CRIMINAL APPEALNO 440 OF 2021 RIZIKI VALENTINE MASSAWE VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI fCORAM: JUMA. C.J.. GALE BA, J.A.. And ISMAIL 3.A.1 CRIMINAL APPEAL NO. 440 OF 2021 RIZIKI VALENTINE MASSAWE................ .... ..... ...APPELLANT VERSUS THE REPUBLIC............................... ..... .......... .... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Moshi) (MkaesUa dated the 9th day of July, 2021 in Criminal Appeal No. 62 of 2020 JUDGMENT OF THE COURT 2&h & 23dAugust2024 GALEBA, J.A.: Riziki Valentine Massawe @ Konaa the appellant in this appeal, was convicted by the District Court of Moshi for committing unnaturai offence contrary to section 154 (1) (a) of the Penal Code. He was sentenced to thirty years imprisonment in consequence thereof. His appeal to the High Court at Moshi (the first appellate court), was dismissed. He was aggrieved by the above decision, hence the present appeal contesting it. At the trial, it was alleged that on 30th June, 2019, at Kiboroloni area within Moshi District in Kilimanjaro Region, the appellant aged 24, at the time, had anal intercourse with a fellow young man of 20 years. For purposes of protection of the latter's dignity in society, we shall conceal his identity, and refer to him as DCK, or the victim or PW1. The material evidence upon which the trial court relied to convict the appellant is that of the victim at pages 18 to 19 or the appeal record. According to PW1, this is what happened: %Examination in Chief]; My name is DCK, I reside at Kiboroioni I am living with my mother, father, grandfather and aunt My mother is Flora and my father is Christian. On 30/06/2019 at 4 pm I was going to the meeting. While on my way, I met the accused who told me that he was sent to call me, so as to fetch the battery. I went with him to the river direction. After reaching at the river, he undressed my trouser and inserted his penis into my anus. He told me not to tell anyone [not] even my mother. I tried to raise an alarm but the accused chocked my neck. One old lady came and found me there. I left there and told a iady known as Regina who also informed my mother about the incident The accused was therefore arrested. Konaa is this one (PW1 pointed the accused). That was his second time to sodomize me. The 1st time he sodomized me at the trench while cutting the grasses. I didn't tell anyone. That's all...[Cross examination]; An old lady came. You were at Mdau. I went direct home. The matter was reported to the police on 3Gh, [June 2019] I went with [my] mother. I [am testifying] what I know, you sodomized me. I don't recall the date when you sodomized me [for] the 1st time, You told me that you were sent to fetch a car battery. I know you. Your name is Konaa. That was our 2nd time to meet.,.[Re-examination]; The old [lady] arrived at the crime scene but I was already sodomized." That was the major piece of evidence that the trial court relied upon to convict the appellant, which decision the first appellate court upheld, but which is in turn, challenged before us. In doing so, the appellant presented nine grounds of appeal; eight in the initial memorandum of appeal, and the eighth was presented by way of a supplementary memorandum of appeal. The grounds upon which this appeal is predicated may be paraphrased as follows; one, that the charge is defective; two, that, the first appellate court did not evaluate the evidence in which case it failed to note that the prosecution evidence was fabricated; three, that the appellant was convicted on a charge which was not proved beyond reasonable doubt; four, that the scene of the crime was not specifically established and proved beyond reasonable doubt; five, the prosecution evidence was full of contradictions; six, the victim was not a credible witness; seven Regina and the village leader were material witnesses, but were not called to give evidence; eight, the appellant's defence was not considered, and; nine, there were material variance between the charge and the evidence." At the hearing of this appeal, the appellant appeared in person without any legal representation, whereas the respondent Republic had the services of Messrs. Philbert Mashurano and Mr. Innocent Ng'assi, both learned State Attorneys. As the appellant had lodged written submissions, Mr. Mashurano took the floor to respond to the said arguments. As for the first ground of appeal, the appellant submitted in his written submissions that, whereas the charge sheet shows that the offence was committed on 30th June, 2019, the appellant testified that he was sodomized twice and did not remember, when the first incident occurred. In reply Mr, Mashurano submitted that the charge was valid and not defective because the same was drawn in full compliance of section 135 of the Criminal Procedure Act, (the CPA). On this ground, we agree with Mr. Mashurano because, instead of arguing the issue of the defect of the charge, the appellant argued variance between the charge and the evidence. In fact, he cited this Court's decision in the case of Abel Masikiti v. R, Criminal Appeal No. 24 of 2015 (unreported), which is a celebrated authority in issues of variance between a charge and evidence and not for issues of defects in the charge sheets. In other words, the appellant's submission does not disclose any defects in the charge sheet. In any event, we have studied the charge sheet at page one of the record of appeal, and we are in agreement with Mr. Mashurano that the charge sheet was properly drawn and is free from any material defects. Thus, the first ground of appeal fails for want of merit and we dismiss it. We think the next appropriate grounds of appeal for our consideration should be grounds three and six in which the appellant is complaining that the victim was not a credible witness and that the case was not proved beyond reasonable doubt. To support this contention, the appellant argued that whereas the