JUDGMENT OF RIFA MASALI

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY

AT MBEYA CRIMINAL APPEAL NO. 13422 OF 2024 CASE REFERENCE NO. 202405202000013422 (Originating from Criminal Case No. 123 of 2022 in the district court of Chunya at Chunya) RIFA MASALI ...........................................................................APPELLANT

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

JUDGMENT 18th November 2024 & 10th February 2025 NONGWA, J. The appellant together with one Diana d/o Masali and Veronica d/o Masali who are not a party to this appeal (herein the 2nd and 3rd accused), appeared before the district court of Chunya where they were charged with two counts as follows; In the first count, Rifa Masali, Diana d/o Masali and Veronica d/o Masali were charged with conspiracy to commit an offence contrary to section 384 of the Penal Code [Cap 16 R: E 2022]. It was alleged that on or about 8/9/2022 at Mafyeko village within Chunya district in Mbeya region the accused persons did conspire to rape (name withheld) a school girl of 16 years old. 1 In the second count was for the appellant alone, who was charged with rape contrary to sections 130(1)(2)(e) and 131(1) of the Penal Code [Cap 16 R: E 2022]. It was alleged that Rifa Masali on or about 08 day of August 2022 at Mafyeko village within Chunya district in Mbeya region did have carnal knowledge of one (name withheld) a school girl of 16 years old. To protect dignity of the said girl, she will be referred as victim or ‘PW1’. The appellant and others pleaded not guilty to all the charges denying the allegations levelled against them. They were bailed out after meeting the conditions put by the court, however the 2nd and 3rd accused jumped bail. The prosecutor prayed and was granted order to proceed

in absence of them. Brief evidence by the victim is that on 8/8/2022 at around 18:00 the 3rd accused told her to escort to her home, PW1 saw the appellant and the 2nd accused. At home the 3rd accused assisted by the 2nd accused forced her into the appellant’s room where the 2nd accused held her and the 3rd accused went to close the door. The appellant stripped off her clothes, pulled her down and laid on top of her while inserting penis into her vagina, they had sexual intercourse. Shortly heard voice of her mother and the 2nd accused jumped through the window, too the appellant. She took her torn skirt and went out, she went to tell her aunt what befallen 2 her. Her mother arrived and was also told what happened. She was taken to Chunya police station and his torn skirt was taken by police while tight and underpants were left to the appellant’s room. After obtaining PF3 was taken to hospital where she was examined by Albia Alex(PW3) who upon examination found the PW1 was penetrated by blunt object. Anastazia John, PW1’s mother testified that PW1 was born on 9/3/2006. In defence the appellant testified that was arrested on 10/8/2022 by militia and taken to Chunya police station where he was interrogated and connected with rape. He said the case was framed by PW1’s father after he refused to sale him the house he inherited from his parents. Upon a full trial, the court convicted

all the accused persons with the first count of conspiracy to commit offence and each sentenced to fine of Tshs. 500,000/- or serve prison term of 3 years in default thereof. The appellant was also convicted as charged in the second count and sentenced to thirty years imprisonment. The appellant is aggrieved by the whole judgment and has filed petition of appeal on four grounds one, that the trial court erred in law in convicting and sentencing the appellant relying on the evidence of PW1 and PW2 which failed corroboration from the neighbour and leaders who heard alarms and went to rescue PW1 at the area of crime and got the first report from her the name of the said rapist; two, that the trial court 3 erred in law when convicted and sentenced the appellant without taking into account that PW1 when attended by Pw3 she told the doctor that she was raped by unknown man; three, that the trial court erred in law and fact to convict and sentence the appellant without evaluating and assessing deeply the evidence of PW1 and PW2 including the whole situation of the said area of crime before reaching conclusion; and four, that the prosecution failed to proof its case as per the law and the defence of the appellant was ignored by the trial court. When the appeal was called for hearing, the appellant appeared in person, unrepresented while the respondent had the service of Mr. Lordgard

Eliamani, State Attorney who did not support the appeal. When invited to address the court, the appellant submitted that, his fronted grounds of appeal be considered and form his submission. In his submission, counsel argued ground one and three conjointly. He submitted that in rape cases, penetration, the culprit and age of the victim were to be proved. He stated PW1 explained in detail how the offence was committed, the appellant being assisted by two women. He said, PW1 clothes were torn out and tendered in evidence. Further that the appellant did not cross - examine, the court was referred to the case of Hatari Masharubu Babu Ayoub Vs Republic, Criminal Appeal no. 590/2017 CAT Mwanza. He added that the victim was credible. It was 4 argued that age of the victim was proved by PW2, who also testified on how she got information of rape. Mr. Lordgard added that evidence of penetration was corroborated by PW3. In the second ground that PW1 said was raped by unknown person, the state attorney conceded to this but was quick to point down that it did not means the appellant did not commit the offence, adding that the appellant did not cross - examine witness on that aspect. In ground four that the case was not proved, the state attorney was resolute that all ingredients that is penetration, perpetrator and age of the victim was proved. He cited the celebrated case of Seleman

