Beni Wisa vs Republic (Criminal Appeal No. 488 of 2021) [2024] TZCA 1013 (31 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: LEVIRA J.A., MAIGE. J.A. And MASOUD. J.A.^ CRIMINAL APPEAL NO. 488 OF 2021 BENI WISA................................................................................... APPELLANT VERSUS THE REPUBLIC......................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Nqunvale, J.^ dated 27th day of August, 2021 in Criminal Appeal No. 25 of 2021 JUDGMENT OF THE COURT 28t h & 31st October, 2024 MASOUD. 3.A.: In the District Court of Kyeia at Kyela (the trial court), the appellant denied the charge of rape c/s 130 (1) (2) (a) and 131 (1) of the Penal Code which was laid against him. The charge was based on the allegation that the appellant raped an eight years old girl (the victim) on 12/6/2020 at about 21:00 hours at his residence at Ikilu Village within Kyela District in Mbeya Region. At the heart of the prosecution case, which was in the end resolved by the trial court against the appellant, there was the evidence of the victim (PW1), the victim's mother, one Fauzia Jairo Lunyungo (PW2), G 699990 DC Enock, a police investigator of the case (PW3) and Dr. Henry Gilbert Warnbura (PW4) who claimed to have examined PW1 on 13thJune i

2020 and completed the PF3 (exhibit P2) on the same day of 13th June 2020. PW2 testified that she noticed her daughter walking with difficulties at 21:00 hrs after she arrived at home at 15:00 hrs on the fateful day. Having questioned her at about 21.00 hrs, PW1 disclosed that she had been sexually abused by the appellant. PW2 and her husband reported the incident to the police on the same day and a PF3 was issued at 22:00 hrs. PW1 was, subsequently, examined by one, Dr. Alex Godwin who, according to PW4, discovered that PW1 had pains in her vagina, and further that, her vagina had bruises, non-mortal spermatozoa and no hymen. The ultimate conclusion was that PW1 had been penetrated by a blunt object. PW4 claimed to have conducted further tests on 13thJune, 2020 and completed the above mentioned PF3(exhibit P2) on the same day which he identified at the trial and tendered it as the one that he completed. The story from the testimony of PW1 that connected the appellant with the incident was that on the fateful day, the appellant called her to his residence asking her to help him with washing his domestic utensils of which she complied. After finishing washing the utensils, PW1 remained in the appellant's residence watching television. Subsequently, PW1 asked for some drinking water and was directed by the appellant to fetch it from the storeroom within the appellant's residence. As PW1 2

moved, reluctantly, into the said storeroom, the appellant grabbed her, pulled her inside the storeroom, undressed her, and went ahead to finger her vagina before inserting his penis into it. Once done with his sexual gratification, the appellant warned PW1 not to tell anyone about the incident as he promised her some money in return. With the exception of inserting the appellant's penis into PWl's vagina, PW2's evidence on the record of appeal was consistent with that of PW1, PW3, and PW4 that the victim was sexually abused on the fateful day. However, it is worthwhile to note that PW3 had it that PW1, in addition, told him that she told her parents that she was raped by one Mr. Chichi, in the early morning hours of the material day. It is also worth noting that PW2 testified that PW1 told her that the appellant had only inserted fingers into her vagina. Having denied the charge, the appellant (DW1) distanced himself from the commission of the alleged offence in his defence evidence at the trial in which he also called one, Samweli Leonard Mbuba (DW2) as his witness. He, nonetheless, admitted to inviting PW1 to his residence to help him with washing his utensils. He denied to have sexually abused her as charged, as PW1 left his residence early before the offence was allegedly committed at 21:00 hrs of the fateful day. He also testified to have left his residence at 10.30 hrs after PW1 had left and never came back until 15:00 hrs of the very same day as is also substantiated by 3

DW2. After coming back home at around 15:00 hrs, he left for the church and upon coming back, he again left for his daily works only to come back at 22:00 hrs and was arrested at about 01:00 hrs on 13th June, 2020 . After a full trial, the trial court found that the prosecution had successfully proved its case against the appellant beyond reasonable doubt. The appellant was thus convicted and sentenced to serve a term of life imprisonment. His first appeal was, however, unsuccessful. As the appellant is still aggrieved, he preferred the instant appeal on a number of grounds of appeal which agreeably boil down into only one point of grievance. The point is to the effect that the prosecution case was not proved beyond reasonable. It was in this respect complained that the prosecution case was founded on weak and unreliable evidence which was taken without testing it against the appellant's evidence. Submissions in respect of the point of grievance were at the hearing of the appeal respectively made by Mr. Pacience Yonatas Maumba, learned advocate, who represented the appellant, and Ms. Mwajabu Tengeneza, learned Principal State Attorney, who was assisted by Mr. Stephen Rusibamayila, learned State Attorney, for the respondent Republic. The submissions made by the counsel for the appellant 4

