Michael Mahenge vs Republic (Criminal Appeal No. 11 of 2022) [2024] TZCA 1251 (11 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT I RINGA (CORAM: MKUYE. J.A.. MGEYEKWA. J.A, And NGWEMBE. J.A.1 CRIMINAL APPEAL NO. 11 OF 2022 MICHAEL MAHENGE .............. ..................... APPELLANT VERSUS THE REPUBLIC . .... ..... ................... ........... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Iringa) (Matoaolo, J.Y dated the 22n d day of October, 2021 in DC. Criminal Appeal No. 33 of 2021 JUDGMENT OF THE COURT 28th November & 11th December, 2024 MKUYE. J.A.: Before the District Court of Mufindi District at Mafinga, the appellant, Michael Mahenge was arraigned for the offence of rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code Cap 16 R.E. 2019 (Now R.E. 2022). The particulars of offence were that the appellant, on 9/4/2020 did have carnal knowledge of F. C. (whose name is concealed to hide her identity), who was aged 13 years old. Upon the conclusion of the hearing, he was convicted and sentenced

to thirty years imprisonment coupled with an order for compensation to the victim of TZS. 3,000,000.00. Being aggrieved, he appealed to the High Court but his appeal was unsuccessful for lack of merit. Still protesting his innocence, he has preferred this appeal before this Court. Before embarking on the merit of the appeal, we find it appropriate to narrate albeit, in brief facts culminating to this appeal. The appellant and the victim (PW1) were not strangers to each other as they resided in the same village known as Kibao. On 9/4/2020, PW1 in company with her friend Emelda (PW2) went to buy avocado to a shop having been sent by their mother. On their way back, they met the appellant. He engaged them in conversation where he inquired from PW1 of her sister's whereabouts while promising to give her TZS. 5,000.00 if she manages to secure her for him. He then ordered the victim's friend to leave the area as she was accused to be a gossiper. It is alleged that immediately, the appellant took PW1 to a nearby thicket where he covered her mouth with clothes, undressed her and had carnal knowledge of her. Having completed his lust, he instructed her not to disclose the ordeal to anyone otherwise he would kill her.

The victim left the place for home and on her arrival, she informed her mother of what befell her. The matter was then reported to the police whereby the victim was issued with a PF3 for medical examination. Emelda Msokele, testified as PW2 on how on the material date at about 16:00 hrs, together with PW1 went to buy avocado fruits. She said that on their way back home they met with the appellant who summoned her (the victim) to the bush and ordered her to leave as she was a gossiper and she obliged. She testified that after getting home she proceeded with other activities and at about 21:00 hrs she saw PW1 talking with her mother. Grace Kibiki, (PW3) who was the victim's mother, testified on how on the material date 9/4/2020 at about 16:00 hrs, she sent PW1 and PW2 to go to the shop to buy avocado and that she waited for her daughter (PWl) until at 21:00 hrs when she returned while crying and when she inquired from her as to what was the matter, she disclosed that she had been taken by the appellant to the forest and got raped after haying chased her friend Emelda. PW3 told the trial court further that, she inspected the victim's private parts and observed blood flowing from her vagina. After that, she said, she reported to the police

and after being issued with the PF3, went to Lugoda Medical Hospital where the victim was examined by Julita Mukasa (PW4) on 10/4/2020. PW4 testified that on the said date she received the victim at about 10:00 hrs and examined her. As to what she observed, she said: "After I did exam ination to victim , I observed the victim to be raped due to presence o f a il indication, no hymen was found" In the PF3 (Exh PI) filled by PW4 it shows among others that "...physical exam ination and laboratory investigation are not suggestive, m ay be it is because she attended after 38.30 hours while changing clothes and bath 3 times. Rape suspected ", In his defence, the appellant (DW1) testified that on 24/3/2020, he together with his family went to the farm where they were harvesting in different farms. He together with his wife harvested in one farm while their children were in another farm. At one time, he instructed his wife to go to the next farm to see the progress of their children and that is when she did not come back. He testified further that he decided to go there but did not see her and on inquiring from the children, they did not know her whereabouts. On returning home they waited for her until at about 19:00 hrs, but she did not turn up. DW1 testified further that, he reported to the village authority which

advised him to report to the police which he did. His concerted efforts to trace her on 8/4/2020, he met a Samaritan who disclosed to him that she was married to another man at another village of Sawala. DW1 testified further that on 9/4/2020 (the material date) he went to trace his wife at Sawala village, whereupon with the assistance of the village authority involving the militia men, both the adulterer and his wife were arrested and taken to Kibao Police station and released later on. But later, to his surprise, during the night, he was arrested by the militia men for allegations of rape. Upon the conclusion of the trial, the trial court was satisfied that the case against the appellant was proved beyond reasonable doubt and he was convicted and sentenced as alluded to earlier on. As hinted earlier on, his appeal to the High Court was not fruitful as it was found to be devoid of merit. Before this Court, the appellant has raised five (5) grounds of appeal which can be paraphrased as follows: one, the first appellate court determined the grounds of appeal generally without determining each ground separately. Two, the Doctor's recommendations regarding rape on the victim are uncertain; three, both the trial and first appellate courts did not consider the appellant's defence. Four,

both trial and first appellate courts relied on weak evidence of the appellant; and five, both trial and first appellate courts failed to observe that PW1, PW2 and PW3 contradicted and were inconsistent in their evidence (turned hostile). When the appeal was called on for hearing, the appellant appeared in person without representation; whereas the respondent Republic was represented by Mr. Makori Sauli, learned State Attorney. On being invited to expound his grounds of appeal, the appellant sought to adopt them and opted to let the learned State Attorney respond first with a view to re-joining later, if need would arise. In the first place, the learned State Attorney intimated to the Court that grounds Nos. 2, 3, 4 and 5 were new as they were not dealt with at the first appellate court but grounds Nos. 3, 4 and 5 being based on point of law, will be argued. As for the 2n d ground of appeal, he implored the Court to disregard it as it is noton point of law. However, having revisited the said ground No. 2, we noted that, it is based on both law and facts which would cover the issue of credibility of witnesses and ultimately to the issue of whether the offence was proved beyond reasonable doubt. Much as we do not have qualms to the remedy for the grounds which are not canvassed by the

first appellate court as per the dictates of section 4 (1) of the Appellate Jurisdiction Act Cap 141 R.E. 2022, and as was held in the case of Frank Kinambo v. Director of Public Prosecutions, Criminal Appeal No. 47 of 2019 [2022] TZCA 548 (1 September 2022), we think ground No. 2 being what we have explained, does not fall within that category. Hence, we will entertain it. Responding to ground No. 1, where the complaint is that the first appellate court determined the grounds of appeal jointly, Mr. Makori submitted that, it was not true as the six grounds were dealt with separately. On that basis he lamented that, the appellant appears to impeach the court record which is not allowed. He contended that, the court records always are believed to depict what transpired in court. To fortify his argument, he referred us to the cases of Jacquiline Ntuyabaliwe Mengi and 2 Others v. Abdiel Reginald Mengi, Civil Application No. 332/01 of 2021 [2021] TZCA 583 (12 October 2021) (unreported) and Alex Ndendya v. Republic, Criminal Appeal No. 207 of 2018 [2020] TZCA 202 (6 May 2020). He argued that, since the first appellate court heard and determined the grounds separately this ground has no merit and it be dismissed.

Having scanned the entire judgment of the first appellate court, we agree with Mr. Makori that the first appellate court dealt with each ground separately. The judgment, particularly, on pages 53, 54, 55, 56 and 57, bears out that it addressed and determined the grounds of appeal separately. To be more specific, the first ground was dealt with at pages 53 to 54; ground No. 2 from page 54 to 55; ground No. 3 was addressed at page 55; ground No. 4 at pages 56 to 57; ground No. 5 at pages 57 to 59 and lastly ground No. 6 was dealt with at pages 59 to 60. With this revelation, we wonder how the appellant came up with such proposition despite the vivid evidence showing how the grounds of appeal were dealt with. Though not clearly raised, we think, as was submitted by Mr. Makori, this might be an attempt by the appellant to impeach the court record. However, as was rightly submitted by Mr. Makori, that move is not allowed in our jurisdiction. It is a settled principle of law that, the court record is believed to present accurately what actually transpired in court and that it cannot be lightly impeached: See: Jacquiline Ntuyabaliwe Mengi's case (supra). This practice, therefore, cannot be condoned. Be it as it may, we find that ground No. 1 is not merited and we reject it.

