Joseph Charles @ Nkole vs Republic (Criminal Appeal No. 524 of 2020) [2024] TZCA 1113 (15 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA fCORAM: SEHEL. 3.A.. KIHWELO. 3.A. And MDEMU. J.A/1 CRIMINAL APPEAL NO. 524 OF 2020 JOSEPH CHARLES @ NKOLE..................................................... APPELLANT VERSUS THE REPUBLIC............... ......................................... . ............ RESPONDENT (Appeal from the decision of the Court of Resident Magistrate of Katavi at Mpanda) fNaiqwana, RM.EXT.JUR1 dated the 27th day of February, 2020 in DC. Criminal Appeal No. 9 of 2019 JUDGMENT OF THE COURT 23rd October & 15th November, 2024 KIHWELO, J.A.: Joseph Charles @ Nkole, the appellant herein is before us, in a second appeal seeking to protest his innocence following his trial before the District Court of Mpanda at Mpanda in which the charge of incest by male was put at his door-step. On being found guilty as charged, he was convicted and sentenced to life imprisonment. Believing that justice was not served by the trial court, he appealed to the High Court of Tanzania at Sumbawanga, and, on 14th November, 2019 the appeal was transferred to the Court of Resident Magistrate of Katavi and was heard by Emmanuel

Ngigwana, Resident Magistrate with Extended Jurisdiction who dismissed the appeal, hence this second appeal. On the basis of three prosecution's witnesses and one documentary exhibit, the prosecution allegation was that, on the 16th February, 2019 at Katambike Village within Mpanda District, the appellant, had carnal knowledge of a girl aged ten years, knowingly that she was his daughter. For purposes of concealing the identity of the victim, we shall identify her as the victim or PW1. The appellant maintained his innocence when the charge was put to him. At the inception of the trial, the victim who testified under oath as PW1, introduced herself as the daughter of the appellant and that she was living with her parents along with other relatives. She then recounted events of what happened on 15th February, 2019, most specifically after family dinner when the appellant's wife, Lekwa Said (PW2), told them to go and sleep in another relative's room as the relative had travelled. According to the victim, PW2 did not sleep in that house because of matrimonial bickering and instead, she went to sleep to the house of the appellant's younger brother. PW1 testified further, how the appellant who had gone out to enjoy local brew, came back at night, chased the other children and ordered the victim to follow him and upon arriving somewhere along the road the

appellant ordered the victim to pick some sleepy vegetables and smear on her private parts as a lubricant. Subsequently, the appellant undressed himself and inserted his manhood into the victim's private parts. The victim, at that time, was not wearing any underwear, since she just came out of deep sleep and the appellant suddenly ambushed her and her relatives who were fast asleep. On finishing, he took the victim to the kitchen where he raped her once again. The victim, who until that day was virgin, felt severe pain and observed blood and white mucus discharging from her private parts. According to PW1, the appellant threatened the victim. When the appellant fell asieep in the kitchen, the victim who was still bleeding pleaded to her relatives to take her to their uncle where PW2 was also sleeping. Upon narrating the story of what happened, the victim was rushed to the police where a Police Form No. 3 (PF3) was issued and later to the hospital where she was treated by Abron Nyondo (PW3), a clinical officer. On her part, (PW2) the step mother of the victim, her story was to the effect that, the appellant and PW2 are blessed with nine (9) issues of marriage and that she is not a biological mother of the victim whose mother divorced the appellant ever since the victim was about three (3) years old. It was PW2's further evidence that, on 16th February 2019 she did not sleep at their usual residence and instead she went to sleep to her

brother in law as the appellant had a tendency of disturbing her when drunk at night. During that fateful day, she left the kids to the house of one Charles whose wife had travelled. PW2 testified further how the victim reported to her and her brother in law the rape incident. She examined the victim and observed a discharge of blood on her private parts and she was complaining of severe pain. According to her, she also observed rupture in the victim's vagina. The duo took PW1 to the local leader and thereafter they went to Ugata Police Station where they were given a PF3 which they took to the hospital for medical examination. ‘ There was further prosecution evidence from PW3, the medical officer from Kanonge Dispensary who medically examined the victim and then, filled the PF3 which he later tendered and was admitted in evidence as exhibit PI. Such was the prosecution version of the case. On the adversary side, the appellant, gallantly denied the allegations levelled against him and stoutly defended his innocence. In his sworn testimony, he totally disassociated himself with the allegations and further testified that, the prosecution did not prove the case as required. His account was that, the victim was not telling the truth because the house has six (6) family members who slept in the said house but no one came to testify to support the victim's story. In his view, the evidence of PW2 was