highlighted doubts that characterized the prosecution evidence which Ms. Tengeneza conceded to, eventually, in the course of her subsequent submission as will become apparent afterwards. From Mr. Maumba's submission, we gathered that his thrust was on the contradictory evidence of the prosecution witnesses which in his view spoiled the case against the appellant. The submission brought to our attention various aspects that reveal the contradictions which in his view go to the root of the case. One, that PW1 and PW2 contradicted themselves as to how the appellant's sexually abused PW1. He referred us to pages 9 and 11 of the record of appeal. While in her testimony PW1 says the appellant had his fingers and penis inserted into her vagina, PW2 said that PW1 told her that the appellant only had his finders inserted into her vagina which is not probable given the age of the victim. Two, contradictions in the prosecution witnesses as to when exactly the victim was raped by the appellant. In this regard, it was the argument of the counsel for the appellant that PW1, PW2 and PW3 suggested contradictory testimony in that respect which cannot prove the charge beyond reasonable doubt as the contradictions go to the root of the case. 5

Three, unlike what was suggested by PW1 that she was raped by the appellant who inserted his fingers and penis into her vagina, PW2's evidence in cross-examination controverted PWl's testimony to the effect that when PW2 inspected PW1 at around 15:00 hrs after she had arrived home, she did not find any blood in her vagina. On this contradiction, we were referred to page 11 of the record of appeal in which PW2 was cross-examined by the appellant and at page 12 of the said record where the said witness said in re-examination that she discovered that PW1 had been sexually abused at 21.00 hrs. The other aspect of the prosecution evidence that the appellant counsel sought to assail the prosecution case is in relation to PWl's evidence as it relates to the requirements of section 127(2) of the Evidence Act. It was in this respect, essentially, contended that the provision was not complied with before the victim gave her evidence. In that respect, it was argued that PW1 did not make a promise to tell the truth and not to tell any lies as is required by the law. Upon being probed by us, Mr. Maumba contended that the anomaly is on the fact that PW1 only promised to tell the truth but did not promise not to tell any lies, relying heavily on Godfrey Wilson v. Republic [2019] TZCA 109 (6 May 2019, TANZLII). There is yet another aspect which was in relation to the evidence of PW3 in connection to the provision of section 240(3) of the Criminal 6

Procedure Act (CPA). The argument here was that the medical practitioner who examined the victim and who completed PF3 tendered as exhibit P2 by PW3 was not called as a witness and the appellant was not informed of his right under the said provision and no reason was assigned for such omission. Mr. Maumba's argument in relation to section 240 (3) of the CPA concerned the failure to inform the appellant of his right to require the medical practitioner, one Dr. Alex Godwin, who examined the victim and completed the PF3 on 12th June, 2020 to be summoned as a witness so that he could cross-examine him. Even if the evidence of PW4 was to be considered, it was worthless for the credibility of that witness was seriously wanting considering the contradictions that are inherent in his evidence it was argued. It was contended that while PW4 said that he examined PW1 and completed exhibit P2 on 13th June, 2020, exhibit P2 is evident that it was completed by one Dr. Alex Godwin who was not called as a witness. Further that, while PW4 says that he completed PF3 on 13th June, 2020, he did not tender any PF3 that is consistent with his evidence. With such reasons, we were called upon to discount PW4 evidence and exhibit P2 that he purportedly tendered in evidence. Finally, the counsel for the appellant complained about failure of the two lower courts to consider the appellant's evidence on the record. The argument was seemingly that had the evidence been considered, it 7

would have been found that the appellant had raised reasonable doubts to the prosecution case. In that respect, the first appellate court could not have sustained the trial court's finding. In support, the learned counsel cited the case of Abel Masikiti v. Republic [2015] TZCA 8 (24 August 2015, TANZLII). In view of the above shortfalls, we were invited to interfere with the concurrent findings of the two lower courts that concluded that the charge laid against the appellant was proved by prosecution evidence beyond reasonable doubt because such findings were not supported by the evidence on the record. He, therefore, invited us to find merit on the point of grievance raised and proceed to allow the appeal. Ms. Tengeneza, initially, opposed the appeal arguing that the prosecution case was, by virtue of the evidence of PW1, PW2, PW3 and PW4, proved beyond reasonable doubt. In elaboration, she had it that PWl's evidence, which is the evidence of a victim of rape, was the best evidence in the circumstances; the victim gave her evidence in compliance with section 127 (2) of the Evidence Act as "the promise to tell the truth simply means not to tell any lie f citing in support the case of Mathayo Laurance William Mollel v. Republic [2023] TZCA 52 (20 February 2023, TANZLI); the inconsistencies in the evidence of the prosecution are trivial and do not go to the root of the case since PW1 was a truthful witness whose evidence could sufficiently ground the 8

conviction; and further that the evidence of PW4 was credible in so far as is of a medical practitioner who examined the victim on the following day of 13th June, 2020. However, once the record of appeal showing that the charge provided that the offence was committed on 12th June, 2020 at 21:00 hrs while the overwhelming evidence of PW1, PW2, and PW4 suggested otherwise, as it also suggested that the wrongdoer could be one, Mr. Chichi who was uncontrovertibly mentioned by PW1 to PW3 as her assailant, Ms. Tengeneza was quick to change her position. Alongside, Ms. Tengeneza conceded further that the evidence of PW2 in the cross- examination was that when she examined PW1 at about 15:00 hrs, she was not bleeding in her vagina. The evidence, therefore, suggested that when she left the appellant's residence, she was not yet sexually abused. In addition, Ms. Tengeneza, upon being further probed, admitted that PW4's evidence was inconsistent with exhibit P2 which he tendered as already submitted by Mr. Maumba. With such pitfalls in the prosecution evidence which raise reasonable doubts to the prosecution case against the appellant, Ms. Tengeneza supported the appeal. The issue for our determination is whether a case has, in this appeal, been made for us to interfere with the concurrent findings of the two lower courts. The incidental question is whether there are, on the record, mis-apprehensions of evidence, mis-directions or non-directions 9

of the evidence, a miscarriage of justice or a violation of some principles of law or practice that warrants us to interfere with the findings based on the complaints raised by the appellant - see D.P.P v. Jaffari Mfaume Kawawa [1981] T.L. R.149 at page 153; and D.R. Pandya v. R. [1957] E. A. 336. With the foregoing settled position of the law in mind, we have examined the evidence of the prosecution side as against the version given by the appellant. In so doing, we paid due regard to the uncontroverted appellant's evidence that he was not at home when the incident was committed at 21:00hrs, having left at 10:30 hrs and came back at 15:00 hrs. Further that, the appellant left once again for a church after arriving at 15:00 hrs, only to come back at 22:00 hrs. The evidence as to leaving his residence is uncontrovertibly supported by DW2 who said that he actually saw the appellant leaving. Indeed, the evidence that the appellant gave that he was not in his residence when the offence was committed was not cross-examined upon by the prosecution. We have also subjected the evidence of PW1 to a close scrutiny as is required by the law- see Mohamed Said v. Republic [2019] TZCA 252 (23 August 2019, TANZLII); Abubakary Sadick@ Mangi v. Republic [2024] TZCA 621 (19 July 2024); and Abiola Mohamed @ Simba v. Republic [2021] TZCA 632 (02 November 2021, TANZLII). Having looked at it in relation to the testimony of PW2 and PW3 in the 10

light of the credibility tests established in the case of Shabani Daudi v. Republic, Criminal Appeal No. 28 of 2000 (unreported), we found ourselves in agreement with the learned counsels' submissions that the evidence is inconsistent with the testimonies of PW2 and PW3 as to PWl's assailant, when the incident occurred and whether there was cogent evidence establishing penetration. As argued by the appellant's counsel and conceded to by Ms. Tengeneza, PWl's evidence that she was raped by the appellant who inserted fingers and his penis into her vagina contradicts the testimony of PW2 who said that PW1 told her that the appellant inserted his fingers in her vagina after undressing her at his residence. Again, it is evident at page 11 of the record of appeal that when PW2 examined PWl's vagina upon her arrival at home, she did not find blood, which suggests that she did not find anything supporting the conclusion that she was at that time already raped. It was only at 21:00 hrs that PW2 discovered that she had been raped. Thus, it is not clear in the prosecution evidence as to what had happened between 15:00hrs and 21:00 hrs on the fateful day which resulted into PW1 being raped after being inspected and cleared by PW2 at about 15:00 hrs. Similarly, there is no evidence from the prosecution that PW1 returned to the appellant's residence at around 21:00 hrs after she had li

earlier on left. While such evidence is missing on the record, there is uncontroverted evidence of the investigator (PW4) that PW1 told him that she was raped early in the morning of 12th June, 2020, and named to her parents, one Mr. Chichi, as her assailant. Whereas the evidence naming one Mr. Chichi as the PWl's assailant contradicted the testimony of PW1 and PW2 that the victim was sexually abused by the appellant, it is not on the record that such contradiction was in anyway clarified or cleared by the prosecution. This begs a question as to who is Mr. Chichi and whether or not he is the appellant. In our scrutiny, we did not find an answer for such question from the prosecution evidence on the record. With this evidence, it means that the evidence of the victim (PW1), which is as a matter of general rule the best evidence, is materially contradicted by the evidence of other prosecution witnesses. Consequently, we are satisfied that there are serious mis-directions of the evidence of the prosecution on the record which resulted into erroneous findings by the two lower courts that the prosecution case was proved beyond reasonable doubt. We are in the circumstances entitled to interfere with the lower courts' concurrent findings as we hereby do so. As our findings herein above suffice to dispose of the appeal, we need not look at other issues raised in the course of arguing the point of grievance that emerged from the grounds of appeal raised by the 12

appellant and in respect of which the appellant attacked the concurrent findings of the two lower courts. In the end, we find merit in the appeal which we herein allow. Consequently, the appellant's conviction is quashed and the sentence meted out to him is set aside. We accordingly order the immediate release of the appellant from prison if he is not otherwise retained for some other lawful cause. DATED at MBEYA this 30th day of October, 2024. M. C. LEVIRA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 31st day of October, 2024 in the presence of the appellant who also represented by Mr. Pacience Yonatas Maumba, the learned counsel and Stephen Rusibamayila, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. _ ______ , \ ) / ) ^