Jovinus Nzogera vs Republic (Criminal Appeal No. 597 of 2021) [2024] TZCA 1192 (4 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MUGASHA. J.A., KHAMIS. J.A. And ISMAIL J.A.) CRIMINAL APPEAL NO. 597 OF 2021 JOVINUS NZOGERA .................................................................. APPELLANT VERSUS THE REPUBLIC...................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Bukoba) (Nqiqwana, J.1 dated the 6th day of August, 2021 in Criminal Appeal No. 26 of 2021 JUDGMENT OF THE COURT 2n d & 4th December, 2024 MUGASHA. J.A.: The appellant, Jovinus Nzogera, was arraigned in the District Court of Biharamulo for two counts of rape contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code, [Cap. 16 R.E. 2019]; and marrying a school girl contrary to section 60A (1) (a) and (2) of Education Act, [Cap. R.E 353]. It was alleged that, on 27/6/2020 during evening hours at Keza Village, within Ngara District in Kagera Region, the appellant unlawfully married and had carnal knowledge of a girl aged 16 years who shall be referred to as AB or PW2 for the purposes of concealing her identity.

The appellant pleaded not guilty to both offences. He was found guilty and convicted by the trial court in respect of the first count and sentenced to a jail term of 30 years. He unsuccessfully appealed before the High Court and thus, preferred the present appeal. Briefly, it was alleged by the prosecution that on 27/6/ 2020 at around 18.30 hrs the victim who was a Form I student at Keza Secondary School disappeared from her parents' home. Her father Bahati Athanas (P3) tried to searched for her in vain and on the following day, reported the incident at the school authorities and Rulenge Police Station. According to the victim, on the material date, while at her parent's residence, she was followed by the appellant who promised to marry her. She obliged and upon reaching his home, they had had sexual intercourse and continued to stay together for 3 weeks. When the victim was cross examined by the appellant, besides stating that she never disclosed to the appellant that she was a student, added that, although she was married on 27/6/2020 for those weeks she did not do anything with the appellant. The victim's father who landed on the information that his daughter was married to the appellant, communicated the same to the authorities of Ngara Mganza village who on 21/7/2020 executed the

arrest of the appellant and the victim. The appellant was taken to Rulenge Police Station and the victim was taken to the Hospital for medical examination. Upon being medically examined, it was established that she had no hymen. Thereafter, the appellant was arraigned in court. On the other hand, the appellant, apart from denying the accusations against him, he claimed to be unaware if the victim was a student because she made no such disclosure. At the end of the trial, the learned magistrate believed the prosecution case to be true and convicted the appellant on the count of rape and acquitted him on the count of marrying a school girl. The appellant's appeal to the High Court was not successful hence the present appeal. In the memorandum of appeal the appellant's main complaint is that his conviction was wrongly based on the evidence which did not prove the charge at the required standard. At the hearing of this appeal, the appellant appeared in person unrepresented, whereas for the respondent Republic, in appearance were Ms. Immaculate Mapunda and Ms. Wampumbulya Shani, both learned Senior State Attorneys alongside Ms. Evaresta Kimaro and Ms. Matilda Assey, both learned State Attorneys. It is Ms. Mapunda who addressed us on the appeal.

The appellant urged us to consider his complaint, allow the appeal and set him at liberty. On the other hand, initially, the learned Senior State Attorney opposed the appeal on ground that, the evidence paraded by the prosecution did prove the charge against the appellant. However, when probed by the Court, on reflection, she supported the appeal on ground that, the victim gave a contradictory account on the occurrence of the rape which cast a shadow of doubt on the prosecution case. On this, she pointed out that besides the victim recounting that she was forcefully taken by the appellant and raped for a couple of days, when subjected to cross-examination she changed her position and asserted that the appellant did not do anything to her. At this juncture, we have to resolve if the charge was proved at the required standard. Prior to that, we restate that, this being a criminal case, the burden lies on the prosecution to prove the case and the standard is proof beyond reasonable doubt. This can be attained where evidence canvassed by the prosecution against the accused person is strong so as to leave a remote possibility in his/her favour which can easily be dismissed. See: MAGENDO PAUL & ANOTHER V. REPUBLIC [1993] T.L.R. 219 and HAMISI MAHENDI VS REPUBLIC, Criminal Appeal No. 2 of 2021 (unreported).