mere hearsay since he was not at the scene of the crime. In essence, the appellant questioned the credibility of the victim and PW2 and denied to be the biological father of the victim. On the whole of the evidence, the trial court accepted as truthful the evidence of the prosecution's witnesses. The appellant's denial was rejected. In the upshot, the appellant was found guilty, convicted and accordingly sentenced as hinted before. In protesting his innocence, the appellant lodged the appeal before the first appellate court which was denied as alluded before, and hence this second appeal in which he seeks to overturn the decision of the first appellate court. The appellant has preferred two (2) grounds of grievance. One, the first appellate court erred to uphold the conviction and sentence for the offence of incest by male while the evidence on record proved the offence of rape and, Two, the first appellate court erred to uphold the conviction and sentence while the prosecution did not prove the case to the required standard. When closely examined, the two grounds, they boil down to one ground of complaint that the prosecution did not prove the case beyond reasonable doubt. When we sat for hearing of this matter on 23rd October, 2024 the appellant appeared before us in person, and had no legal representation,

while on the adversary side, the respondent Republic was represented by Mr. Catistus Kapinga, learned Senior State Attorney. We invited the appellant to clarify his grounds of grievance but owing to his being a lay person not conversant with the law, essentially, he adopted the grounds of appeal and urged us to consider them in determining the appeal. He also opted to let the learned Senior State Attorney reply to his grounds of appeal, but retained the right to rejoin if need would arise. Upon taking the floor to address us, Mr. Kapinga, premised his submission by opposing the appeal, and supported both the conviction and sentence meted on account that the first appellate court rightly upheld the conviction and sentence of the appellant based on the overwhelming evidence that connected the appellant to the charge. In response to the first ground that the evidence on record proved the offence of rape and not incest by male, Mr. Kapinga contended that, in proving the offence which the appellant stood charged with under section 158 (1) (a) of the Penal Code (the Penal Code) the prosecution was duty bound to prove two elements. One, that the appellant had sexual intercourse, and Two, that the appellant had prohibited sexual intercourse with a relative within the scope mentioned in the provisions of section 158 (1) of the Penal Code. He took the view that, the prosecution ably proved

that the appellant committed the offence which he stood charged. Elaborating further, he argued that, PW1 and PW2 testified that the appellant had carnal knowledge with PW1 who is his biological daughter and a step daughter to PW2. He further argued that, PW3 proved that PW1 was raped. Thus, according to him, the trial court and the first appellate court believed the testimony of PW1, PW2 and PW3. Mr. Kapinga argued further that, despite the fact that the offence happened at night and therefore, the conditions were not very favourable for a proper and unmistaken identification, but the time the victim had the appellant in observation, in such proximity during rape incident and being someone familar, it is obvious that she was able to see and identify the appellant. He cited to us the case of Wilson Elias @ Kiungai v. Republic (Criminal Appeal No. 449 of 2018) [2022] TZCA 629 (13 October 2022; TanzLII) to demonstrate his proposition. In response to the second ground of complaint that the prosecution did not prove the case to the required standard, Mr. Kapinga was very brief, he contended that the evidence of PW1, who is the victim of rape is the best evidence in sexual offence cases and was sufficient to sustain conviction. He paid homage to the most celebrated case of Selemani Makumba v. Republic [2006] T.L.R. 379.

For him, in terms of section 158 (2) of the Penal Code, it is immaterial whether there was consent or not. In all, he urged us to disallow the appeal. After our serious examination of the judgments of both courts below, the grounds of appeal as well as the arguments by the learned Senior State Attorney we, on our part, are of the view that this appeal can sufficiently be disposed of within the narrow circumference on whether the prosecution proved the case to the hilt. That renders narration of the other arguments of no relevance. We are mindful of the fact that this being the second appeal, under normal circumstances, we would not interfere with concurrent findings of the lower courts if there are no mis-directions or non-directions on evidence. However, this Court, may interfere with such finding if it is evident that the two courts below misapprehended the evidence or omitted to consider available evidence or have drawn wrong conclusions from the facts, or there have been mis-directions or non-directions on the evidence in view of making its own findings. See, for example Salum Mhando v. Republic [1993] T.L.R. 170, Mussa Mwaikunda v. Republic [2006] T.L.R. 387 and DPP v. Jaffari Mfaume Kawawa [1981] T.L.R. 149.

We have anxiously weighed the appellant's complaint and submissions by the learned Senior State Attorney and we propose to address the evidence on record. We should interpose here and observe that, the prosecution case was solely based upon three witnesses, PW1 the victim, PW2 the step mother and PW3 the Medical Officer who examined the victim but also tendered the PF3, exhibit P L Looking critically the evidence of PW1, it is not very clear where did the other relative go when the brother was chased before PW1 was taken along the road. It is further not clear why those who observed the appellant being forced to go along the road were not produced to narrate the account of what happened and even prove that it was the appellant who came and took the victim along the road that night. Admittedly, PW1 testified that his other relatives were there but did not shout as they were afraid of the appellant. However, her testimony is somehow too remote since the other relatives did not testify, its material account automatically depreciates. PW2's evidence in relation to the rape incident is mere hearsay except the testimony that she inspected PWl's private parts and found out that she was bleeding. Furthermore, there is a glaring anomaly in the prosecution evidence. There is no witness who testified on how and when the appellant was arrested. The only piece of evidence on arrest is found when the appellant

was cross examining PW2 that is when PW2 said the appellant was arrested at 5:00 in the morning by the ten-cell leader and "sungusungu". All in all, the record is silent as to when and how the appellant was arrested, and the Court cannot go into speculation as to what exactly happened. Quite unfortunate, in this matter, and for an obscure cause, there was no any investigator who came to testify leaving most of the issues unanswered including, but not limited to, when exactly was the appellant arrested and by who. We find it convenient to point out that, from the above discussion we note that there was failure by the prosecution to produce material witnesses to testify. We wish to reaffirm the settled position that, in terms of section 143 of the Evidence Act, it is not the number of witnesses a party call which is relevant, but the credibility of the evidence of the witnesses called to testify. Indeed, there is a plethora of authorities by this Court to that effect. See, for instance, Yohanis Msigwa v. Republic [1990] T.L.R. 148 and Aziz Abdallah v. Republic [1991] T.L.R. 71 just to mention a few. It is also settled position of the law that, where a party fails to summon a material witness to fill the gap or explain an important point, the court is entitled to draw adverse inference. See, for instance, Aziz Abdallah v. Republic (supra).

The court can act on the evidence of a single witness if that witness can be believed, given all the surrounding circumstances. The truth is not discovered by a majority vote, one solitary credible witness can prove a case beyond reasonable doubt. In the case before us, PW1, was sleeping with other relatives who she mentioned in her testimony that one of them was chased and the other one was asleep but both were scared of the appellant that is why they did not wail to attract helping hands. The nagging but pertinent question which remains unanswered will be, why these other PW l's relatives were not summoned to testify? There is also the ten-cell leader who is said to have arrested the appellant or the sungusungu in that matter. None of them was summoned to testify how the appellant was arrested, when, why and by whom? We therefore, find it completely inexplicable why the prosecution did not deem it fit and discharge their duty to call these witnesses to give evidence at the trial. They appear to be central to the events which unfolded in the fateful day. It is our view that, a number of matters arising in this case that are now left to the imagination would have been clarified if the witnesses had been called to give evidence. Unfortunately, this did not happen. More so, in this appeal, apart from the appellant refuting the accusation, he went further to refute that he is the biological father of the

victim. He further questioned why the prosecution did not produce the other family members as the house has six family members. This was an appropriate case for the prosecution to call those materials witnesses to come and answer those pieces of the puzzle. Particularly, these witnesses were very critical considering that, in the instant appeal there is unexplained issue as to who arrested the appellant and how. We are mindful of what Lord Chief Justice Mathew Hale made in the 17th Century which is still very relevant during our times. The Lord Chief Justice stated in People v. Benson, 6 Cal 221 (1856), that rape; "is an accusation easily to be made and hard to be proved and harder to be defended by the party accused, though never so innocent." All in all, each case has to be considered on its own facts, guided by common sense and substantial justice. In the circumstances, as the prosecution did not provide plausible explanation for the failure to call those material witnesses we draw an adverse inference. There can be no better words to express our view and conclude as we do that, the prosecution's evidence was weak to discharge its burden of proof that the appellant committed the crime he stood charged. All said and done, we allow this appeal against conviction for incest by male and sentence which are hereby quashed and set aside accordingly.

The net effect is that the appellant shall be released forthwith from custody unless he is held lawfully for another cause. DATED at DAR ES SALAAM this 14th day of November, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 15th day of November, 2024 in the presence of the appellant in person and Mr. John Mwesiga Kabengula, learned Senior State Attorney for the Respondent/Republic, through video link from High Court Sumbawanga, is hereby certified as a true copy of the original.