Fumbuka Makuliga vs Republic (Criminal Appeal No. 635 of 2021) [2024] TZCA 1300 (23 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: KOROSSO. J.A.. KENTE. 3.A.. And MGONYA. J.A.^ CRIMINAL APPEAL NO. 635 OF 2021 FUMBUKA MAKULIGA................................................................. APPELLANT VERSUS REPUBLIC ............................... ....... ....................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania kt Mwanza) fManvanda. J.1 Dated the 9th day of July, 2021 in Criminal Appeal No. 217 of 2020 JUDGMENT OF THE COURT 29th November, & 23rd December, 2024 KOROSSO. J.A.: This is the second appeal. Fumbuka Makuliga, the appellant, was arraigned in the District Court of Kwimba sitting at Ngudu, charged with the offence of rape contrary to, section 130(2)(e) and 131(1) of the Penal Code, Cap 16. The particulars of the offence were that on 14/04/2020 at about 13.00 hours in Nyaninga area within Kwimba District, Mwanza Region, the appellant, unlawfully had carnal knowledge of a girl aged fifteen years, whom we shall henceforth refer to as "the victim" or PW1.

To better understand the facts giving rise to the instant appeal, it is the prosecution's evidence that the victim was a Form Two student at Ngudu Day Secondary School. The appellant was a fellow villager whom she knew before the incident. On 14/4/2020, while the victim was seated at home, the appellant passed by there, and invited her to follow him to his house to get the money she had previously asked him to give her. PW1 followed the appellant to his house. Upon arriving there, PW1 was told to wait while the appellant went to get money from M-Pesa agents. Soon after, the appellant came back with Tshs. 3,000/= and used it as bait for PW1 to have sexual intercourse with him. PW1 refused to accept the bargaining chip arguing that she was still a student. However, her refusal did not deter the appellant, as he proceeded to undress her, removing her trousers, tights, and underwear, and subsequently, ravished her. According to PW1, at the time of the incident, they were the only occupants in the appellant's house. Thereafter, PW1 fled home and did not disclose the incident to anyone. Eva Mahega (PW4), the victim's mother, alluded the age of the victim to be 15 years of age and tendered a birth certificate (exhibit PI) to ground her assertion. In defence, the appellant denied the charge and contended that the case was fabricated. His testimony concentrated on highlighting the

circumstances of his arrest and discrepancies in the evidence of Prosecution witnesses. The trial court believed the evidence fronted by the prosecution side and found the case against the appellant proven, thus convicted and sentenced him to serve thirty (30) years imprisonment. Dissatisfied with the decision of the trial court, the appellant unsuccessfully appealed to the High Court in Criminal Appeal No. 217 of 2020. Still aggrieved, he lodged an appeal to this Court by way of a memorandum of appeal with eight grounds on 17/11/2021 and a supplementary memorandum of appeal with six grounds on 18/3/2014. Suffice it to say that the 14 grounds of appeal in the two memoranda of appeal will not be canvassed, having been abandoned by Mr. Cosmas Tuthuru, learned counsel, who, on the day fixed for hearing the appeal, entered appearance representing the appellant. According to Mr. Tuthuru, the grounds of appeal that we should consider are those filed by him on 5/10/2021 premised on three grounds that fault the first appellate court, which paraphrased state thus:

1. Failure to critica lly assess the credibility o f the prosecution witnesses particularly PW1 (the victim ).

2. W rongly upholding the decision o f the tria l court w ithout taking into account that the charge was defective and hence ; occasioned injustice to the appellant

3. Failure to notice that the offence charged against the appellant was not proved beyond reasonable doubt. In amplifying the grounds of appeal, Mr. Tuthuru began by withdrawing ground two to remain with two grounds to pursue, that is, the first and third grounds, which he prayed to expound, conjointly. The learned counsel for the appellant faulted the first appellate court for its failure to discredit the evidence of PW1, PW2, and PW3 for reasons that it was contradictory, inconsistent and unreliable. He argued that there was no clarity on the exact time the incident that gave rise to the offence charged took place particularly when the victim followed the appellant upon being invited to go and take money from him, He contended that, while PW1 testified that she left home to follow the appellant at around 13.00 hours, PW4 gave evidence that PW1 left their home around 8.00 hours. He thus urged us to find the evidence of PW1 to be unreliable given the inconsistencies in the evidence of PW1 and PW2 about the time the victim left home. Undoubtedly, crucial and fundamental evidence to prove the offence charged.

The learned advocate, also castigated what he called the victim's inertia to report the incident soonest to anyone either relatives or village leaders together with her failure to reveal the culprit's name to the police on the first instance she was questioned. Another issue that he contended should cast doubts on the veracity of PW l's evidence is her evidence that the appellant was circumcised which the appellant denied categorically. He argued that since the burden of proving the assertion was on the prosecution side and they failed to do so then the appellant should benefit from the doubt raised. He implored us to draw an adverse inference on this and find her evidence implausible and unreliable and cited the case of AM Shaban @Nzige v. Republic, Criminal Appeal No. 12 of 2021 (unreported) to reinforce his point of contention. Mr. Tuthuru also questioned the lack of clarity in the prosecution evidence regarding the time the appellant was arrested as upon assessment of the evidence of PW1 and PW2, it fails to clarify this matter. In addition, he urged us to also take adverse consideration on PWl's moral turpitude since upon evaluation of her evidence and that of PW2, it is plain that she lied to PW2, her uncle about her whereabouts on the fateful day. Therefore, for the reasons explicated, the evidence of PW1, should be found to be unreliable and disregarded, and the charge against 5

the appellant unproven since the remaining prosecution evidence of PW2, PW3 and PW4 cannot sustain the appellant's conviction, he argued. He concluded by beseeching us to allow the appeal, quash the conviction against the appellant and set aside the sentence imposed. On the respondent Republic's part, Mr. Mazullah commenced his submission resisting the appeal and expressing support for the appellant's conviction and sentence. However, amid his submission in response to grounds one and three, he backtracked and conceded to the submissions by the learned counsel for the appellant that the first appellate court did not properly evaluate and assess the credibility of the prosecution witnesses, particularly PW1 and PW2. He thus urged us to find that once the evidence of PW1 and PW2 is found to lack credibility, there will be no evidence remaining to prove the charge against the appellant rendering the prosecution case unproven to the standard required. Mr. Tuthuru had no rejoinder except to reiterate the prayers advanced in his submission-in-chief. Certainly, what we gather from the submissions by the learned counsel for the appellant and the learned State Attorney is that the issue for our determination is whether the prosecution proved its case to the standard required to sustain the conviction and sentence meted to the 6

appellant. As alluded to by the contending sides, in the instant case, when addressing the issue before us, justice demands for a critical assessment of the credibility and reliability of the evidence of PW1 and PW2. Having revisited the record of appeal, undoubtedly, the conviction of the appellant was to a large extent grounded on the credibility of the prosecution witnesses. The trial court determined that the evidence adduced by PW1, PW2 and PW4 was credible, and proceeded to rely on the evidence from the said witnesses to conclude that the essentia! ingredients of the offence charged were proven beyond a reasonable doubt. The first appellate court confirmed the trial court's findings to sustain the conviction and sentence meted to the appellant. At this juncture, we wish to reiterate the settled position of the law that in a second appeal like in the instant case, where the credibility and reliability of a witness are of paramount consideration, the Court may not readily intervene with concurrent findings of the two courts below on matters of fact, unless we discern on the face of it there having been misapprehension of the evidence or violation of some principle of law which may cause injustice [see, Peters v. Sunday Post Ltd. [1954] E.A. 424 and Daniel Nguru and Four Others v. Republic, Criminal Appeal No. 178 of 2004 (unreported)].

The restated principle above recognizes the fact that the trial court was in the best position to determine whether the witnesses were telling the truth as it had a distinctive opportunity to observe and assess their demeanor [see, Wankuru Mwita v. Republic, Criminal Appeal No. 219 of 2012, Abdallah Mussa @Banjoo v. Republic, Criminal Appeal No. 31 of 2008 and Karim Seif @Slim v. Republic, Criminal Appeal No. 161 of 2017 (aii unreported)]. Another well-settled position of law that we are guided by during our deliberation of the appeal before us, is that in sexual offences the best evidence is that which comes from the victim. In the case of Selemani Makumba v. Republic [2006] T.L.R 379, the Court held that; "True, evidence o f rape has to come from the victirrf '. It has also been held that notwithstanding the crucial nature of the evidence of the victim in proving the case, when assessing such evidence, taking into account the reliability of such evidence is material, to avoid the danger of untruthful victims as stated in the case of Halfan Dauda v. Republic, Criminal Appeal No. 231 of 2020 (unreported). In the present case, the learned counsel for the appellant whose argument was not resisted by the learned State Attorney, alluded to what he saw as contradictions and inconsistencies in the evidence of PW1, 8

