alberto mtega vs republic 2023 tzhc 21571 29 september 2023

UNITED REPUBLIC OF TANZANIA

IN THE HIGH COURT OF THE UNITED REPUBLIC OFTANZANIA IRlNGA REGISTRY

ATIRINGA DC CRIMINAL APPEAL NO. 67 OF 2023 (Originating from Criminal Case No. 16 of 2019 in the Ludewa District Court) ALBERTO MTEGA............... ......APPELLANT

VERSUS THE REPUBLIC...................... RESPONDENT

JUDGMENT Date of the Last Order: 18.09.2023 Date of the Judgment: 29.09.2023 A.E. Mwipopo, J. Alberto Mtega, the appellant, was charged and convicted by the Ludewa District Court for the offence of rape contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code, Cap. 16 R.E 2019. The particulars of the offence in the charge sheet reveal that on 215t March 2019 at Lupanga Village within Ludewa District in Njombe Region, the appellant unlawfully had carnal knowledge of one S.M., a girl aged nine (9) years old. After a full trial, the appellant was found guilty, convicted and sentenced to life imprisonment. The decision of the trial District Court did not satisfy the i appellant, and he filed the present appeal. The petition of appeal filed by the appellant contains four (4) grounds of appeal as follows:- 1. That, the trial Resident Magistrate erred in taw and fact to convict and sentence the appellant based on PW1 and PW2 evidence without considering that there was no independent witness to testify before the Court to corroborate the prosecution evidence. 2, That, the trial Resident Magistrate erred in law and fact to convict and sentence the appellant based on his sanity at the hearing stage, which was improper, without ordering the appellant to go to the hospital for a mental check up first to prove his sanity.

3. That, the trial Resident Magistrate erred in law and fact to convict and sentence the appellant based on the evidence of prosecution side witnesses without considering that the procedures of law must be followed from the hearing stage to the delivery of the judgment in order to make fairjudgment to the parties.

4. That, the prosecution side failed to prove this case against the appellant beyond reasonable doubt. At the hearing, the appellant appeared in person, and Mr. Majid Matitu, State Attorney, represented the respondent. The appeal hearing proceeded by way of oral submissions. Being a layperson, the appellant had nothing to say in supporting his appeal. He prayed for his grounds of appeal found in the petition of appeal to be considered by this Court and his appeal be allowed. 2 In his reply, Mr. Majid Matitu opposed the appeal. It was his submission on the 1st ground of appeal that the prosecution brought four witnesses to prove the rape offence against the appellant. PW1 and PW2 were relatives. PW2 is the victim who said she was raped by the appellant (her stepfather). PW1 is the victim's mother who saw the appellant in the act of raping the victim in their room. These PW1 and PW2 were eyewitnesses. For the nature of the case, PW1 and PW2 were material witnesses as per section 62(1) (a) of the Evidence Act, Cap. 06 R.E.

2022. The prosecution also brought Medical Doctor who examined the victim (PW4), and his evidence corroborated PW2's evidence that she was raped. PW4 found in the victim's vagina bruises, sperms, and she had no hymen, proving that victim was penetrated. Section 143 of the Evidence Act, Cap. 6 R.E. 2022, provides that no specific number of witnesses is required to prove the case. The appellant was charged with sexual offences, which by nature are committed in secrecy. It was not possible to get other witnesses apart from the paraded witnesses. As to the second ground of appeal, the respondent contended that there is nowhere in the proceedings where it shows that the appellant had a mental issue. The appellant did not raise the defence of insanity during 3 trial as provided by section 219 of the Criminal Procedure, Act Cap. 20 R.E.

2022. The trial court proceeded with the case as the appellant was sane. Regarding the third ground of appeal, the counsel for the respondent said the trial court followed all procedures for the hearing. There is nothing wrong with the procedure of the trial. As to the last ground of appeal, it was the respondent’s submission the accused person was charged for knowing carnally a girl under the age of 18 years, PW2 evidence proved that the appellant penetrated her after returning from school, as seen on page 11 of the typed proceedings. PW1 also saw the appellant having carnal knowledge of the victim inside their room. PW2's evidence is material, proving that the appellant penetrated her as per Section 127 (6) of the Evidence Act. PW4 evidence supported PW2's evidence that in his medical examination, he found bruises and sperm in PW2's vagina. The victim (PW2) also had no hymen. PW4 tendered PF3, which was admitted as exhibit Pl. Qn the victim’s age, the counsel for the respondent said that PW1 and PW2 said nothing about the victim's age. Medical report exhibit Pl shows the age of the victim is nine years. As this is the first appellate Court, the Court should consider (exhibit Pl) if it is sufficient to prove the victim's age. PF3 proved the victim's age. The victim said in her evidence that she is a 4 standard II student. The victim being a standard II student is proof that

she was aged below 18 years as she can't be 18 years and above and be a student of standard II in Primary School. In a rejoinder, the appellant insisted that his appeal be considered, and the same be allowed. Having heard the parties' submissions and passed through the available record, the Court is called upon to determine whether the appeal has merits. Starting with the first ground of appeal, the appellant complains that the trial court erred in convicting and sentencing him based on the evidence of PW1 and PW2, who are relatives, without having independent witnesses to corroborate their testimony. In contention, the respondent said the prosecution brought four (4) witnesses. PW1 and PW2 were relatives, and PW3 and PW4 were not relatives to PW1 and PW2. PW1 and PW2 were eyewitnesses and material witnesses for the nature of the case. PW4 was an independent witness. He was a Medical Doctor who examined the victim. His evidence corroborated PW2's evidence that she was penetrated as he found bruises and sperms in her vagina and observed that the victim had no hymen. 5 Looking at the trial court's proceedings, it reveal that the prosecution paraded four witnesses to prove the case against the appellant. PW1 and PW2 were relatives. PW1 is PW2's mother, and PW2 is the victim of the rape offence. PW3 and PW4 were independent witnesses. As it was stated by the counsel for the

respondent, PW1 and PW2 were eyewitnesses. Their evidence was material to the case, hence they could not be dropped by the prosecution. PW3 was the Village Executive Officer to whom PW1 reported the incident, and PW4 was a Medical Doctor who examined the victim and found the victim was penetrated. Hence, the appellant's claims that all prosecution witnesses were relatives and no independent witness was called to testify is incorrect. There is nothing in the record to make this Court not to believe the evidence of prosecution's witnesses. The law is settled that the Court has to consider the evidence of witnesses unless there is sufficient reason to discredit it. See the case of Goodluck Kyando vs. Republic [2003] TLR 213. Thus, the first ground of appeal has no merits. Regarding the 2nd ground of appeal, the appellant complained that the trial court erred in convicting him without ordering him to be sent to a mental hospital for medical examination. As a general rule provided under section 12 of the Penal Code, Cap. 16 R.E. 2022, every person is presumed to be of sound mind and to have been of sound mind at the time he 6 committed the offence until the contrary is proved. Under section 13 of the Penal Code, a person shall not be criminally responsible for an act or omission if, at the time of committing the offence, he was insane. In the case of Majuto Samsoni vs. Republic,

Criminal Appeal No, 61 of 2002 Court of Appeal at Mwanza (unreported), it was held on pages 10-11 of the judgment that:- " The legal position regarding insanity is also provided under section 12 of The Penal Code. That is, a person is presumed to be of sound mind and to have been of sound mind at any time which comes in question until the contrary is proved. On the facts presented in this case, we are unable to find that the contrary has been proved. In regard to the insanity, it is settled that the burden ofproving is on the accused on a balance of probabilities and not merely to raise a reasonable doubt as to the sanity of the accused. This principle was reiterated by the Court of Appeal for East Africa in Nyinge s/o Suwatu k Republic (1765) EA 974 and Mbelukie v. R (1971) EA 479. This Court also underscored this principle in Agnes Liundi v. Republic (1980) TLR 46." Interpretation of the Court of Appeal decision in the above cited case is that, on the issue of insanity, it is the burden of the accused person to prove on the balance of probabilities that he was insane and not merely to raise a reasonable doubt on his sanity. 7 Insanity is the defence provided under section 219 (1) of the Criminal Procedure Act, Cap. 20 R.E.

