Daniel Charles Colner @ Bahati vs Republic (Criminal Appeal No. 348 of 2021) [2024] TZCA 801 (22 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI (CORAM: JUMA. C.J.. LEVIRA, J.A. And ISMAIL. J.A.^ CRIMINAL APPEAL NO 348 OF 2021 DANIEL CHARLES COLNER @BAHATI.... .......... .........................APPELLANT VERSUS THE REPUBLIC ...... . ............. . ..................................... .........RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Moshi) YHon. Mutunoi. J.l dated the 28th day of May, 202X in D.C. Criminal Appeal No. 57 of 2020 JUDGMENT OF THE COURT 19th & 22n d August, 2024 JUMA, C. J.: The appellant, Daniel Charles Golner @ Bahati, was in the District Court of Rombo at Rombo, charged with rape contrary to sections 130 (1) (2) (b) and 131 (1) of the Pena! Code Cap 16 R.E. 2002, The particulars of the offence were that around 01:00 hrs on 15/10/2018 at Kingachi Village in Rombo District of Kilimanjaro Region, he had sexual intercourse with then 85-year-old Akwiline Selestine without her consent.

The victim, Akwiiine Selestine (PW1), told the trial court that she was sleeping in her house, where she lived alone with her granddaughter Irene Seles (PW2), when she heard a loud knock, breaking down the door. PW1 asked PW2 about that noise. Before PW2 could answer, she heard a voice beside her bed, warning her to keep quiet or face death. The intruder, who shone a torch in her eyes, warned her that three intruder were already inside the house while four were waiting outside. PW1 testified that she saw the intruder's face and identified his voice. PW1 tried to dissuade the intruder by addressing him as her grandson, urging him to take a goat or anything else but not to violate her body. The intruder rejected all and insisted he wanted sexual intercourse with her. He assaulted her, holding her neck and dragged her outside, tore her short trousers (kaptura), and inserted his penis into her vagina. He only left her after ejaculating. PW1 rushed to alert her neighbour, Epifania Edward (PW3). PW3 recalled how PWl's cries for help awoke her from sleep that night. With her torchlight, PW3 saw PWl's swollen face and neck bruises. PW1 identified her rapist to PW3 by the name of Bahati. PW1 told PW3 that it was Bahati who dragged her from her house, beat, and raped her. PW3 used her mobile phone to call and report the incident to Selis Kiiian 2

Silayo (PW4), the Uroo neighbourhood chairman. PW4, who was on patrol with members of local militias, rushed to PWl's house. PW1 was sitting at her door when she narrated to PW4 how Bahati, their neighbour, raped her. Members of the local militia went to the appellant's house and arrested him just as he was returning to his house, and took him to the scene of rape, where PW1 identified him as her rapist. Meanwhile, scared Irene Seles (PW2) hid under her bed while the intruder pulled her grandmother outside. Under her bed, PW2 heard what the intruder was demanding from her grandmother to keep quiet while demanding sex. PW2 knew the intruder by his name, Daniel Charles Bahati, and they used to share communal prayer sessions at his grandmother's house. According to PW2, the local militia took her grandmother to Usseri Police Station, where police issued her a medical examination form (PF3), which referred her to Karume Hospital for treatment. Baltura Abdul Msuya (PW.5), a medical officer, was on duty at Karume Health Centre when an eighty-plus-year-old woman arrived complaining about rape. After a brief external observation, PW5 noticed bruises on her neck. The patient's vagina also had bruises suggesting forceful insertion. He further saw blood and other liquids, and tests 3

showed spermatozoa. After completing the medical examination, PW5 filled out a medical report (PF3.), which he tendered as Exhibit PI. In his defence, the appellant (DW1) stated that he was sleeping at home on 15/10/2018 when he heard a knock at his door. When he asked who it was, a voice from outside insisted he should just open the door. When he failed to open it, they broke down the door and assaulted him before they arrested him. At Usseri Police Station, the police gave him a statement to sign. Police later transferred him to Mkuu Police Station. The appellant insisted that he did not rape PW1. After hearing the evidence of both the prosecution and defence, the trial Resident Magistrate Court (R.R. Futakamba-RM) convicted the appellant of rape. It sentenced him to serve thirty years in prison. Aggrieved by his conviction and sentence, the appellant appealed to the High Court at Moshi, where he attacked the evidence of his identification at the crime scene, a discrepancy in the evidence regarding the victim's age, lack of proper evaluation of evidence, and chain of custody of the medical examination report. The appellant urged the first appellate court to find that prosecution failed to prove the offence of rape beyond reasonable doubt.