In the light of stated position of the law, the record before us and the submissions of the learned Senior State Attorney, the question to be answered in the determination of this appeal is whether the prosecution did discharge the burden of proof which is crucial in order to ascertain if the allegations against the appellant were proved to the hilt or not. In the case under scrutiny, it is glaring that the victim was a key and crucial prosecution witness to substantiate the allegations that she was raped by the appellant. In this regard, it is settled law that, although the true evidence of rape has to come from the victim, such victim must be a credible and reliable. See: MOHAMED SAID VS REPUBLIC, Criminal Appeal No. 145 of 2017 (unreported). This is envisaged in section 127 (6) of the Tanzania Evidence Act [CAP 6 R.E. 2019] ( the Evidence Act) which besides requiring the courts to receive the evidence of a child or a victim of sexual offence, enjoin the courts not to act on such evidence to convict before assessing the credibility of such evidence. According to the record, the two courts below invoked the best evidence rule after being satisfied that the evidence adduced by two prosecution witnesses was credible. This is evident at page 74 of the record of appeal whereby the first appellate court stated as hereunder:

"After all, in this case PW2 was credible to the extent that the trial court had all reasonable ground to believe her as she testified to have been raped by the appellant. The trial court rightly based on the principle ...that the best evidence comes from the victim. Passing through the evidence o f PW2 and PW3, it goes therefore without saying that their evidence is entitled to credence....." With respect, we do not think that the evidence drawn from the victim and her father was credible. We shall explain given that, in this second appeal, the Court can still determine the credibility of the prosecution account by assessing the coherence and consistency of the testimony of witnesses when compared to other witnesses including the appellant and arrive at its own findings if need arises. See: YASIN RAMADHANI CHANG'A VS REPUBLIC [1999] TLR 489 and SHABANI DAUD VS REPUBLIC, Criminal Appeal No. 28 of 2001 (unreported). Having subjected the evidence of PW2 to scrutiny, we gathered that, during the examination in chief she recalled that, it is on 27/6/2020 when upon being seduced by the appellant to marry him, she obliged, went at the appellant's home where the two stayed together for three 6

weeks and had sexual intercourse. However, when subjected to cross examination by the appellant the victim's response at page 10 of the record of appeal was as follows: "You married me on 27/6/2020 for those weeks, we didn't do anything." It is glaring that, the same victim who claimed to have been raped by the appellant, shifted goal post having stated that for the period she stayed with the appellant they did not do anything which tells that she was not raped by the appellant. With such a contradictory account, the victim's account was indeed unreliable and not credible with no evidential value. However, the contradiction was neither considered nor resolved by the two courts below. With the unresolved contradictory account of the victim, misapprehension of evidence was bound to occur and with respect, it led to erroneous conclusion on the guilt of the appellant and subsequent conviction. In the premises, the best evidence rule was wrongly invoked by the two courts below to act on the evidence of the victim which was not credible to convict the appellant. The Court was confronted with an akin scenario in the case of HAMIS MAHENDI VS REPUBLIC (supra). The Court said thus:

'We cannot condone such incredible account o f PW1 to sustain the conviction as that is tantamount to going against the dictates o f section 127 (6) o f the Evidence Act which enjoins the courts to receive and act on the evidence o f the victims o f sexual offences after assessing the credibility o f such evidence. In a nutshell and for the sake o f averting a failure o fjustice, the law frowns on acting on incredible evidence o f the victims o f sexual offences to ground the conviction." The stated scenario is squarely applicable in the circumstances surrounding this particular case and the incredible victim's account should not have been relied upon by the trial court to ground the conviction of the appellant. Similarly, the evidence of the victim's father cannot be spared because the victim retracted her earlier story having denied to have been raped by the appellant. Thus, the evidence given by the victim's father geared at supporting the victim's account is of no evidential value to warrant reliance to support the charged offence of rape. On account of what we have endeavoured to demonstrate, in the absence of any cogent and credible evidence, the prosecution did not prove the charge to the hilt against the appellant. Consequently, we

quash the conviction and set aside the sentence imposed and order the immediate release of the appellant from prison unless held for some other lawful cause. It is so ordered. DATED at BUKOBA this 4th day of December, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 4th day of December, 2024 in the presence of the Appellant appeared in person and Mr. Elias Petro Subi, learned State Attorney for the respondent / Republic, is hereby certified as a true copy of the original. 9