IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM: NDIKA. J.A.. MWANDAMBO, J.A.. And KENTE. J.A.^

CRIMINAL APPEAL NO. 167 OF 2020

MOHAMED SAID RAIS................................................................... APPELLANT

VERSUS

THE REPUBLIC........................................................................... RESPONDENT

(Appeal from the decision of the Resident Magistrate's Court of

Dar es Salaam at Kisutu)

(Chaba. SRM-Ext. Jurist

dated the 2nd day of March, 2020

in
Extended Criminal Appeal No. 230 of 2019

JUDGMENT OF THE COURT

6th & 20th July, 2022

MWANDAMBO. J.A.:

On 14/05/2018 the police station at Maturubai, Temeke District

received a complaint of a sexual offence allegedly committed in the

evening of that day at a place called Mbagala Kilungule. The complainant

who was a girl aged 16 years mentioned the appellant Mohamed Said Rais

as the perpetrator of the crime. Ultimately, the appellant was arraigned

before the District Court of Temeke on two counts, namely; statutory rape

and unnatural offence contrary to the relevant provisions of the Penal

Code.

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 The particulars of the charge on both counts were similar except for

the nature of the offences. It was alleged that on 14/05/2018 at Mbagala

Kilungule area, the appellant had vaginal and anal intercourse with a

sixteen years girl whom we shall henceforth be referring to as the victim

or PW1. The appellant denied the accusations resulting into a trial whose

verdict has given rise to the instant appeal.

The case for the prosecution which the trial court found to have

been sufficiently proved was built on the testimonies of five witnesses.

The evidence depicts that, on the evening of 14/05/2018 PW1 was

accompanying a friend (PW2) who had earlier on visited her home. At

some point they met the appellant who was well known to both of them.

At the appellant's request, PW1 parted company with PW2 and left with

him. PW2 had a similar account on this aspect. As PW1 and the appellant

reached near a certain house, the appellant is said to have started

touching the victim's hands in a manner which she suspected to be

worrisome but she could not make noise for help due to appellant's threat

to kill her if she dared doing so. PWl's account portrays further that the

appellant dragged her to a bedroom in an unspecified house in which he

attempted to undress her and have sexual intercourse but in vain which

necessitated enlisting assistance from a friend who readily responded.

With the help of that friend, the appellant is said to have had sexual

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intercourse with PW1 and thereafter, had his friend do alike before both

of them sodomised the victim in turns. After the awful act, PW1 left and

reported the incident to her mother (PW3) who confronted the appellant

later at his home but he denied the accusations. Afterwards, PW3

accompanied PW1 to Maturubai Police Station where they obtained a PF3

before proceeding to Mbagala Rangi Tatu Hospital for medical

examination. Doctor Davis Magesa (PW4) who examined the victim

observed that she had lost hymen by reason of sexual intercourse way

before the incident. On the other hand, PW4's examination on the anus

revealed existence of bruises on the victim's anal orifice caused by forceful

entry of a blunt object. PW4 posted his medical examination findings in

the PF3 which was admitted at the trial as exhibit PI. The evidence of WP

No. 5150 Det. CpI Nangejwa (PW5) was limited to her investigation of the

offence before the appellant's arrest and arraignment.

In defence, the appellant called two more witnesses; his mother

(DW2) and a Street Chairman (DW3) to disprove the accusations against

him. His defence was that the case against him was fabricated by the

victim's mother in retaliation after marrying another woman in lieu of PW1

allegedly his girlfriend. He denied having met PW1 that evening as he

was busy in a communal work with DW3.

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 At the end of it all, the trial court satisfied itself that the prosecution

had proved that the appellant committed the offences and hence a finding

of guilt followed by conviction and sentence of 30 years imprisonment on

each court running concurrently.

The appellant's appeal before the Resident Magistrate's Court of Dar

es Salaam at Kisutu presided over by MJ. Chaba, SRM-Extended

jurisdiction (as he then was) did not see its day. The first appellate court

dismissed it having been satisfied that the findings of the trial court on

the guilt of the appellant were supported by the evidence adduced by the

prosecution which proved the charge to the required standard. As he was

still aggrieved, the appellant has preferred this second and final appeal

before this Court.

The appellant's original memorandum of appeal raises 11 grounds

out of which, 10 are directed against procedural aberrations in the

proceedings before the trial court. The last ground relates to failure to

consider his defence. Subsequently, he filed a supplementary

memorandum consisting of three grounds. The first ground alleges that

conviction was not justified because penetration as an essential ingredient

in both counts was not proved. In ground two, the appellant contends he

was not properly identified as the perpetrator of the crimes. Ground three
is predicated on the complaint against the courts below for failure to

consider his defence of alibi.

Ahead of the hearing, the appellant had filed in Court a written

statement of arguments in support of the appeal in terms of rule 74 of

the Tanzania Court of Appeal Rules, 2009 ("the Rules"). Mr. Nehemia

Nkoko, learned advocate who represented the appellant at the hearing of

the appeal stood by the statement. He only made a few additions by way

of emphasis on the first ground in the supplementary memorandum

directed against reliance on insufficiency of evidence which did not prove

penetration. Similarly, the learned advocate faulted the first appellate

court for invoking the overriding principle in acting on the evidence of a

tender age witness (PW2), in violation of section 127 (2) of the Evidence

Act. Finally, Mr. Nkoko criticised the first appellate court's judgment

branding it as problematic for holding that the appellant's defence was

considered by the trial court when it was not the case.

Resisting the appeal, the respondent Republic was represented by

Ms. Christine Joas, learned Senior State Attorney assisted by Monica

Ndakidemi, learned State Attorney who made her submissions in reply

largely on the grounds in the memorandum of appeal. Even though the

appellant has raised a number of complaints on the alleged procedural

violations, we have not found it necessary to deal with them having

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agreed with the learned State Attorney and taken the view that none of

them has any bearing on the sanctity of the trial which could have vitiated

the appellant's conviction. All the same, we find constrained to say that

that we agree with the learned advocate for the appellant that the first

appellate court strayed into error in justifying the reception of the

evidence of PW2 by the overriding objective. As we said in Mondorosi

Village Council and Two Others v. Tanzania Breweries, Ltd and

Four Others, Civil Appeal No. 66 of 2017 and Njake Enterprises

Limited v. Blue Rock Led and Rock and Venture Co. Ltd. Civil

Appeal No. 69 of 2017 (both unreported), the overriding objective

principle was introduced for use in fitting cases and not to be applied

blindly in disregard of the rules of procedure and evidence couched in

mandatory terms. All factors being equal, the evidence of PW2 was

irregularly received and ought to have been expunged. However, subject

to our discussion on the merits of the appeal, that would have no effect

on the appellant's conviction.

The only complaint worth our consideration in the memorandum of

appeal relates to the appellant's complaint against the trial court's failure

to consider defence evidence which is repeated in the supplementary

memorandum as ground three. The substantive issues arising from the

supplementary memorandum can be conveniently dealt with conjointly.

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As consent was irrelevant to establish the commission of statutory rape,

the prosecution was only required to prove penetration of a male sexual

organ into the girl's vagina whereas unnatural offence entailed

penetration of a male sexual organ into the victim's anal orifice.

The appellant's complaint is that contrary to the trial court's findings

sustained by the first appellate court, PW4's evidence did not establish

that there was any penetration into the victim's vagina neither was it

established that the bruises seen in her anal orifice were fresh ones which

created doubt on the prosecution case. Mr. Nkoko urged the Court to

hold that the appellant's conviction was against the weight of evidence

proving the offences thus warranting its interference with the concurrent

findings of facts by the two courts below. It has also been contended that

PWl's evidence fell short of the essential particulars of the house in which

the offence was allegedly committed let alone giving descriptive

particulars of the culprit. Apparently, the learned State Attorney who

argued against the appeal, did not have specific arguments on this apart

from opposing it and urging the Court to dismiss it.

The appellant's complaint on insufficient proof of penetration and

identification seeks to fault the concurrent findings of facts by the two

courts below in a second appeal. It is trite law for which no authority is

necessary to underscore that a second appellate court has limited power

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to disturb the concurrent findings of fact by the trial court and first

appellate court except in rare cases where it is plain that such courts

misapprehended the evidence or failed to consider some evidence on

record. Failure to consider evidence on record, subject of the appellant's

complaint in ground ten in the memorandum of appeal denotes omission

to subject the entire prosecution evidence to scrutiny with the defence

evidence. Apparently, Ms. Monica Ndakidemi, conceded such failure but

invited the Court to invoke its power under section 4 (2) of the Appellate

Jurisdiction Act by stepping into the shoes of the first appellate court and

do what it failed to do. Mr. Nkoko had similar view with which we entirely

agree and accept the invitation.

We shall begin our discussion with the question whether the offence

of statutory rape was proved. In doing so, we are alive to the principle

that the best evidence in sexual offences must come from the victim. See:

Selemani Makumba v. R [2006] T.L.R 379 reinforcing the spirit under

section 127 (6) of the Evidence Act. That principle must be weighed in

the light of another yet another important principle developed by Lord

Chief Justice of the King's Bench Sir Mathew Hale, an English jurist that

rape is an accusation which is easily made, hard to be proved and harder

to be defended by the party accused, though never so innocent.

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 The Court has had occasions to refer to the above in its various

decisions including; Mohamed Said v. R, Criminal Appeal No. 145 of

2017 Unreported). What is gathered from the above is that such

evidence from the victim of a sexual offence can ground conviction if it is

beyond reproach by itself which boils down to credibility.

The victim's evidence was that initially, the appellant attempted to

undress her in a room to procure sexual intercourse by force but since he

did not succeed, he enlisted assistance of a friend who readily responded

and provided the required assistance by holding her legs whilst the

appellant inserted his penis before the friend had his turn. By PWl's own

evidence, after the act, she did not wash her private parts because she

felt a lot of pains. Her evidence and that of her mother reveals that, the

medical examination was conducted by PW4 within hours after the

incident. However, PW4's medical examination, revealed that PW1 had

lost her hymen longer than he examined her neither did he observe any

bruises on her vagina. Like Mr. Nkoko, we have not been spared from

wondering how could the victim's vagina get penetrated forcefully by two

men and nothing unusual be seen from it through PW4's examination

within few hours. Logic and common sense would suggest otherwise.

In regard to sodomy, there was evidence through PW4 of existence

of bruises due to forceful entry of a blunt object but such evidence fell
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short of any explanation if the bruises were fresh from a recent forceful

penetration. Neither was it suggested that such bruises must have

resulted from forceful penetration of a male sexual organ to the exclusion

of any other blunt object. That aside, PW4 did not explain if in his

examination he was able to see anything else such as semen or any

discharge or at least relaxed sphincter muscles resulting from forceful

penetration involving two men in turn.

The cumulative effect of the foregoing coupled with PWl's failure to

give particulars of the house where the offences were committed raises

some doubts on the commission of the offences which has a bearing on

her credibility.

Worse still, PW1 did not tell the trial court whether the house in

which she was made to succumb to rape and sodomy at the hands of two

men had other occupants from whom she could have run for help the

moment the culprit is alleged to have asked for a help from a friend.

There is no explanation either why she could keep quiet from such a

fateful event after she had been freed by the assailants without asking for

help from the people nearby the house with a view to apprehending the

culprits immediately thereafter. In our view, had the trial court directed

its mind to these lingering doubts, it should not have entered a verdict of

guilt.
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 It will now be clear that the first appellate court's concurrence with

the trial court on findings of fact resulting into the appellant's conviction

was but, erroneous. It was a result of misapprehension of the evidence

and non-direction. The position was made worse by the failure to consider

the appellant's defence an aspect which was glossed over by the first

appellate court. Briefly, the appellant's defence evidence through his own

testimony and DW2 was to the effect that the case was fabricated by PW3

in retaliation after the appellant had married another girl in lieu of PW1

who was allegedly his girlfriend. The events that followed after the alleged

incident indicate that after the alleged incident PW3 confronted the

appellant and had an encounter with the appellant's mother on the same

issue. That was followed by her incarceration in connection with her son's

alleged involvement in the offences.

It will be recalled that the appellant had told the trial court that the

time PW1 claimed that she was raped, he was somewhere else with the

street chairman (DW3) on some other communal activities returning home

around 22:00 hours. Again, according to DW1 and DW2, PWl's mother

had accused the appellant for deflowering PW1 and hence the fracas that

ensued. This version of the defence was not considered by the trial court

before making a finding of guilt. Contrary to the first appellate court, it

was glaring that the defence evidence was not considered and had it been

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considered, the trial court should have found that such evidence lent

credence to the appellant's claim on being framed up. It punched several

holes in the prosecution evidence raising reasonable doubt enough to

benefit the appellant.

In the event, we find merit in the grounds in the supplementary

memorandum of appeal and allow the appeal. The appellant's convictions

are hereby quashed and sentences set aside with an order that the

appellant shall be released from custody forthwith unless lawfully held

therein.

DATED at DAR ES SALAAM this 25th day of July, 2022.

G. A. M. NDIKA
JUSTICE OF APPEAL

L. J. S. MWANDAMBO
JUSTICE OF APPEAL

P. M. KENTE
JUSTICE OF APPEAL

The Judgment delivered this 26thday of July, 2022 in the presence

of the Appellant in person via video conference and Ms. Monica

Ndakidemi, learned State Attorney for the Respondent/Republic, is

|-|prph\/ r p r + if ip r l a c 7\ t r i ip rn n \ / n f f h p n r i n in ^ l

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