victim, that is, PW1 stated that the person who committed the offence was Konaa, Flora Johnson Materu, the victim's mother (PW2) said that Regina told her that the person who committed the offence was Riziki. In reply to this ground, Mr. Mashurano submitted that there is no confusion of the names because even PW2 said also that the appellant was Konaa at page 20 of the record of appeal. As for proof of the case beyond reasonable doubt, Mr. Mashurano submitted that the evidence of PW1 corroborated by that of PW5, demonstrated that there was penetration of the appellant's male member in the victim's anal organ. Before resolving that ground of appeal, we wish to highlight at the very outset that, after we attentively heard parties and considered their arguments, as well as the evidence in its entirety, we will rely on a well- established principle in this jurisdiction, that this Court on a second appeal, like the one at hand, does not ordinarily interfere with the concurrent findings of facts of two courts below, unless it is demonstrated that there is a miscarriage of justice resulting from a violation of a particular principle of substantive or procedural law. On that position, see this Court's decisions in Joseph Leko v. R, Criminal Appeal No. 124 of 2013 (unreported); and Salum Mhando v. R [1993] T.L.R. 170. Together with the above grounds raised, we will, in advance, discuss a couple of other points which we had opportunity to put to Mr. Mashurano at the hearing concerning the conduct of the victim considering his evidence quoted above. With these points, we trust, it will necessarily come out clearly whether the victim was a credible witness or he was not, and also whether the charge was proved beyond reasonable doubt in the context of the third and the sixth grounds of appeal. We now turn to examine the conduct of the appellant as can be gleaned from his evidence quoted above. The first point was in relation to what was the scene of the crime like, in view of the prosecution because, it was alleged that the offence was committed in broad daylight. According to the victim, when he met the appellant and told him that he had come to tell him that they should go and collect a car battery, he abandoned his earlier plan of going to the meeting, and accompanied his aggressor on the path leading to the river. When they got to the river, according to PWl, the appellant undressed him, had carnal knowledge of him against the order of nature and warned him to tell no body, not even his mother. The intriguing concern is that the victim does not disclose how could he have been sexually assaulted along a pathway in broad day light as it was, at 16:00 hours in the afternoon. We put this to Mr. Mashurano, who submitted that it is not impossible for the sexual act to be done in a broad day light on the way where people are regularly passing, because that depends on the guts of the offender. Agreeing with Mr. Mashurano, one needs a lot of courage, as for us, we would rather go with section 122 of the Evidence Act, providing that: "122. A court may infer the existence o f any fact which it thinks likeiy to have happened, regard being had to the common course o f natural events, human conduct and pubiic and private business, in their relation to the facts o f the particular case. " In view of the above section, we do not agree that common course of natural events and human conduct, harmonises with Mr. Mashurano's submission. Under the above provision, we make an inference that it is highly improbable for a human person including an aggressor in a sexual assault, to engage in an act of sexual violence, which involves exposure of his or her genitalia and that of his or her victim's to the general public. In other words, there is no clear evidence from the prosecution as to how favourable and convenient was the scene of crime to the alleged sexual assault. The other area raising enquiry on the credibility of the victim as a key witness of the offence that was charged, is his own evidence where he testifies that, the offence subject of the charge was the second experience from the appellant. This witness, according to his evidence, was living with his mother, father, grandfather and aunt. It appears also that he was very comfortable to disclose personal and sensitive information to one, Regina. But astonishingly, the first carnal knowledge allegedly perpetrated by the appellant at the trench, was not reported to any of all those relatives, not even Regina. The first abuse to him was clearly stated for the first time in court when he was giving evidence, at page 18 of the record of appal. In fact, he was about to close his evidence in chief, that is when he disclosed the previous encounter, but which assault the witness did not seem to be bothered with. In this case, it is not clear why, the victim's bitterness and hate, was so high with the subsequent incident of sodomy which happened at the riverside, but so tolerant with the previous anal intercourse. In our view, the act of concealing the first act of sexual abuse, only to disclose it when giving evidence concerning a subsequent unnatural offence, we are afraid, is not a conduct of an honest and genuine person in search of justice. The manner of reporting, and to whom to report the second ordeal was surrounded by unexplained "selectiveness and sensitivities". In this case, although there is an old lady who found the appellant immediately after the assault at the river bank, he did not complain to the woman. Although at home there were his mother, father, grandfather and his aunt, the victim was unwilling to report to any of these, he had to look for Regina, and tell her, in order for the latter to come and report to his mother! In our view, this kind of conduct needed explanation from the prosecution, which is missing on record. The other conduct which is inconsistent with reason and even common sense, is the fact that, during the second