitted that it is alleged in the charge sheet that the alleged rape occurred on unknown date of June, 2018 while PW2, the victim, testified that the incident took place on a known date of 6.6.2018. On addressing this point, the learned counsel for the respondent called the complaint baseless as the date mentioned by PW2 falls within the month of June,2018 as shown in the charge sheet. This court was asked to treat it as a minor defect which did not go to the root of the case. With regard to complaints in second and fifth grounds of appeal which were argued together, the appellant submitted that PW2 was not credible as she delayed to report the incident which was reported after lapse of six month and failed to name the suspect

at the earliest opportune to her parents even to her teacher. On their part, the respondent submitted in reply that they were partly in agreement with the appellant's arguments as per the evidence of PW2 as reflected at pages 9-11 of the typed proceedings that three months from the date of incident, is when she discovered to have missed her menstruation cycle, 5 but instead of reporting and naming the suspect to her parents or teachers, she decided to abscond from home following being advised by the appellant. The respondent disagreed with the argument that PW2 is not credible and that the appellant did not explain as to how he was prejudiced and cited the case of Kennedy Paul Mosha v. Republic, Criminal Appeal No. 578 of 2020 [2024] TZCA 413 (7th June, 2024) that; " the principle of naming a suspect and reporting the incident at the earliest opportunity is important in assurance of the witness's credibility, however we find that the above principle is not strictly applicable in the sexual related offences as the victim's process their trauma, feels shock, disbelief by fear of humiliation, degradation guilt, shame and embarrassment" Applying the above case to the one at hand, the respondent submitted that PW2 was still a student during the incident thus she was going through all what were provided in the cited case and made PW2 not to report the incident and name the suspect at

the earliest opportunity. The respondent prayed for this court to dismiss these grounds of appeal. I have dispassionately considered the parties' submissions generally and on each ground of appeal. Upon consideration, I am of the view that 6 determination of this appeal basically depends on the finding on the second and fifth ground. These grounds raise an issue on whether the appellant was fairly tried and whether PW2 was credible as to entitle the trial District Court to hold that the prosecution case was proved beyond reasonable doubt. Trials in criminal jurisprudence means a judicial examination or determination of the issues before the court to arrive at a finding whether the accused is guilty or not. It is widely accepted that the rights of an accused person begin from the time of his/her arrest. In the present case, much as conceded by the learned State Attorney, there was a delay in reporting the incident since it was reported after lapse of six months and the victim failed to name the suspect at the earliest opportune to her parents even to her teacher. The record is silent as to when the incident was reported to the police. It is alleged in the charge sheet that the incident took place on unknown date of June, 2018. In her testimony, PW2 stated that she had sexual intercourse with the appellant on 6th June, 2018. The appellant was arraigned in the trial court on 30th

April, 2019. In his defence, the appellant denied the allegation put before him. He was summoned by DW2, the Village Executive officer where it was alleged that he impregnated a student. The matter was taken 7 to police on the date which was not mentioned. DW2 (VEO), testified that PW1, mother of the victim called at his office with a request for a help to get PW2 transferred. Now, it is for this court to find out if the anomalies made PW2 not credible. The recent case of Kennedy Paul Mosha v. Republic, (supra) that in sexual offences, the victims process trauma, feels shock, disbelief by fear of humiliation, degradation guilt, shame and embarrassment. I am at agreement with the position held in the above case. However, the facts in the two cases differs. In the Kennedy's case above, the reason that the victim was threatened to be slaughtered by the appellant which is not the case in this appeal. It was held at page 13 thus; "From the analysis on rape trauma by the writers above, we are inclined to hold that, credibility of the victim of a sexual assault should not be blamed, as a rule, on a mere delay to name ones' assailant if there are reasons explained like in the appeal at hand. It is on record of this appeal that, PW1 never disclosed that she was raped since she was threatened to be slaughtered by the appellant" I am alive with the principle of law that the trial court is

in the best position to assess credibility of witnesses, however, the appellate court 8 can interfere if the finding was based on misapprehension of the substance, nature and quality of the evidence. In the present case, PW2 testified that the alleged rape took place on 6.6.2018, the date which is not reflected in the charge sheet; for no apparent reason, the victim chose to remain silent about the incident. She reported to no one until when was found pregnant; PW1 engaged to find another school for the victim without apparent reason, what was she trying to hide; According to PW1, she reported the incident to DW2, the Village Executive Officer where, the appellant admitted to be responsible for the pregnancy. However, in his testimony, DW2 did not state so. He only sated his doubt as to why the victim did not want to go to school only to find she was pregnant; Part of DW2 testimony at page 27- 28 of the typed proceedings reads; "I remember the victim came to my office and her mother asking me to help them to get a transfer from Moshi to Nashomi Secondary School. I consulted the Headmaster of Nashomi Secondary School to help her get transferred but she did not go to school ofNashomi. I made a follow up and found that she was in Iringa. The victim said she did not want to go to Nashomi Secondary Schoo! but instead, 9 she wanted to go to VETA. We doubted why she did not want to

go to school but later we found out that she was pregnant. I decided to report at police station." Submitting in relation to credibility on the part ofprosecution witnesses, the learned State Attorney admitted that there was a delay in reporting the incident and that she failed to name the suspect In the trial court, the appellant was charged with two counts. The second count being Impregnating a School Girl, however, he was acquitted on this offence. Given the circumstances hereinabove stated, on the misdirection and misapprehension of the evidence with regard to credibility of prosecution key witnesses, the conviction of the appellant is not safe. I therefore allow the appeal. The conviction is hereby quashed and the sentence is set aside. He is to be set free from prison unless held for some other lawfully cause. It is so ordered. _ S. J. KAIN DA

JUDGE 6.11.2024 10 Judgement delivered under my hand and seal of this court in Chambers this 6th November, 2024 in the presence of the appellant in person unrepresented and Mr. Philbert Msuya learned counsel for the respondent/Republic. Right of appeal to the Court of Appeal fully explained. S. J. KAINDA

JUDGE 6.11.2024 li