Judi Mdemu @ Nickson Mdemu vs Republic (Criminal Appeal No. 515 of 2021) [2024] TZCA 1210 (6 December 2024)

IN THE COURT OF APPEAL OF TANZANIA ATIRINGA fCORAM: MKUYE, 3.A., MGEYEKWA, 3. A. And NGWEMBE, 3.A.) CRIMINAL APPEAL NO. 515 OF 2021 JUDI MDEMU @ NICKSON MDEMU ...... ....................................... APPELLANT VERSUS THE REPUBLIC ......... . ........... ........... ............. . ................. . RESPONDENT [Appeal from the decision of the High Court of Tanzania at Iringa] fMatoQolo, 3.1 dated 15th day of October, 2021 in Criminal Appeal No. 27 of 2021 JUDGMENT OF THE COURT 2n d & 6th December, 2024 NGWEMBE, 3.A.: In the District Court of Njombe at Njombe Region, the appellant stood charged with the offence of rape contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code, Cap. 16 R.E 2002 (now R.E. 2022). It was alleged that in two different occasions that is on 28th December, 2019 and 5th March, 2020, at Mizani Street within the district and region of

Njombe, the appellant did have carnal knowledge of a child girl of 12 years old. Since the complainant's age is below 18 years, she will be referred to as the Victim' or 'PWt' throughout of this judgment in order to conceal her true identity. When the charge comprising two counts of rape was read over to him on 30th April, 2019, he denied outrightly. Following his denial, a preliminary hearing was conducted on 7th May, 2020 whereas, he admitted only his personal particulars, place of domicile and that he was arrested and now he was arraigned in court. Gn account of brief facts emanating to this appeal, it was revealed that, the appellant and the victim's family were neighbours. While the victim was living with her parents at Makambako township and studying at Uhuru Primary School in standard five, the appellant was working for gain as a Watchman and living at Mizani Street within Makambako township. On the fateful date, the victim with her female friends met the appellant when she and her friends asked the appellant to escort them to school around 19:00 hours and when they were on the way, the appellant seduced the victim. The two ended up into sexual intercourse in some later days. But. it happened on 20th April, 2020 when the victim was spotted by her mother

in her room washing trouser of the appellant. Upon inquiry, it was revealed that the victim had love affairs with the appellant and they had sexual intercourse two times. The appellant disputed the facts and in his defence he denied neither knowing the incidence nor the victim and ail prosecution witnesses. Although during preliminary hearing, he admitted being the resident of Mizani Street in Makambako township, in his defence he denied as well, this time he changed his domicile from Mizani Street to Jogoo Street within Makambako township. Despite his total denial of not knowing the incident, yet at the end of trial, the trial court found the prosecution had proved both counts of rape beyond reasonable doubt. Consequently, the trial court convicted him and pronounced an omnibus sentence of thirty years imprisonment. The appellant attempted unsuccessfully, to challenge the conviction and sentence to the High Court in Criminal Appeal No. 27 of 2021 on the grounds that, the age of the victim was not proved by birth certificate; failure to call a medical doctor who examined the victim to testify in court during trial; and reliance on the victim's evidence who was of tender age and was beaten in order to testify against the appellant.

Those grounds did not shift the scale before the first appellate court; thus, a concurrent finding of the trial and the first appellate courts and his appeal was dismissed. He persistently wished to restore his innocence and liberty, he thus, appealed to the Court and invites the Court to quash his conviction, set aside the sentence and order his release from prison in consideration of three grounds as presented in the memorandum of appeal. The three grounds of appeal may be paraphrased as follows: one, the High Court erred in law in dismissing the appeal based totally on the evidence of PW1 without medical doctor's testimonies; two, the first appellate court erred to dismiss the appeal based on only the victim's evidence which was not conclusive; and three, the first appellate court erred in law for relying on the weak defence evidence instead of relying on the strength of the prosecution case, which failed to prove the offence beyond reasonable doubt. When this appeal was scheduled for hearing before us, the appellant entered appearance unrepresented, while the respondent Republic was represented by Mr. Tito Ambangile Mwakalinga, learned Senior State Attorney. When the appellant was invited to elaborate on his grounds of appeal, he preferred to rejoin after the respondent has responded to his grounds of appeal.

