Joram Kahimbwe vs Republic (Criminal Appeal No. 490 of 2021) [2024] TZCA 1043 (5 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: LEVIRA, J.A.. MAIGE. J.A. And MASOUD. J.A.^ CRIMINAL APPEAL NO. 490 OF 2021 JORAMU KAHIMBWE............................. ................... ..................... APPELLANT VERSUS THE REPUBLIC............................................................................... RESPONDENT (Appeal from the decision of the Resident Magistrate's Court of Mbeya at Mbeya) (Msafiri. SRM. Ext. Jur.) Dated the 13th day of August, 2021 in Criminal Appeal No. 22 of 2020 JUDGMENT OF THE COURT 3ffh October, & 5th November, 2024 LEVIRA. J.A.: The appellant's journey to and landing in prison where he is currently serving life imprisonment sentence upon being convicted of rape contrary to sections 130 (1) (2) (e) and 131 (1) (3) of the Penal Code, Cape 16 (the Penal Code) by the District Court of Rungwe at Rungwe (the trial court), could have not been possible had it not been for a discovery made by the victim's teachers. The victim, a then ten years old girl and standard four pupil of Kitope Primary School was, on 6th February, 2020, allegedly carnally known by the appellant, her uncle. However, the victim never revealed to anyone about the ordeal until when she was

interrogated and inspected by her teachers (Godon and Danny) following a bad smell they smelled from her. Upon such information, the appellant was arraigned, convicted and sentenced as alluded to above. The appellant was not satisfied with the decision of the trial court. As a result, he appealed to the High Court where his appeal was transferred and entertained by a Senior Resident Magistrate with Extended Jurisdiction of the Resident Magistrate Court of Mbeya at Mbeya. The outcome of the said appeal was not in the appellant's favour. He was aggrieved and hence the present appeal. It is on record that the appellant and the victim were living nearby. According to the victim (PW1), the appellant called her into his house and ordered her to take off her clothes and lay on a mat. He as well took off his clothes and slept on top of the victim and started to rape her. The victim felt pain in her private parts but could neither shout nor tell anyone thereafter as she was warned by the appellant not to do so. Nonetheless, the secret could not be kept indefinitely. The bad smell from the victim was intolerable; particularly, by her teacher one Godon. The said teacher called the victim to the office, ordered her to undress, examined her body and upon interrogation, she revealed that she had been raped by her uncle, the appellant. PW l's teachers (Danny and Godon) took her to the hospital where she was attended by Doctor Aswile Emmanuel (PW3). 2

Later, the said teachers informed one Bertha Kanimbwe, the mother of the victim (PW2) about what had befallen her daughter. PW2 confirmed in her evidence to have been informed by PW l's teachers about what had happened to the victim and the measures taken. She as well interrogated PW1 and was told that it was the appellant who had raped her. In his evidence, PW3 testified that PW1 was sent to the hospital by her parents who told him that she was raped. Upon examining PW l's private parts, PW3 discovered that she had bruises suggesting that she was penetrated by a blunt object. He treated her and filled the PF3 which was admitted as exhibit PI. In his defence, the appellant (DW1) denied the charge. He claimed that the charge against him was fabricated following land dispute between him and his neighbours who were jealous because he wanted to sell his land. Upon a full trial, the trial court was satisfied that the prosecution proved its case against the appellant beyond reasonable doubt, convicted and sentenced him accordingly, as shown above. In this appeal, the appellant has presented three grounds of appeal as follows: "1. That, the first appellate court erred in law when dismissed the appellant's appeal without evaluating deeply the petition o f appeal filed by the appellant.

2. That, the first appellate court erred in law when dismissed the appeal without considering ground 2 o f the petition o fappeal filed by the appellant as follows - a) None o f PW1 or PW2 mentioned the true date o f occurring o f the allegation against the appellant. b) Delay o f PW1 to report the said allegation to PW2 was not explained. c) The teachers by the names o f Danny and Godon were not called to corroborate the evidence ofPW l. d) The credibility o f the evidence o f PW1 was never assessed deeply by the two courts below as per the requirement under section 127 (6) o f the Evidence Act, Cap 6.

