Michael John Kajela vs Republic (Criminal Appeal No. 487 of 2021) [2024] TZCA 1014 (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. 487 OF 2021 MICHAEL JOHN KAJELA..............................................................APPELLANT VERSUS THE REPUBLIC.........................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, Mbeya District Registry at Mbeya) (Ndunquru, J) dated 30th day of August 2021 Criminal Appeal No. 118 of 2020 JUDGMENT OF THE COURT 25th & 31st October, 2024 MAIGE. 3.A.: The appellant was an adult of 23 years when he was being charged, at the District Court of Ileje in 2020, with the counts of rape contrary to sections 130(1) and (2) , (e) & 131 of the Penal Code and abduction contrary to section 134 of the same Act. The said criminal wrongs are alleged to have been committed on 3rd day of April, 2020 (the material date) at Isongole village within Ileje District in Songwe Region against a girl of 15 years (the victim).

The evidence upon which the case was prosecuted, emanated from the story of the victim (PW1) which was allegedly validated by her father Kenneth Mlungu (PW2), the doctor, Anyelukisye Kibona (PW3), her neighbor, Frangson Msomba (PW4) and the investigation officer, DC Theresia (PW5). PW1 testified that, she met with the appellant for the first time in December, 2019 when she was attending a religious event and established love relation with him at the end of the event which was on 25th December, 2019. On 2n d April, 2020, she met with the appellant again and arranged to meet on the next day at the appellant's home. That, on 3rd April, 2020, having pretended to her parents that she was going to her grandmother, she went to the appellant's home where they had sexual intercourse and spent her night. They repeated the same on the next two days. On the last day during night, having finished their sexual transactions, they heard an announcement being made on the radio to the effect that, she had been abducted. She was, as a result, taken on a motorcycle hired by the appellant to Ikumbilo bus stand where she was abandoned. It happened that, while stranded at the bus stand, she was rescued by two unnamed sisters and had accommodation at their home. 2

PW2 testified that, as soon as he discovered that PW1 did not go to her grandmother, he feared that she might have been abducted, and therefore, reported the matter to Ileje FM Radio and subsequently, to the police. On 6th day of April, 2020, as they were on their way to Ikumbilo village with PW4 and one Tony Mulungu in search of the victim, they met with two unnamed persons who informed them that, PW1 was seen in the morning at Ikumbilo bus stand. Therefore, PW4 rushed to the respective village and found PW1 there. When he asked her what was up, she said, she had been with the appellant at his home where she was raped before being abandoned at the bus stand. She was taken to hospital and examined by PW3 and the outcome was that she had been penetrated. In his defence, the appellant (DW1) testified that, he was not at the village on the material date. He had gone to Mbeya where he stayed between 1/4/2020 and 4/4/2020. He produced, which was admitted collectively as D l, a bus ticket and photos. He said, the purpose behind the journey was to repair a computer of one Faraja Kajela (DW4). He was also requested by Richard Kabungo (DW2) to deliver pocket money to his son, Fanikiwa Richard Kabungo (DW3) who was in Mbeya. DW4 verified that he was the one who requested the appellant to take his computer to 3

Mbeya for repair. Likewise, DW2 confirmed to have requested him to deliver pocket money to DW3. The latter admitted to have received the said money from the appellant and the fact that the appellant slept at his room on the first day. DW5 (Jeremia Lulusyo) testified that he was the appellant's roommate and he validated the appellant's assertion that between 1/4/2020 and 4/4/2020 he was on the journey to Mbeya. In his judgment, the trial magistrate believed the evidence of the victim (PW1) to be credible. Relying on the principle in the famous case of Selemani Makumba v. R [2006] TLR 379 that 'tru e evidence o f rape comes from the victim', the principle in Goodluck Kyando v. R [2006] TLR 352 that, every witness is entitled credence unless there are good and cogent reasons to the contrary; and the principle in Hashim Amasha v. R (Criminal Appeal No. 28 of 2017) [2019] TZCA 267 (29 August 2019; TANZLII) that, failure to cross examine a witness on material facts implies admission; the trial court took it that the charge was proved beyond reasonable doubts. The trial magistrate dismissed the appellant's defence of aiib ifo r the reason that it was contradictory in material respects. He mentioned four elements of contradictions. One, his testimony indicates that he travelled from the village by a coaster minibus while the evidence of DW2 indicated 4

it was by a Noah minibus and the evidence of DW6 by a Hiace. Two, The appellant describes the computer which he went to repair as HP make while DW5 described it as DELL type. Three, while the appellant claims that he was at Kabwe area on 3rd April, 2020, DW6 said, he did not see him. Four, while the photo in exhibit D1 is claimed to have been taken at once, its image shows that, it was taken in two different times. On the basis of that analysis of the evidence, the appellant was convicted of both offences and sentenced to 30 years imprisonment in respect of the first offence and two years' imprisonment in respect of the second offence. In addition, he was sentenced to 24 strokes of whip. Aggrieved, the appellant appealed to the High Court without a success. Once again aggrieved, the appellant has appealed to the Court. In his initial memorandum of appeal, he has raised six grounds and in the supplementary memorandum of appeal, seven grounds. In total, there are thirteen grounds, which, however, can conveniently be reduced into the following seven grounds:

1. The appellant's conviction was based on bias and extraneous matters.
2. The evidence o fP W l was incredible in that, while she stated that, after having sexual intercourse her vagina was discharging with 5

blood due to the bruises, m edical evidence shows that bruises were not seen. 3. The evidence o f PW1 was contradictory to that o f PW4. 4. The two courts below did not take into account that the prosecution failed to ca ll m aterial witnesses such as the two sisters who took PW1 to their parents to sleep after being deserted and the policem an who arrested the appellant. 5. The appellant was convicted because o f failure to cross examine the witness without due regard that he was ignorant o f the law and procedure. 6. The case against the appellant was not proved beyond reasonable doubts. 7. The appellant's defence was not duly considered. The appellant appeared in person without representation at the hearing whereas the respondent was represented by Mr. Simon Peres, learned Senior State Attorney assisted by Mr. Joseph Mwakasege, learned State Attorney. When called upon to address us on the merit or otherwise of his appeal, the appellant fully adopted his grounds of appeal and proposed that the learned State Attorney should submit first and he

should be given an opportunity to respond if he finds appropriate so to do. We accepted the proposal. In his submission, Mr. Pares clustered the grounds of appeal into three complaints, namely: the two courts below acted with bias and were influenced by some extraneous matters; the case against the appellant was not proved beyond reasonable doubt; and the appellant's defence was not considered. Mr. Pares submitted that, the first complaint is baseless as there is nothing on the record to suggest any element of bias on the part of the two courts below. Neither is there any evidence to support the claim that they were influenced by extraneous matters. He urged us to dismiss the complaint. Responding on the second complaint as to proof of the case beyond reasonable doubt, it was his submission that, contrary to the appellant's claim, both the two elements of the offence of rape namely; age of the victim and penetration were duly proved. He clarified that, the age of the victim was proved by the evidence of the victim herself and that of her father (PW2). Penetration, he submitted, was proved by the evidence of the victim as supported by the evidence of PW3 and the medical report. He submitted further that as the victim was not cross examined, her 7

evidence was as per the principle in George Maili Kemboge v. R. (Criminal Appeal No. 327 of 2013) [2014] TZCA 203 (30 October 2014; TANZLII) deemed to have been admitted. It was, therefore, the best evidence in line with the principle in Seleman Makumba(supa), he submitted. He did not see any material contradictions capable of affecting the credibility of such evidence. Responding to the complaint that the appellant's defence was not considered, the counsel submitted, making reference to pages 56-59 of the record of appeal that, the appellant's defence was duly considered and the burden of proof was not, as alleged, shifted to the appellant. In his rejoinder, the appellant repeated the complaints in his memorandum of appeal and supplementary memorandum of appeal, insisting that he was convicted because of his ignorance of the law and procedure and that the burden of proof was shifted to him. The issue which we have to address in view of the grounds of appeal and submissions is whether the charge against the appellant was proved beyond reasonable doubt. We note that, this was also the major issue at the first appellate court. In dealing with the issue, the first appellate court, as it may appear at pages 199-122 of the record of appeal, reproduced the evidence of PW1 and made the following conclusion: 8

"With the above quoted testim ony o f the victim before the tria l court it goes without doubt that, the appellant had a carnal knowledge with the victim. The evidence o f PW1 above and in term s o f section 130(4) o f the Pena! Code (supra) and on the authority o f Seieman Makum ba, Crim inal Appeal No. 94 o f 1999, unreported, it is undisputed that PW1 testim ony above proved the offence o f rape , that is penetration o f the appellant's penis into the victim 's vagina. Therefore, PW1 evidence proved the offence o f rape to the required standard." It may appear obvious to us, in view of the above extract that, the first appellate court did not, while addressing the above issue, subject the appellant's evidence to scrutiny and come out with its own conclusion as the law requires. We shall, therefore, as we consider the appeal, step into the shoes of the first appellate court and do what the first appellate court should have done. It is common ground that the conviction of the appellant was based on the evidence of the victim (PW1). We agree with the two courts below that, in terms of section 127(2) of the Evidence Act, such evidence can solely be relied upon to sustain conviction, if it is established that, the respective child is telling the truth and nothing but the truth. However, as 9