Before dismissing the first appeal, the first appellate Judge (B. Mutungi, J.) faulted the trial court for failing to consider and evaluate the issue of identification, taking into account that the offence of rape took place at night. Mutungi, J. stepped into the trial magistrate's shoes and re-evaluated the identification evidence. After re-evaluating the identification evidence of PW1 and PW2, the first appellate Judge concluded that the appellant was well known to the victim (PWl), who identified him as the intruder who raped her. In so far as the doubt over the victim's age, the first appellate Judge found the discrepancy, whether the victim was 80 years old or above, was inconsequential, and did not go to the root of the offence of rape for which the trial court convicted the appellant. Mutungi, J dismissed the appellant's first appeal. Still aggrieved, the appellant has come to this Court on a second appeal, relying on six grounds of appeal, which we paraphrase. In his first ground, the appellant faults the failure to evaluate the evidence of recognition. Secondly, he faults the failure to evaluate the identification evidence of PW1 and PW2 in circumstances of the offence that intruder committed at night which was not conducive to proper, correct, and unmistakable identification. Thirdly, he faulted the evidence of PW1 and PW2, which he described as highly improbable and inconceivable.

Fourthly, the appellant complained that the proceedings in the trial court violated mandatory provisions of section 231 of the Criminal Procedure Act Cap. 20 (the CPA). Fifthly, the appellant complained that while the charge sheet levelled against him cited section 130(1)(2) (b) of the Penai Code, the trial court convicted him under section 130(l)(2)(a). He finally complained that the prosecution did not prove its case against him to the required standard of proof. The appellant urged us to quash his conviction, allow his appeal, set aside the sentence, and set him free. At the date of hearing of this second appeal on 19/08/2024, Ms. Agatha Pima, Senior State Attorney, assisted by Ms. Bora Mfinanga, State Attorney, represented the respondent Republic. The appellant appeared in person. He stated that he does not know the law and would rather first hear Ms. Pima's submissions on his grounds of appeal, and he will make a reply. Ms. Pima supported the appellant's conviction and sentence and opposed this appeal. She organised her submissions to start with the first ground of appeal, then consider the second, third, and sixth grounds together, and finally, the fourth and fifth grounds. Ms. Pima addressed the complaint over the evidence of recognition, which the appellant blamed the trial magistrate, who, despite seeing the

demeanour of witnesses, failed to evaluate recognition evidence. The learned counsel defended the first appellate court from blame over the failure to evaluate recognition evidence. She submitted that the appellant did not complain about the recognition evidence in his memorandum of appeal to the High Court, appearing on pages 37 and 38 of the record of appeal. The appellant only raised the issue of his identification in ground number 3. As far as Ms. Pima was concerned, the first appellate court could not address the issue of recognition evidence, which the appellant did not raise in the first place in his memorandum of appeal. Ms. Pima submitted that the appellant raised a ground of appeal complaining about identification evidence, which the trial magistrate did not evaluate. However, the learned Senior State Attorney referred us to pages 65 to 67 of the record of appeal, where the first appellate court (Mutungi, J,) acknowledged the failure of the trial court to evaluate the identification evidence and fulfilled its duty as the first appellate court of re-hearing and re-evaluation of the identification evidence. Ms. Pima praised the way the first appellate Judge re-evaluated identification evidence by seeking guidance on the decisions of this Court in the evaluation of each witness, the assessment of their credibility, and the test factors in assessing identification evidence: see STANSLAUS R. 7