The complaint in ground No. 2 is that the Doctor's recommendations were uncertain in so far as rape to the victim is concerned. It is the appellant's argument that, the PF3 was questionable as it is not clear as to what PW4 observed during examination. What can be gathered from his complaint is that, much as the doctor commented that rape was suspected and that there was no hymen but PW4 did not show bruises, on the other hand, PW3 said that when she inspected the victim, she observed blood oozing from her private parts/vagina. The appellant also wondered why the matter was not reported even to the village authorities and stayed with the victim until the next day when she was taken to the hospital. However, given the nature of this ground of appeal we will not deal with it as for now but at a later stage in this judgment. We now move to the 3rd and 4th grounds of appeal in which the appellant's grievance is that his defence evidence was not considered; and that, the conviction against him was mounted on the weakness of defence case. Mr. Makori countered that complaint that it is not true that the defence case was not considered. He pointed out that, the trial court considered it and found that it did not raise any doubt and the first

appellate court equally considered it. At any rate, he was of the view that, should the Court find that it was not considered, the Court should step into the shoes of the lower courts and re-evaluate evidence to find out if it raises doubt as was held in the case of Wambura Kiginga v. Republic, Criminal Appeal No. 301 of 2018 [2022] TZCA 283 (13 May 2022). With regard to the claim that the appellant was convicted on his weak defence, it was Mr. Makori's argument that the conviction did not base on weak defence case but on the proof of prosecution's case beyond reasonable doubt. To fortify his argument, the learned State Attorney cited the case of William Ntumbi v. Director of Public Prosecutions, Criminal Appeal No. 320 of 2019 [2022] TZCA 72 (25 February 2022) where it was held that it is the duty of the prosecution to prove the case and the standard of proof is beyond reasonable doubt which duty does not shift to the accused. He also relied on the case of Wambura Kiginga (supra), where the Court emphasized that no conviction in criminal case can base on the weakness of the defence. We have anxiously examined the manner the two courts below dealt with the defence case and found that they did not consider it

adequately. This warrants us to step into the shoes of the first appellate court and assess whether or not the defence evidence raised any reasonable doubt against the evidence of the prosecution. See: Wambura Kiginga (supra) and Oscar Justinian Burugu Criminal Appeal No. 33 of 2017 [2022] TZCA 72 (25 February 2022). In the first place, the appellant's line of defence was on the misunderstandings between him and his wife who had eloped with another man as already outlined before. He explained on how he made concerted efforts to trace her which on 8/4/2020, led him to a Samaritan who told him about his wife being married to another man in Sawala village; and how on 9/4/2020 which was the material date, he went to trace his wife at Sawala village whereupon with the assistance of the village authority both the paramour and his wife were arrested and taken to Kibao Police station. He also explained on how on the same date, during the night, was arrested by the militia men for allegations of rape. As regards the offence in question, he gave a general denial distancing himself from it (pages 18 - 19). We also note that at the first appellate court, the appellant claimed that the victim's father was his wife's paramour who had an affair with his wife, (page 46). In our

view, the evidence that the victim's father had eloped with the appellants7wife which come at appellate stage might have come late in a day and the first appellate court could not have been bound to consider it since it, did not feature during the trial. Nevertheless, that notwithstanding, the defence evidence that was given during trial, much as the appellant gave a general denial to the commission of the offence, it ought to be considered by the courts below and determine as to whether it raised doubt or not. We say so because, the appellant's evidence shows that he was arrested in the night of 9/4/2020 which is the day he was engaged with his efforts to retrieve his wife from Sawala village where the said wife was allegedly married. This was the date on which the offence was alleged to have been committed and when the appellant was arrested. Unfortunately, there was no evidence from the arresting police officer who could have testified on how and when the appellant was arrested and no reasons were given for failure to call him/her to testify in court. Further to that, the appellant was not cross examined on this issue / aspect meaning that it remained unchallenged. It is trite law that, failure to cross examine a witness on a relevant matter implies that the other party accepts the veracity of the witnesses' testimony. For instance, in the

case of Nyerere Nyangue v. Republic, Criminal Appeal No. 67 of 2010 [2012] TZCA 103 (21 May 2012), when the Court was confronted with a similar situation, it was stated as follows: "As a m atter o f principle, a party who fa ils to cross exam ine a witness on a certain m atter is deemed to have accepted the m atter and w ill be estopped from asking the tria l court to disbelieve ■ what the w itness said. [See also Issa H assan , Uki v. Republic, Crim inal Appeal No. 129 o f 2017 [2018] TZCA 361 (IQ M ay 2018 and Cyprian A. Kibogoyo v. Republic, Criminal Appeal No. 88 of 1992;/' Even in this case, as the prosecution failed to cross examine the appellant on his defence on the aspect of when the appellant was arrested, they cannot question it at this stage. So, there remains the uncontroverted version of the appellant that he was arrested on the material date. In this regard we find merit to this ground. On the fourth ground of appeal, that the appellant was convicted on weakness of his defence, we agree with a very well-established principle that in criminal cases, a conviction cannot base on the weakness of the defence: See: Wambura Kiginga (supra). In this

