Shukuru Moshi @ Elimringi vs Republic (Criminal Appeal No. 29 of 2021) [2024] TZCA 1022 (1 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: MUGASHA, J.A.. KITUSL J.A. And ISSA. J.A/1 CRIMINAL APPEAL NO. 29 OF 2021 SHUKURU MOSHI @ ELIMRINGI................................................... APPELLANT VERSUS REPUBLIC.................................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) fGaleba, J.) dated the 27th day of November, 2020 in Criminal Appeal No. 149 of 2020 JUDGMENT OF THE COURT 28th October & 1st November, 2024 ISSA, J.A.: The appellant, Shukuru Moshi @ Elimringi was arraigned before the District Court of Musoma at Musoma (the trial court) in Criminal Case No. 55 of 2019 facing two counts; rape contrary to sections 130 (1) (2) (e) and 131 of the Penal Code, Cap. 16. and preventing a secondary school girl from attending school contrary to section 35(3) and (4) of the Education Act, Cap. 353 read together with rule 4(2) of Primary School (Compulsory Enrolment and Attendance) Rules, 2002 (GN 280/2002). The appellant was

acquitted on the second count, but convicted and sentenced to imprisonment for a term of 30 years for the first count. ■ The appellant's arraignment before the trial court was a result of an accusation that, on diverse dates between October, 2017 and October, 2018, at Majita road area within the District and Municipality of Musoma in Mara Region and Misungwi District in Mwanza Region, he had carnal knowledge of a 16 year old girl whom we shall refer as AB or the victim to hide her identity. The appellant pleaded not guilty to the charge. The prosecution fielded four witnesses to prove the charge, and after a full trial he was convicted as charged and sentenced to 30 years imprisonment, as stated earlier. The facts of the case depict a love story between the appellant and the victim (PW1). Their love affair started in June, 2017 when the victim was staying at the boarding of Panorama secondary school in Musoma. The appellant used to drive there at 10.00 hours and take her for tea at Nyabange area. On 9th October, 2017 at their usual time the appellant fetched the victim and took her for tea at their usual place. Unfortunately, on that day after having tea they proceeded to Bunda where the appellant rented a room at Twiga guest house and left the victim there. He returned at 18.00 hours, picked up the victim and drove to his house at Majita road

in Musoma where the lovers spend the night together. That marked the beginning of their tour in other areas together. They visited Misungwi, Bunda, Mugumu, Geita, Sherati and Bukoba. Most of the time they were staying in guest houses and enjoying their intimate relationship. In August, 2018 the victim became pregnant and she aborted the pregnancy at Nana hospital in Mwanza in October, 2018. After one year of being away from home, finally the victim became home-sick and returned home in October, 2018. She was immediately taken to Musoma Police Station where she was issued with PF3 and on 9th November, 2018 she was taken to Nyasho health center for medical examination. Donald Matienyi (PW2) testified that he was the father of the victim who was born in 2002. His daughter disappeared on 9th October, 2017 and he reported the incident to the police station and was issued RB No. MU/RB/5323/17. His effort to locate the whereabouts of the victim proved futile until 3rd October, 2018 when he came across information of her whereabouts. He reported again at the police station on 5th October, 2018. He then sent the victim's sister to bring the victim back to Musoma where they arrived on 26th October, 2018. Yohana Kamenye Matungumu, a teacher of Panorama secondary school (PW3) testified that the victim was a student at their school. The

victim was seen at school on the morning of 9th October, 2017 but she disappeared later on that day. Marco Mwita, a medical officer from Nyasho health center testified as PW4. His testimony is to the effect that he examined the victim on 9th November, 2018 and after the examination, he filled PF3 (exhibit P2) which showed that, there was no hymen, no bruises, no discharges and no sign of venereal diseases. He concluded that the victim had been sexually active, and the urine specimen showed that she had terminated pregnancy. The appellant, in his defence, distanced himself from the accusation. He admitted knowing the victim by the name of Tina as she was employed in his bar. His attempt to tender the attendance register, account book and business licence was not successful. The trial court found that the prosecution evidence was sufficient to sustain the charge of rape. Its findings were based on the evidence of the victim, which was corroborated by the evidence of her father (PW2) and the doctor (PW4). On that strength it convicted the appellant. Aggrieved with that decision, the appellant instituted Criminal Appeal No. 149 of 2020 at the High Court of Tanzania at Musoma (the first appellate court) which confirmed the findings of the trial court and dismissed the appeal.

Undaunted, the appellant has instituted the instant appeal. Initially, he lodged a memorandum of appeal containing five grounds. On 25th August, 2021 he lodged another memorandum of appeal containing 10 grounds and on 15th October, 2024 he lodged a supplementary memorandum of appeal containing two grounds. Mr. Cosmas Kisute Tuthuru, learned advocate, in terms of rule 73 (3) of the Tanzania Court of Appeal Rules, 2009 (the Rules) on 22n d October, 2024 lodged a supplementary memorandum containing three grounds in substitution of the memoranda and supplementary memorandum lodged earlier on, but he abandoned the two grounds and the remaining ground goes thus: That there was a misapprehension o f evidence on record by both lower courts leading to wrong conviction against the appellant. When the appeal was called on for hearing, the appellant was represented by Mr. Cosmas Kisute Tuthuru whereas the respondent Republic had the services of Ms. Sabina Choghoghwe, learned Senior State Attorney assisted by Ms. Agma Haule and Ms. Beatrice Mgumba, both learned State Attorneys. Arguing in support of the appeal, Mr. Tuthuru outlined various issues misapprehended by the first appellate court. One, PW2 on page 17 of the

record of appeal reported the disappearance of the victim in October, 2017. He received an RB No. MU/RB/5323/17 and was looking for her, but the RB was never tendered in the trial court. Further, the victim testified that on 10th October, 2018 the appellant received a call from police asking him to report at the police station, which he did not, but the police did not make any effort to arrest the appellant while they had his telephone number. Two, the appellant in his defence testified that he knew the victim by the name of Tina as she was one of his employees at his bar. He tendered the attendance register, the business licence, and account book, but all of them were rejected. Mr. Tuthuru argued that, the business licence tendered though a copy should have been admitted under section 122 of the Evidence Act. Further, the attendance book could have proved that the victim was employed there. On the other hand, he said the school register (exhibit PI) which was tendered by PW3 was received in court though the appellant objected as the name of the victim was erased in the register. On this, he concluded that, the appellant did not get a fair trial. Three, he submitted that the victim on page 30 to 33 of the record of appeal testified that she was raped, but when she went to the doctor

she did not tell the truth, in fact she was forced to be examined. In addition, the medical examination was done much later after the commission of the offence. Hence, the PF3 did not prove anything as the appellant was not connected to the case of rape. Lastly, he submitted that the case against the appellant was fabricated as he was not arrested at the earliest and the investigator was not called to testify in the trial court. He argued that the investigator would have proved about the places the victim and the appellant allegedly visited. To emphasise the importance of investigator in criminal case, he cited the case of Bwaneka v. Uganda (1967) E.A. 768. Ms. Chonghoghwe expressed the respondent's stance to oppose the appeal. Responding to the sole ground of appeal, firstly, she argued that on page 17 PW2 did not say when he reported the disappearance of the victim and in fact, there is no witness who mentioned the reporting date. Secondly, on the issue of the documents of the appellant being rejected, the learned State Attorney argued that the business licence is not relevant in rape cases. Lastly, on the issue of investigator, the learned State Attorney admitted that he was not called to testify, but she argued that the omission did not leave a gap in the prosecution case as it was proved that

the offence was committed by the appellant. Further, she submitted that the case of Bwaneka (supra) is distinguishable to the instant case where the appellant did not say that he wanted the investigator to be called. She insisted that, the trial and the first appellate court relied on the evidence of the victim and the two ingredients of rape (age and penetration) were proved. It was further submitted that the victim testified that penetration did occur in all places they visited; whereas the age of the victim was proved by the victim and her father (PW2). In addition, the evidence of the victim was corroborated by the evidence of PW4, the doctor who confirmed that the victim was penetrated and that she had earlier aborted a pregnancy. In a brief rejoinder, Mr. Tuthuru reiterated that if the investigator was called to testify, he would have answered several questions such as when the appellant was arrested, whether the appellant truly owns a bar and he would ,have also shed light on the disappearance of the victim. Thus, he prayed for the appeal to be allowed and the appellant be set free. The epitome of the sole ground of appeal centred on the issue of whether the prosecution was able to prove its case beyond reasonable doubt. The appellant was charged under Section 130(1) (2)(e) of the Penal Code which creates an offence of statutory rape. What is required to be