we stated in Mohamed Said v. R (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (23 August 2019; TANZLII), such evidence cannot be taken as " gospel truth but should pass the test o f trustfulness. This means that, it must be credible, reliable and probable. See also, Hamis Mahendi v. R (Criminal Appeal No. 2 of 2021) [2024] TZCA 985 (25 October 2024; TANZLII). Aside from testing the coherence of the testimony of the respective witness, credibility of a witness, we said in the case of Shabani Daud v. R. Criminal Appeal No. 28 of 2000 (unreported), can be determined " when the testim ony o f that witness is considered in relation with the evidence o f other witnesses, including that o f the accused." PW1 claims that after being raped on 3rd April, 2020, which was her first time, she felt severe pains, and discharged a lot of blood due to bruises in her vagina such that "the bed sheet was fu ll o f blood stains". That aside, her evidence suggests that, she was forcibly raped on the 4th April, 2020 for the whole night and on 5th April, 2020 for two hours. Conversely, upon being examined by PW3 two days after, no bruises were found in her vagina. It raises, in our view, doubt if a person who had a sex for the first time and sustained injuries in her vagina to the extent which is portrayed in PWl's evidence would, after a short period of two 10

days, be found without any bruises. In John Mohamed v. R (Criminal Appeal No. 144 of 2021) [2024] TZCA 560 (15 JULY 2024; TANZLII) where, like here, the victim claimed that "she was raped thrice to the extent that blood oozed from her private p a rti' but the medical report found that" her vagina had no bruises or blood o r discharge, it was held: " We are alive to the fact that the doctor explained that it was due to the lapse o f tim e o f three days, but, given the circum stances o f the pain and wounds she sustained, we fin d it highly im probable fo r the bruises and tears to heal within such a shortestperiod o f time, that is, within three days." In view of the situation, she was in on 3rd April, 2020 as above shown, it is highly questionable if she could, on the next day, be forcibly raped for the whole night and for two hours, on a day after, and yet to be found two days after, without any bruises in her private parts. Regard must also be had that, it was her first time to have sexual intercourse. Though PW1 claimed in evidence that she had not been penetrated before the rape in question, the prosecution evidence reveals that she had told PW3 as per page 17 of the record that, "she did sexual intercourse several times".

Besides, her narration on how she went to the appellant's home and subsequently abandoned at Ikumbilo village is not without doubts. We shall explain hereinafter some of the elements of doubt. Her evidence appearing at page 9 of the record of appeal suggests that she left home at around 15:00 hours pretending that she was going to her grandmother only to end up in the hands of the appellant. As further shown in her evidence at page 9 and 10 of the record, the distance between her residence and that of the appellant is just 500 meters. Yet it was not until at around 17:30 that she arrived at the place. It is highly questionable for a young girl of her age to spend two and a half hours in such a short distance. More questions arise, considering that, three days after, she was found in another village and no witness from the said village was called to validate her claim that she was brought there at the instance of the appellant. On that, the appellant's complaint on the failure of the prosecution to call the two sisters who allegedly sheltered the victim cannot be without merit. Mr. Peres submitted that the said sisters were not material witnesses in as long as the evidence of PW1 was credible. Apart from pointing to the alleged coherence of her evidence and the fact that she was not cross examined, he did not discuss the credibility of her evidence 12

in relation to the evidence of the others, including that of the defence witnesses. Considering that, the whole story started with the victim's own lie that she was going to visit her grandmother which was not, possibility of her telling lie on where she had been could also not be ignored. For, if she was able to tell a lie on where she was going, why shouldn't it be possible for her to lie on where she was? We are of the view that, the evidence of the two sisters was very material to clear reasonable possibility of the victim being at the said village throughout the period of her disappearance. We have also detected some discrepancies in the prosecution evidence on how PW1 was discovered in Ikumbilo village. The evidence of PW2 and PW4 reveals that, while they were going to Ikumbilo to look for the victim, they were not aware of her whereabouts. It was until when they were informed by the two persons they met on the road. However, the evidence of PW1 appearing at page 12 suggests that they were aware. She said: "Your honor while a t the bus stand a t the m idnight I saw two sisters follow ing me to the place where I was. One o f them asked me and I replied that I was waiting fo r m y boyfriend from Isongoie. They afraid much because o f the circum stances on 13