case, that appears to have been the case in the instant case, as we shall discuss it at a later stage of this judgment. In the 5th ground of appeal, the appellant's complaint is to the effect that the prosecution witnesses PW1, PW2 and PW3 gave a contradictory and inconsistent evidence and in his view, they turned hostile. In response, Mr. Makori rebutted such assumption that the witnesses were inconsistence and contradicted themselves. In elaboration, he argued that, PW1 testified on how she together with PW2 went to the shop and on their way back home they met the appellant who asked from PW1 about her sister's whereabouts while promising to give her TZS. 5,000.00 if she located her for him. PWl also explained on how the appellant chased Emelda (PW2) while accusing her for being a gossiper and dragged her (the victim) to the bush where she was raped; and how on her arrival at home she informed her mother of what befell her. As to PW2, the learned State Attorney argued that she knew the appellant by the name of Baba Mussa; and that PW3 testified on how on 9/4/2020 she sent the victim to buy avocado from the shop but she came back home late. This witness also inspected the victim and saw blood flowing from her

private parts which corroborated the evidence of PW l. In support of his argument, he referred to the case of Frank Kinambo (supra), where the Court considered the evidence of the witness who inspected the victim and found blood oozing from the victim's private parts, the oral account of the doctor and the PF3 (Exh PI) to have established that there was penetration on the victim. The learned State Attorney was of the view that, looking at such evidence, shows that there was no contradiction. In rejoinder, the appellant submitted that, it is surprising that he was alleged to have committed the offence of rape on the date when he was arrested and taken to the lock up. He questioned PW4's evidence who said that the victim's hymen was not intact while the PF3 does not show bruises. Yet, PW3 said on inspecting the victim, she observed blood flowing from her vagina. A part from that, the appellant questioned PW3's conduct of not reporting the matter to the village authority but stayed with the victim until the next day without taking her to the hospital. He also assailed PW2 (Emelda) for not reporting to the victim's parents that the victim was left with the appellant considering that the incidence is alleged to have taken place from 4:00 pm to 9:00 pm.

We shall deal with grounds Nos. 2 and 5 co-jointly as we think, they both, essentially, seek to question the credibility of PW1, PW2, PW3 and PW4's evidence. The law as regards the credibility of witnesses is settled that every witness is entitled to credence unless there are cogent reasons not to believe such a witness - See: Good luck Kyando v. Republic, [2006] T.L.R 363. On appeal the credibility of a witness can be gauged through coherence and consistence of his testimony. This position was taken in the case of Elisha Edward v. Republic, Criminal Appeal No. 33 of 2018 [2021] TZCA 397 (24 August 2021), where the Court restated the stance that was previously taken in the case of Shabani Daudi v. Republic, Criminal Appeal No. 28 of 2001 (both unreported) when emphasizing on assessment of credibility of witnesses as follows: "Credibility o f a witness is the m onopoly o f the tria l court but only in so fa r as demeanor is concerned. The credibility o f the witness can also be determ ined in two other ways. One, when assessing the coherence o f the testim ony o f that witness and two, when the testim ony o f that w itness 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 determ ined even

by a second appellate court when exam ining the findings o f the first appellate court." In this case, four witnesses, the victim (PW1) inclusive were fielded to prove the case against the appellant. It is not disputed that the first appellate court sustained the trial courts' decision culminating into the appellant's conviction, after having found that the prosecution witnesses particularly PW1 was a credible witness whose evidence could be acted upon even without corroboration although, in our view, that may not be the case as we shall demonstrate in due course. Having examined the evidence of the said witnesses, we agree that credibility not only of PW1 but also of PW2, PW3 and PW4 is, indeed, questionable. We shall explain. One, looking at page 9 of the record of appeal, we note that PW1 testified to the effect that on their way back from the shop where they went to purchase avocado, they met the appellant who after some conversation with the victim, chased PW2 to leave the place and dragged the victim to the bush where he covered her mouth with clothes then took off her underpants and took out his male organ and inserted into her vagina. On the other hand, PW2 (Emelda) testified that on their way back they met with Michael Mahenge @ Baba Mussa,

who summoned the victim (Faraja) to the bush and he ordered her to leave as he labelled her as a gossiper (mmbea). From these pieces of evidence, it is notable that PW1 and PW2 were together on their encounter with the appellant. However, they perceived differently as to how the victim found her way to bush. While the victim said the appellant chased PW2 and then took her to the bush, PW2 said appellant summoned the victim to the bush seemingly even PW2 had left the place after the appellant had summoned the victim to the bush or rather, the appellant chased PW2 from that area after having summoned the victim to the bush. Since the two witnesses were together, we wonder how they perceived the events differently. Two, PW2 testified that after PW1 was called by the appellant to the bush and being chased by him for being a gossiper, she went home and continued with other activities until at 21:00 hrs when she saw PW1 came back and started talking with her mother. What is surprising is that, the incident if at ail it happened, took place at 16:00 hrs. but she did not bother to inform even the victim's mother as to what befell her friend PW1.

Three, PW1 was a housemaid of PW3. PW2,s testimony is to the effect that, when she came back home after the incident, she reported to PW3 what befell her that she was raped and according to PW3 after inspecting her, she observed blood oozing from her private parts. That was on the date of incident. However, according to the available evidence, no report was sent to the village authority, the police or the hospital for examination until the next day when she was taken to the hospital as reflected in the PF3. We wonder what prohibited them to report the matter, more so, when taking into account that PW1 reported it to PW3 immediately. Four, PW3's credibility is still questionable from another angle. We say so because, after sending the victim and PW2 to buy avocado, she did not bother to find out if the children had come back or not. She did not even inquire if her friend PW2 had come back. She just testified that she came late. The record is silent as to what steps she took to ensure her daughter had come back. We think, PW3 depicted such a strange behaviour for such a mature person aged 38 year old, to keep quiet from 16:00 hours to 21:00 hrs which is a period of almost five hours. This In our view raises doubt on her credibility.

Five, it is true that PW4 was a doctor who conducted medical examination on the victim and filled the PF3 (Exh. PI). In her testimony before the trial court as shown at pages 14 - 15 of the record of appeal, PW4 did not explain what she really discovered from her examination. She seemed to link the existence of rape due to the v- non-existence of hymen and yet she concluded that rape was suspected. In the PF3, the witness (PW4) also seems to attribute such results to the fact that the victim was taken to the hospital 38 hours after the incident which again may not reflect the truth of the matter if the incident took place a day before. The witness also filled in the PF3 that the victim had changed her clothes and taken bath three times, more importantly, she failed to show what she really observed in the examination she conducted as her opinion did not show bruises on_the victim private parts, more so, when taking into account the evidence of PW3 who said she saw blood oozing from the victim's private parts. All in all, according to the PF3, it shows that the doctor (PW4) was uncertain if there was rape (refer her comment "rape suspected")- As it is, it remains unproven if the victim was raped or not. Six, there is a material contradiction in what was observed from the victim upon her examination. PW3 said upon inspecting the victim,

she observed blood oozing/flowing from the vagina while PW4 did not observe anything even bruises were not seen. We are alive that in the case of Frank Kinambo (supra) cited to us by Mr. Makori, the Court observed that the evidence of PW1 who inspected the victim and found blood oozing from the victim's private parts, the oral account of PW5 and the PF3 (Exh PI) which established that there was penetration indicating that the victim was raped and the appellant's cautioned statement corroborated PW2's (victim's) evidence. However, in our view, the cited case is distinguishable to the case at hand since the evidence from other witnesses is questionable, the PF3 is uncertain and there is no appellant's cautioned statement like in the former case. In this regard, assessing the coherence of the victim's evidence t o g e t h e r with the evidence of PW2, PW3, and PW4 and the appellant's evidence on the other hand, we find that their credibility is wanting. Their evidence is unreliable to sustain the conviction of a serious offence which attracts a severe punishment. Ultimately, considering that the credibility of PW1, PW2, PW3 and PW4 in proving this case is questionable, we find that the prosecution was unable to prove the case beyond reasonable doubt.

In the event, we allow the appeal and quash the conviction, set aside the sentence meted out against the appellant and order for an immediate release of the appellant unless otherwise held for other lawful reasons. DATED at IRINGA this 11th day of December, 2024. R. K. MKUYE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 11th day of December, 2024 in the presence of the Appellant in person and Mr. Makori Sauli, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.