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John Mohamed vs Republic (Criminal Appeal No 144 of 2021) 2024 TZCA 560 (15 July 2024)
John Mohamed vs Republic (Criminal Appeal No 144 of 2021) 2024 TZCA 560 (15 July 2024)
AT MBEYA
JOHN MOHAMED.............................................................................APPELLANT
VERSUS
THE REPUBLIC...................................................................... RESPONDENT
(Appeal from the decision of the High Court of Tanzania at Mbeya)
(Utamwa, J.^
SEHEL, J.A.:
him out and took him to her residence situated at Sisimba area within
the City and Region of Mbeya. Since then, the appellant started residing
quarters. In the main house, PW1 was living with her husband and her
granddaughter, MH (the name is withheld to protect her privacy).
and other residents were living in the servant's quarters. The appellant
1st January, 2017, PW1 travelled to Dar es Salaam for medical treatment
January, 2017.
While she was away, PW2 narrated that, on 13th January, 2017, at
around 08:00 hrs., her grandfather left for work while she remained at
home with the appellant. They then went to a farm which was just
nearby the house to plant potatoes. They were three of them, the
appellant asked PW2 to cook lunch for them which she did. When the
food was ready, the appellant's friend excused himself that he was going
to clean himself. So, he left and went home leaving behind the appellant
and PW2. The two had their lunch together. After they finished eating,
the victim started to clear the dining table by removing the used plates.
She smoothly did the first round but on her second round, the appellant
removed his trouser and raped her thrice. According to PW2, on that
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day, she wore a skirt and a blouse. She said she felt pain on her arms
and blood oozed from her private parts. She could not urinate properly
on that day. After the appellant had satisfied his desire, he ordered her
to clean herself and wash her clothes which she did but she informed
the appellant that she would tell her grandmother. The appellant warned
her not to or else he would kill her. Thereafter, he left but returned on
the next day. At the time the incident was taking place, the grandfather
was at work. Upon his return, the appellant was not at home. Further,
according to PW1, the other family members who were in the servant's
PW1 returned home on 15th January, 2017 and found the victim
was not cheerful as she used to be. She probed her but kept quiet. She
decided to conduct a prayer with her and asked her again, there and
then, PW2 started to cry and then narrated the whole ordeal she had
gone through while she was away. On that same night, PW1 reported
the matter to Mbeya Central Police Station where they were told to
come back in the following morning. The morning of 16th January, 2017,
they went back to the police station and they were issued with a Police
(PW4) who was assigned the file for investigation, interrogated and
recorded the victim's story. The victim told her that, the appellant
dragged her from the sitting room to her room, locked the door and
raped her. That, she tried to raise an alarm but the appellant tied her
mouth with a piece of cloth she was wearing on that day. PW4 also
visited the scene of crime and observed that the neighbouring houses
were far away from each other, thus, it was not possible to hear
anything.
From the police, they went straight to Mbeya Referral Hospital for
medical examination. Dr. Oliver Masoi (PW3) examined the victim and
his opinion that, given the lapse of time, it was not easy to detect
unauthentic document.
On that same date, that is, on 16th January, 2017, PW1 telephoned
the appellant and requested him to meet her at Mbeya Referral Hospital.
Upon his arrival, he was arrested and taken to the police station.
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Court of Mbeya at Mbeya (the trial court) with an offence of rape
contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code.
In his defence, the appellant alleged that the whole incident was
the making of PW1 as she was pleading him to return home but he told
her that he was looking for money to refund to the person whose
residence, and that, on the incident day, he went to work on the farm
with PW2 and his friend but denied to have committed the offence. He
also admitted that he was arrested after he went to meet with PW1 at
the hospital.
After a full trial, the trial court observed that the evidence of rape
credence on PW l's evidence and ruled out the defence evidence. It thus
found the appellant guilty as charged, convicted him and sentenced him
Mbeya (the first appellate court). Having heard the appeal, it concurred
with the trial court's finding that PW2 was a credible witness whose
evidence can be relied upon to convict the appellant without there being
5
any corroboration. Accordingly, his appeal was dismissed. Still
written arguments. Again, on 9th July, 2024, when the appeal was called
them into the following grounds: one, the trial court did not fully
Act (the CPA) as the memorandum of undisputed facts was not read
over and explained to the accused person, and that, the list of witnesses
and exhibits intended to be produced in the trial was not recorded, two,
the trial court recorded the evidence of the witnesses without complying
with section 210 (3) of the CPA, three, the prosecution failed to prove
its case beyond reasonable doubt, four, the charge sheet was defective,
assisted by Mr. Davice Msanga, learned State Attorney, appeared for the
respondent Republic.
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When the appellant was invited to argue his appeal, he simply
adopted the grounds of appeal and the written arguments and urged the
the trial court failed to comply with section 192 (3) of the CPA as the
him. He also admitted that the trial court did not list the number of
pointed out that, in terms of section 192 (3) of the CPA, the trial court is
mandatorily required to read over and explain to the accused person the
two omissions did not prejudice the appellant nor rendered the entire
No. 306 of 2013) [2022] TZCA 406 (11 July, 2020; TANZLII).
7
Admittedly, section 192 (3) of the CPA mandatorily requires, at
the conclusion of a preliminary hearing, the trial court to; first, prepare
lastly, require the accused person and his advocate if any and the
T.L.R. 121, we stated in clear terms that this provision of the law
but its omission does not affect the trial court proceedings. It only
[2022] TZCA 406 (11 July, 2020; TANZLII). After nullifying the
thought was deemed proven, in terms of section 192 (4) of the CPA, will
need to be proven in the trial of the case - see the case of Brayson s/o
appellant, the prosecution and the trial magistrate were appended on it.
the preliminary hearing but it did not affect the entire proceedings of the
trial court which was duly conducted. Besides, matters which were
appellant, the victim and the appellant were residing in the same
compound and, on the incident date, PW1 travelled to Dar es Salaam for
medical treatment. But these facts were also admitted by the appellant
in his defence, as such, we agree with Mr. Msanga that the appellant
We have also observed that the record of appeal does not reflect
produce in the trial. That apart, it is settled law that, in the subordinate
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courts, there is no law that requires either the names of witnesses to be
though it has been the practice by the trial magistrates. We stated this
(supra), we considered the import of section 192 (7) of the CPA read
Rules, Government Notice Number 192 of 1998 (the G.N. No. 192 of
1998) and stated that, in terms of section 192 (7) of the CPA and rule 7
of G.N. No. 192 of 1998, the trial subordinate court has unfettered
witness after the preliminary hearing is concluded, and that, it does not
preclude the prosecution a right to call a witness who was not named at
10
Next is the complaint that the trial court recorded the evidence of
the witness who is expected to complain that his/her evidence was not
properly recorded. Since there is no such complaint, Mr. Msanga did not
The above provision of the law requires the trial court to inform
every witness who testified before it of his right to have his evidence
read over to him after it is recorded and then to write down any
comments made by such witness after the same had been read over to
(15 April 2019; TANZLII). Given the clear wording of the provision of the
li
law, we agree with Mr. Msanga that it is the witness who has a right to
and observed that, after recording the testimony of each witness, the
testimony. ROFC is the short form of "Read Over and Found Correct".
This means that, after the trial court had finished recording the
witness was satisfied that his testimony was properly recorded; there
was no comment on the manner it was recorded. As such, the trial court
complied with the requirement of section 210 (3) of the CPA. Besides, at
the trial court, the appellant did no raise any complaint on the way his
testimony was recorded. Given that, after the trial court had finished
was read over to him and it was found to be correct. Therefore, we are
wherein the appellant contended that the prosecution did not prove its
case beyond reasonable doubt. Mr. Msanga argued that the prosecution
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case was proven to the required standard through the evidence of the
victim as she clearly testified that the appellant grabbed her when she
was clearing the dining table and took her to the girl's bedroom.
Therein, he undressed the victim, removed his trouser and raped her
thrice. Mr. Msanga submitted that the appellant warned the victim not to
PW1, her grandmother, who testified that, upon her return, she found
PW2 was gloomy; after interrogating her, she told her that the appellant
raped her. That, the evidence of PW1 and PW2 was corroborated by
PW3, the doctor who examined the victim. He argued that, although
PW3 testified that there was normal vaginal opening, later on during
questioning by the trial court, he clarified that the victim was not virgin
victim was proven by the victim herself as she testified that she was
born on 6th November, 2002, thus, in 2017 when the offence was
Mr. Msanga contended that there was no delay in reporting the incident
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because the victim was waiting for her grandmother to return; she was
findings of the two courts below which were both satisfied that PW2 was
credible witness, and that, the best evidence in offences of this nature
[2024] TZCA 442 (11 June 2024; TANZLII) that cited the case of
credibility of the victim, PW1. Of course, the trial court was better placed
see her when she was testifying. Nonetheless, the second appellate
findings of the two lower courts. We stated this position in the case of
(unreported) that:
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be determ ined in two ways: One, when
assessing the coherence o f the testim ony o f that
witness. Twor when the testim ony o f that
witness is considered in relation with the
evidence o f other witnesses including that o f the
accused person. In th ese tw o o th e r o cca sio n s
th e c re d ib ility of a w itn e ss can be
d e te rm in e d even b y a se co n d a p p e lla te
c o u rt w hen e x a m in in g th e fin d in g s o f th e
fir s t a p p e lla te cou rt. "[Emphasis added].
15
The ensuing question is whether the victim gave a credible
account for this Court to sustain the concurrent findings of the two
PW2 concerning the attire she had put on the day the offence was
committed materially differs with the evidence of PW4 who recorded her
statement few days after the offence was reported. At page 11 of the
This means that the evidence of the victim does not tally well with
of the victim. It comes from the doctor, PW3, who examined the victim
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on 16th January, 2017. After examining the victim, the doctor's observed
the following:
anything unusual to a person who had sex for the first time, and the fact
that, she was raped thrice to the extent that blood oozed from her
We are alive to the fact that the doctor explained that it was due
to the lapse of time of three days, but, given the circumstances of the
pain and wounds she sustained, we find it highly improbable for the
bruises and tears to heal within such shortest period of time, that is,
17
Our doubts are further fortified with the innocent conduct of the
appellant. For instance, the victim said that, after she was raped on 13th
14th January, 2017. This kind of behaviour is inconsistent with the guilt
mind. Again, PW4 explained how the appellant was arrested that it was
after PW1 had telephoned him and requested him to meet her at the
that he was arrested after he went to meet with PW1 at the hospital
More so, when we looked at the defence case which the appellant
also complained that the two lower courts did not consider it, we note
that his defence had shaken the prosecution case. This is because the
evidence on record shows that when PW1 was in Dar es Salaam, she
used to call the appellant and asked him whether he was at home or
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[the appellant] went home. I treated you [the
appellant] as part o f my family. There are days
you [the appellant] slept outside the house and I
asked you."
was pleading with him not to leave the house but he told her that he
cannot return home as he was trying to look for money to refund the
as PW1, PW3 and DW1, there is a lot to be desired from the victim's
would have not taken the victim's evidence as a gospel truth. At this
Said v. The Republic (Criminal Appeal No. 145 of 2017) [2019] TZCA
19
uncorroborated evidence o f the victim. However,
w e w ish to em p h asize th e n e e d to s u b je c t
th e e v id e n ce o f su ch v ic tim s to s c ru tin y in
o rd e r fo r c o u rts to b e s a tis fie d th a t w h a t
th e y s ta te co n ta in n o th in g b u t th e tru th ."
[Emphasis added].
The appellant argued that the person who appeared to adduce evidence
as a victim of rape was not the one mentioned in the charge sheet. Mr.
Msanga admitted that the names of PW2 are the not the ones
mentioned in the charge sheet but argued that the defect is curable
under section 388 (1) of the CPA, because the appellant heard the
agree with the contention of the learned State Attorney, but looking at
the evidence as a whole and the reason that led the first appellate court
to expunge exhibit P3, we find that the prosecution failed to prove the
the reasoning of the first appellate court. At page 71 of the record of the
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u n a u th e n tic as e vid e n ce . T his is so
b ecau se, in th e fir s t p la ce , th e co m p la in a n t
in tro d u c e d h e rs e lf b e fo re th e tr ia l c o u rt a s
'M S'. H ow ever, th e P F 3 sh o w s th a t, th e g ir l
e x a m in e d b y P W 3 (D r. O liv e r) w as one
'M H '. The nam e o f 'M H ' is th e one w h ich
a ls o a p p e a rs in th e ch a rg e s h e e t a s th e
v ic tim 's nam e . Again, the second name o f 'H 'in
the PF3 is obviously altered by a pen after a
correction o f the previous name by white
correction-fluid. The PF3 also has another
alteration in relation to the date o f examination
o f the com plainant I t is th us, su sp e cte d th a t
th e a lte ra tio n w ere e ffe c te d by an
u n m a n d a te d p e rso n so a s to s w e e t th e
co n te n ts o f th e ch a rg e sh e e t a n d th e fa c ts
o f th e c a se ."
From the above, it is crystal clear that the first appellate court
observed that the name of the person who appeared before the trial
court to testify as the complainant differs with the one mentioned not
only in the PF3 but also in the charge sheet. We are perturbed by the
way the first appellate court went on to expunge the PF3 for being
that the prosecution failed to prove its case beyond reasonable doubt.
That said and done, we find merit on grounds three, four and five.
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In the end, we find merit in the appellant's appeal and we allow it.
thirty (30) years imposed upon the appellant. We further make an order
B. M. A. SEHEL
JUSTICE OF APPEAL
I. J. MAIGE
JUSTICE OF APPEAL
M. K. ISMAIL
JUSTICE OF APPEAL