which they found me and it was night time. I was carried by them to their parents where I slept. Y ou r H o n o u r th e fo llo w in g d a y in fo rm a tio n w as sp re a d a n d se n t to m y p a re n ts th a t I w as see n a t Ik u m b ilo v illa g e . A t the noon I was follow ed by Frangson Msomba and Tony Mlungu who is m y young father and carried to home via the village office". [Emphasis supplied] So many questions, in our view, which would have perhaps been resolved by those two sisters or their parents, remain unanswered. First, how did PW1 know that, information on her whereabouts had been conveyed to her parents? Two, where was PW1 taken from by PW4? If it was at the residence of the two sisters, how did PW4 know that she was there? If she was at Ikumbilo bus stand, is it probable that she would remain at the stand for such long awaiting to be taken home? Was she incapable of returning home by herself? The gaps pointed out herein above, could possibly be filled in if the two sisters or their parents were called as witnesses. With such failure, the two courts below should have, which we hereby do, draw adverse inference against the prosecution for such failure. See for instance, 14

Boniface Kundakira Tarimo v. R (Criminal Appeal No. 351 of 2008) [2011] TZCA 194 ( 04 October 2011; TANZLII) where we said: "It is thus now settled that, where a witness who is in better position to explain some m issing links in the party's case, is not called, without sufficient reason being shown by the party, an adverse inference m ay be drawn against that party, even if such inference is only perm issible". Despite the apparent weaknesses of the prosecution case as shown above, the two courts below did not take time to resolve them. Yet the trial court was able to use all forces to attack the weight of the appellant's evidence as shown at pages 57 to 62 of the record and make the following comments which perhaps, was perceived by the appellant in his first complaint as an element of bias: "In this case one would have expected him to go further to produce more evidence like the said com puter which was sent to Mbeya fo r repair, com puter technician who fixed the said computer, book ticket owned by the company he used to travel and bus conductor because it is easily have been obtained if the a lib i had any suggestion o f truth". 15

With such high standard of proof expected by the trial magistrate from the defence evidence, the appellant is quite correct, in complaining that, he was convicted on the weakness of his defence and that, the burden of proof was shifted on him. We understand that, one of the major reasons why the two courts below believed the evidence of PW1 without critically assessing its credibility is because of failure of the appellant to cross examine PW1. The trial court took it that such failure amounts to admission of the truthfulness of such evidence. We agree in the first place that, failure to cross examine a witness on material respect is tantamount to accepting the evidence to be true. That, however, does not mean that such evidence would be taken wholesomely without its credibility, probity and reliability being assessed in line with other evidence, including the defence evidence. See for instance, Zakaria Jackson Magayo v. R (Criminal Appeal No. 411 of 2018) [2021] TZCA 207 (19 May 2021; TANZLII) and Issa Reji Mafita v. R (Criminal Appeal No. 337 of 2020) [2020] TZA 404 (24 August 2021; TANZLII). With the discrepancies in the prosecution case above discussed, we are certain that if the principle was correctly applied, the appellant would have not been convicted. 16

It has also to be noted that the respective principle presupposes that the parties are aware of the implications of such failure. Therefore, if an accused is unrepresented layperson, such principle has to be used cautiously. See for instance, Issa Reji Mafita v. R (supra) where it was observed: "It would also appear to us to be the law that, where, like in this case, the accused is unrepresented layman, before drawing an inference that, he did not cross examine the witness because he accepted his evidence to be true, the court has to warn its e lf if the layman accused knew the meaning and effect o f not cross exam ining a prosecution witness". A similar caution was taken by the High Court (Samata, J, as he then was) in Kwiga Masa v. Samweli Mtubatwa [1989] TLR 103, on which we drew inspiration in Zakaria Jackson Magayo v. R, (supra) and Issa Reji Mafuta v. R (supra) where it was stated: "In the interest o f justice, when a litigant who is like ly not to be fam iliar with the intricacies o f court procedure appears before him, a m agistrate should explain to him, briefly and in a sim ple language, the objects o f cross exam ination" 17

In the final analysis, therefore, we find that the case against the appellant was not proved beyond reasonable doubts and allow the appeal. Accordingly, we quash the appellant's conviction and set aside the sentence imposed against him. The appellant shall be released from the prison forthwith unless therein withheld for other lawful reasons. DATED at MBEYA this 30th day of October, 2024. M. C. LEVIRA JUSTICE OF APPEAL I. X MAIGE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL Judgment delivered this 31st day of October, 2024 in the presence of the appellant in person/unrepresented and Mr. Stephen Rusibamayila, the learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the oric' E. G. MRANGU SENIOR DEPUTY REGISTRAR COURT OF APPEAL