IN THE HIGH COURT FOR ZANZIBAR

AT TUNGUU
CRIMINAL APPEAL NO. 31 OF 2023
(Appeal from Criminal Case No 22 of 2022 of the Regional Magistrate’s Court at Vuga)

IBRAHIM SULEIMAN NAIM …………. APPELLANT

VS

DIRECTOR OF PUBLIC PROSECUTIONS ..… RESPONDENT

JUDGEMENT OF THE COURT

05/03/2024 & 14/05/2024

KAZI, J.:

The victim of the crime, AO (name withheld), who, at the trial Court,
testified as PW1, was a young girl of the age of 16 years on the date of
the incident. She was a Form II student at Kiembe Samaki Secondary
School and residing with her family members at Fuoni Mambosasa. The
appellant is a bodaboda driver well known by PW1’s family; he used to
provide service to them, including sending PW1 to Kijito Upele with his
bodaboda. On 30th December at about 4 pm, PW1 was with his brother,
ABD (name withheld), testified as PW3, in the Café at Fuoni
Mambosasa. PW1 left her brother there and went back home. At that
time, there was nobody at PW1’s home. When PW1 was at home, the
appellant went there, and together, they sat in the sitting room on the
carpet. They talked, and the appellant started to touch PW1’s body and
kissed her lips, then he undressed her and had sexual intercourse with
her. During all this time, PW3 was still at the Café expecting PW1 to
return, but after realizing she took too long to get back there, he gets

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suspicious and decides to follow her home while accompanied by his
young brother HO (name withheld). On their arrival home, they found
the main gate and the front door of their house locked, and the
appellant's shoes were outside. PW3 knocked on the door while calling
PW1, and it took a while for the door to be opened.
Later, the appellant opened the door and then forced his way outside,
leaving his shoes behind, which were held by PW3. After the appellant
left, PW3 decided to call his mother, KUM (name withheld), PW2, and
inform her what he found at home. Having received the devastating
news, PW3 rushed back home with her husband and later reported the
incident to the Police, where PF3 was issued, and PW1 was sent to the
hospital for medical examination. PW5, Ahmed Abuu Juma, was the
Doctor from Mnazimmoja who attended PW1. After examining PW1's
vagina, his finding, which was recorded in the PF3 (Exhibit PE1), was
that there was hyperemia on PW1's labia manora without bruises and a
presence of old tears at 3 o’clock. He also found seamen oozing from
PW1’s vagina. It was PW5 evidence that the hyperemia indicated that
there was fresh physical contact, hence concluded that PW1 was
penetrated (had sexual intercourse).

The appellant, in his defence, denied the claim. He claims that he was
accused of the offence after refusing to have an affair with PW2. He
alleged that PW2 threatened to send him to jail if he rejected her from
having an affair.

The trial Court heard the evidence from both sides and was satisfied
that the prosecution had proved their case beyond reasonable doubt.

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Ultimately, the appellant was convicted under sections 108 (1) (2) (e)
and 109 (1) of the Penal Act, 2018, and sentenced to 30 years in
prison. In addition, he was ordered to pay Tsh 200,000/—as a fine and
TSh. 300,000/—as compensation to the victim.

The appellant was aggrieved with the judgement, sentence and orders
passed on him and preferred this appeal on the grounds which can be
summarized as follows: -
1. The learned Regional Magistrate erred in law by
convicting the appellant on the defective charge sheet.
2. The learned Regional Magistrate erred in law by
convicting the appellant based on contradictory
evidence.
3. The learned Regional Magistrate erred in law for not
considering that prosecution evidence had reasonable
doubts.
4. The learned Regional Magistrate erred in law in relying
on PF3 which was not authentic for sentencing the
appellant 30 years imprisonment.
5. The learned Regional Magistrate erred in law by
convicting and sentencing the appellant to 30 years
imprisonment without considering that the prosecution
failed to exhibit the appellant's shoes as evidence to
support their case.

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At the hearing of the appeal, the appellant was advocated by Mr. Said
Ali Said, learned Advocate, the respondent the DPP enjoyed the service
of Mr. Suleiman Yusuf Ali, learned State Attorney.

In arguing the appeal, Mr. Said commenced by adopting their ground of

appeal and proceeded to submit on the first ground of appeal. He
argued that the charge sheet was defective as it did not have
information clearly showing what the accused was facing. He stated that
the charge sheet shows that the appellant raped the victim in December
2021 at about 4 pm at Fuoni Mambosasa. He stressed that Criminal
Procedure Act under Section 164 indicated how charge sheet should be
framed. He added that the charge must contain the particulars of the
offence, the name of the accused and the victim. He further stated that
the accused needs to know the particulars of the offence so he can
prepare his defence and that if the particulars in the charge sheet are
unclear, it may lead to unfair justice. He supported his submission by
the case of Yusuf Mohamed Yusuf vs Republic, Criminal Appeal no.
331 of 2014, CAT (Unreported). Mr Said then argued that page three of
the typed proceeding shows that PW1 remembered that she was raped
in December 2021, whereas on page six, PW2 recalled that the crime
was committed on 30/12/2021; similarly, on page 10, PW3 stated that
the crime was committed on 30/12/2021. In his view, there is a
contradiction in the date with which the crime was committed, the
contraction caused by the charge sheet in its failure to indicate the exact
date of the commission of the crime. It was his further views that
prosecution was supposed to invoke the provision of section 219 of the
Criminal Procedure Act, by seeking leave to amend their charge sheet.

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He referred to the Case of Mshenga Shaibu Khamis v Republic,
Criminal Appeal No. 62 of 2023, CAT (Unreported) to support his stand.

Arguing in support to the second ground, Mr. Said contended that there
was a contradiction on the evidence of PW3 and PW2, that on page six
of the typed proceeding, PW3 testified that at the time she left her
house and went to town, PW1 and PW3 was at home, in contrast, on
page 11 PW3 testified that at about 16;00 hrs. she was with PW1 at the
Café. Mr. Said alleged that another contradiction is shown on page 11
whereby when cross examined PW3 stated that when PW1 was
interrogated by her parents regarding the crime, she responded that she
did nothing, while on page six paragraph five PW2 when testified stated
that after beating up PW2 she was told. Moreover, it was alleged by Mr.
Said that there was a contradiction regarding the date the crime was
committed since, on page four, PW1 testified that she did not remember
the date of the crime while PW3, on page 10, testified that the crime
was committed on 30/12/2021. He referred to the case of Noel Samuel
vs Republic, Criminal Appeal No. 418 of 2020, CAT and stated that the
Court has the duty to address and resolve the witnesses' discrepancies.
He submitted that the mentioned contradictions were not minor and
goes to the root of the matter.

Arguing for the third ground, Mr. Said contended that the prosecution's
evidence had a lot of doubts, which could not warrant a conviction. He
started by querying the credibility of PW1. He maintained that as PW1,
who is a victim of the crime, did not remember the date of the
commission of the crime, her credibility as a witness became doubtful. It

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was his further view that PW1 testified that the appellant raped her on
two different occasions, but she only reported the crime to her parents
on the second occasion, therefore her failure to report the crime on the
first time she was raped, her evidence become unreliable. Mr. Said was
also of the view that PW1's evidence was unreliable because she
revealed what happened to her after getting beaten by PW2.

As regards to the fourth ground, Mr. Said submitted that Exhibit P1

(PF3) was not authentic as it lacks hospital stamp, he therefore urged
the Court to expunge it from the record.

Arguing for the last ground, Mr Said questioned the non-tendering in

evidence of the appellant's shoes, which, according to him, was
prosecution vital evidence. He contended that all PW1, PW2, and PW3
talk about the shoes that were alleged to be of the appellant and found
at the crime scene. The shoes which PW3 took as evidence as it is
shown on page 11 of the typed proceedings. Mr. Said therefore
maintained that failure of the prosecution to tender in Court the shoes
found at the crime scene weakened the prosecution case. He referred to
the case of Mshenga Said Khamis to support his stance.

In the reply, Mr. Ali, a learned State Attorney, started by opposing all
grounds of appeal and stated that they have no merit. He then
proceeded to respond on the last ground, where he submitted that there
are two types of exhibits, which are material and non-material. His view
is that the non-tendering of non-material exhibits is not fatal. Relying on
the case of Alexandre Peter Mvungi vs Republic, the learned State

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Attorney was of the view that shoes were non-material evidence and
failure to tender them was not fatal to the proceedings.

Responding on the fourth ground, the learned State Attorney submitted

that it is the signature which authenticates the document and not the
stamp. He added that, the maker of the document testified in Court
therefore his evidence was enough to explain the contents of the
documents. Therefore, he was of the view that this ground lacks merit.

Mr. Ali combined grounds two and three, stating they both lack merit.
He was of the view that there are no contradictions in the witness
testimony. It was his submission that PW2 did not mention the time she
left PW1 and PW2 home, so her evidence did not contradict PW3’s
evidence, and if they did, he cautioned, it does not go to the root of the
matter. The learned State Attorney also dismissed the allegation that
PW2’s evidence contradicts PW3’s evidence about what PW1 tells her
mother. He stated that PW2 did not reveal what PW1 told her, so that
piece of evidence does not contradict the evidence of PW3, who told the
Court that PW1 told her mother nothing. As regards the alleged
contradiction of PW1’s testimony who testified that she couldn’t recall
the date of the commission of the crime with PW3’s evidence who said
the crime was committed on 30/12/2021, Mr. Ali argued that PW1 did
not remember the date, therefore her evidence does not contradict
PW3’s evidence who remembered the date when the crime was
committed.

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In response to the issue of PW1’s credibility, Mr Ali believed that the
ground on PW1’s credibility is weak. He argued that the state of
remembering things or not is human nature and cannot render a witness
unreliable. He also claimed that the failure of PW1’s not to report the
crime on the first date she was raped does not make her an incredible
witness. In addition, he argued that PW1's credibility was not lowered by
the fact that she revealed what happened after getting beaten by her
mother.

As regards to the first ground that relating to the charge sheet, the
learned State Attorney submitted that failure to mention date and time
on the charge sheet does not make the charge defective. He said the
omission can be cured under section 219 (5) of the Criminal Procedure
Act, which provides that the variation of time and evidence is not
material. He added that, the month and the year of the commission of
the crime was stated in the charge sheet and supported by the evidence
adduce. Therefore, he maintained that the month and year mentioned
were enough for the accused to prepare his defence.

In rejoinder Mr. Said stated that as the date was not mentioned in the
charge sheet it leads PF3 to have information which are not certain
regarding the date of the commission of the offence. As on the issue of
contradiction between the evidence of PW2 and PW3 regarding PW1’s
whereabouts, Mr. Said rejoined that PW2 insinuated that PW1 and PW3
were at home while PW3 shows that at 4 pm they were at the Café.

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Having considered the grounds of the appeal, the trial Court records,
and submission made by the parties during appeal hearing, the main
issue that await my determination is whether this appeal is meritorious.
I shall begin with the first ground of appeal. The question to be resolved
in this ground is whether the charge sheet was defective for not
specifying date with which the crime was committed. As claimed by Mr.
Said, the charge sheet, which was presented in the trial Court, did not
specify the date of the commission of the crime. It just stated that the
crime was committed in December 2021. For Mr. Said the charge sheet
is defective for want of specific date of the commission of crime. On his
part, Mr. Ali was confident that the charge was not defective and the
omission to state a date on the charge sheet is curable under section
219 (5) of the CPA.

It is instructive that a charge sheet is the base of the trial against an

accused person in any criminal trial. Therefore, as rightly argued by Mr.
Said the charge sheet must contain particulars of the offence which are
so clear enough to enable the accused to prepare his defence.
See, Remina Omary Abdul vs Republic (Criminal Appeal 189 of
2020) [2022] TZCA 118 (15 March 2022). In the instant matter, the
charge sheet did not specify the date, but it shows the month and the
year with which the offence was committed. Thus, the question is
whether the omission to state a date in the charge sheet made it not
informative enough to enable the appellant to prepare his defence
properly. In other words, was the appellant prejudiced by that omission?
Mr. Ali was of the view that as the charge sheet specify the month and
year when the crime was committed which was supported by the

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evidence of the prosecution witnesses, those particulars were clear
enough to enable the appellant to prepare his defence. I’m inclined to
concur with the learned State Attorney that the charge sheet indicated
with reasonable clearness that the offence was committed in December
2021, which reasonably informed the appellant of the period the crime
was committed. The evidence of PW1, PW2 and PW3 supported the said
facts. Besides, PW2 and PW3 were more precise that the crime was
committed on 30/12/2021. The appellant, therefore, was aware of those
facts and was in a good position to make a proper defence.
In his submission, Mr. Ali relied on Yusuf Mohamed Yusuf (Supra) to
support his position. With great respect to the learned Advocate, the
case of Yusuf is distinguishable from the instant matter, as in that case,
the charge sheet indicated that the offence was committed between the
months of June and July, 2012, but the evidence adduced by PW3 who
was a child of the tender year shows that the offence was committed
since 2011. Another piece of evidence from PW5, a medical doctor
indicated that he received PW3, who was suspected to be sexually
abused on 3/9/2012. With that variance in the period when the offence
was committed, the Court of Appeal was of the opinion that there was
uncertainty on the dates found in the charge sheet compared to those
found in the evidence. As I have pointed out, in this case, there was no
uncertainty about the period when the offence was committed and what
was testified by the witnesses. I, therefore, find this ground of appeal to
have no merit.

On the second grounds, the appellant's query is on the alleged

inconsistency of the evidence of PW2 with that of PW3 regarding the

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place where PW1 was on 30/12/2021 at about 4:00 pm and on what
happened to PW1 on the fateful day. Another inconsistence claimed is
from the evidence of PW1 with that of PW3 regarding the date when the
crime was committed. In resolving this issue, I will be guided by the
decision of Abel Orua Matiku Others vs Republic (Criminal Appeal
No 441 of 2020) [2024]se TZCA 78 (21 February 2024), which reaffirm
the position of law when there is inconsistence and contradiction in
evidence. It observed that;-

“It is trite law that, it is only contradictions or

inconsistencies which affect the central story which
are to be considered to be material and adverse to the
party in whose favour the evidence is given. Such
contradictions or inconsistencies should not be those
that are of an insignificant nature”.

From the force of the above principle of law, the question is whether
inconsistencies exist in this matter, and if yes, whether they significantly
affect the prosecution’s central story.

I have considered the arguments from both sides regarding this issue,
and I have scrutinized the pieces of evidence alleged to be in
contradiction. From my scrutiny of the evidence on record, as rightly
argued by Mr Ali, I find no contradiction in the evidence of PW2 and
PW3 regarding the place PW1 was on the material day and time. As Mr.
Ali argued, PW2 did not indicate when she left home on the day in
question. But when you consider PW2’s evidence as a whole, it is clear

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that there was a time gap between the time she went to town while
living PW1 and PW3 at home to the time she received a call, that is,
4:30 pm from PW3 regarding what happened to her place. Whereas
PW3, in his evidence, stated that on the material day at about 4:00 pm,
he was with PW1 at the Café in Fuoni Mambosasa. As I have stated
earlier, it is clear that the above evidence from PW2 and PW3 is free
from inconsistencies. As for what happened to PW1 on the material day,
the evidence of PW2 and PW3 did not contradict each other. According
to the handwritten proceeding, PW2, when testified, stated, “I went to
the room where I found AO sitting on the bed at her room while already
wearing her clothes, I beaten her to tell what happened. Then I got
information that Ibrahim is the one who was found inside the house .”
While PW3, in his evidence, stated that, “ AO when she was called by my
parents said didn’t do anything.” These two pieces of evidence show
that PW1 did not reveal what she did. In addition, PW2’s testimony
shows that she was informed that the appellant was the one who was
found inside her house. Therefore, there is no inconsistency in the
evidence of PW2 and PW3; they are both talking about the same thing.
Again, there is no inconsistence from the evidence of PW1 with that of
PW3 regarding the date when the crime was committed. From her
testimony, PW1 told the Court that she had sexual intercourse with the
appellant in December 2021, and when cross examined, she stated that
she doesn’t remember the date when the offence was committed.
During cross-examination, she stated in her own words, that, “ I can’t
remember the date which the offence occurred. I did not pay attention
on date, but I know the month.” PW3, on his side, told the Court that
the offence was committed on 30/12/2021. It is clear that there is no

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contradiction in the evidence of PW1 and PW3; besides, both witnesses
confirmed that the offence was committed in December 2021. It is of no
doubt, therefore, that there were no inconsistencies claimed by the
learned Advocate. Thus, I find this ground of appeal with no merit, and I
dismiss it.

Next, I shall jointly determine the third, fourth and fifth grounds and I
will consider whether the case against the appellant was proved beyond
reasonable doubt. In doing so, I will focus, among other matters, on the
appellant allegation on the credibility of PW1, authenticity of exhibit P1,
and the effect of non-tendering of the appellant shoes in evidence.

In criminal cases, the prosecution has a duty to prove the case beyond
reasonable doubt. In this case, the appellant was indicted under section
108 (1) (2) of the Penal Act which makes an offence for a male person
to have sexual intercourse of a girl who is not his wife, with or without
her consent, when she is under the age of eighteen years.
The evidence available from the trial Court records revealed without
doubt that AO is a girl under the age of eighteen. It is not contested
that in December 2021, to be precise, and according to the evidence of
PW5, on 30/12/2021, PW1, when examined, was found to have had
sexual intercourse. PW5 evidence was conclusive based on his findings
that, among other things, PW1’s labia minora had hyperaemia, and
some seamen were leaked from her vagina. As to whom PW1 had
sexual intercourse with on the date in question, there is evidence of
PW1 who categorically testified that it was the appellant who she had
sex with. The evidence of PW3 supports PW1's evidence of the culprit's

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identity. It was PW3’s evidence that he was at the Café in Fuoni Mambo
Sasa with PW1 at about 4:00 pm, but PW1 left him there and went
home. As she delayed returning to the Café, PW3 was concerned and
decided to follow her sister to their home, where he found the gate and
main door was locked from the inside. It was after PW3 repeatedly
knocking the door of their house while calling PW1 and asking her to
open the door; the door was eventually opened by the appellant, who
was inside the house alone with PW1. According to PW3, he also found
the appellant shoes outside their door, which he took and refused to
hand to the appellant, who wanted them before forcing his getaway by
pushing PW3.

Further evidence shows that the appellant is familiar with PW2 and PW3.
The appellant who is bodaboda rider is known very well to PW2 as his
bodaboda station located near to PW2’s workplace. Moreover, the
appellant used to provide service to PW2 by transporting PW1 to
Kijitoupele by his bodaboda, that was revealed by PW2 when cross-
examined by the appellant advocate; she stated that “ Ibrahim, I know
him very well, I used to tell him to send AO to Kijito upele by his
bodaboda”. The testimony of PW3 during cross-examination also
indicated that he knows the appellant well. Responding to the question
on the appellant's identity, PW3 stated “ Ibrahim used to come to our
house…”.

The evidence of PW2 and PW3 was not contested by the appellant in his
defence, in fact he confirmed that he is known to them and was
providing a service to PW2 of shuttling PW1 with his bodaboda. The

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appellant, however, in his defence, claimed that PW2 framed him after
rejecting her proposal of having an intimate relationship with him.

With the evidence I have demonstrated above, I am settled that the

prosecution successfully established the offence against the appellant.
Therefore, considering the circumstances of the case, I’m of the settled
mind that PW1 was a credible witness. I am aware of the settled
principle of law that the best test for quality evidence is based on the
credibility of witness. In determining the witness's credibility, the Court
must scrutinize the evidence to ascertain whether or not prosecution
witnesses are credible. Thus, in assessing the credibility of the
prosecution evidence the Court of Appeal of Tanzania in Shabani
Daudi vs The Republic, Criminal Appeal No. 28 of 2001, stated that: -

“The credibility of a witness can also be determined in

two other ways. One when assessing the coherence of
the testimony of that witness, two', when the
testimony of that witness is considered in relation to
the evidence of other witnesses; including that of the
accused person. In those two other occasions, the
credibility of a witness can be determined even by a
second appellate court when examining the findings of
the first appellate court."

I am also aware of the principle that every witness must be trusted

unless proven otherwise, as it was observed in Goodluck Kyando vs
Republic (2006) TLR page 376 that: -

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 "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."

The good and cogent reasons for not believing the witness are those
underscored by the Court of Appeal in Ludovick Sebastian vs
Republic (Criminal Appeal 318 of 2007) [2010] TZCA 13 (4 June 2010).
These include the fact that the witness has given improbable evidence
or that the evidence has been materially contradicted by another
witness or witnesses.

In the instant matter the learned Advocate for the appellant claimed that
PW1 credibility was diminished after being beaten by her parents and
forced to reveal what she did on the date the crime was committed.
With due respect to the learned Advocate, the whipping PW1 sustained
from her parents almost three months before she stands at the witness
dock could not diminish the weight of the evidence she delivered in
Court. PW1 evidence was convincing and not contradicted by the
evidence adduced by other prosecution witnesses. In addition, PW1's
evidence was supported by PW3, who found the appellant coming from
their house where he was locked in with PW1; and PW5, who confirmed
that PW1 had sexual intercourse on the day in question.
As for the failure of the prosecution to tender the appellant's shoes, I
find the claim to be baseless since the exhibited evidence is sufficient to
prove the offence against the appellant.
Lastly, it is about the authenticity of exhibit P1. The Advocate for the
appellant claimed that exhibit P1 is not authentic because of the lack of

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a hospital stamp. I’m afraid I have to disagree with him. As the learned
State Attorney correctly argued, exhibit P1 is authentic as its contents
support the oral testimony of PW5, the doctor who examined PW1, and
filled out his findings in exhibit P1.

On the totality of what I have expounded in relation to the grounds of

appeal number three to fifth, it is my finding that they are all baseless,
and I dismiss them.

On the strength of the reasons stated herein above, it is my conclusion

that I am satisfied the appellant was properly convicted and sentenced
for the offence of rape. Thus, the appeal is dismissed in its entirety.

Dated in Tunguu, Zanzibar this 14th day of May 2024.

G. J. KAZI
JUDGE
14/05/2024

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