actions that challenge her moral turpitude and urged us to consider when assessing her evidence. He implored us to conclude that she was not a credible witness and that her evidence be found unreliable and thus disregarded. Having revisited the record, upon examination of the evidence of PW1 and our assessment of its quality, taking into account what we have stated earlier on our understanding that the demeanour of a witness is the preserve of the trial court, we have to agree with the learned counsel for the appellant that her evidence leaves a lot to be desired. We are aware that the consistency and coherence of a witness may be assessed on appeal particularly when assessed with other evidence. Therefore, our evaluation of PW l's evidence shall be about how it relates to other evidence on record. Concerning the issue of the time PW1 left home and went with the appellant to his place, in her evidence she stated that on 14/4/2020 she went to the appellant's place around 13.00 hours, while PW2 testified that PW1 left home around 8.00 hours and came back home around 16.00 hours. According to PW2, when PW1 left home, she told PW2 she was going to visit their mother, while PWl's evidence was that she had gone to the appellant's house. When the evidence of PW1 is assessed, what

comes out is that she lied to her brother about where she went and there is also no clarity of time on whether she left home at 8.00 hours or 13.00 hours, or if she left at 13.00 hours, where she had gone at 8.00 hours when she left home as alluded to by her brother. It leaves doubt on whether the incident she narrated occurred or whether she did go to the appellant's house that day. The absence of medical evidence to prove penetration that day further leaves a gap on whether what she stated happened at the appellant's house took place there with the appellant being the culprit. This is further exacerbated by the fact that there was no evidence provided on why she should request for money from the appellant, a person who we can infer from the evidence was not her relative or business partner. It is also on record that PW1 did not disclose to anyone at the earliest opportunity what had happened to her upon visiting the appellant's house on the fateful day. She testified that after the incident occurred, upon reaching back home, she decided to keep quiet out of fear. She did not give evidence of having been threatened by the culprit. We have also noted that despite queries from PW2 on her well-being and as to what was troubling her PW1 remained silent. She only disclosed the alleged incident and the role of the appellant when she was taken to the 10

Ward Executive Officer and at the police station, upon being asked. The inconsistencies and hesitance in disclosing important information related to the alleged incident in PW l's testimony prompt us to doubt the veracity of her evidence and to come to a view that had the trial and first appellate courts properly analyzed her evidence, they would have come to a finding that it was not safe to be relied upon. Furthermore, another concern related to PW l's evidence is that while she testified that the appellant was circumcised, the appellant denied this. Although this fact is not necessarily relevant to prove the offence charged, in terms of section 13 (b) of the Evidence Act, there are instances when certain facts otherwise irrelevant may become relevant. We are of the view that in the instant circumstances, although discounted by the lower courts for being irrelevant, taking into account other inconsistencies demonstrated herein, the fact in question further affects the veracity of PW l's evidence. In the absence of any other evidence from the prosecution to prove this fact, we are left with doubts about which version is correct, and under the circumstances, the appellant has to benefit from the doubt. In the event, we are of the view that PW l's evidence was unreliable. When the said evidence is disregarded, the remaining prosecution 11

evidence as argued by the contending sides will not suffice to prove the offence charged against the appellant. Therefore, as alluded to above, the conviction of the appellant based on the evidence of PW1 cannot stand. All in all, we allow the appeal, quash the conviction and set aside the sentence meted against the appellant. We Order for his immediate release from custody unless he is being held for other lawful purposes. DATED at DAR ES SALAAM this 18th day of December, 2024. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 23rd day of December, 2024 in the presence of the appellant in person and Mr. Japhet Ngusa, learned State Attorney for the respondent/Republic via video conference from High Court of Tanzania at Mwanza is hereby certified as a true copy of the 12