encounter at the river, the victim was warned not to disclose what happened to him to anybody including his mother, but the victim looked for Regina and told her about the incident on the same day. In the first encounter, where he was not warned or threatened, the victim did not disclose the issue or report it to anybody. Logic suggests that the first offence would be the first to be reported. But that was not the case with the victim, until he was to be sodomized the second time. The prosecution did not explain why would it be so. The last point is the strange readiness of the victim heeding to his previous aggressor's request of going with him to look for a battery, associated with the fast change of schedule by the victim of abandoning his earlier planned meeting in order to accompany the appellant to the riverside. It is highly improbable that it would be just as easy as testified by the victim how he quickly gave in when he was told to take a different path to the river. The victim's evidence does not suggest that there was any indication that he even told the appellant that he had a different mission; going to the meeting. He just unquestioningly surrendered his plans and heeded to his assailant's demands, This conduct, of being invited and conceding to accompany a person who recently sodomise the victim, was by any means unusual. Before we pronounce ourselves on the conduct of the victim as discussed above, it is significant to highlight a few legal principles as our guide. The first is the principle that true evidence in sexual assault cases comes from the victim, as per the case of Selemani Makumba v. R [2006] T.L.R. 379 and many others which have followed. But that, we 10 hasten to state, is a general rule. It is subject to observance by the trial court, of section 127 (6) of the Evidence Act, which provides that: "(6) Notwithstanding the preceding provisions o f this section, where in criminal proceedings invoiving sexuai offence the only independent evidence is that of a chiid o f tender years or of a victim of the sexual offence, the court shaii receive the evidence, and may, after assessing the credibility of the evidence o f the chiid o f tender years o f as the case may be the victim of sexual offence on its own merits notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceedings, the court is satisfied that the chiid o f tender years or the victim of the sexual offence is telling nothing but the truth," [Emphasis added] The above section demands strict assessment of the credibility of the evidence. The evidence, must as well be strictly tested for its truthfulness. If the two are absent; credibility and truth, no evidence is in place. Both truth and credibility are a fruit of consistent and harmonious evidence from witnesses testifying on the same subject. In Mohamed Said v. R, Criminal Appeal No. 145 of 2017 (unreported), on the issue of the best evidence we firmly stated: ii 'We think that it was never intended that the word o f the victim o f sexual offence should be taken as gospel truth but that her or his testimony should pass the test o f truthfulness. We have no doubt that justice in cases of sexual offences requires strict compliance with rules o f evidence in general, and S. 127 (7) o f Cap. 6 in particular, and that such compliance Will lead to punishing the offenders only in deserving cases." We are also, aware of another principle that every witness is entitled to credence and his or her evidence must be believed except where there are cogent reasons to hold otherwise. We restated this principle in Isaya John v. R, Criminal Appeal No. 167 of 2018 (unreported), where we stated: "Moreover, it is trite law that every witness is entitled to credence and must be believed and his testimony accepted unless there are cogent and good reasons for not believing the witness which include the fact that, the witness has given improbable or implausible evidencey or the evidence has been materially contradicted by another witness or witnesses. See - Goodluck Kyando v. Republic [2006] TLR 363 and Mathias Bundala v. Republic, Criminal Appeal No 62 o f2004 (unreported)."[Emphasis added] 12 See also Aloyce Maridadi v. R, Criminal Appeal No. 208 of 2016 (unreported), where it was also stated that good and cogent reasons for not according credence to a witness' evidence includes where the evidence is improbable, implausible or contradictory. Coming back to the conduct of PWl. Can we confidently hold without doubt, that the evidence of PWl was at all plausible, such that it deserves being accorded any credence? In this case, the points discussed above render the evidence of the victim very implausible and improbable. Thus, PW l was not an honest or a credible witness in the circumstances and his evidence was not entitled to be attached with any evidential value. Thus, the sixth ground of appeal succeeds, and we allow it. Consequently, as the evidence of PW l has gone, the evidence of PW2, PW3 and PW4, automatically acquires a character of vanity in law, for want of evidence to corroborate. In that context, we allow the third ground of appeal; that the case was not proved beyond reasonable doubt, because there was no credible evidence to support the charge. That said, we do not find any potential productivity in engaging any efforts seeking to resolve the remaining grounds of appeal. Finally, and in view of the above discussion, we allow the appeal and quash the appellant's conviction. His sentence of thirty years imprisonment is hereby set aside. We finally order his immediate release from prison, unless he is held there for any other lawful cause. DATED at MOSHI this 23rd day of August, 2024. I. H. JJUMA CHIEF JUSTICE Z. N. GALEBA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 23rd day of August, 2024 in the presence of the Appellant in person - unrepresented and Mr. Frank Daud Wambura State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 14