Appeal Court quashes gang rape case on Mbeya resident

DAR ES SALAAM: THE Court of Appeal has acquitted a resident of Mbeya, Evaristo Silvester, who was jailed for life for gang rape.

Justices Barke Sehel, Zephrine Galeba and Amour Khamis ruled in favour of Silvester, the appellant, after allowing his appeal he lodged to fault findings of District Court, which was upheld by the High Court.

The Justices quashed the conviction of gang rape and set aside the life imprisonment sentence after observing that the prosecution had not proved the criminal case beyond reasonable doubt.

“We find the appeal meritorious and accordingly allow it, quash the conviction and set aside the sentence meted out against the appellant.

Finally, we order the immediate release of the appellant from custody unless he is continually held for other lawful cause,” they declared in a judgment delivered recently.

During hearing of the appeal, the appellant had, among others, questioned the victim’s conduct, particularly, her audacity to sleep over in the boy’s room for two consecutive days without going home.

He also questioned the fearlessness of the victim lying naked in a room with nine boys who were themselves dressed up and drinking alcohol; failure to raise an alarm when the boys slept with her and failure to escape from the boys’ company.

The appellant was also shocked by the way the victim was ready to go off with two boys who were not her relatives without giving a reason, after spending the night at a place of a boy and that she failed to provide any insight into her actions while testifying.

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On the other hand, the prosecution submitted that the victim led credible evidence and was entitled to credence. She also contended that, the victim was able to prove her age and a fact that, she was sexually assaulted by the appellant and other boys.

In the judgment having examined the record and evidence, the justices were of the firm view that, credibility of the victim who alleged rape after engaging in the sexual activity to which she freely volunteered and almost facilitated was critically at issue.

They observed from the record that, the victim had the alleged sex after running away from her family for two consecutive days and during the absence, she sent a threatening text message to her mother that, a female child is better than a male child.

The justices also observed that, the alleged rape was not revealed by the victim but by the police investigation who found the victim in the hiding where she enjoyed the company of immoral boys who were drinking alcohol.

“This is not the conduct of a reliable person who the court can grade as credible,” they said adding that the victim’s initial consent to be in the boys’ room and engage in sexual activity is not a point of contention.

“If she consented to have sex with (a boy), who was a 30 minutes’ visitor in the room, how did she conduct herself with the other boys for two consecutive days? This leaves a lot to be desired,” the justices said.

They also weighed up the victim’s account of the sequence of events on the day she departed and had testified that, although she shared a room with one of the boys for the whole night and they did not engage in any romantic or sexual activities.

Such assertion, questionable as it is, the justices said, could not be verified because one of the boys who slept with the victim the whole night was not summoned to testify at the trial.

However, they further noted, the acts of running away from the family and sending a threatening text message to her own mother, suggests a clear unreliability and manipulative behaviour of the victim.

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“Whereas the evidence on record did not expressly show the victim was mentally abnormal, her text message could be a manifestation of anger, fear or a desire to manipulate the situation. In the circumstances, as [the victim] was not a credible witness, we are satisfied that the prosecution did not prove its case beyond reasonable doubt,” the justices ruled.

The particulars of the offence were that on 8th and 9th days of July, 2019 at Ilomba area, within the City and Region of Mbeya, while with one Steven Glazard Kamasho, alias Mnene, the appellant did have carnal knowledge of a Form Two student girl aged 14 years.