KASUSURA & AG VS. PHARES KABUYE [1982] TLR 338, DEEMAY DAATI & 2 OTHERS VS. R [2005] TLR 132, WAZIRI AMANI VS. R [1980] TLR 250, JARIBU ABDALLA VS. R, CRIMINAL APPEAL NO 220 OF 1994 and RAYMOND FRANCIS VS. R [1994] TLR 100. Ms. Pima referred us to the record of appeal where the first appellate Judge evaluated the identification evidence of PWl and PW2 in light of guiding factors this Court laid in the case of WAZIRI AMANI VS. R (supra). These factors include the period during which the appellant was under observation of PW1 and PW2, the distance separating the appellant and PWl and PW2 during observation, whether there was enough light, whether PWl and PW2 had seen the appellant before, and the ability of PWl and PW2 to name the appellant at the earliest possible opportunity. Ms. Pima referred us to page 66 of the record of appeal, where the first appellate Judge subjected the evidence of PWl and PW2 to the identification test factors highlighted in WAZIRI AMANI VS. R (supra), which made the first appellate Judge believe that PWl and PW2 identified the appellant at the crime scene. The learned Senior State Attorney reminded us that the first appellate Judge, found PWl credible when PWl stated that the appellant was the rapist who assaulted her that night. PWl remembered the clothes the 8

appellant was wearing. PW1 also testified how close she and the appellant were that night when she identified him by his voice and his shoes and saw his face. PW1 knew the appellant before that night. They prayed together at the communal prayer gatherings called 'jumuiya.r PWI has known the appellant since childhood, and several times, he visited PWl's house to ask for sugarcane. Ms. Pima referred us to page 67 of the appeal record, where the first appellate Judge evaluated PW2's evidence. PW2 saw the appellant's face and clothes when he shone his torchlight. Under cross-examination, PW2 reiterated how she identified the appellant when he directed his torchlight on PWI, but the light reflected on the appellant's face, enabling PW2 to see him. Ms. Pima urged us to dismiss the first grounds of the appeal. Ms. Pima next addressed combined grounds number 2, 3, and 6, where the appellant complained how PWI and PW2 could both identify and recognise him at the scene of the crime at night under challenging conditions, making the evidence of these two main prosecution witnesses so improbable and inconceivable to prove the prosecution case beyond reasonable doubt. Ms. Pima considered these combined grounds in four pronged law principles based on case law, including the often-quoted

WAZIRIAMANI VS. R (supra). First is whether there is direct evidence linking the appellant to the rape of PW1. Second, it will be essential to determine whether PW1 and PW2 identified the appellant at the crime scene. Thirdly, is there recognition evidence that PW1 and PW2 had prior acquaintance with the appellant, enabling these witnesses to identify him at the crime scene? Fourthly, whether PW1 and PW2 named the appellant at the earliest opportunity. Regarding the direct evidence, Ms. Pima submitted that the best direct evidence in sexual offences is the evidence of the victim. The learned counsel referred us to the direct evidence of the victim (PW1) on page 7, where she testified that she knew the appellant, who was her neighbour, whose work PW1 knew, was of cutting building poles, and he used to come over to PWl's house to ask for sugarcane. On page 8, PW1 testified that she saw the appellant inside her room, close to her, identified his voice, and described how the appellant raped her. Ms. Pima urged us to believe and give credence to the direct evidence of PW1 which is the best evidence. For support, she cited the case of GOODLUCK KYANDO VS. R. [2006] TLR 363, 367, where we said, "every witness is entitled to credence and must be believed, and his testimony accepted unless there are good and cogent reasons for not believing a witness."

Ms. Agatha Pima moved next to the identification evidence on page 8 of the record of appeal, where PWl saw and recognized the appellant when he broke into her house. According to Ms. Pima, identification also came from the evidence of PW2 on page 10 of the record of appeal. The appellant lit the room with his torch, which enabled PW2 to see the appellant's face. PW2 testified that the appellant remained in the room for fifteen minutes, demanding sex from PWl. The learned counsel referred us to page 10 of the record where under cross-examination by the appellant, PW2 responded: 7 identified you by torchlight which you lighted granny and it reflected on you and I saw you." Ms. Pima referred us to the case of WILSON ELISA KIUNGAI VS REPUBLIC [2022] TZCA 629 (13 OCTOBER 2022) and submitted that the circumstances of that appeal are relevant to the present appeal before us because the appellant committed rape when it was dark, there was no evidence regarding light or its intensity, the victim knew the appellant before the incident, the victim and the appellant spent thirty minutes talking which gave the victim time to observe the appellant, the victim took the earliest opportunity to name the appellant as her assailant. The court believed the evidence of the victim. In WILSON ELISA (supra), the Court observed: 11

