CRIMINAL APPEAL NO 107 OF 2022 RASHID ALLY KIMAGE VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: LILA, J.A., KAIRO. J.A. And MGONYA J.A.^ CRIMINAL APPEAL NO. 107 OF 2022 RASHID ALLY KIMAGE................................................ ....... APPELLANT VERSUS THE REPUBLIC......... ................... ............................ RESPONDENT (Appeal from the Decision of Resident Magistrate Court of Dar es Salaam, at Kisutu) fMwilapwa, PRM Ext. Jur.^ dated the 28th day of December, 2020 in Extended Jurisdiction Criminal Appeal No. 9 of 2020 JUDGMENT OF THE COURT ♦ 24h April & 21stJune, 2024 KAIRO. J.A.: In the District Court of Ilala at Samora Avenue, the appellant was charged with the offence of rape contrary to sections 130 (1), (2) (e), and 131 (1) of the Penal Code. It was alleged that, on 22nd January, 2019 at Chanika Ngobedi area within Ilala District in Dar es Salaam Region, the appellant did have carnal knowledge of a girl child of 5 years of age. To conceal her true identity, we shall refer to her as the victim. The appellant denied the charge and the case proceeded to a full trial. The prosecution side paraded four witnesses to prove the case against the appellant. The i names of the witnesses were Salma Hashim Mohamed (PW1), the victim's mother; G. 2498 DC Mahamoud (PW2) police officer who investigated the case; Faraji Chivanga (PW3) a doctor who examined the victim and Rose Simon (PW4), a ten-cell leader, to whom the incident was reported for the first time. The prosecution also tendered a Police Form No. 3 (PF3) for identification and the same was admitted as IDI. On the other hand, the defence side had only one witness, the appellant who testified as I DW1, with no exhibit. It is noteworthy that, the victim did not testify after the trial court made a fact finding and declared her incompetent witness under section 127 (1) of the Evidence Act, due to her anomalous condition. The prosecution case at the trial was to the effect that, on 22/1/2019 around 10:00 hours, the victim went to play at Mama Mulunzi's t house, a neighbour where the appellant was living. PW1 then left to go to her farm. While at the farm, PW1 experienced an abnormal feeling and her heartbeat was racing, she thus went back home for a rest. Reaching there, she did not find the victim. She called her several times, in vain. PW1 then went searching for her into Mama Mulunzi's house. When she entered one of the rooms into which the appellant was occupying, she found the victim 2 bent while facing another direction having a bed sheet put into her mouth. The victim's buttocks were in the appellant's direction while her track suit was down to her legs. The appellant was undressed with his manhood in erection facing the bent victim. A baby care petroleum jelly container was i beside them. PW1 carried the victim from the scene and also noted that the victim had some sperms around her buttocks. She went to report the incidence to PW4, who together with other three women inspected the victim at the presence of PW1. It was the testimony of PW1 that, there was a sign that the victim was raped, which according to her, other women shared that t sentiment. PW1 was then given a letter to go and report the incidence to the police where PF3 report was issued and the incidence was investigated by PW2. The victim was taken to Zingiziwa Dispensary for medical examination. PW1 testified that, the medical test revealed that, the victim was carnally known and had no hymen. PF3 was later filled and handed over to PW1 to take it back to the police. Finally, the appellant was arrested. In her testimony, PW4 confirmed to have received a complaint from PW1 that the appellant raped the victim. That, together with other women and the victim's mother inspected the victim's vagina but did not see any signs of being raped. According to PW4, they expected to find the victim's vagina had bruises due to age difference between the victim and the appellant, but none was found. Testifying on the medical examination conducted on the victim, PW3 told the trial court that, her genital organ had neither bruises nor blood. Further, that her labia majora and minora looked normal, but she had no hymen. PW3 accordingly filled PF3 form. The appellant in his defence, denied having raped the victim though he agreed to be with PW1 inside the room. DW1 also testified that, PW1 concocted the story because he rejected her advances to become her iover. After the trial, it was a finding of the trial magistrate that the prosecution failed to prove the offence of rape as charged but was satisfied that the offence of attempted rape was committed and duly proved. The trial magistrate therefore substituted the charged offence of rape to attempted rape c/s 132 (1) and (2) (a) of the Penal Code, and sentenced him to serve a term of 30 years in jail. The appellant was not amused and decided to appeal to the High Court. Again, luck was not on his part as the first appellate court upheld the conviction and sentence, consequently dismissed the appeal in its entirety. Still wishing to vindicate his innocence, the appellant has preferred this second appeal comprising of five grounds of appeal as follows:- 1. That, both lower courts erred in law and fact in convicting the appellant based on blatant lie, incredible, uncorroborated, contradictory and unreliable evidence o f PW1, (victim's mother) who asserted that the victim had sperms around her buttocks contrary to the evidence o f PW3 and PW4, the omission which renders her whole narration untruthful, worth less and a nullity. 2. That, both lower courts erred in law and fact in convicting the appellant in a substituted charge which the appellant was not asked whether he admits or denies the truth o f the charge and he was not called to defend himself for the same charge contrary to the provisions o f sections 228 (1), 234 (1) (2) and 231 (1) o f the CPA, the omission which resuited into a serious error amounting to miscarriage o f justice. 3. That, both lower courts erred in law and fact in convicting the appellant when the appellant's defense evidence specifically on love jealous between the victim's mother and the appellant, was wrongly disregarded and the same was not fairly adjudicated and determined. 4 5 4. That both lower courts erred in law and fact In convicting the appellant based PW1, who was a sole eye witness (PW1) but gave improbable, implausible and a vague narration as there was nothing to prove the credence and truthfulness of PW1. Besides the ingredients o f attempted rape as per section 132 (2) (a-d) o f the Penal Code were not proved. 5. That, both lower courts erred in law and fact in convicting the appellant when the prosecution case was not proved beyond reasonable doubt against the appellant, as required by law. When the appeal was called on for hearing, the appellant appeared in person with no legal representation. He adopted the grounds of appeal and opted to hear the response of the respondent subject to his right to make rejoinder where necessary. On the other hand, Miss. Mossie Wakil Kaima and Mr. Tumaini Maingu Mafuru, both learned State Attorneys teamed up to represent the respondent Republic. . Arguing ground No. 2 into which the appellant was complaining that he was not asked to enter a fresh plea nor defend himself to the substituted charge contrary to section 228 (1), (2) and 23 (1) of the CPA resulting to miscarriage of justice, Ms. Kaima submitted that there was no law flawed by the lower courts and consequently, no injustice was i occasioned. She instead, contended that, the trial court was justified under the provision of section 301 of the CPA to convict the appellant with an attempted rape instead of the offence of rape he was charged of previously. She further submitted that, section 380 of the Penal Code provides for the meaning of an "attempt" to mean the incidence where a person intending to commit an offence makes the necessary effort or preparation to accomplish its commission but does not complete. Ms. Kaima, applied the definition to the case at hand narrating how the victim and the appellant were found by PW1 at the scene of the incidence. She contended that, the circumstances shows that he was preparing to do the act and if not that PW1 appeared, the appellant would have fulfilled his intention to rape the victim. According to her, the threshold for the offence of attempted rape was met, and thus, there is nothing to fault the lower courts for the substitution made. She referred the Court to the case of Emmanuel Thomas @ Kasamwa vs The Republic, Criminal Appeal No. 183 of 2019 (unreported) to fortify her arguments into which the Court observed that, even if there was no evidence to prove the commission of the offence charged off, but if there is an attempt to commit the offence, the culprit should not be left unpunished. Reacting to the appellant's complaint in ground No. 3, Ms. Kaima argued that the same was an afterthought as correctly found by the trial court and upheld by the first appellate court. She elaborated that, though when defending himself the appellant asserted that PW1 has fabricated the story as she was jealous of his love after her advances were rejected, 4 but she did not raise that issue when cross examining PW1 while he had the opportunity to do so. She argued that, his omission meant that he had accepted to the testimony given by PW1. He cited the case of Nyerere Nyague vs Republic, Criminal Appeal No. 501 of 2007 (unreported) to back up