proved are two facts: One, that the accused had sexual intercourse with a girl, with or without her consent. Two, that the girl is under 18 years of age and that, if she is 15 or more years of age, it must be shown that she is not his wife. In this appeal, the victim, presented herself at the trial as a 17 year old girl. The victim herself and the victim's father, PW2 testified on the victim's age which was 17 years and that her date of birth was 24th January, 2002. These facts were not challenged in cross-examination or in evidence by the defence. The law is settled on how to prove the age of the victim as the parent, guardian, doctor or victim can testify on the age of the victim. See - Issaya Renatus v. The Republic, Criminal Appeal No. 542 of 2015 [2016] TZCA 218 (26 April 2016, TANZLII), and Rutoyo Richard v. The Republic, Criminal Appeal No. 114 of 2017 [2020] TZCA 296 (16 June 2020, TANZLII). We are, therefore, satisfied that her age was sufficiently established by PW2, the victim's father. With respect to the second ingredient which is penetration, the victim narrated how she was carnally known by the appellant in all places they visited from October, 2017 to October, 2018. PW4, the doctor examined her and found she was sexually active and she had terminated pregnancy. Therefore, gauging from the evidence of PW1, and PW4,

together with exhibit P2 there is no doubt that the offence of rape was committed against the victim as the elements of age and penetration were proved. However, the crucial issue is: who was responsible for the offence of rape? The victim, on one hand narrated how the offence against her was committed while the appellant on the other hand, denied committing the offence and faulted the first appellate court for misapprehending the evidence and for not assessing the credibility of the victim before sustaining the conviction and sentence. On our part, we still hold that the true evidence of rape should come from the victim as laid down in Selemani Makumba [2006] T.L.R. 329 and Godi Kasenegali v. The Republic, Criminal Appeal No. 10 of 2009 [2010] TZCA 5 (2 September 2010, TANZLII). However, the conviction should be preceded by assessment of the evidence to determine the credibility of the victim's evidence when compared to the evidence of other witnesses including the appellant and other circumstances of the case. We are fortified by the Court's decision in Mohamed Said v. The Republic, Criminal Appeal No. 145 of 2017 [2019] TZCA 252 (22 August 2019, TANZLII) which stated thus:

'We are aware that in our jurisdiction it is settled law that the best evidence o fsexual offence comes from the victim [Magai Manyama v. Republic (supra)]. We are also aware that under section 127(7) o f the Evidence Act [Cap. 6 R.E. 2002] a conviction for a sexual offence may be grounded .solely on the uncorroborated evidence o f the victim. However, we wish to emphasise the need to subject the evidence of such victims to scrutiny in order for Courts to be satisfied that what they state contain nothing but the truth". (Emphasis supplied). In addition, the Court stressed that: "It was never intended that the word o f the victim o f sexual offence be taken as gospel truth but that her or his testimony should pass the test o f truthfulness". Therefore, the evidence of the victim should be credible and should not be taken whole sale without considering matters on coherence, reliability and other circumstances (see - Majaliwa Ihemo v. The Republic, Criminal Appeal No. 197 of 2020 [2021] TZCA 304 (15 July 2021, TANZLII) and Straton s/o Steven Mboya v. The Republic, Criminal Appeal No. 576 of 2020 [2024] TZCA 349 (10 May 2024, TANZLII).

In the case at hand, which is a second appeal, we are alive to the general practice that a second appellate court would not easily disturb or interfere and undo the concurrent findings of two lower courts unless the two courts completely misapprehended the substance, nature and quality of the evidence resulting in an unfair conviction or where there was misdirection on evidence (see - Salum Mhando v. The Republic [1993] T.L.R. 170, Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 143. In the instant case, several doubts have been raised by the appellant which touched on the credibility of the victim's evidence and the surrounding circumstances corroborating the evidence of the victim. One, the victim failed to report the incident at the earliest opportunity besides testifying that she was raped by the appellant countless times. The first time was on 9th October, 2017, but she never reported the incidents to anyone while she had ample time as she was left in the guest houses alone or while she was at Misungwi at the appellant's sister's house where she spent two weeks alone. The inability of the witness to disclose the name of the perpetrator at the earliest time following the commission of the offence puts to question the reliability and assurance of such evidence and casts doubt to her evidence and prosecution case. (See - Swalehe