"It is therefore evident that the offence was committed when it was somehow dark. There was no mention of any kind o f iight illuminating the area. However, the victim told the trial court that the person who grabbed her from behind was the appellant, a person he knew prior to the incident and took about thirty minutes o fbeing raped while the appellant was talking to her. Much as it can be said that the conditions were not very favourable for a proper and unmistaken identification, the time the victim had the appellant in observation in such proximity during rape incident and being familiar with the appellant, we are convinced that she was able to see and identify the appellant. As an assurance o f her credibility, she named the appellant to PW2 and PW3 at the earliest opportunity." On the issue of recognition, Ms. Pima referred us to the victim’s testimony (PWl) on page 7 of the appeal record. PWl described the appellant as her neighbour who came for sugarcane and works in cutting building poles. When the prosecution re-examined her, PWl replied: "I identified him by face, voice, and clothes. "When the trial magistrate re examined PWl about the appellant, she stated: "He came to my house to ask for sugarcane several times. I have known the accused since he was 12

a child." Ms. Pima submitted that these exchanges were evidence of recognition. Ms. Pima next submitted how PW1 and PW2 named the appellant as the rapist at earliest opportunity. Ms. Pima referred to page 8 of the record of appeal where PW1 went to her neighbour's house, Epifania Edward (PW3) and reported the rape. In the presence of PW1, PW3 called to inform Mr. Sells Kilian Silayo (PW4) who was chairman of Uroo in Kingachi village. Ms Pima moved on to the fourth ground of appeal where the appellant complains that the trial magistrate infringed the mandatory provisions of section 231 of the CPA, Cap. 20. She submitted that the trial magistrate complied with this provision where after prosecution closed its case, the trial magistrate informed the appellant his right to give evidence and call witnesses. She referred to page 22 of the record of appeal where the appellant stated that, he would defend himself and he had no witnesses. Ms. Pima turned to the fifth ground of appeal and conceded that while the prosecution charged him with rape under section 130 (1) (2) (b) of the Penal Code, the trial magistrate convicted him under section 130 (1) (2) (a). The learned counsel hastened to point out that the learned trial

magistrate, on page 34, corrected the minor anomaly and convicted the appellant under section 130 (1) (2) (a). Ms. Pima argued that in the circumstances of the prosecution case leading up to this appeal, the appellant should have been charged with rape of PW1 without her consent at the time of the sexual intercourse falling under section 130 (2)(a) of the Penal Code. Section 130 (2)(b) was not appropriate because it envisages circumstances where the victim consented under force, threats, or intimidation by putting the victim in fear of death or hurt or while unlawfully detaining the victim. When we invited the appellant to respond to Ms. Pima's submissions, he declined and said he had nothing to add since he did not know the law. He maintained this stance even when we read parts of Ms. Pima's oral submissions and reference to the evidence of the victim (PW1) and her granddaughter (PW2); the appellant left it to the Court. After hearing the ora! submissions of the learned Senior State Attorney in light of the grounds of appeal, we are mindful of our duty not to interfere with the concurrent findings of the courts below. We restated so in NOEL GURTH (BAINTH) and ANOTHER V. R., CRIMINAL APPEAL NO. 339 OF 2013 (unreported), where we said:

"...on the second appealthis Court is mostly concerned with matters of law but not matters o f fact. The Court can, however, interfere with the concurrent finding o f facts by courts below only where there is a misapprehension o f the evidence, where there were mis-directions or non-directions on the evidence, or where there had been a miscarriage o fjustice or violation o fsome principle o f law or practice." We must pause here and applaud Ms. Pima's four-pronged approach in analysing the identification and recognition evidence of the victim (PWI) and her granddaughter (PW2). We have immensely benefitted from her pointed submissions and the authorities she drew our attention to. Regarding the fourth ground of appeal, we agree with the explanation that Ms. Pima, the trial magistrate, did not flout the proceedings of section 231 of the CPA. The record of appeal confirms that the learned trial magistrate afforded the appellant all the opportunities to give evidence and call witnesses to his defence. The grounds for appeal number four lack merit, and we dismiss it. Concerning the fifth ground, we agree with Ms. Pima that charging the appellant for rape under section 130 (1) and (2) (b) of the penal code 15