Makumba vs Republic [2006] TLR 379. On whether defence evidence was considered it was submitted in affirmative. The state attorney added that being a first appellate court, it can re-evaluate the evidence of both sides and come up with own findings. Having considered petition of appeal and submission from both sides, points for my determination are two, one, whether defence was ignored by the trial court; and two, whether the prosecution proved the charges beyond reasonable doubts. Starting with the first point whether defence evidence was considered, Mr. Lordgard has submitted that it was considered however, 5 I don’t agree with him. In the determination of two counts which was facing the appellant, nowhere the magistrate referred to the evidence of the appellant. Section 235(1) of the Criminal Procedure Act [Cap 20 R: E 2022] provides; ‘The court, having heard both the complainant and the accused and their witnesses, shall convict the accused and pass sentence upon or make an order against him according to law or shall acquit him or shall dismiss the charge under section 38 of the Penal Code.’ The above provision directs the trial court to compose a judgment after hearing both the complainant and the accused and their witnesses, either convict and pass a sentence or acquit and make an order dismissing the charge. For evidence of both parties to be taken as considered

there must be a balanced consideration and evaluation of evidence by weighing the prosecution evidence visa viz the accused defence. In the case of Mkulima Mbagala vs Republic, Criminal Appeal No. 267 of 2006 (unreported) the court stated; ‘For a judgment of any Court of justice to be held to be a reasoned one, in our respectful opinion, it ought to contain an objective evaluation of the entire evidence before it. This involves a proper consideration of the evidence for the defence which is balanced against that of the prosecution in order to find out which case .... is more cogent. In short, such an evaluation should be a conscious process of analysing the entire evidence dispassionately in order 6 to form an informed opinion as to its quality before a formal conclusion is arrived at.’ The appellant’s main defence was that the case was framed by the victim’s father after refusing to sale him the house. This piece of evidence was never weighed against that of the prosecution. I therefore find merits in this ground. However, the anomaly is not fatal, being the first appellate court, this court has mandate to step into the shoes of the trial court by doing what it omitted to do as stated in the case of Nimo Samu vs The Director of Public Prosecutions (DPP), Criminal Appeal No. 31 of 2019 [2022] TZCA 674 (7 November 2022; TanzLII) that; ‘When a trial court fails to perform its

duty under the law to consider the defence evidence, the High Court being the first appellate court has powers to step into the trial court's shoes and reconsider the evidence of both sides and come up with its own finding of fact.’ I will therefore do what the trial court omitted to do. This takes me to the second point whether the prosecution proved the case beyond reasonable doubt. It is an elementary position of law under section 3(2)(a) of the Evidence Act [Cap 6 R: E 2022] that, in criminal cases, the burden to prove the allegation by the prosecution is beyond reasonable doubt. The phrase ‘prove beyond reasonable doubt’ was 7 discussed in the case of Magendo Paul and Another v. Republic, [1993] TLR 219 where the Court stated as follows: ‘For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed.’ The appellant was charged with statutory rape of a girl under section 130(1)(2)(e) of the Penal Code. To prove the offence under the above section, the prosecution is required to establish that the accused had sexual intercourse with a girl, with or without her consent. The sexual intercourse is proved by penetration of her vagina, even a slight penetration is sufficient to constitute sexual intercourse under section 130(4) of the Penal

Code. Two, it must be proved that, the girl is under 18 years of age and that, if she is 15 or more years of age, it must be shown that she is not his wife. In this jurisdiction it is settled law that the best evidence of sexual offence comes from the victim and the trial court can solely rely on such evidence to sustain conviction if the courts is satisfied that what they state contain nothing but the truth. This is in accordance with the provision of section 127(7) of the Evidence Act [Cap. 6 R.E. 2019] as judicially considered in the case of Selemani Makumba vs R (supra). 8 However, the court has cautioned evidence of the victim of sexual offence not to be treated as truth of the biblical verses. See Mohamed Said vs Republic, Criminal Appeal No. 145 of 2017 [2019] TZCA 252 (23 August 2019; TanzLII), Malimi Peter vs Republic, Criminal Appeal No. 480 of 2020 [2024] TZCA 65 (20 February 2024; TanzLII) and Method Leodiga Komba @ Todi & Another vs Republic, Criminal Appeal No. 150 of 2021 [2024] TZCA 117 (21 February 2024; TanzLII). For evidence of the victim to be believed, it must be credible and probable. In assessing whether the victim is telling the truth or not, the court is guided by two test one, when assessing the coherence of the testimony of that witness, and two, when the testimony of that witness is considered in relation with the evidence of other witnesses,

including that of the accused. In the case of Swed Ismail Msangi vs Republic, Criminal Appeal No. 576 of 2019 [2023] TZCA 17681 (2 October 2023; TanzLII) the court stated; ‘The test involved in determining such a question is “whether his or her testimony is probable or improbable when judged by the common experience of mankind. The probity or otherwise of a testimony, it is equally the law, cannot be judged by having a glance over one piece of evidence in isolation of the other. Quite apart, the evidence has to be weighed in line with other pieces of evidence inclusive that of the defence.’ 9 [see also; Majaliwa Ihemo vs The Republic, Criminal Appeal No. 197 of 2020 [2021] TZCA 304 (15 July 2021, TanzLII) and Straton s/o Steven Mboya vs The Republic, Criminal Appeal No. 576 of 2020 [2024] TZCA 349 (10 May 2024, TANZLII)]. In this case, being the first appellate court, I will objectively subject the entire evidence to proper scrutiny and see if the evidence in record established the prosecution case to the standard required by the law. As rightly pointed by Mr. Lordgard, PW1 explained in detail how the offence was committed, however there are several links missing in the whole prosecution case and I will explain. PW1 stated incident was reported to his aunt, mother and finally to police but the said aunt who was the first to receive information of rape and police officer

including investigating officer and arresting officer were not called as witnesses. It is trite law that any person who is in a better position to explain some missing links in the case is a material witness. In Leonce Evarist Maro vs Republic, Criminal Appeal No. 458 of 2020 [2024] TZCA 341 (9 May 2024; TanzLII) the court stated ‘... a question may be, who is a material witness. The answer is subjective to the scenario of each case based on flow of events. It may be a victim, or a first person to reach at the scene of crime, or any person according to whose knowledge every other witness refers back to him. In other words, such person should 10 be without whose testimony, the material facts and a flow of events breaks in and raise unanswered questions.’ According to PW1 the first person to have information of rape was her aunt, therefore she had information or knowledge of the subject matter which is material to the outcome of the case. But for undisclosed reason was not called. Another important witness is police officers, under section 10 of the CPA all investigation duties is placed under the police. For purpose of clarity, I reproduce only section 10(1)(2)(2A) and (3) of the Criminal Procedure Act [Cap 20 R: E 2022], it provides; ‘10-(1) Where from the information received or in any other way a police officer has reason to suspect the commission of an offence or to

apprehend a breach of the peace he shall, where necessary, proceed in person to the place to investigate the facts and circumstances of the case and to take such measures as may be necessary for the discovery and arrest of the offender where the offence is one for which he may arrest without warrant. (2) Any police officer making an investigation may by order in writing require the attendance before himself of any person living within the limits of the station of that police officer or any adjoining station, who, from information given or in any other way appears to be acquainted with the circumstances of the case, or who is in possession of a document or any other thing 11 relevant to investigation of the case to attend or to produce such document or any other thing, and that person shall attend and produce a certified copy of the document or any other thing as so required: Provided that, where a police officer receives any certified copy of a document or any other thing he shall issue to the person from whom he received such document or that thing a receipt thereof. (2A) Any person summoned to attend or to produce a document or any other thing relevant to investigation of the case under subsection (2), who refuses or wilfully neglects so to do or who being a witness at such investigation refuses to answer any question put to him or to produce any document or any other thing

relevant to investigation commits an offence and shall be liable on conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding three years or both. (3) Any police officer making an investigation may, subject to the other provisions of this Part, examine orally any person supposed to be acquainted with the facts and circumstances of the case and shall reduce into writing any statement made by the person so examined.’ Investigation officer is important in criminal cases for will clarify when the offence was reported, how investigation conducted and the arrest of the accused. In the Ugandan case of Bwaneka vs Uganda [1967] E.A. 768 cited with approval in Shukuru Moshi @ Elimringi vs Republic. 12 Criminal Appeal No. 29 of 2021 [2024] TZCA 1022 (1 November 2024; TanzLII) the court stated; ‘Then there is the practice indulged by the police or other prosecutors when prosecuting in magistrates courts of not calling police officers who had investigated the case and arrested and charged an accused person involved in such a case. It seems to me that the police do not attach Importance to their duty of investigating cases reported to them, but are content to sit back and wait for a civilian to bring to them someone suspected of or arrested for alleged commission of a crime.... Generally speaking, criminal prosecutions are matters of great

concern to the State and such trials must be completely within the control of the police and the Director of Public Prosecutions. It is the duty of the prosecutors to make certain that police officers who had investigated and charged an accused person do appear in court as witnesses to testify as to the part they played and the circumstances under which they had decided to arrest and charge an accused person. Criminal prosecutions should not be treated as if they were contests between two private individuals.’ Having quoted the above passage in Shukuru Moshi @ Elimringi (supra) the court stated; ‘We fully subscribe to the view expressed above. These incidents are prevalent in our country and it is our hope that this practice of not calling the investigators to testify will be discontinued in the future for the better meeting the ends of justice.’ 13 In this appeal, apart from mere words of mouth of PW1 and PW2 that the matter was reported to police, no police officer was called to testify on the matter. Their evidence would have clarified when the incident of rape was reported to police, whether the appellant was named as the aggressor, who arrested the appellant and how investigation was carried out and if PF3 which is a police document was obtained from them. Faced with akin situation, the court in the case of Yohana Chibwingu vs Republic, Criminal Appeal No. 117 of 2015

[2015] TZCA 447 (5 June 2015; TanzLII) stated; ‘At the end of hearing of this appeal, we kept on asking ourselves a number of questions to which we had no answers. The appellant charged with a serious offence of robbery. Was the offence not investigated by the police? If so, who investigated it? Why wasn't the investigator called to testify? If he had testified, he would have answered several questions, including for instance, whether PW1 gave a description of the appellant in the first report? Where and when was the appellant arrested? Did he really abscond? Was any statement taken from the appellant about the incident? ....’ Absence of investigation evidence and other police related duties in this case makes easy to believe the appellant’s evidence that was arrested on 10/8/2022. This casts doubts if the offence was committed on 8/8/2022 as alleged by PW1 and PW2 and the matter reported to relevant authorities what prevented the appellant being arrested instantly. 14 Another area which raises questions than answers is evidence of PW1 that the 2nd accused and appellant fled through the window after hearing PW1’s mother voice, it is when she too took her torn clothes and went outside. During cross - examination said she raise alarm and there were many people outside to her rescue. PW2 during cross - examination said she was told by her daughter and villagers rescued PW1 after

she raised alarm. If it is true that PW1 and PW2 raised alarm, why did they not mention it in the first place when called to establish its existence. I think it would be wrong to place any reliance on evidence of a witnesses who failed to disclose such an important material fact in their examination in chief. See Jero Essau vs Republic, Criminal Appeal No. 495 of 2021 [2024] TZCA 1066 (7 November 2024; TanzLII) and See Ernest Sebastian Mbele vs Sebastian Sebastian Mbele & Others, Civil Appeal No. 66 of 2019 [2021] TZCA 168 [ [2021] TZCA 168 (4 May 2021; TanzLII). The matter is compounded by failure to call such villagers who respondent to alarm as alleged. To me and perhaps to any reasonable man, that puts PW1 credibility under suspicion. Once the credibility of a star witness is at stake, the prosecution case shakes and, most likely, crumbles. Further when PW1 was taken to hospital, informed PW3 that was raped by unknown person, Mr. Lordgard has submitted that it did not affect the case of the prosecution. I have different position. If from the 15 inception, the victim knew the perpetrator what prevented her from disclosing the name of rapist to PW3. This again cast doubts on credibility of PW1. Mr. Lordgard has submitted that the appellant did not cross - examine PW1 and PW3 on important aspects. I agree in the first place that, failure to cross - examine a witness on

material respect is tantamount to accepting the evidence to be true. It has also to be noted that the respective principle presupposes that the parties are aware of the implications of such failure. Therefore, if an accused is unrepresented layperson, such principle has to be used cautiously. See for instance, Zakaria Jackson Magayo vs Republic, Criminal Appeal No. 411 of 2018 [2021] TZCA 207 (19 May 2021; TanzLII) and Issa Reji Mafita vs Republic, Criminal Appeal No. 337 of 2020 [2020] TZA 404 (24 August 2021; TanzLII). What is gauged from answers in cross - examination of PW1, the appellant asked if is the one who raped her and what steps she took. With regard to PW3 the appellant asked several questions on what she observed. Thus, it is not correct that the appellant did not cross - examine witnesses on important aspects. After careful digesting and assessing the quality of evidence adduced by the prosecution witnesses, the discussed discrepancies in the 16 prosecution evidence, I have a view that the appellant was wrongly convicted. The matter is compounded by failure of the prosecution to call material witnesses I have discussed above. Those doubts, as criminal law dictates, must be resolved in favour of the appellant. All said and done, I find the appellant’s complaint in ground one, two and four meritorious. The prosecution failed to prove the charged offences beyond reasonable doubts. Consequently, I allow the appeal and proceed to quash the conviction and set aside the sentence imposed on the appellant. I order his immediate release unless held for any other lawful cause. V.M. NONGWA

JUDGE 10/2/2025 Dated and Delivered at Mbeya this 10th February 2025 in presence of the appellant and Mr. Rajabu Msemo State Attorney for the Respondent V.M. NONGWA

JUDGE 17