Hamis Mahendi vs Republic (Criminal Appeal No. 2 of 2021) [2024] TZCA 985 (25 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: MUGASHA. J.A.. KITUSL 3.A, And ISSA, J J U CRIMINAL APPEAL NO. 2 OF 2021 HAMIS MAHENDI................................................................APPELLANT VERSUS THE REPUBLIC.................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) (Galeba, J.^ dated the 11th day of December, 2020 in Criminal Appeal No. 121 of 2020 JUDGMENT OF THE COURT 22n d & 25th October, 2024 MUGASHA, J.A.: The appellant in this appeal, Hamis Mahendi, was arraigned in the District Court of Musoma at Musoma for three (3) counts, namely: one; rape contrary to section 130 (1), (2) (e) & 131 (1) of the Penal Code [Cap. 16 R.E. 2019] (the Code); two; preventing a school girl from attending school regularly contrary to section 35(3) of the Education Act, and, three; impregnating a school girl contrary to section 60A (3) of the Education Act, [Cap. 353 R.E. 2019] as amended by the Written Laws (Misc. Amendment) Act No. 2 of 2016 (the Education Act).

The prosecution alleged that between 28/5/2019 and December 2019 at Biatika Village within Butiama District in Mara Region, the appellant had carnal knowledge of a schoolgirl. It was further alleged that between August 2019 and December 2019 at the same place, the appellant prevented the said school girl of Buhemba Secondary School from attending school regularly. Finally, it was alleged that the appellant unlawfully impregnated the said school girl who shall be referred to as PW1 or the victim. The appellant denied the charge but at the end of the trial, he was convicted on the first and third counts and sentenced to a jail term of thirty years on each count. The terms of imprisonment were ordered to run concurrently. A brief account underlying the appeal is as follows: The victim, a 17 years old girl was a form two student at Buhemba Secondary School. She had rented a room at Nyamhanga house where the appellant also had rented a room. According to the victim, the appellant seduced her to have an affair which she did not decline. Subsequently, on 28/5/2019 they began to have sexual intercourse and continued to do so for more than five times. Ultimately, in August 2019, she went to live with the appellant. In December 2019 she returned to her parents' home while pregnant. When

her parents inquired on the person responsible for the pregnancy she mentioned Hamis the appellant herein. Besides, echoing what was stated by PW1, Magesa Mwita (PW2), the victim's father testified that the victim was 17 years old and a form two school girl at Buhemba Secondary School. According to PW2, on 26/8/2019 he found at his residence a motorcycle which belonged to the appellant and was informed that it is the appellant who had come to take the victim. Thereafter, the duo remained at large until when the victim returned home while pregnant and she mentioned the appellant to be responsible for the pregnancy. The matter was reported to the police station and on 30/1/2020 the victim was taken to the hospital for examination. Upon being medically examined by a clinical officer one William Malima (PW3), it was established that the victim was 32 weeks pregnant. On the other hand, the appellant who was the sole witness for the defence denied the assertions against him laid by the prosecution. As earlier stated, on account of evidence canvassed by the prosecution, the trial court convicted the appellant and sentenced him accordingly. His appeal to the High Court bore no fruits; hence the appellant has knocked the doors of the Court seeking to demonstrate his innocence. In the

memorandum of appeal, the appellant has fronted six grounds of complaint as hereunder:

1. That, the trial and the first appellate Court, erred in law and fact to convict and sentence the appellant by relying on the evidence o f all prosecution witnesses and exhibits, which are contradictory and uncorroborated.
2. That, the allegations that PW1 (the victim) was a student at Buhemba Secondary School were notproved either on evidence o f any teacher from the school or by document school admission and attendance register
3. That, the age o f the victim was not proved as per the law demand because no birth certificate was produced before the trial Court to prove the same.
4. That, the appellant's conviction and sentence were wrongly based on the prosecution’ s theoretical deficit evidence which was not supported by scientific evidence o f DNA.
5. That, the case under appeals through capital offences with a long term custodial sentence o f 30 years imprisonment but the case was poorly investigated as arrival so far as no investigator testified.
6. That, the first appellate Court erred in law and fact to satisfy that the case was proved while it was based on the weakness o f the defence evidence than the burden o fproof lies on the prosecution side.

Basically, the appellant is faulting the two courts below to have relied on weak prosecution account to ground the conviction whilst the charge was not proved at the required standard. At the hearing the appellant appeared in person, unrepresented. He adopted the grounds of appeal and opted to initially hear the submission of the respondent reserving the right to rejoin if need arises. The respondent Republic had the services of Mr. Isihaka Ibrahim, Ms. Agma Haule and Ms. Beatrice Mgumba, all learned State Attorneys. From the outset, Ms. Haule opposed the appeal arguing that the charge against the appellant was proved to the hilt On this, she submitted that, according to the evidence of PW1 and her father that is, PW2, the prosecution managed to prove that the victim who was a school child had sexual intercourse with the appellant from 28/5/2019 and was found to be 32 weeks pregnant as confirmed by PW3. On being probed, she added that failure to parade the teacher and produce the respective school register did not impeach the prosecution case given that the evidence of PW1 and PW2 in that regard sufficed to establish that the victim was a school girl when she was raped and impregnated by the appellant With this submission she reiterated that the charge against the appellant was proved to the hilt and

as such, Ms. Haule urged us to dismiss the appeal and sustain the conviction and sentence. As deduced in the memorandum of appeal, the appellant is faulting his conviction on the basis of contradictory, uncorroborated and incredible evidence of the prosecution which did not prove the charge to the hilt. This is in relation to the 1, 2, 3 and 6 grounds of complaint. On the other hand, it is the respondent's case that the prosecution did prove at the required standard that it is the appellant who raped and impregnated the victim. Thus, as earlier intimated, the issue for our determination is whether the charge was proved beyond reasonable doubt against the appellant. This being a criminal case, the burden lies on the prosecution to prove the case and the standard is proof beyond reasonable doubt. Therefore, the case will be taken to have been proved where evidence canvassed by the prosecution against the accused person is strong so as to leave a remote possibility in his/her favour which can easily be dismissed. See: MAGENDO PAUL & ANOTHER V. REPUBLIC [1993] T.L.R. 219. In the light of stated position of the law, the question to be answered in the determination of this appeal, is whether the prosecution did

discharge the burden of proof. As earlier stated, the appellant was convicted of two counts. Impregnating a secondary school girl is an offence under the provisions of section 60A (3) of the Education Act [CAP 353 R.E 2002] which stipulates as hereunder: "Anyperson who impregnates a primary school or a secondary school girl commits an offence and shall, on conviction; be liable to imprisonment for a term o f thirty years . " It is trite law that, for the prosecution to establish the above offence, it has to prove beyond reasonable doubt two ingredients; one, that, the girl was impregnated while she was a primary or secondary school student; and two, the school girl was impregnated by the accused person. Therefore, in the instant appeal, the prosecution was required to prove beyond reasonable doubt that, PW1 was a secondary school girl at the material time she was impregnated by the appellant. According to record, besides the oral account from PW1 and PW2 stating that the victim was a Form II student at Buhemba Secondary School, no witness from the said school adduced evidence in that regard. More so, no documentary evidence, or the enrolment/ school attendance

registers of the respective school was exhibited to establish if PW1 was a school girl and when impregnated she was still a student at Buhemba Secondary School. It is our further view that, failure to parade the teacher from Buhemba Secondary School who was a material witness weakened the prosecution case. Besides, no reason was availed if the teacher could not be found to adduce the evidence. Thus, this Court is entitled to draw an adverse inference against the prosecution which would have been resolved in the favour of the appellant. The Court had made corresponding observations in the cases of PETER BUGUMBA @ CHEREHANI V. REPUBLIC, Criminal Appeal No. 251 of 2019, SALUM NICHOLAUS MNYUMALI V. REPUBLIC, Criminal Appeal No. 327 of 2020. In the latter case, the Court emphasized that: "...we find that evidence o f the teacher or school register was relevant In establishing that PW7 was a student at the time she was impregnated. Since there is no any other explanation why the register book was not tendered in evidence and failure to parade as witness a teacher from Makongo Secondary School who was within reach entitles us to draw an adverse inference and should be in the benefit o f the appellant"

In the premises, we decline the suggestion by the State Attorney to rely on the evidence of PW1 and PW2 as none of them is a teacher or an officer authorized to adduce evidence on behalf of the respective school. Next is whether it is the appellant who raped and impregnated the victim. Apparently, according to the charge fronted against the appellant, the offences are alleged to have been committed between 28/5/2019 and December, 2019. It is settled law that, although the true evidence of rape has to come from the victim, such victim must be a credible and reliable witness and this is what is embraced in the provisions of section 127 (6) of the Tanzania Evidence Act [CAP 6 R.E. 2019] which stipulates as hereunder: "127 (6) Notwithstanding the preceding provisions o f this section, where in criminai proceedings invoiving sexuai offence the oniy independent evidence is that o f a chiid o f tender years or o f a victim o f the sexuai offence, the court sha/i receive the evidence, and may, after assessing the credibility o f the evidence o f the child o f tender years or as the case may be the victim o f sexual offence on its own merits, notwithstanding that such evidence is not corroborated, proceed to

convict, if for reasons to be recorded in the proceedings, the court is satisfied that the chiid o f tender years or the victim o f the sexuai offence is teiiing nothing but the truth." [Emphasis ours] On account of what transpired before the trial court and the settled position of the law, we asked ourselves if PW1 gave a credible account on the charged offences. According to the record, the trial court relied on the evidence of PW1 to ground the conviction of the appellant without assessing the credibility of her testimony as to how she was raped by the appellant and impregnated. Similarly, on the part of the first appellate court, besides reliance on the best evidence rule, it did not determine the credibility of PW1. It is incumbent on the trial court to consider the credibility of a witness and record reasons for the purpose of future assistance on the appellate Court to determine as to whether the credibility of a witness has been considered. In this second appeal, the Court can still determine the credibility of the prosecution account by assessing the coherence and consistency of the testimony of witnesses when compared to other witnesses including the appellant and arrive at its own findings if need arises. See: See:

GOODLUCK KYANDO VS REPUBLIC [2006] TLR 363, YASIN RAMADHANI CHANG'A VS REPUBLIC [1999] TLR 489 and SHABANI DAUD VS REPUBLIC, Criminal Appeal No. 28 of 2001 (unreported). Having subjected the evidence of PW1 to scrutiny, we found her testimony wanting and not credible. We shall explain. In her testimony which appears at page 16 of the record of appeal, PW1 testified as follows: "On 28/05/2019 at 19:00 hours Hamisi said he wanted to have sex with me. We went to his room we sat at the mattress and then we had had sex without protection we had sex for more than five times. On 26/08/20191 was at home, Hamis came with a motorcycle; he told me that we should go to his home. I accepted; that my brothers wanted to arrest him he ran away. Later I went to live with Hamis from August to December when I decided to run back home. I returned home while I was pregnant, when parents asked me I mentioned Hamis. In January, 2020 we went to police station, we were given PF3 and went to hospital and it was discovered that I was pregnant. I know Hamis, and this is Hamis..." li

Upon being cross-examined by the appellant, PW l's response was as follows: "I know you even before getting pregnancy, you came to Mzee Nyamhanga looking for a room to rent, and you rent a room we started our sexuai relationship, it was February, 2019; you are the one who responsible for mypregnancy ; " It is glaring that, initially the victim told the trial court that she began to have sexual intercourse with the appellant on 28/5/2019. However, when cross-examined by the appellant shifted goal post and stated that the sexual intercourse commenced in February 2019. Also, the lapse of time between the alleged rape and the time when PW1 mentioned the appellant leaves a lot to be desired. Whereas the sexual relationship started in February 2019 or 28/5/2019, PW1 mentioned the appellant in December, 2019. That apart, on 26/08/2019 PW1 who was already pregnant happened to be at her parent's residence but she never mentioned the appellant to have raped her. The victim gave no reasons for the delayed mentioning of the appellant which renders PW l's evidence highly suspect and unreliable given that, it is a very well-settled principle of law that the ability of the witness to mention the suspect at the earliest possible

opportune is an assurance of the witness's reliability and credibility- See: WANGITI MARWA MWITA AND ANOTHER V. REPUBLIC, [2002] T.L.R. 39. It is evident that the incredible account of PW1 was neither considered nor resolved by the two courts beiow and as such, misapprehension of evidence was bound to occur which led to a wrong conviction based on the charge which was not proved to the hilt. In the circumstances, it was improper to rely on the best evidence rule to act on the evidence of the victim to ground the conviction of the appellant. We cannot condone such incredible account of PW1 to sustain the conviction as that is tantamount to going against the dictates of section 127 (6) of the Evidence Act which enjoins the courts to receive and act on the evidence of the victims of sexual offences after assessing the credibility of such evidence. In a nutshell and for the sake of averting a failure of justice, the law frowns on acting on incredible evidence of the victims of sexual offences to ground the conviction.

Similarly, the evidence of the victim's father cannot be spared because it seems he had knowledge that her daughter was taken by the appellant as early as 26/8/2019 when PW1 was already pregnant but took until December, 2019. In the circumstances surrounding this particular case, the inaction and delay by PW2 to take prompt action while being aware of what was going on raises more questions than answers rendering such account incredible and highly suspect. Therefore, the incredible prosecution account which came from the victim and her father, should not have been relied upon by the trial court to ground the conviction of the appellant. Had the first appellate court considered the issues discussed above, it would not have sustained the appellant's conviction. In the circumstances, in the absence of any cogent and credible evidence, the prosecution did not prove the charge at the required standard that, PW1 was a school girl who was raped and impregnated by the appellant while attending school. Thus, we find grounds 1, 2, 3 and 6 of appeal merited and are hereby allowed. Since the determination of the said four grounds suffices to dispose of the appeal, we shall not determine the remaining grounds. Consequently, we quash the conviction and set

aside the sentence meted on the appellant and order his immediate release unless held for some other lawful cause. It is so ordered. DATED at MUSOMA this 25th day of October, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL delivered this 25th day of October, 2024 in the presence of Appellant in person un-represented and Ms. Beatrice Mgumba, learned State Attorney for the respondent / Republic, is hereby certified as J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL