IN THE COURT OF APPEAL OF TANZANIA

AT TABORA
fCORAM: MWANDAMBO. J.A., FIKIRINI. J.A. And NGWEMBE, 3.A.)

CRIMINAL APPEAL NO. 434 OF 2021

MARTIN JACOB @ M LILA ................................................................. APPELLANT

VERSUS
THE REPUBLIC................................................................................ RESPONDENT
(Appeal from the decision of the High Court of Tanzania at Tabora)
f Bahati,

dated the 30th day of July, 2021

in
Criminal Appeal No. 56 of 2020

JUDGMENT OF THE COURT

31st May & 11th June, 2024

NGWEMBE, JA.:

The appellant, initially appeared before the District Court of Tabora at

Tabora (the trial court) to answer a charge of rape. According to the charge

sheet, on diverse dates in October 2019 during night hours at Uledi area,

Mpera Ward within the Municipality and region of Tabora, the appellant had

carnal knowledge of a girl aged 17 years, who for the purpose of this

judgment, shall be referred as the victim or PW2 to conceal her true

identity.
 home and slept in a nearby unfinished building. The next day that is, on 1st

January, 2020 they sought refuge at the street chairman's home (PW1).

The guardians' search for them revealed that the girls were in the house of

the street chairman whose home was just a third house from the appellant's

house within the same street. Despite the appellant's please the victim

refused to go back home. She claimed that the appellant had raped her in

June and October 2019, which caused her to run away on 31st December,

2019. On 3rd January, 2020, PW1 took the two girls to Mpera Ward Office

and later to the Police station where a PF3 was issued. However, she did

not go to Kitete hospital until 8th January, 2020.

The medical doctor (PW3), who examined the victim observed that,

she was no longer virgin, but had no bruises in her vagina. Moreover, the

testimony of PW1 was a replica of what he had heard from the victim.

In his defence, the appellant had three defence witnesses. The

appellant mounted his defence on the foundation that the case against him

was fabricated. He testified that the victim left home just three days after

her mother had gone to Dar es Salaam. The victim demanded to go to her

mother in Dar es Salaam. Following her demand, he started the process of

her transfer, only to be surprised that she fled to PW l's home. His

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 When the charge was read over and explained to him, he

unequivocally denied it. Following his denial, a full trial was held in which

the prosecution called three witnesses, namely; John Peter Mwenda (PW1)

a street chairman; the victim (PW2) and Abbas Mohamed Kapona (PW3), a

medical doctor from Kitete Hospital. Also, a PF3 was tendered and admitted

as exhibit PI. On the side of defence, the appellant testified as DW1, his

wife Linas Simon (DW2), and Emmanuel Nkeyambo (DW3).

To appreciate the background to this appeal, it is on record of appeal

that the victim is a niece to the appellant and his wife Linas Simon (DW2)

who is the sister of the victim's father. The victim's parents parted ways

when she was in standard three, so she was cared by the appellant and

DW2 as her guardians. She lived under their care for more than eleven (11)

years, to be precise, up to 31st December, 2019 when she left from home

together with Diof Hosea her younger sister who also was under the

appellant's guardianship. At time of the alleged rape, she was a form IV

student at Fundikira Secondary School in Tabora.

It is on record that, some days before the girls left from home, their

mother for the first time, visited the appellant's home. Soon after her

departure to where she was staying in Dar es Salaam, the girls left from

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testimony was supported by DW2 an aunt to the victim who explained how

the two girls came into their guardianship. She further testified that the

victim was warned several times of her engagement in sex business. DW3

in his testimony introduced a defence of alibi, that from 5th to 28th October,

2019 the appellant was sent to Inyonga - Katavi region for installation of

beehives.

At the end of the trial, the trial court was fully convinced that the

prosecution had proved its case beyond reasonable doubt. It therefore

convicted him and the minimum sentence of thirty years imprisonment was

imposed on the appellant.

The appellant's appeal to the High Court was unsuccessful as the

learned judge dismissed it and upheld the conviction and sentence meted

by the trial court. His main complaint before the High Court was that the

offence was not proved to the standard required by law. He challenged

further that, the prosecution failed to link the victim's loss of virginity with

sexual intercourse with him. He also contended that the victim was not a

credible witness and that, the trial court failed to analyze the defence

evidence on the concocted case against him.

 Before us, the appellant's appeal is predicated upon six grounds in

two memoranda. However, at the hearing of the appeal, the learned

advocate for the appellant compressed them into two main grounds that is;

one, there was misapprehension and misdirection of evidence which led to

wrong findings and conclusion by the trial and 1st appellate courts; and

two, failure by the two courts below to consider the defence evidence.

At the hearing of the appeal, the appellant was represented by Mr.

Kelvin Kayaga, learned advocate and the respondent Republic was

represented by Ms. Grace Lwila, learned State Attorney.

Mr. Kayaga, commenced his submission by referring to the famous

principles of law enunciated by Lord Chief Justice of the King's Bench Sir

Matthew Hale, an English jurist, that rape is an offence easily made, hard to

be proved and harder to be defended by the party accused, though never

so innocent. Such principle entail the court to be satisfied beyond

reasonable doubt before convicting an accused of sexual offences, which

caution has been referred in several decisions of the Court, including in the

cases of Daudi Antony Mzuka v. Republic (Criminal Appeal 297 of 2021)

[2023] TZCA 165 (30 March 2023, TANZLII); Tito Paulo Kuchungura v.

Republic (Criminal Appeal No. 570 of 2020) [2023] TZCA 17992 (13

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 December 2023, TANZLII); and Malimi Peter v. Republic (Criminal

Appeal No. 480 of 2020) [2024] TZCA 65 (20 February 2024, TANZLII).

Mr. Kayaga's submission on ground of appeal was that the key

witness on the prosecution case was the victim (PW2) whose testimony was

tainted with several discrepancies, which discredited her reliability.

Expanding on that, he pointed out on the unexplained delay to report the

incident of rape. He contended that, while the alleged offence of rape

occurred in June and October 2019, the victim did not report until 2nd

January, 2020 considering the fact that the victim was a form four

secondary school student who failed even to report to the school

administration. According to him, a report to school administration could be

safer than to the street chairman.

The learned counsel added that, there was no explanation as to why

the victim failed to report to the chairperson whose home was just three

houses from the appellant's home for the whole period of more than six

months from June 2019 to 2nd January 2020. Therefore, he urged the Court

to follow the position it took earlier in Bakari Juma v. Republic (Criminal

Appeal No.38 of 2020) [2023] TZCA 17640 (22 September 2023, TANZLII),

where it held that, delay by the victim child of 8 years had dented the

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 prosecution case. In comparison, the victim in this appeal was 17 years old

and a form four student, but delayed to report for all those months without

any reasonable explanation. The learned counsel dismissed the alleged

threat as unfounded. He buttressed his argument with a decision of the

Court in Daudi Antony Mzuka (supra) where the Court held that, a threat

cannot stay forever.

On delayed reporting to hospital for examination, Mr. Kayaga argued

that whereas the PF3 was secured from police on 3rd January, 2020 the

medical doctor (PW3) told the trial court that the victim went to Kitete

hospital on 8th January, 2020. The learned counsel insisted that there was

no explanation as to why she delayed going to hospital. He supported his

argument with the case of Juma Antoni v. Republic (Criminal Appeal 571

of 2020) [2022] TZCA 250 (9 May 2022, TANZLII), where the victim's

credibility was dented due to the contradictions on which date the victim

was examined at the hospital.

He further pointed out yet another contradiction affecting the charge

sheet which indicated that the offence occurred on diverse dates of October

2019, while the victim's testimony was to the effect that she was raped

from June to November, 2019. He wondered, the charge mentions October

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 2019 as the date of rape and the victim's last sexual intercourse was in

November, 2019 which date should be taken as correct? He further,

contended that on the alleged month of October, the appellant's wife was at

home but the victim did not inform her.

The other aspect he addressed was on the failure to call a ten-cell

leader to whom PW2 alleged to have reported the incident of rape for the

first time. To the learned counsel, this was a material witness who would

have assisted the court about the incident of rape and when it was

reported. No explanation was given on the failure to call him. Due to the

gaps in the prosecution case, the counsel argued that they rendered the

charge of rape not established and proved. This prompted Mr. Kayaga to

urge the Court to depart from the principle requiring the 2nd appellate court

not to interfere with the concurrent finding of facts of the lower courts

because there was misapprehension and misdirection of evidence which

occasioned miscarriage of justice and caused injustice.

On the second ground Mr. Kayaga argued that, always the burden of

proof in criminal trials is on the shoulders of the prosecution. However, in

this appeal the trial court shifted such burden to the appellant as indicated

in pages 38 and 58 of the record of appeal. He added that, the two courts

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 below did not consider the defence case. He rested his submissions by

urging the Court to allow the appeal.

Ms. Lwila resisted the appeal and invited the Court to uphold the

conviction and sentence meted by the trial court and upheld by the first

appellate court. Her reply on the submission by the appellant's counsel

regarding the delay to report is that, the victim was threatened to be killed,

which threat was a sufficient reason for her not to report instantly. It was

her contention that, even if the victim would have reported the incident to

her school administration, yet she would still be under the danger as she

was under the custody of the appellant.

On the delay to attend hospital after being issued with PF3 on 3rd

January, 2020, Ms. Lwila admitted that there was no explanation for the

delay from 3rd to 8th January, 2020. However, she maintained that, the

unexplained delay did not affect her account that she was raped.

Responding to the failure to call material witnesses, the learned State

Attorney sought refuge from section 143 of the Evidence Act, that no

particular number of witnesses is required to prove existence of fact. She

submitted that PW1 had the same testimony as the ten-cell leader, thus

there was no need to call him. She insisted that even in the absence of
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 evidence of PW3 and PF3, yet the evidence of the victim (PW2) was

sufficient for she was credible and clearly adduced her evidence in respect

of the offence of rape. To her, PW2 was entitled to credence as the trial

court appreciated her credibility, although she admitted that there was no

finding made by the trial court on credibility of the victim. Ms. Lwila urged

the Court not to interfere with the concurrent findings of fact by the lower

courts.

On failure of the trial and 1st appellate courts to consider the defence

case, the learned State Attorney countered that, the defence evidence was

properly considered, only that such evidence was weak. Thus, the lower

courts were correct to find that the defence did not shake the prosecution

case.

In brief rejoinder, Mr. Kayaga maintained that failure to report the

offence cannot be explained away by the fact that the victim was under

custody of the appellant. On failure to call the ten-cell leader, Mr. Kayaga

argued that, since PW2 alleged to have reported first to ten-cell leader,

then such person was a material witness to clarify as to when the victim

reported to him. He went further that, PW2's evidence has not been

corroborated by any other evidence. Even the statement by the victim that

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the appellant was forcing them to move from home and rent their own

room supported the appellant's case. He reiterated his prayer urging the

Court to allow the appeal.

After hearing the submissions of the learned counsel for the parties

and upon careful perusal of the record before us, we wish to restate the

settled position of law that, where there is a concurrent finding of fact by

the lower courts, the second appellate court will rarely interfere unless

there is misapprehension or misdirection of the quality nature of the

evidence occasioning miscarriage of justice. This position has been

considered in countless decisions including; the Director of Public

Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R 149; Shadrack

William v. Republic (Criminal Appeal 292 of 2019) [2022] TZCA 708 (11

November 2022, TANZLII) and Wankuru Mwita v. Republic, Criminal

Appeal No. 219 of 2012 (unreported). In the latter case, the Court

emphasized as follows:

"The law is w ell-settled that on second appeal, the

Court w ill not readily disturb concurrent findings o f
facts by the tria l court and first appellate court
unless it can be shown that they are perverse ;
dem onstrably wrong or clearly unreasonable or are a

li
 result o f a complete m isapprehension o f the
substance, nature and quality o f the evidence;
m isdirection or non-direction on the evidence; a
violation o f some principle o f law o r procedure or
have occasioned a m iscarriage o f justice".

It is also settled law that, although the credibility of a witness as it

relates to demeanour is the exclusive domain of the trial court, it can still be

determined by the appellate court when assessing the coherence and

consistence of the witness. Assessment of the credibility of the witness is

crucial because every witness is entitled to credence unless he has given

improbable or implausible evidence or contradictory evidence.

Equally important is the settled position of law that, in sexual offences

the victim's evidence is considered the most reliable, for obvious reason

that such offences are usually committed in closet.

We appreciate the submission of the learned advocate on the caution

alluded by this Court as was well articulated by Lord Chief Justice Mathew

Hale in the 17th century, that rape is an accusation easily to be made and

hard to be proved and harder to be defended by the party accused. Such

position has been repeated in many decisions of the Court including the

case of Tito Paulo Kuchungura (supra). Therefore, allegations of rape

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 require to be addressed cautiously. Owing to the nature of the offence, the

evidence must be examined carefully. Despite the rule that the victim's

evidence is the best as was held in the case of Seleman Makumba v.

Republic [2006] T.L.R. 379, yet such evidence should not be taken as a

holy version to be believed wholesome rather, credibility of the victim must

be tested and approved. See: Mohamed Said v. Republic, (Criminal

Appeal No. 145 of 2017) [2019] TZCA 252 (23 August 2019, TANZLII).

Having alluded to those basic legal principles, it is an elementary rule

that in rape cases, the prosecution had duty to prove the essential elements

that there was penetration, that is; a male reproductive organ penetrated

into the victim's genital organ, however slight. Also, the prosecution must

establish and prove the age of the victim if is below the age of majority and

that the appellant is the one who penetrated the victim and that proof must

be beyond reasonable doubt.

Upon examination of the record of appeal, there is no dispute as to

the victim's age and penetration. The dispute lies on the culprit. We are in

agreement with Mr. Kayaga that there was unexplained delay to report the

incident of rape. The Court in Bakari Juma (supra) made it clear that

delay to report the incident is fatal. In that case, the victim was a girl of 8

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years old who alleged to have been threatened by the appellant that he

would remove her eyes and leave her blind if she disclosed the incident of

rape. The Court was not convinced with her explanation on a delay of about

a year.

In this appeal, the victim was 17 years old at the time of the alleged

rape and was a form four student, but failed to report the incident of rape

for more than six months counted from June or more than three months

when reckoned from October for a similar reason that she was threatened

death by the appellant. In her testimony she said as follows:

"Since last year June, he used to take m y

underpants and put into h is room. He started raping
me for one night o f October, 2019. He did so four
tim es in different days. He was also peeping a t me
when I was taking bath"

The above piece of evidence raises more questions than answers. We

have been asking ourselves, whether the threats existed from June up to

December, the kind of threats and if they were made recurrently and if she

could remember on which particular occasion on those four alleged

encounters. Likewise, we have been wondering why she could not report

when the appellant started peeping through when she was in the bathroom

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 and sometimes taking her underwear for his own smelling pleasure, as at

that point there seem to be no threats made.

The learned State Attorney tried to raise the possibility that the victim

failed to report earlier because she was threatened and she was looking for

an appropriate time to disclose the ordeal. This argument will easily be

defeated as was argued by Mr. Kayaga that, the victim failed to report the

incident which occurred in June and October 2019 to the street chairman

whose house was undisputedly only third house from the appellant's house.

It would have been expected for a student, the safest place to report would

be the school administration. Even if we would accept the learned State

Attorney's argument that the victim thought PWl's home was the safer

place to report, then she was expected to report soonest.

In our considered view, PW2's evidence when considered together

with that of the defence evidence raises reasonable doubt. It is on record

that the prosecution did not even cross examine the defence witnesses. As

the law stands now, failure to cross examine on an important aspect means

admission. See: Nyerere Nyague v. Republic (Criminal Appeal No. 67 of

(2010) [2012] TZCA 103 (21 May 2012 TANZLII). In the circumstances of

this appeal, we are constrained to conclude that, the defence evidence was

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admitted by the prosecution as true testimony of facts. Part of the

testimony of DW2 is worth quoting it hereunder:

"Her parents separated, we took her from her

grandm other and we stayed with her as our child.
Since then, her m other had not visited her but in last
year, December, her m other got communication and
visited us where she stayed fo r eight days. Suddenly
one day after their m other had left, the children
victim and D io f Hosea le ft... therefore this issue o f
rape is ju st fabricated one. There was no rape to the
victim. The victim has been stubborn since long ago
as she had been dealing with sex business".

Notwithstanding the principle that in sexual offences, the best

evidence comes from the victim, such principle presupposes that the

victim's evidence is credible. See: Abiola Mohamed @ Simba v.

Republic (Criminal Appeal No. 291 of 2017) [2021] TZCA 632 (2 November

2021, TANZLII) and Mohamed Said Rais v. Republic (Criminal Appeal

No. 167 of 2020) [2022] TZCA 479 (20 July 2022). In those cases, we also

discussed in detail the amount of caution which courts should take in

handling cases involving sexual offences and the credibility of the victim.

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 Moreover, we have observed inconsistencies and lack of coherence in

the victim's evidence during trial. While she testified in court that the

incident of rape occurred four times in October, yet she informed the

medical doctor (PW3) that her last sexual intercourse was in November

2019.

Equally important is the failure to call a material witness. The learned

State Attorney's argument was that the ten-cell leader was not a material

witness in view of section 143 of the Evidence Act, while Mr. Kayaga

maintained throughout that the ten-cell leader was a material witness,

whose failure to call affected the prosecution case. It is trite law that any

person who is in a better position to explain some missing links in the case

is a material witness. This is a person to whom the incident was reported to

first, therefore he had information or knowledge of the subject matter

which is material to the outcome of the case. See: Director of Public

Prosecutions v. Sharif s/o Mohamed @ Athumani & Others (Criminal

Appeal 74 of 2016) [2016] TZCA 635 (5 August 2016, TANZLII) and

Ahamad Salum Hassan @ Chinga v. Republic (Criminal Appeal No. 386

of 2021) [2023] TZCA 44 (22 February 2023, TANZLII).

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 Guided by our previous decisions, we find merit in Mr. Kayaga's

argument. The victim once alleged to have reported to a ten-cell leader

about the rape and that such leader took steps to call the appellant and his

wife (DW2). In our view such person was a material witness. Secondly,

PW2's younger sister was not called as a witness who, in our view,

possessed crucial evidence. Failure to call the two persons dented the

prosecution case.

Since the key witness was the victim who had the firsthand

information on what happened to her and whose evidence we have held to

be unreliable, the evidence of the remaining witnesses particularly PW1

remained hearsay. Equally, the medical doctor (PW3) testified as an expert

and gave his opinion from his examination that the victim was not a virgin

and she was used to sexual intercourse. In fact, the testimony of PW3

corroborated the evidence of DW2 that the victim had engaged in sexual

intercourse.

We are alive to the settled law that coherence is among the way for

determining credibility of a witness. In the case of Shaban Daud v. R

Criminal Appeal No. 28 of 2000 (unreported), this Court held:

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 "The credibility o f a witness can also be determ ined
in two ways; one when assessing the coherence o f
the testim ony o f that witness; two, when the
testim ony o f that witness is considered in relation to
the evidence o f other witnesses including that o f the
accused p erso rf.

In this appeal, neither the testimony of the victim nor of PW1 passed

the test in the above case. Since there are reasonable doubts, same should

be resolved in favour of the accused. The rationale was sounded by Lord

Justice Benjamin Franklin of England who wrote:

"It is better one hundred (100) gu ilty persons should

escape than that one innocent person should suffer".

The same principle was repeated by a Jewish Jurist Maimonides

when he wrote "it is better and more satisfactory to acquit a thousand

(1000) gu ilty persons than to pu t a single innocent one to death" The

sacred principle behind those rules is that, protection of the innocent is

more significant for mankind than punishing the guilty.

In the light of the foregoing, we find no reason to consider the

complaint on failure of the trial and first appellate courts to consider the

defence evidence, for obvious reason that if the prosecution failed to prove

the offence of rape, there was no reason to consider the defence case.
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 In view of what we have endeavoured to discuss, we find the appeal

merited and we allow it. The conviction is hereby quashed and the sentence

is set aside. The appellant shall be released from custody forthwith unless

he is held therein for other lawful cause.

DATED at TABORA this 11th day of June, 2024.

L. J. S. MWAMBAMBO
JUSTICE OF APPEAL

P. S. FIKIRINI
JUSTICE OF APPEAL

P. J. NGWEMBE
JUSTICE OF APPEAL

The Judgment delivered this 11th day of June, 2024 in the presence of

Mr. Kelvin Kayaga, learned counsel for the Appellant, and Mr. Nurdini

Mmary, learned State Attorney for the Respondent/Republic, is hereby

certified as a true copy of the original.

J. J. KAMALA
DEPUTY REGISTRAR
COURT OF APPEAL

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