her argument. When asked by the Court as to whether the said issue was analysed 4 by the first appellate court, being a ground of appeal thereat, Ms. Kaima on a reflection gave a negative answer and added that the omission was improper. When further asked on a way forward for the pointed-out omission, Ms. Kaima was of the view that, we step into the shoes of the first appellate court and determine the same. As regards grounds Nos. 1 and 4, the appellant complained that i the trial court erred to convict him basing on unreliable and implausible testimony of PW1, which also was in contradiction with the testimonies of other prosecution witnesses, specifically as regards the presence of some 8 sperms around the victim's buttocks. In her response, Ms. Kaima conceded to the presence of the contradictions as complained, but argued that, the same was minor and did not affect PWl's credence. She added that, it is a long-settled stance of law that every witness is entitled to credence and his testimony believed unless there is a good reason to the contrary. It was her argument that, there was no such reason to disbelieve PW1 despite the contradictions as they did not go to the root of the matter. She cited the case of Charles Haule vs Republic, Criminal Appeal No. 250 of 2018 (unreported) to fortify her arguments. As for the complaint that PWl's evidence was not corroborated by other witnesses, Ms. Kaima cited section 143 of the Evidence Act for an an'swer. Elaborating, she submitted that, there is no particular number of witnesses required to prove a certain fact. As such, the complaint was baseless. Winding up the issue, she submitted that, though PW1 was a sole eye prosecution witness, her evidence was sufficient to ground conviction without corroboration, thus the complaint is unmerited. Regarding ground No. 5, the learned State Attorney dismissed the complaint that the prosecution did not prove the case beyond reasonable doubt. Clarifying, she submitted that, the evidence adduced by the prosecution, particularly PW1 depicts the ill intention the appellant had to 9 commit the offence and that the said ill intention was only tamed by the appearance of PW1 at the scene of crime, thus, the ingredients for an attempted rape were met and the complaint does not hold water. She concluded by praying the Court to find the appeal without merit and dismiss it on its entirety. The appellant had nothing as a rejoinder. He pleaded with the Court to consider his grounds and set him free. After going through the record of appeal and hearing the oral submissions of the learned State Attorney, we are settled in our minds that the determinant factor in this appeal hinged on the credibility of PW1. According to the record of appeal, PW1 was the sole eye witness who had to testify in place of the victim for the reason alluded to earlier. She is also the key witness upon whom the appellant's conviction was based on. Thus, considering the nature of the offence the appellant was charged of, coupled with the fact that she testified in place of the victim, we think, determination of her credibility was paramount, especially at * the trial court where her demeanour was supposed to have been assessed. Generally, credibility of a witness is the monopoly of the trial court, but only in so far as demeanour is concerned. We have repetitively given 10 this stance in our various decisions including Shaban Daudi vs Republic, Criminal Appeal No. 28 of 2001 and Edson Mwombeki vs Republic, Criminal Appeal No. 94 of 2016 (both unreported) to mention but a few. In AM Abdallah Rajah vs Saada Abdallah Rajah & Others [1994] T.L.R. 132 the Court observed as follows as regards the importance of stating the demeanour of such a witness by the trial court: "Where the decision of a case is wholly based on the credibility o f the witnesses then it is the triai court which is better placed to assess their credibility • than an appellate court which merely reads the transcript o f the record. " As observed, the trial court was silent on PWl's demeanour. Further to that, the first appellate court as well did not address the issue of PWl's credibility though there was a ground raised touching it. It seemed the issue skipped the minds of both lower courts as the record is silent as regards the assessment of PWl's credibility which is now questioned in grounds j of appeal Nos. 1 and 4. Nevertheless, in exceptional circumstances, the Court can still determine the credibility of a witness despite being presiding as a 2nd appellate court. In Shaban Daudi (supra), the Court spelt out the scenario into which the credibility of a witness could be determined by the 2nd appellate court. It stated: ii ".... The credibility ofa witness can be determined in two other ways. One, when assessing the coherence o f the testimony o f that witness, two, when the testimony is considered in relation to the evidence o f other witnesses, including that o f the accused person. In those two occasions, the credibility o f a witness can be determined even by j a second appellate court when examining the findings o f the first appellate court" The trial court in this case found that the evidence was not sufficient to ground a conviction for the offence of rape, but was enough to sustain the conviction for the offence of attempted rape which the appellant was convicted of. The 1st appellate court upheld the trial court's decision to which the learned State Attorney argued to be proper. But it is the appellant's complaint that, PW1 evidence was contradictory to PW3 and PW4 who also testified for prosecution. When testifying, PW1 stated that she had observed some sperms around the buttocks of the victim to which we take it to be conspicuous. However, neither PW3 nor PW4 mentioned it. We expected, PW4 being among the first women to inspect the victim could have also observed that situation considering the time lapse as PW1 i went straight with the victim to report the matter to PW4, being the ten- cell leader of the area. To say the least, this is surprising and, in our conviction, raises doubts as regards the trustworthiness of PW1 which 12 also had an adverse effect on reliability of her evidence as correctly raised byt the appellant. We wish to put it clear that, we accede to the well settled legal stance stated by the learned State Attorney that every witness is entitled to credence and his/her evidence believed unless there is good reason to the contrary. However, in the matter at hand, the material contradiction of PWl's evidence when compared with other prosecution witnesses' testimonies has dented her credence, as such, the stated legal principle cannot operate in her favour. [Refer: Mathias * Bundala vs The Republic, Criminal Appeal No. 62 of 2004] (unreported). We are aware that the offence the appellant was found guilty of was attempted rape for which proof of penetration is not required. However, it is the same evidence which the trial court relied on to find him guilty of the offence of attempted rape. But basing on the above analysis, its reliability is doubtful due to the inconsistencies observed. The pointed- out contradictions, we think, touching the key and sole witness who testified in place of the victim, have greatly dented her credibility and whatever she testified cannot be relied upon to ground any offence what so ever. To do that, will amount to sieve the evidence, which legally is not allowed. As we have observed in Shabani Daudi (supra), the credence ofa witness can also be tested/ considered in relation to the evidence of 13 other witnesses, we can thus say without hesitation that, PWl's credibility had suffered in the wake of the pointed-out contradictions. As such, we agree with the appellant that, her evidence was not plausible, and could not therefore be relied upon to convict the appellant. In Bahati Makeja vs Republic, Criminal Appeal No. 118 of 2006 (unreported) the Court observed that a witness who teils a lie on material point should hardiy be believed in respect of other points. We are again fully aware that, Court being a second appellate Court, should rarely interfere with the concurrent findings of lower courts on the facts. However, it can do so where there has been a misapprehension of the evidence or failure to take material point or circumstance into account. (See: DPP vs Jaffar Mfaume Kawawa [1981] T.L.R. 149 and Seif Mohamed E.L Abadan vs REPUBLIC and Shabani Daudi vs. The Republic, Criminal Appeal No. 28 of 2001 (unreported). Basing on what we have endeavoured to discuss above, we are confident that, the two lower courts misapprehended by failing to take into account the adverse effect the contradictions of the i prosecution witness had to the credibility of PW1. In view of what we have endeavoured to discuss, we find merit in this appeal. Since the two grounds suffice to dispose the appeal, we find no need of continuing discussing other grounds. 14 In fine, we allow the appeal, quash the conviction and set aside the sentence. We further order the immediate release of the appellant from prison unless he is otherwise lawfully held. DATED at DAR ES SALAAM this 20th day of June, 2024. S. A. LILA JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL * L. E. MGONYA JUSTICE OF APPEAL * The Judgment delivered this 21st day of June, 2024 in the presence of the Appellant in person - linked through Video Conference from Ukonga Prison and in the absence of the Respondent/Republic is hereby certified as a true copy of the original. 15