At the beginning, the learned Senior State Attorney, registered his opposition to the appeal and invited the Court to dismiss it forthwith. However, later on and after scrutiny to the main ingredients of rape, which are: first, vaginal penetration of the complainant; second, the complaint's age at the commission of the offence which is below the age of 18 years; and third, the perpetrator of the sexual act to be none than the appellant, M r, Mwakalinga, when placed the complainant on the credibility test, he abandoned his first stand and supported the appeal. The learned Senior State Attorney, pointed out that the victim alleged to have been raped on 28th December, 2019 and on 5 * h March, 2020, but she never disclosed the ordeal to anyone else. He also, contended that, the washing of the appellant's trouser was the only issue which triggered the allegations of rape, otherwise, even her mother (PW2) could not have known if her daughter was engaged into sexual relationship. Placing the credibility test of the victim's evidence, M r. Mwakalinga conceded that there was serious doubt if at all the victim was trustworthy and honest on her relationship with the appellant. Moreover, Mr, Mwakalinga pointed out that the prosecution case lacked viable elements of proof o f the offence of rape including, failure by the prosecution to tender in court the alleged trouser of the appellant so as to

connect the appellant with the offence of rape. Also, the prosecution failed to tender the medical report in terms of Police Form number 3 (PF3) to evidence that the victim was medically examined in respect to the alleged rape. As a matter of fact, failure of the prosecution to call the medical doctor who examined the victim after being engaged into sexual relationship with the appellant was fatal, he stressed. At the end M r. Mwakalinga supported the appeal and implored the Court to find the victim not credible witness and the case of rape was not established and proved to the standard required by law. In turn when the appellant was invited to rejoin, he appreciated the concession made by the respondent Republic and quickly prayed his appeal be allowed so as he may rejoin his family members of wife and two children. In the circumstances of this appeal, we wish to begin our consideration by referring to the settled rule of law in respect of the best evidence related to sexual offences, that comes from the victim. The rationale of that rule is based on the nature of the offence itself that, it is committed in a closed place involving only two persons and the victim is the one who knows how she experienced the ordeai of rape. Therefore, under section

127 (6) of the Evidence Act, a conviction for sexual offence may be grounded solely on the uncorroborated evidence of the victim. Due to its importance in respect of this appeal, the subsection is reproduced hereunder: 127 (6) "Notwithstanding the preceding provisions o f this section ; where in criminal proceedings involving sexual offence, the only independent evidence is that o f a child o f tender age or of a victim o f the sexuai offence, the court shall receive the evidence, and may, after assessing the credibility o f the evidence o f the child o f tender years o f as the case may be the victim o f 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 child o f tender age or the victim o f the sexual offence is telling nothing but the truth" (Emphasis is ours). The above provision was comprehensively considered in the case of Selerriam Makumba v. Republic [2006] T.L.R. 379. As the law so emphasized on the credibility of the victim, the rule that the victim's evidence is the best evidence should not be taken as a biblical version or gospel verses to be believed wholesome, rather credibility of the victim

must be tested and proved. The credibility test is supported by the above provision, which emphasized on credibility of evidence of a child of tender age in relation to sexual offences. We presuppose the law maker emphasized on credibility of witness because, the offence of rape throughout of existence of mankind is proved to be easy to allege, hard to prove and harder to the accused person to defend. Therefore, despite the best evidence rule in rape cases comes from the victim, such victim must be tested to be credible, reliable and trustful. See the case of Mohamed Said v. Republic, (Criminal Appeal No. 145 of 2017) [2019] TZCA 252, where the Court observed that: "We think that it was never intended that the word of the victim o f sexual offence should be taken as gospei truth but that her or his testimony should pass the test o f truthfulness. We have no doubt that justice in cases o f sexual offences requires strict compliance with the rules o f evidence in general, and s. 127 (7) o f Cap 6 in particular, and that such compliance will lead to punish offenders only in deserving cases." In similar consideration, the Court in the cases of Hashim Am asha v. Republic, (Criminal Appeal No. 28 of 2017) [2019] TZCA 267 and

Juma Antoni v. Republic, (Criminal Appeal No, 571 of 2020) [2022] TZCA 250. In the latter case, the Court held: "In the premises, although the best evidence o f rape is that which comes from the victimhowever, that is not a waiver on the court assessing the credibility in order to satisfy itself that the witness is telling nothing but the truth" Having analyzed the legal position, we agree with the learned Senior State Attorney that the only viable evidence in respect to this appeal was of the victim who testified that she was raped twice by the appellant on diverse dates of 28th December, 2019 and on 5th March, 2020. Her testimony may partly speak itself that: "777/s accused did come to our home pick me to his home where he asked me for love. Accused was alone I seated on the bed he seduced me then undress my clothes .... knows me carnally. He then left me to my home after he finishes his ravish. I move home and told nobody." Such piece of evidence indicates that there was no threat from the appellant and yet she decided not to tell anyone. In such circumstances, the whole testimony of PW1 when subjected to credibility test fall short of truthfulness. The term credibility refers to the question of whether

someone is telling the truth and whether she is honest or reliable. Lord Clarke when he was confronted with the credibility test in the case of Jenkins v. HMA [2011] HCJA 86, observed as follows: "It is important to have in mind that while questions o f credibility and reliability are said often to shade into each other, they are distinct concepts. A witness may come across as entirely credible but, on reflection ; be held to be unreliable. A person who is credible is one who is believed. A person who is reliable is one upon whom trust and confidence can be placed. Credibility may be judged on the moment\ whereas reliability may be only capable o f being addressed having regard to the person's "track record"" Credibility is purely about what the witnesses say and how they present themselves in the witness box. It is about consistency, confidence, hesitancy, demeanour and reaction under pressure. The test has been used in many decisions of the Court, including the case of Shaban Daud v. Republic, Criminal Appeal No. 28 of 2000 (unreported), where we observed that: "The credibility o f a witness can also be determined in two ways; One , when assessing the coherence o f the testimony o f that witness; Two, when the testimony

o f that witness is considered in relation with the evidence o f other witnesses including that o f the accused person " Therefore, consistence, confidence, coherence of testimony of the witness, demeanour and reaction under pressure like on cross examination may indicate truthfulness and reliability of the testimony of a witness. In this appeal, the testimony of PWl, obvious did not pass the test set out in the above cited cases. It is evident that the victim never disclosed to anybody if at all she was raped by the appellant. More so, there is no other evidence which may corroborate her assertion that she was raped by the appellant. In this point, we do not mean that there was a need for corroboration from an independent witness, rather we mean that due to the doubts which remains in the victim's reliability, the failure of the prosecution to tender PF 3 as was alleged by both PW l and PW2 that the victim was taken to police station and later to hospital for medical examination added more doubts. It is doubtful whether the medical doctor examined the victim and whether the result of the doctor's examination was recorded in PF3, since the report was never tendered in court. In the absence of PF3 and any other evidence that the victim was penetrated in her vagina, the Court had no advantage of being certain whether the victim

was still virgin or otherwise and if she was penetrated, when was it and who did it? A victim who cannot inform anyone on the alleged two times of rape and in the absence of any medical report to support her allegation of rape, also, failure of the prosecution to call neither the medical doctor who alleged to examine her nor any investigator of the offence of rape as they alleged to have reported to police station, which offence if proved attract long sentence imprisonment, we find serious risk to believe such witness and rely on her evidence to uphold the conviction of the appellant. The law imposes incredibility on a victim who fails to report about the offence. See; Al-jabir Juma Mwakyoma v. Republic, (Criminal Appeal No. 463 of 2018) [2021] TZCA 527 (27 September 2021) and Simon Gabriel & Another v * Republic, (Criminal Appeal No. 487 of 2020) [2024] TZCA 610 (23 July 2024). As earlier alluded to, in this case the victim was never threatened at all, but did not reveal to anybody about the incidents and that the appellant was the one raping her. Such failure to report has not been explained, it seems the only explanation tenable is that the victim was not credible and reliable witness. Prior to our conclusion, we wish to repeat the emphasis we made in numerous decisions that, statutory rape like the instant appeal and in view of the intrinsic nature of the crime of rape, where only two persons are 12

usually involved, the testimony of the complainant must be scrutinized with extreme caution and the evidence for the prosecution must stand or fall on its own merits and cannot draw strength from the weakness of the evidence for the defence. See: Mohamed said (supra) where we referred with approval to the decision of the Supreme Court of Philippines in the case of People of the Philippines v. Benjamin A. Elmancil, G.R. No. 234951 dated March, 2019 which they insisted on credibility of the complainant as the single most important issue. If the testimony of the victim is credible, convincing and consistent with human nature and in normal course of things, the accused may be convicted solely on the basis thereof. That consideration is intended to protect the innocent person whose allegation of rape has befallen to him. On the other side, intends to assure that the true rapist is awarded the deserving punishment. However, when there is a reasonable doubt, the accused should benefit. In the instant appeal, after scrutiny of the whole proceedings of the trial and the first appellate courts and upon review of the arguments advanced by the learned Senior State Attorney, we agree that the victim's testimony did not pass the credibility test. Moreover, failure of the prosecution to marshal credible witnesses who were readily available like the medical doctor and police investigator of the incidence, we are 13

determined to hold that the offence of rape was not established and proved against the appellant. In view of the aforesaid, we agree with the appellant and learned Senior State Attorney that the appeal is meritorious, we therefore, proceed to quash the conviction and set aside the sentence of thirty years imprisonment and order the appellant be released from prison forthwith unless otherwise lawfully held. DATED at IRINGA this 5th day of December, 2024. R. K. MKUYE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL P . J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 6th day of December, 2024 in presence of the Appellant in person and Mr. Sauli Makori, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original.