3. That, that the defence case was ignored by the two courts below". At the hearing of the appeal, the appellant appeared in person, unrepresented, whereas the respondent Republic had the services of Ms. Mwajabu Tengeneza, learned Principal State Attorney assisted by Mr. Stephen Rusibamayila, learned State Attorney. The appellant adopted his grounds of appeal as part of his oral submission and opted to hear a

response from the learned State Attorney as he reserved his right to make a rejoinder. In response, Ms. Tengeneza opposed the appeal and started to address the second ground of appeal. As regards the appellant's claim that the prosecution witnesses, particularly, PW1 and PW2 did not mention the incident date, the learned Principal State Attorney admitted it to be true. However, she argued that the appellant was not prejudiced. She argued further that PW1 was a child of 8 years and thus could not remember the date. According to her, although the date was not mentioned, the charge was read, the appellant denied it, made a follow up during trial, cross examined prosecution witnesses and finally, he entered his defence. She insisted that the appellant was not prejudiced by such failure to mention the date on which the offence was committed. In support of her argument, she cited the case of Halfani Rajabu Mohamed v. Republic, [2023] TZCA 178 (6 April 2023, TANZLII). She added that, the appellant did not raise any defence, for example alibi, which could raise doubt on the prosecution case. Regarding the claim that PW1 delayed to inform PW2 about what had befallen her, Ms. Tengeneza conceded that there was such a delay. Nevertheless, she argued, PW1 was a child of tender age and the appellant who is her uncle warned her not to tell anyone. Apart from that, 5

the appellant promised to give her some money. She thus submitted that in the circumstances, it was impossible for the child to give that information to anyone. She supported her averment with the decision of the Court in Godson Dan Kimaro v. Republic [2022] TZCA 621 (7 October 2022, TANZLII). Responding to the appellant's claim that the teachers who allegedly discovered that the victim was raped were not called to testify, Ms. Tengeneza conceded to that claim as well. However, it was her submission that the failure to call those teachers as witnesses did not affect the prosecution case. Ms. Tengeneza opposed the appellant's last complaint in the second ground of appeal regarding the evidence of PW1 to the following effect: first, she said, the trial magistrate complied with the requirements of section 127 (6) of the Evidence Act as he warned himself about the danger of relying solely on the evidence of the victim to ground the appellant's conviction at page 35 of the record of appeal. Second, the learned Principal State Attorney added that, even on appeal at page 58 to 60 of the record of appeal, the Magistrate with Extended Jurisdiction considered the truthfulness and credibility of PW l's evidence. Third, she added that the appellant's defence was considered but could not shake the prosecution evidence.

Submitting on the first ground of appeal, Ms. Tengeneza opposed the appellant's claim that his grounds of appeal found on page 39 of the record of appeal were not considered. To substantiate her averment, she referred us to page 57 of the record of appeal where the said grounds were considered. Regarding the appellant's complaint in the third ground of appeal that his defence was ignored, the learned counsel stated that the same was considered by the trial court and the first appellate court at pages 35 and 60 of the record of appeal, respectively. However, she said, the same did not raise doubt on the prosecution case because the appellant just made a general denial and it was an afterthought as found by the first appellate court. Finally, Ms. Tengeneza urged us to make a finding that this appeal has no merit and dismiss it. The appellant had nothing significant in his rejoinder. He only prayed for the Court to set him free. We have carefully considered the submissions by the parties, grounds of appeal and the entire record of appeal. The main issue calling for our determination in this appeal is, whether the prosecution proved its case against the appellant beyond reasonable doubt. In answering this issue, we shall as well, consider some sub-issues as per the appellant's 7

complaints. As we introduced above, the appellant's conviction was based mostly on the story of PW1 telling her teachers on how she was raped by the appellant and how they inspected her body. However, she did not tell them deliberately but it was due to their discovery and interrogation following her bad smell. In the circumstance, we think, it is important to start determining the appellant's third complaint in the second ground of appeal. The issue for our determination is whether the victim's teachers, Godon and Dany were material witnesses in the circumstances of the present case. We wish to note at the outset that, the appellant's complaint in this ground of appeal was conceded by Ms. Tengeneza with a reservation. It was her argument that although the victim's teachers were not called by the prosecution as witnesses, the failure to call them did not affect the prosecution case. We are alive to the fact that it is upon the prosecution to choose whom to call as a witness. Equally, we are aware that it is not about a number of witnesses which is required to prove a fact, but weight of the evidence as per section 143 of the Evidence Act, Cap 6. Nonetheless, having examined the evidence on the record, we are unable to go along with the submission by Ms. Tengeneza that, the victim's teachers were not material witnesses because even if they were called, they could not 8

prove rape. In other words, she invited us to apply the best evidence rule in the present case to uphold the appellant's conviction. Much as we agree with the learned Principle State Attorney and indeed, it is a well-established principle that the best evidence in sexual offences comes from the victim. However, as we have said in most of our decisions, this principle is not applicable in every situation. For example, in Mohamed Said v. Republic [2019] TZCA 252 (23 August 2019, TANZLII), we said, the evidence of the victim cannot be taken as Gospel truth but should pass the test of truthfulness, it must be credible and probable. Thus, whether or not to rely solely on the evidence of the victim depends on the circumstances of each case. In the present case, as we introduced above, it was PW l's testimony that she was raped by the appellant but did not tell anyone until her teachers discovered due to her bad smell and upon interrogation. Apart from that, PW1 testified further that the said teachers Godon and Danny ordered her to take off her clothes so that they could examine her to see if she was, indeed, raped as it can be seen at page 7 of the record of appeal. The said teachers did not end there but they decided to take the victim to the hospital and later informed PW2 what had befallen her daughter. In cross examination, PW1 stated that the appellant raped her twice and promised to give her money, but in re-examination she

stated that the appellant raped her twice and gave her TZS. 200.00 at page 7 of the record of appeal. As it can be observed from the testimony of PW1, it is not very clear whether the appellant threatened her that is why she kept it as a secret that the appellant raped her or it was because of money she was given or just a promise. Besides, she said her teachers inspected her private parts and established that she had been raped. It is not in the record whether those teachers were female or male. If they were male teachers, how possible they did such a thing. Not only that but also, if at all the said teachers examined the victim, what they saw is not in the record. Such information, we think, was very important to corroborate PW l's evidence. We say so because the appellant raised a defence that, the case against him was fabricated because of the land conflict at home. It is doubtful in the present case where PW l's teachers were not called to fill in the missing link in prosecution case. At least they could have testified on how they conducted the discovery and discovered that PW1 was raped, what was the outcome of their examination to PW1, what did PW1 tell them and when did they discover the problem. We say this in connection with the appellant's complaint that no prosecution witness mentioned the incident date. We further note that the mother of the victim testified as PW2, but the record does not show when did she receive a call from PW l's 10

teachers and/or whether she checked her daughter to see whether what she was told by the said teachers, as alleged, was correct. We agree with the appellant that, the evidence of PW l's teachers who allegedly discovered that PW1 was raped was very material in explaining the missing link in the prosecution case. The omission to call them without disclosing reasons weakened the prosecution case. It is settled position that, where a witness who is in better position to explain some missing links in the party's case, is not called without sufficient reason being shown by the party, an adverse inference may be drawn, as we do in the present case - see: Aziz Abdallah v. Republic [1991] T.L.R 71 and Boniface Kundakira Tarimo v. Republic [2011] TZCA 194 (4 October, 2011, TANZLII). In the circumstance, therefore, we find merit in the third complaint in second ground of appeal. The missing link in the prosecution case as indicated above drives us to a conclusion that, the evidence of PW1 which was solely relied upon by the courts below needed corroboration, which is missing. Otherwise, it was not safe to convict the appellant basing solely on PW l's evidence. As a result, we entertain no doubt that the case against the appellant was not proved beyond reasonable doubt. This ground alone is capable of disposing of the appeal and thus we shall not deal with other grounds of appeal. ii

Consequently, we allow the appeal, quash conviction and set aside the appellant's sentence. We order immediate release of the appellant from prison unless otherwise he is lawfully held for other cause. DATED at MBEYA this 5th day of November, 2024. M. C. LEVIRA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 5th day of November, 2024 in the presence of the appellant in person/unrepresented and Mr. Stephen Rusibamayila, learned State Attorney for the Respondent/Republic, is 12