Mwita Isombe @ Sam vs Republic (Criminal Appeal No. 639 of 2021) [2024] TZCA 1239 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: KEREFU, J.A., MWAMPASHI. J.A.. And FELESHI. J.A.^ CRIMINAL APPEAL NO. 639 OF 2021 MWITA ISOM BE @ SAM................................................................. APPELLANT VERSUS THE REPUBLIC............................................................................RESPONDENT (Appeal from the Decision of the Resident Magistrate of Mwanza with Extended Jurisdiction at Mwanza) (Sumave. SRM-Ext. Jur.) dated the 3r d day of August, 2021 in Extended Jurisdiction Criminal Appeal No. 206 of 2020 JUDGMENT OF THE COURT 29h November & lCfh December, 2024 KEREFU. J.A.: In the District Court of Geita at Geita, Mwita Isombe @ Sam, the appellant herein, was charged with the offence of rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap. 16 of the Revised Laws. It was alleged that, on 19th November, 2019 at Califonia Street within Katoro area in the District and Region of Geita, the appellant, unlawfully, had carnal knowledge of a girl aged fifteen (15) years. The appellant denied the charge laid against him and as a result, the case proceeded to a full trial. To establish its case, the prosecution relied on the evidence of four witnesses and three exhibits, to wit, the i

Police Form No. 3 (exhibit PI), a letter from Ludete Primary School dated 6th December, 2019 (exhibit P2) and School Admission Register (exhibit P3). On his side, the appellant testified alone, as he did not call any witness. In a nutshell, the prosecution case, as obtained from the record of appeal, can be briefly stated as follows: That, at the material time, the victim, who testified as PW1 (name withheld) was living at Katoro, Califonia Street together with her father and mother one Rose Frank Mhina (PW2). PW1 stated that, on 19th November, 2019, around noon hours, while at home, the appellant and his friend Waziri, who were their neighbours passed by and asked her to go with them in order for them to show her where they were living. PW1 accepted the invitation and went with them to where the appellant's brother was living. Upon reaching there, they found the door of the said house closed. PW1 informed the appellant that she was going back home, but the appellant asked her to wait, which she accepted and they all waited. While there, one girl came and opened the door and they all entered inside the house. PW1 stated further that, while inside the house, Waziri's wife made a tea for them and that, they had the tea as she was preparing for lunch. After the said lunch, Waziri's wife left while leaving PW1 and the 2

appellant inside the room. It was PW l's testimony that, while inside the said room, the appellant locked the door and asked her for sexual intercourse, which she refused. Suddenly, the appellant pushed her on the mattress, undressed her and himself and inserted his penis into her vagina. She shouted and Waziri came near the window and told them to do it slowly so that the neighbours will not hear the noises. Having finished, the appellant together with Waziri left while leaving PW1 with Waziri's wife. PW1 went on to state that, a moment later, she escorted Waziri's wife to the CCM centre to buy clothes and when they came back, Waziri's wife washed the dishes they used for lunch and fetched some water. Thereafter, Waziri's wife closed the door and went to buy charcoal. It was the further testimony of PW1 that, while still there, PW2 appeared and asked her what was she doing there? PW1 said, she failed to respond. Then, together with PW2, they waited for Waziri's wife who did not come back. That, around 20:00 hours, PW2 took her to the Police Station. Upon obtaining the PF3, PW1 was taken to Katoro Health Centre where she was examined by Cosmas Maige (PW3), a Clinical Officer, who found thatPW l's vagina had bruises, bleeding and the hymen was not intact, an indication that it had been penetrated. PW3 recorded his findings in the PF3 (exhibit PI). 3

In her testimony, PW2 supported the evidence of PW1 and added that, on the fateful date around 13:40 hours, while at home, her husband told her that PW1 was missing. Upon asking on her whereabouts, she was informed by her neighbour one Abigael that PW1 left with the appellant. Having received that information, she went to the appellant's house and found PW1, Waziri and Waziri's wife. Shortly thereafter, Waziri left and they remained with Waziri's wife who informed her that PW1 was the appellant's guest. PW2 stated that, she called the Church Secretary to assist her to trace the ten-cell leader who was at the Church. A moment later, the landlord came and the matter was reported to police as indicated above. It was the further evidence of PW2 that, when she asked PW1 as who penetrated her, she told her that she was raped by the appellant. That, they started to trace the appellant arid with the assistance of the local leaders they managed to arrest him. Patrick Joseph (PW4), a teacher at Ludete Primary School, testified that, in 2019, PW1 was a STD VII student at that School. That, sometimes back he was requested by the police to provide PW l's particulars and he wrote a letter to that effect and submitted it to the police. The said letter was admitted in evidence as exhibit P2. PW4 also tendered the School Admission Register which was admitted in evidence as exhibit P3. 4

In his defense, the appellant who testified as DW1, denied to have committed the offence. He contended that, in 2019, while working at his brother's shop, PW2 approached him and asked to borrow TZS 200,000.00. That, he refused to give her the said money until he gets a permission from his brother. That, his bother agreed on the condition that she will pay back the money with some interest. In the next day, PW2 came and he informed her about the conditions and she agreed. Thus, the appellant gave her the money on the agreed condition that, she will repay TZS 240,000.00 on 15th November, 2019. However, on the said date, PW2 did not repay the loan and, instead, she requested for more time to do so. It was the appellant's testimony that, the time was extended several times but PW2 could not repay the money. Thus, the appellant reported the matter to the local leaders where PW2 was summoned, and denied to be indebted by the appellant. As such, the appellant was advised to report the matter to Katoro Police Station. Upon being summoned, PW2 agreed to be indebted, and she called her husband and they repaid the money. The appellant stated further that, On 5th December, 2019, while at his brother's shop, he was required by militia to go to their office. Upon reaching there, he was arrested and taken to Katoro Police Station where he was interrogated and later, he 5

was charged with this case. It was his defence that he knew nothing about that crime and that, the case was framed against him. At the end of it all, the trial court relied on the testimony of PW1 the best witness in this case whose evidence was corroborated by PW2 and PW3 and found that the charge against the appellant was proved to the hilt. Thus, the appellant was found guilty, convicted and sentenced to thirty years imprisonment. The appellant's appeal before the High Court hit a snag, as the first appellate court dismissed the appeal and upheld the trial court's conviction and sentence. Still aggrieved, the appellant has preferred the present appeal. In the memorandum of appeal, the appellant raised three (3) grounds of appeal which can be conveniently paraphrased as follows: One, that, PW1 is an incredible witness due to her conduct before, during and after the alleged offence; two, the prosecution case was not proved beyond reasonable doubt; and three, the failure by the first appellate court to find that the appellant was convicted on the weakness of his defence and not on the strength of the prosecution's case. At the hearing of the appeal, the appellant was represented by Mr. Deya Paul Outa, learned counsel whereas the respondent Republic was 6

represented by Ms. Verediana Peter Mlenza, learned Senior State Attorney. Upon taking the floor to expound on the grounds of appeal, Mr. Outa prayed to abandon the third ground of appeal and intimated that he would argue the first and second grounds conjointly. Submitting on the said grounds, Mr. Outa sought to punch holes in the credibility of PW1, the best witness in this case. He started by arguing that, PW1 was an incredible and unreliable witness as her evidence when compared with that of PW2 is tainted with contradictions and inconsistency. To justify his argument, Mr. Outa referred us to pages 7 and 8 of the record of appeal and argued that, PW1 testified that when PW2 arrived at the scene of crime she found her outside Waziri's house together with Waziri's wife, while at page 11 of the same record, PW2 stated that when she arrived at that house, she found three people, PW1, Waziri and Waziri's wife. He argued that the pointed-out contradiction casts doubt on whether PW1 was found by PW2 in that house. To support his proposition, the learned counsel cited the case of Petro Sule & 3 Others v. Republic, Criminal Appeal No. 475 of 2020 [2023] TZCA 17777: [25 October 2023: TanzLII] and urged us to find that PW1 was not a witness of truth.

Mr. Outa also attacked the credibility of PW1 on her delay to report the awful incident. He narrated the entire incident starting from the time when PW1 alleged to have arrived at the Waziri's house. That, she stayed there waiting for the door to be opened, spent the entire day at that place and even after the alleged incident, she did not go home to report to her mother but escorted Waziri's wife to the CCM centre to buy clothes. That, PW1 did not reveal the ordeal to her mother (PW2), immediately, after meeting her at Waziri's house. It was his argument that, the act of PW1 to remain silent, for such a long time, coupled with her conducts, raises doubts on her credibility, which should be resolved in the appellant's favour. Mr. Outa also blamed the prosecution for failure to call the material witnesses, such as Abigael, the neighbour, the Church Secretary and the ten-cell leader who were mentioned by PW2 to have been involved in this matter. He argued that, if the said people could have been called to testify before the trial court, they would have shed more light on what exactly happened on that fateful date. To bolster his point, he cited the case of Fredy Stephano v. Republic [2008] T.L.R. 160 and faulted the first appellate court for failure to observe that the prosecution case was not proved to the required standard. On that basis, Mr. Outa urged us to 8

allow the appeal, quash the conviction and set aside the sentence imposed against the appellant and set him at liberty. In her response, Ms. Mlenza, at the outset, declared the respondent Republic's stance of opposing the appeal and intimated that she will argue the grounds of appeal in the same manner as argued by her learned friend. Starting with the pointed-out contradiction, although, Ms. Mlenza readily conceded that there was contradiction between PW1 and PW2 on that aspect, she argued that, the same is a minor defect which does not go to the root of the matter and dispute the fact that PW1 was raped. To support her proposition, she cited the case of Elia Richard Shoo v. Republic, Criminal Appeal No. 196 of 2021 [2024] TZCA 422: [10 June 2024: TanzLII]. On the issue of failure by the prosecution to summon the people mentioned by PW2, although, Ms. Mlenza also, readily conceded that the said persons were not summoned, she argued that they were not material witnesses given the nature of this case. In addition, and to substantiate her argument, she cited section 143 of the Evidence Act, Cap. 6 (the Evidence Act) and argued that, the said law does not require a specific number of witnesses to prove a fact, what is required is the quality of evidence and credibility of witnesses. That, having established 9

its case against the appellant, the prosecution found it unnecessary to summon other witnesses. She then emphasized that, in convicting the appellant, the trial court relied mainly on the testimony of PW1, the victim who clearly testified on how she was raped by the appellant. That, the testimony of PW1 was corroborated by PW2 and PW3. Relying on the principle which is applicable in proving sexual offences, she argued that the evidence of PW1 was the best evidence which could have been relied upon by the trial court to mount the appellant's conviction even without any corroboration, as long as the court was satisfied that the witness was telling the truth. In that regard, and based on her submission, she insisted that the prosecution case was proved beyond reasonable doubt and urged us to dismiss the appeal in its entirety. In his brief rejoinder, Mr. Outa reiterated that the prosecution case was built on contradictory and unreliable evidence with the natural consequence that the charged offence was not proved to the required standard. He thus emphasized for the appeal to be allowed. Having carefully considered the submissions made by the learned counsel for the parties and scanned the entire record of appeal, we think, the burning issue for our consideration is whether the prosecution proved its case beyond reasonable doubt. 10

However, before determining that issue, we wish to state that, this being a second appeal, under normal circumstances, we would not interfere with concurrent findings of the lower courts if there were no mis-directions or non-directions on evidence. Where there are mis directions or non-directions on the evidence, the Court is entitled to interfere and look at the evidence with a view of making its own findings. See for example Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] TLR 149 and Mussa Mwaikunda v. The Republic [2006] T.L.R. 387. We shall be guided by the above principle in disposing this appeal. Starting with the pointed-out contradiction, having revisited the evidence of PW1 and PW2 in respect of the contradiction complained of, we do not, with respect, consider it to be material to the extent of affecting the credibility and reliability of the evidence of PW1 and PW2. It has been the position of this Court that contradictions by a witness or between witnesses is something which cannot be avoided in any particular case. See for instance the cases of Dickson Elia Nsamba Shapwata & Another v. Republic, Criminal Appeal No. 92 of 2007 [2008] TZCA 17: [30 May 2008: TanzLII] and Issa Hassan Uki v. Republic, Criminal Appeal No. 129 of 2017 [2018] TZCA 361: [10 May 2018: TanzLII]. Therefore, in the light of the above position of the law, li

and taking into account the nature of the contradiction pointed out, in this appeal, we agree with Ms. Mlenza that the same is a minor defect which do not go to the root of the matter and or corrode the evidence of PW1 and PW2. In his submission, Mr. Outa also challenged the credibility of PW1 for her delay to report the incident to her mother. We wish to start by stating that, the law regarding the credibility of witnesses is settled that every witness is entitled to credence unless there are cogent reasons not to believe that witness - see: Goodluck Kyando v. Republic, [2006] T.L.R. 363. Moreover, on appeal, the credibility of a witness can be gauged through coherence and consistence of his or her testimony and its relation to the evidence of other witnesses. In the case of Elisha Edward v. Republic, Criminal Appeal No. 33 of 2018 [2021] TZCA 397 (24 August 2021: TANZLII), the Court restated the position set in its previous decision in Shabani Daudi v. Republic, Criminal Appeal No. 28 of 2000 (unreported) when emphasizing on assessment of credibility of witnesses, that: " Credibility o f a witness is the monopoly o f the trial court but only in so far as demeanour is concerned. The credibility o f the witness can also be determined in two other ways. One, when assessing the coherence o f the testimony 12

o f that witness and two, when the testimony o f that witness 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 a second appellate court when examining the findings o f the first appellate court". In the instant appeal, as we have already intimated above, in convicting the appellant, the trial court relied on the evidence of PW1. It found that the evidence of PW1, the victim, was reliable and the best evidence in cases of this nature. Having carefully scrutinized the evidence of PW1, like the courts below, we are satisfied that she was a credible and reliable witness and was consistent in what she was testifying. Her evidence was direct and explicit on how the depraved sexual act occurred to her. She was unambiguous that the appellant inserted his male member into her vagina and raped her. It is however, a common ground that, PW1 did not disclose her tribulation promptly as correctly argued by Mr. Outa. According to PW2, she revealed it, on the same day, at the hospital, after having been examined by PW3. We are alive to the principle that, the ability of a witness to name a suspect at the earliest opportunity is an assurance to his and or her 13

credibility - see Marwa Wangiti & Another v. Republic [2002] TLR 39. We however, wish to state that the applicability of that principle, in cases of this nature should be looked at with precaution within the context of PW l's immaturity coupled with her mind having been overwhelmed by an awful, shameful and degrading act. In the case of Selemani Hassani v. Republic, Criminal Appeal No. 203 of 2021 [2022] TZCA 127 (22 March 2022: TANZLII), having been faced with an akin situation, we observed that, the said principle can apply fairly and unrestrictedly in respect of, say, cases involving property offences, it will not apply with equal force in cases concerning sexual offences where immaturity of the victim, death threats or shame associated with such offences may dissuade the victim from reporting the matter with promptitude. We then cited with approval, the observation by the Supreme Court of the Philippines in the People of the Philippines v. S PO I Arnulfo A. Aure and S PO I Marlon H. Ferol, G.R. No. 180451, October 17, 2008, that: "Delay in reporting an incident o f rape due to death threats and shame does not affect the credibility o f the complainant nor undermine her charge o f rape. The silence o f a rape victim or her failure to disclose her misfortune to the authorities without toss o f material time does not prove that her charge is baseless and 14

fabricated. It is a fact that the victim would rather privately bear the ignominy and pain o f such an experience than reveal her shame to the world or risk the rapist's making good on his threat to hurt or k ill her" In the circumstances, and being guided by the above authority, we agree with Ms. Mlenza that the act of PW1 of delaying to reveal the ordeal, immediately, to her mother did not corrode her credibility. In addition, and having revisited the entire evidence on record and taking into account the principle which is applicable in proving sexual offences, we equally find the complaint by the appellant on the failure by the prosecution to summon the people mentioned by PW2 to have no basis. We however, wish to emphasize that, pursuant to section 143 of the Evidence Act, there is no particular number of witnesses which is required in proving a certain fact, what matters is the weight of evidence and credibility of a witness. Besides, it is the prosecution that has the duty to prove its case and the right to choose which witnesses to call so as to give evidence in support of the charge. See for instance, the cases of Yohanis Msigwa v. Republic [1990] T.L.R. 148 and Abdallah Kondo v. Republic, Criminal Appeal No. 322 of 2015 [2016] TZCA 836. We therefore agree with Ms. Mlenza that both courts below properly evaluated the evidence on record and were satisfied that the 15

case against the appellant was proved beyond reasonable doubts. We have specifically revisited the testimony of PW1 and there is no doubt that she clearly explained on how the incident occurred. PW1 in particular, at page 7 of the record of appeal, narrated on how the appellant asked her to accompany him to see where he was living. She then clearly demonstrated on how the appellant, later and forcefully pushed her on the mattress, undressed her and inserted his penis into her vagina and on how she felt pains and shouted. As rightly submitted by Ms. Mlenza, in cases involving sexual offences the best evidence is that of the victim. The sole evidence of the victim can be safely relied upon by the court to sustain a conviction. See for instance the cases of Selemani Makumba v. Republic [2006] T.L.R. 379 and Rashidi Abdallah Mtungwa v. Republic, Criminal Appeal No. 91 of 2011 (unreported), among others. As intimated above, the testimony of PW1, the best evidence in this case, was well corroborated by the testimony of PW2 who found PW1 at the house of Waziri. The evidence of PW1 was also corroborated by PW3 who medically examined PW l's private parts and found that PW l's vagina had bruises, bleeding and the hymen was not intact. All these witnesses, in our view, proved the prosecution case to the required standard. 16

For the foregoing reasons, we do not find any cogent reasons to disturb the concurrent findings of the lower courts, as we are satisfied that the evidence taken as a whole establishes that the prosecution's case against the appellant was proved beyond reasonable doubt. Accordingly, we find the first and second grounds of appeal to have no merit. In the event, we find the appeal devoid of merit and it is hereby dismissed in its entirety. DATED at MWANZA this 6th day of December, 2024. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 10th day of December, 2024 in the presence of the appellant in person who also represented by Mr. Galati Mwantembe holding brief for Mr. Deya Paul Outa, learned counsel and Ms. Martha Mtiti and Deogratius Rumanyika, both learned State Attorneys for the Respondent/Republic, is hereby certified as a true copy