did not prejudice the appellant in so far as the ingredients of rape and punishment were concerned. When the prosecution read out the charge and explained it to him as required, the prosecution put the appellant on notice about the rape of an 85-year-old woman without her consent. As we said in the case of MUSSA MWAIKUNDA V. REPUBLIC [2006] TLR 387, reading and explaining the charge meant the appellant knew the nature and seriousness of the offence of rape he faced. We also note when convicting the appellant, the learned trial Magistrate correctly cited section 130 (1) (2) (a) of Cap. 16. This error is curable and is but a slip of the pen. It is curable under section 388 of the CPA. Therefore, ground number 5 has no merit. We accordingly dismiss it. Having dismissed the fourth and the fifth grounds of appeal, the remaining grounds number 1,2, 3 and 6 in their essence concern whether prosecution proved the offence of rape beyond reasonable doubt. We agree with Ms. Pima's submissions urging us to dismiss the first, second, third and sixth grounds of appeal. This Court has oftentimes stated that in sexual offences, there can be no more direct evidence than the evidence of the victim of the rape concerned. In VICTORY S/O MGENZI MLOWE VS REPUBLIC [2021] TZCA 149 (30 APRIL 2021) we reiterated that the evidence of the victim

of sexual offence, can still stand alone to convict without any corroboration. Sub-section (6) of section 127 of the Evidence Act, Cap 6 R.E. 2019 regards the evidence of the victim of sexual crime to be the best evidence: "127 (6). where in criminal proceedings involving sexuai offence the only independent evidence is that of a child o f tender years or of a victim of the sexuai offence, the courtshall receive the evidence,, and may, after assessing the credibility of the evidence of the child o f tender years o f as the case may be the victim of 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 child offender years or the victim ofthe sexual offence is telling nothing but the truth/' [Emphasis added]. We think sub-section (6) of section 127 of the Evidence Act, Cap 6 R.E. 2019, which regards the evidence of the victim of a sexual offence to be the best evidence, underscores the need to assess the credibility and truthfulness of the victim of a sexual offence. In other words, courts do not perfunctorily convict on the evidence of a victim of a sexual offence 17

without evaluating its credibility and truthfulness. We are satisfied with the credibility and truthfulness of the evidence of the victim (PW1). The victim's testimony proved sexual penetration, an essential ingredient of rape. The victim narrated the ordeal of suffering from unconsented sexual intercourse. The victim's plea, that she had not had sexual intercourse since 1986 when her husband passed on did not deter the appellant He tore her short pants (kaptura), fished out his penis which he inserted into her vagina, and ejaculated. We have no reason to interfere with a concurrent finding that PW1 and PW2 identified and recognised the appellant through the light of the torch the appellant had. PW1 and PW2 described the attire the appellant wore on the material date. The first appellate court, on pages 66-68 of the record of appeal, comprehensively addressed the issue of identification of the appellant at the crime scene. The naming of the appellant as her rapist to her neighbour PW3 at earliest possible opportunity, who in turn informed chairman of Uroo in Kingachi village (PW4) added credence to the victim's evidence. In MARWA WANGITI MWITA AND ANOTHER VS, R [2002] TLR 39, the Court stated that the ability of a witness to name a suspect at the earliest opportunity is an all-important assurance of his reliability.

Therefore, we dismiss grounds number 1, 2, 3 and 6 for lack of merits. We otherwise have no reason to doubt that the prosecution proved its case beyond reasonable doubt. As a result, we dismiss this appeal in its entirety. DATED at MOSHI this 22n d day of August, 2024. I. H. JUMA CHIEF JUSTICE M.C. LEVIRA JUSTICE OF APPEAL M.K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 22n d day of August, 2024 in the presence of Appellant in person - unrepresented and Mr. Isack Mangunu learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL