Appeals court acquits father convicted of raping own daughter

Arusha. The Court of Appeal has acquitted a father (whose name is being withheld for ethical and legal reasons to protect the victim’s identity), who had been sentenced to 30 years in prison for allegedly raping his daughter.

The resident of Lengurumo village in Mwanga District, Kilimanjaro Region, was accused of raping his 16-year-old daughter on September 1, 2017.

This appeal arose from a decision by the High Court issued on April 27, 2021, in Criminal Appeal No. 30 of 2020.

The appellate decision was given on August 23 by three Justices sitting in Moshi: Chief Justice Prof Ibrahim Juma, Dr Mary Levira and Zephrine Galeba.

After reviewing the appeal arguments, the justices found that the charge was not proven beyond a reasonable doubt and removed one piece of evidence, which was Medical Form No. 3 (PF3), from the appeal records after determining it had been improperly admitted.

The case origin

The father was brought before the Mwanga District Court, facing a single charge of rape allegedly committed on September 1, 2017.

The court sentenced him to 30 years in prison, after which he appealed to the Moshi registry of the High Court of Tanzania, but he was unsuccessful.

He then decided to appeal to the highest court in the country.

In the court proceedings, it was alleged that the victim and her two siblings were living with their father because their mother was not residing with them.

On the day of the incident, it was alleged that the victim was called by her father into his room.

Upon entering, she found him sitting on the bed and was ordered to undress. When she refused, he threatened to kill her with a knife.

The victim claimed that due to the threats, she was forced to undress, and her father raped her, continuing to do so at various times over the course of a week. She said she went to report the incident to her mother, who was living in Kisangara.

Due to the assault, she was unable to attend school, and when she informed her teacher about the issue, she was instructed to stay in the hostel while the matter was investigated.

In his defence, the father claimed that on an unspecified Friday, the victim had disappeared from home.

When he enquired from her siblings, they informed him that she had gone to her grandfather’s place, and she refused to return when asked.

He further claimed that after his daughter left, he received a call from her grandfather asking him to pay her school fees. He alleged that he refused to pay the fees, and two weeks later, he was contacted by the Mwanga Police Station and charged with the rape of his daughter.

In his defence, he was also supported by his two children, who testified that they slept in the same room with their sister in separate beds.

They frequently heard her complain about doing a lot of work and threatening to leave for her grandfather’s place.

The Appeal

In his appeal, the appellant raised several arguments, including discrepancies between the charge and the evidence.

The charge indicated that the offence occurred on September 1, 2017, while the victim’s testimony suggested that the abuse happened over the course of a week.

He argued that the evidence was not proven beyond a reasonable doubt.

He contended that the prosecution’s evidence was inconsistent and full of discrepancies, alleging that the case was fabricated because the victim wanted to live with her mother, and the prosecution failed to call witnesses.

Additionally, he claimed that his defence evidence was not given proper consideration despite raising sufficient doubts.

During the appeal hearing, the appellant represented himself and acknowledged his reasons for appealing, while the prosecution was represented by three lawyers led by Rose Sulle.

Lawyer Sulle admitted the grounds for the appeal and directed the court to page 19 of the appeal records, which detailed that a witness, a doctor, had identified PF3, which was filled out after examining the victim and read before being admitted into court.

The lawyer argued that this constituted a procedural violation and requested that the court remove this piece of evidence from the records.

Moreover, he disputed the claim that there was a discrepancy between the charge sheet and the evidence, asserting that it was correct for the victim to state that the rape began on that date, as the father continued to perpetrate the abuse over the week.

Thus, there was no discrepancy.

Appeal Court’s decision

Judge Levira explained that the first appellate court had overlooked the procedural violations, agreeing with Lawyer Sulle that the evidence in question should be excluded, thus accepting this ground for the appeal and removing the evidence from the court records.

Judge Levira mentioned that regarding the alleged date of the incident, they needed to consider one more question: why did the child not report being repeatedly raped during police questioning?

“We say this because, according to the charge, the victim was raped on September 1, 2017, but in the case, the witness changed the account and stated that the rape occurred over the following week,” she said.

The judge stated that they did not agree with lawyer Sulle’s argument that merely mentioning the date in the testimony was sufficient to prove the charge and that Section 234 of the Criminal Procedure Act requires that if there is a discrepancy in the date, the charge should be amended under that section.

Judge Levira noted that although the case could have ended there due to lack of evidence, to address further doubts in the prosecution’s case, they would also discuss the fourth ground of appeal, which was the father’s complaint that the case was fabricated against him after he refused to pay school fees.

“We have thoroughly reviewed the appeal records to ascertain whether there was a possibility that the case was fabricated against the appellant.

We cannot agree with Lawyer Sulle that there was no animosity between the appellant and the grandfather, who was not called to testify,” the judge said.

She emphasised that the prosecution must prove the case against the appellant beyond a reasonable doubt.

On page 95 of the appeal records, the first appellate court had noted that the appellant claimed the case was a fabrication due to a family dispute with the child’s mother, but there was no conflict between him and his child.

“Given the above excerpts from the decision of the first appellate court, it is clear that the judge did not consider the evidence in its entirety.

As the decision on these two grounds of appeal affects the whole appeal, we allow the appeal and overturn the appellant’s conviction,” she concluded.