Kalonga and Another v. The Republic, Criminal Appeal No. 45 of 2001 (unreported) and Jaribu Abdulla v. The Republic [2003] T.L.R. 271. Two, the victim wanted the Court to believe that she was forced to do sexual intercourse with the appellant and she did raise an alarm. In her own words on page 12 of the record of appeal she said: "Accused forced me to have sexual intercourse to him, I used to raise alarm, for a year he used to force me to have sexualintercourse with him." If it is true that she was forced to have sexual intercourse, why she did not report it for the whole year when she had opportunity to do so on several occassions. Further, she testified that most of the time they were staying in guest houses. Therefore, if she did raise the alarm when she was raped the guest house attendants and other occupants would have responded to such alarm. The victim made it hard for us to believe that she was forced to have sex and raised the alarm. These elements of lies are also found in her testimony. For instance, she testified during examination in chief on page 12 of the record of appeal that, when they were registering in the guest houses they both wrote their names, but on cross-examination she said it was the appellant who wrote his name. Further, the incident that took place at Nyasho medical center was a food

for thought. We keep wondering why the victim did not tell the doctor her purpose of going there uritil her mother intervened and explained that she was abducted and raped. Three, there has been a controversy surrounding the reporting to the police of the disappearance of the victim, and whether the police had communication with the appellant. The record of appeal is clear that PW2 testified that he reported the incident for the first time in October, 2017, but he did not mention the date. On 5th October, 2018 he did report for the second time when he got information on the whereabouts of the victim. The controversy arose with respect to the testimony of the victim when she stated: "On l( fh October, 2017 at 15.00 hours while sleeping with the accused the police phoned and asked him to report to the police station during the morning. After the phone call he told me to shift where he took me to pacific lodge..." This statement raises a lot of questions. The incident took place on 9th October and the police called the appellant on 10th October. How did the police know about the disappearance when it was not yet reported, and if it was reported why the police did not take any action. This underscores the importance of the investigator to be called to testify. He

would have clarified when the incident was reported and why they did not take any action after the reporting. The Ugandan case of Bwaneka v. Uganda (supra) reminds us of the importance of investigator and the growing tendency in the country where the police are abdicating their duties and leave criminal cases to the civilians. The court stated: "Then there is the practice indulged by the police or other prosecutors when prosecuting in magistrates courts o f not calling police officers who had investigated the case and arrested and charged an accused person involved in such a case. It seems to me that the police do not attach Importance to their duty o f investigating cases reported to them, but are content to sit back and wait for a civilian to bring to them someone suspected o f or arrested for alleged commission o fa crime.... Generally speaking, criminal prosecutions are matters o f great concern to the State and such trials must be completely within the control o f the police and the Director o f Public Prosecutions. It is the duty o f the prosecutors to make certain that police officers who had investigated and charged an accused person do appear in court as witnesses to testify as to the part they played and the circumstances under which they had decided to arrest and charge an accused person.

Criminal prosecutions should not be treated as if they were contests between two private individuals". We fully subscribe to the view expressed above. These incidents are prevalent in our country and it is our hope that this practice of not calling the investigators to testify will be discontinued in the future for the better meeting the ends of justice. Lastly, it has been argued that the appellant was not allowed to tender his exhibits, namely: employment register, business licence and account book. The reasons given for rejection by the trial court left a lot to be desired, but we will not pursue this point as these documents were relevant to the second count which ultimately the appellant was acquitted. All these issues undermined the credibility of the victim and the prosecution case which hinges on the victim's evidence. It has been the position of this Court that in order to base a conviction on the evidence of a sole eye witness, his or her evidence must be absolutely watertight (see - Ramadhan Said Omary v. The Republic, Criminal Appeal No. 497 of 2016 (unreported)). Considering the evidence on record, we cannot say with certainty that, the prosecution proved the case beyond reasonable doubt. Consequently, on the face of these doubts, we quash the conviction and set aside the sentence of 30 years imprisonment on the appellant. We

order his immediate release from prison unless he is being held there for another lawful cause. It is so ordered. DATED at MUSOMA this 1st day of November, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 1st day of November, 2024 in the presence of Appellant in person un-represented and Mr. Felix Mshama, learned State Attorney for the respondent / Republic, is hereby certified as J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL