IN THE HIGH COURT OF TANZANIA

(IN THE MWANZA SUB-REGISTRY)

AT MWANZA

CRIMINAL APPEAL NO. 103 OF 2022

(Originating from Nyamagana District Court at Nyamagana in Criminal Case No. 14 of 2022)

ANOLD MWOMBEKI………………………………………………………..APPELLANT

VERSUS

THE DPP…………………………………………………………………….RESPONDENT

JUDGMENT

Date of Last Order: 24/03/2023

Date of Judgment: 22/05/2023

Kamana, J:

The District Court of Nyamagana convicted Anold Mwombeki, the

appellant, of rape contrary to sections 130(1), (2) (e) and 131(1) of the

Penal Code, Cap. 16 [RE.2019]. The particulars are that on 11th

January, 2022 at Mahina Kati Area within Nyamagana District in Mwanza,

the appellant had carnal knowledge of AA (name concealed), a girl of

ten years of age.

The Prosecution alleged that on the material date, the appellant

went to the victim’s house where he asked her about her mother’s

whereabouts. Upon realizing that the victim’s mother was not around,

the appellant told the victim that he wanted to buy her a soda. On their

way to the shop, while the victim was salivating for soda, the appellant

1
diverted their course to the unfinished building. Thereat, the appellant

undressed the victim and inserted his phallus into the victim’s pudenda.

The victim cried but was stopped by the appellant who threatened to kill

her if she would continue to yell. Having quenched his thirst, the

appellant gave the victim Tshs. 200/- and warned her not to tell a soul

regarding the ordeal.

When her aunt came back home, she realized that AA was walking

with difficulties. Upon questioning her, the victim mentioned the

appellant as the one who had raped her. Then the matter was reported

to Nyakato Police Station where a PF3 was issued. The victim was

subjected to examination at Igoma Health Centre. The examination

showed that the victim had been penetrated.

After investigation, the appellant was arraigned in the trial court

where he was convicted of the charged offence and sentenced to thirty

years in prison. Further, he was subjected to corporal punishment and

ordered to compensate the victim.

Aggrieved, the Appellant knocked at the doors of this Court armed

with seven grounds as follows:

1. That the trial Court erred in law and fact in convicting him

based on Exh.P1 which was not admitted procedurally as

2
 PW1 was not the author of such exhibit and it was read

twice.

2. That the trial Court erred in law and fact in convicting him

whilst neither PW1 nor PW2 identified him when he was in

the dock.

3. That the trial Court erred in law and fact in convicting him

while there was no proof as to penetration.

4. That the trial Court erred in law and fact by permitting

witnesses who were not listed during the preliminary hearing

to testify.

5. That the trial Court erred in law and fact in convicting him

based on fabricated and afterthought evidence since there

was a delay in reporting the alleged crime.

6. That the trial Court erred in law and fact in convicting him

without assigning the reasons as to why it did not consider

his evidence.

7. That the prosecution failed to prove the case against him

beyond a reasonable doubt.

For this judgment, I will dwell on the sixth and seventh grounds of

appeal that the case against the appellant was fabricated as there was a

3
delay in reporting the matter to the police and that the Prosecution did

not prove the case beyond a reasonable doubt.

Being a lay person, the appellant did not argue the ground of

appeal other than adopting it. Ms. Sabina Chogogwe, learned State

Attorney submitted that three days is not a long period for the offence

to be reported to the police. She further submitted that the Prosecution

proved the case beyond a reasonable doubt.

As the first appellate Court, I will focus on reevaluating the

evidence of both parties, while mindful that the trial Court had the

opportunity to assess the credibility of the witnesses in terms of their

demeanor, with the view to coming to my conclusion as to the guiltiness

or otherwise of the appellant. In so doing, I will reevaluate the evidence

adduced so far as the coherence of the witness is concerned and the

coherence of the evidence of one witness against other witnesses. I take

that course in recognition of multitudinous decisions which confer upon

this Court as the first appellate Court powers to reevaluate the evidence

adduced in the trial Court. See: Emmanuel Mrefu @Bilinje v.

Republic, Criminal Appeal No. 271 of 2006 and Shabani Daudi v.

Republic, Criminal Appeal No. 28 of 2000 where in the latter case, it

was observed:

4
 ‘The credibility of witness is the monopoly of the trial court

but only in so far as the demeanor is concerned. The

credibility of a witness can also be determined in two

other ways; one, when assessing the coherence of the

testimony of the witness. Two, when the testimony of that

witness is considered in relation with the evidence of other

witness including the accused person.’

From the records, the incident is alleged to have taken place on

11th January, 2022. This is per the evidence of PW1 (the victim’s aunt)

and PW2 (the victim). Gathering from the record, the matter was

reported to the police on 13th January, 2022 where a PF3 (Exhibit P1)

was issued. Between 11th January to 13th January, 2022 there are two

days. This means that the incident was reported to the police on the

third day since the same took place.

No law sets the time within which a crime must be reported to the

police. However, it is an established principle that a crime must be

reported within a reasonable time. Failure to report the crime within a

reasonable time shakes the Prosecution case. In the case of the

Director of Public of Prosecutions v. Simon Mashauri, Criminal

Application No. 394 of 2017, the Court of Appeal had this to state:

5
 ‘Besides that, PW1 did not report to the police station at

the earliest opportune time. In that night, she took shower

which was not proper in the circumstances and slept. In

the next morning she went to church. The question we ask

ourselves, was it a wise idea going to church instead of

taking the necessary steps of reporting the rape incident to

the police station. PW1 said she did not do it during that

night because it was /ate. We think, if that was the case,

reporting to the police in the following day would have

been the first thing to do instead of going to church and

waiting to report to PW7 first. We find her evidence to be

unreliable.’

I have keenly gone through the evidence of PW2 (the victim).

According to such evidence, she reported the incident to her aunt on the

same day she was raped which was 11th January, 2022. She testified to

have mentioned the Appellant as her ravisher after being questioned.

The victim told the trial Court that after telling her aunt as to who

sexually assaulted her, she showed her the Appellant’s house. Then, as

per this witness, they went to the Street Chairman where she narrated

her ordeal. From the Street Chairman, they proceeded to the police

station where they were issued with a PF3. They took the form to the
6
hospital where she was examined and thereafter returned the form to

the police station. This evidence was also reiterated by PW1 and PW3.

It is trite law that the evidence of the victim of sexual offences is

the best evidence. See: Selemani Makumba v. Republic, Criminal

Appeal No. 94 of 1999. However, such evidence ought to be tested as to

its veracity. In the case of Mohamed Said v. Republic, Criminal

Appeal No. 145 of 2017 the Court of Appeal had this to state:

‘We think that it was never intended that the word of the

victim of sexual offence should be taken as a gospel truth

but that her or his testimony should pass the test of

truthfulness.......’

My analysis of the evidence of the victim (PW2) which was

supported by PW1 and PW3 when tested with the records of the trial

Court so far as reporting of the incident convinces me that her evidence

is wanting. From her testimony, one may deduce that the incident was

reported on the same day of its happening, which was 11th January,

2022. However, from the records, the incident was reported to the police

on 13th January, 2022. This is evidenced by the PF3 issued at Nyakato

Police Station. Such discrepancy in the reporting of the crime to the

police leaves me with doubt about the Prosecution case so far as the

veracity of PW2 (the victim) and PW1 is concerned. Given that I hold the
7
view that the witnesses are not credible and their evidence cannot be

used to convict the Appellant.

Further, the evidence of PW1 and PW3 is also wanting in another

aspect. Whilst PW1 testified that after being informed of the incident on

11th January, 2022, she took the victim to the Street Chairman of Mahina

Kati to report the matter, PW3 stated that she took the same victim to

the Street Chairman for Kagomu on 13th January, 2022. Both testified

that they were issued the letter to take to the police station. Reasonably

and logically, I doubt this kind of evidence as it is near to impossible for

the victim to be taken to different local leaders to report the same

incident. With such a discrepancy, I entertain doubt about their

testimonies, and in that case, I take them as not credible witnesses.

Further, in her evidence, PW1 told the trial Court that after

detecting that the victim has been raped, she informed her uncle who

questioned her as to who raped her. That was on 11th January, 2022.

However, in his evidence, PW3 (the uncle) testified that on 13th January,

2022, he was phoned by PW1 that his daughter (PW2) is not walking

properly and her vagina is widened. After receiving such information, he

went back home and questioned the victim who told him that the

Appellant raped her. Again, I find these two witnesses not credible.

There is no coherence so far as these witnesses are concerned. They

8
differ materially on the date when the incident took place. While PW1

stated to have informed PW3 of the incident after realizing that the

victim has been raped on 11th January, 2022, PW3 testified to have been

informed on 13th January, 2022 after PW1 realized that PW2 had been

raped. Deducing from the evidence of PW3, there is a likelihood that the

offence of rape to have been committed on 13th January, 2022 and not

11th January, 2022 as testified by PW1 and PW2. However, I am not

prepared to hold that the incident took place on 13th January, 2022 as

PW4 told the trial Court that she was informed that the incident took

place three days ago.

I understand that the Prosecution through D/CPL Bahati (PW4)

tendered a cautioned statement which was admitted. During the trial,

the cautioned objection was neither objected as per section 27 of the

Tanzania Evidence Act, Cap. 6 [RE.2019] nor under the provisions of the

Criminal Procedure Act, Cap. 20 [RE.2019]. The Appellant tried to object

on the ground that the statement was not stamped. The objection was

overruled by the trial Court. In his defence, the Appellant contended that

he was lured by PW4 to confess the offence so that he can be released.

I am aware that the accused person may be convicted on the

retracted or repudiated confession if the Court is satisfied that the

Cautioned Statement contains nothing but the truth. However, before

9
convicting an accused on the uncorroborated retracted or repudiated

confession, the Court must warn itself of the danger of convicting an

accused without corroborative evidence. In the celebrated case of

Tuwamoi v. Uganda [1967] EA 84 it was stated as follows:

‘In assessing a confession the main consideration at

this stage will be, is it true? And if the confession is the

only evidence against an accused then the court must

decide whether the accused has correctly related what

happened and whether the statement establishes his guilt

with the degree of certainty required in a criminal case.

This applies to all confessions whether they have

been retracted or repudiated or admitted, but when

an accused person denies or retracts his statements

at the trial then this is a part of the circumstances

of the case which the court must consider in

deciding whether the confession is true.’ (Emphasis

added).

In the circumstances of this case where the only eye witness is the

victim whose evidence is tainted with doubts as to the truth, the

conviction based on the cautioned statement must pass a critical

analysis as to the veracity of what is contained in the statement. I

10
hasten to state that the confession is not true. According to the evidence

adduced by PW3, the Appellant was arrested on 14th January, 2022. The

Appellant testified that his arrest was effected on 13th January, 2022. In

his defence, the accused testified that he was kept in police custody for

more than a week before making the statement. The cautioned

statement was recorded on 14th January, 2022.

In the alleged cautioned statement, the accused stated that he

committed the crime two weeks before. This means that the alleged

crime was committed on 1st January, 2022. When tested with the

testimonies of the victim and PW1, PW2 and PW4, I conclude that the

cautioned statement is economical of truth.

Since the evidence of the victim is wanting in terms of truthfulness

when tested with the records so far as the reporting of the incident to

the police is concerned and considering that the evidence of PW2 and

PW3 who did not witness the incident was found incoherent, what

remains is the evidence of PW4 and PW5 which in my opinion had

nothing linking the accused with the offence of rape. Firstly, as I have

already found, the cautioned statement tendered by PW4 is economical

of truths to the extent stated hereinabove, Secondly, the PF3 does not

link the accused with the offence.

11
 Those doubts should benefit the Appellant. In the circumstances, I

allow the appeal. The appellant's conviction is hereby quashed and the

sentence set aside. It is hereby ordered that the appellant be released

from custody forthwith unless otherwise lawfully held.

Order accordingly.

Right to Appeal Explained.

DATED at MWANZA this 29th day of May, 2023.

KS KAMANA

JUDGE

12