2022. The section provides as fol lows:- "219.-(1) Where any actor omission is charged against any person as an offence and it is intended at the trial of that person to raise the defence of insanity, that defence shall be raised at the time when the person is called upon to plead." From the above cited provision, any person charged with an offence intending to raise the defence of insanity shall raise the defence when the person is called upon to plead. The Criminal Procedure Act further provides in section 220 (1.) for the discretion of the trial Court at any stage during the trial to send to a mental institution for mental examination an accused person appears to be insane so as not to be responsible for his action at the time of committing the offence. The section reads as follows:- "220. -(1) Where any act or omission is charged against any person as an offence, and it appears to the Court during the trial of such person for that offence that such person may have been insane so as not to be responsible for his action at the time when the act was done or omission made, a court may, notwithstanding that no evidence has been adduced or given of such insanity, adjourn the proceedings and order the accused person to be detained in a mental hospital for medical examination" 8 The above cited provision states that the trial Court, at any stage of the trial, may send to a mental

hospital for mental examination the accused person who appears not to be sane to the extent that the person could not be responsible for committing the offence. I have perused the trial court proceedings, and I'm satisfied the issue of insanity did not feature at all. The appellant was supposed to raise the issue of insanity when his plea was taken. Also, there is no indication during the trial that the appellant was not sane when he committed the offence so as not to be responsible for the offence. For that reason, the trial Court was justified in not ordering the appellant to be sent to Mental Hospital for mental examination. The appellant's complaint on the 3rd ground of appeal is that the trial magistrate erred in convicting him without considering that the trial Court did not follow procedures in hearing the case. The appellant did not state the procedure which was not followed or any irregularity during the trial. In contention, the respondent said that the trial Court followed all procedures during the trial. Upon perusal of the record, I failed to find any procedural irregularity in the proceedings of the trial Court. The charge sheet was read to the appellant, who pleaded thereto. The preliminary hearing was conducted, 9 and the appellant admitted only to his personal particulars. The trial commenced; and prosecution witnesses were called to testify on oath save for PW2, a child of fender age. PW2 testified after promising to tell the truth and not lies, as per section 127 (2.) of the Evidence Act, Cap. 6 R.E.

2022. The trial Court found the appellant with a case to answer, and he defended himself on oath. The trial Court delivered its judgment where it convicted the appellant for the offence charged. The appellant was given a chance to mitigate before sentence, and the trial Court sentenced the appellant. The third ground of appeal is devoid of merits. Turning to the 4th ground of appeal, the appellant's complaint is the case against him was not proved beyond reasonable doubt. The evidence in the record shows that the appellant was charged with statutory rape under sections 130 (1), (2) (e) and 131 (1) of the Penal Code, Cap. 16 R.E.

2022. The particulars of the offence show that the appellant had carnal knowledge of a girl under 18 years. In statutory rape, the prosecution has to prove the presence of penetration and the victim's age to be below 18 years. The evidence of PW2 proved that it was the appellant who penetrated her. The victim (PW2) testified that after returning from the school, the appellant undressed her, put her legs apart, and inserted his penis into her vagina. io The evidence of PW1, PW3, PW4 and PF3 corroborated the evidence of PW2. PW1 testified that she saw the appellant sleeping with the victim in their room naked. When she asked him about the issue, the appellant beat her and locked her inside. PW3 testified that she interrogated the victim, who told her that the appellant raped her on five occasions. PW4, a Medical Doctor, testified that he examined the victim and found in the victim's vagina bruises, reddish and sperm. The evidence corroborates the evidence of the victim that she was penetrated. The evidence shows that the victim knew the appellant very well as he was his stepfather, and they lived together. In a sexual offence, the best evidence comes from the victim. See the case of Selemani Makumba vs. Republic (supra). The evidence is sufficient to prove without doubt that the appellant penetrated the victim. On the proof of age of the victim to be below eighteen years,

the counsel for the respondent said that no witness testified about the victim’s age. He said that the only evidence of the victim's age is PF3, which shows the victim's age is nine years. He added that the victim is a standard II student. She can't be above 18 years. As the counsel for the respondent correctly stated, no one among the prosecution witnesses testified about the victim's age. The evidence showing the age of the victim is found in the PF3. It was written in the PF3 11 that the victim's age is estimated to be nine years. Thus, the age in the PF3 is an estimation and not conclusive proof of the victim's age. However, the Court may infer the existence of any fact that it thinks likely to have happened to the ordinary course of natural events, human conduct and public and private business in their relation to the facts of the particular case under section 122 of the Evidence Act, Cap. 6 R.E.

2022. In Barnaba Changalo vs. Director of Public Prosecutions, Criminal Appeal 165 of 2018, Court of Appeal of Tanzania at Mbeya (unreported), where on page 19, the Court held that:- "With respect, whilst there may be other ways ofproving age such as by evidence given by the victim, relative, parent, medical practitioner or where available by the production ofa birth certificate, like any other fact, age may be deduced from the evidence availed to the court in terms of section 122 of the TEA [see Isaya Renatus v, R, Criminal Appeal No. 542 of 2015 (unreported)]. In the case of Issaya Renatus vs. Republic (supra), the Court of Appeal, while discussing the circumstances where the Court may infer the existence of facts, including the age of the victim in the common course of events in relation to the facts of the case, it held at page 9 of the judgment that:- 12 ’’In the case under our consideration, there was evidence to the effect that, at the time of testimony, the victim was a class five pupil at Twabagondozi Primary School. Furthermore, PW1 was Introduced into the witness-box-as a child of tender age, following which the trial court conducteda voire dire test. Thus, given the circumstances of this case, it is, in the least, deducible that the victim was within the ambit of a person under the age of eighteen years. To this end, we find the first ground of appeal to be devoid

of any merits." The Court of Appeal in the above cited case inferred the age of the victim by considering that she was presented before the trial Court as a child of tender age, she was a class five pupil, and the Court conducted a voire dire before receiving her evidence which means the victim was under the age of eighteen. The same applies to the present case. The victim’s (PW2) evidence was recorded from pages 10 to 12 of the proceedings of the trial Court. Before PW2 evidence was recorded, the Court recorded that PW2 is a child offender age. After that, the Court conducted voire dire, finding that PW2 did not know the nature of the oath. The trial Court proceeded to record PW2's evidence without oath after she promised to tell the truth and not lie as per section 127 (2) of the Evidence Act. As the trial Court conducted voire dire after it found out that PW2 is the child of tender age, which means she was 14 years or below, the circumstances allow this Court to deduce that 13 the victim's age was below 18 years. Thus, the victim's age was proved to be below 18 years. Since I found that the victim was aged below 18 years, the minimum sentence for rape offence provided by section 131 (1) of the Penal Code is imprisonment for 30 years. The record shows that the appellant was sentenced to life imprisonment by the trial Court. As the appellant was a first offender, he deserved

to be punished with the minimum sentence available. For that reason, the sentence of life imprisonment is substituted to the sentence of 30 years imprisonment accordingly. Therefore, the appeal is devoid of merits and is dismissed accordingly, save only for the sentence of life imprisonment imposed by the trial Court, which I have quashed and sentenced the appellant, namely Alberto Mtega, to serve 30 years imprisonment. It is so ordered accordingly.

JUDGE 29/09/2023 14