AYUB TEKSI v REPUBLIC

IN THE HIGH COURT OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA DC CRIMINAL APPEAL NO 25310 OF 2024 (Arising from the Iramba District Court in Criminal Case 15916 of 2024) AYUBU TEKSI ……………………………………. APPELLANT

VERSUS THE REPUBLIC…………………………………RESPONDENT

JUDGMENT Date of the last order: 20/11/ 2024 Date of the Judgment: 13/12/ 2024 LONGOPA, J.: The appellant stood charged, convicted and sentenced to serve 30 years’ imprisonment for the offence of rape contrary to section 130(1), 2(e), 131(1) of the Penal Code, Cap 16 R.E. 2022 by the District Court of Iramba. It was alleged that on 6th June 2024 at Mgimba Village in Mkalama District within Singida Region the appellant had unlawful carnal knowledge of SLA (identities withheld), a girl aged 16 years old. The Prosecution rallied three (3) witnesses and the defence called a single witness namely the appellant. Upon conclusion of the hearing, the trial Court found the 1|Page appellant guilty of the offence thus convicted and sentenced him to serve 30 years imprisonment. The appellant was dissatisfied by the whole of the decision both conviction and sentence entered against him thus on 4th September 2024 instituted an appeal against the whole of the decision on the following grounds, namely: 1. That, the trial court grossly erred in law and fact by convicting the appellant based on the prosecution evidence, which was not credible enough to convict the appellant.

2. That, the trial court erred in law and fact by failing to evaluate the evidence tendered by both parties properly.

3. That, the trial court erred in law and fact by deciding the case against the appellant basing on weakness of the defence side, specifically on appellant’s ability to defend the case.

4. That, the trial court erred in law and fact by convicting the appellant while aware of the fact that the prosecution 2|Page witnesses did not prove the case to the standards required in proving criminal cases. The parties before this Court on 20th day of November 2024 to argue the appeal whereas the appellant appears in person fending for oneself while the respondent enjoyed the legal services of Mr. Francis Mwakifuna, Ms. Victoria Njau and Mr. Amani Japhet, all learned State Attorneys. When afforded an opportunity to support the appeal, the appellant adopted all grounds of appeal as contained in the petition of appeal and submitted that trial court failed to analyse evidence on record. The appellant reiterated that PW 1 stated that he was not at the scene of crime but was called via phone. PW 2, who is the victim did not manage to prove that offence of rape was committed as she stated that her vagina was not penetrated. PW 3 medical doctor testified the evidence that was not true as he stated to have examined the victim and found her with bruises and fresh blood at around 22:00 hours while the alleged the offence was said to have been committed at 15:00 hours. It was the appellant’s argument that there is no possibilities of fresh bruises and blood for all those hours. According to the appellant, his grounds of appeal are self -explanatory. It 3|Page was at this juncture

that appellant rest his case by praying for this court to find merits on the appeal, allow the appeal and set aside the sentence against the appellant. Conversely, Mr. Francis Mwakifuna, learned State Attorney opposed the appeal on account of the conviction and sentence being based on strong evidence on record. As such, the Counsel for the respondent stated and presented on each of the grounds of appeal to reiterate that nothing at all presented any merits on the appeal. With regard to the 1st ground relating to unreliable and incredible evidence, it was submitted that the prosecution proved the offence by proving all the ingredients of the offence that were fully demonstrated by the prosecution witnesses. It was argued that ingredients were penetration, lack of consent or age below 18 years and that the instant rape was statutory rape as the victim was aged 16 years old. It was reiterated that PW 1 testified that the victim is 16 years old and student in Form II at Gumanga Secondary School. This was also stated by PW 2, the victim herself, who stated that she was aged 16 years old and a student at Gumanga Secondary School. 4|Page According to the respondent, the element of penetration was proved by the victim, PW 2 who testified at pages 7-8 of the proceedings revealing that the appellant inserted his manhood into her vagina before being arrested at the scene of the crime. This was corroborated by the evidence of PW 3, a medical doctor, who at page 9 stated that upon examination of the victim found bruises on the victim’s vagina where he found blood and bruises. It was PW 3’s testimony that he observed that the victim was feeling serious pains and he tendered PF 3 was admitted as PE.

1. The learned State Attorney submitted that the victim’s evidence in sexual offences is the best evidence as per case of Selemani Makumba versus Republic, Criminal Appeal No. 94 / 1999. Thus, the Court was correct to convict the appellant. On the 2nd ground, it was submitted that evidence of both sides, testimonies of prosecution’s witnesses and defence witnesses were analysed and evaluated. At page 2 of the Judgment it is indicated that the defence evidence was critically evaluated before the court arrived at a 5|Page decision thus the respondent called for this court to dismiss this ground for lack of merits. Further, it was submitted that 3rd ground of appeal must follow the suit of being overruled for lacking iota of merits. It was added that the trial court did not rely on weaknesses of the defence evidence. The Court convicted on strengths of the prosecution’s evidence as the defence evidence did not dent and weaken the prosecution witnesses. It was reiterated that PW 1 stated that the appellant was caught red-handed while in the act of rape. On the other hand, PW 2 stated how the offender committed the offence of rape. The principle in the case of Kulwa Makogoberwa versus Republic [2002] TLR 296 was cited to reiterate the position taken by the Court that guilty of the accused person must be based on the strengths of the prosecution evidence to prove the case beyond all

reasonable doubts. Indeed, according to the respondent, there was sufficient evidence on prosecution to prove the appellant committed the offence. On the 4th ground of appeal, it was submitted that prosecution proved the case beyond all reasonable doubt as the evidence on record 6|Page was so strong. It was argued that contents of Exhibit PE.1 was quoted to demonstrate that there was forceful penetration of the victim’s vagina. It was added that the appellant did not deny to have been arrested at the scene or crime or to have been found with the victim on that fateful date. Further, the respondent articulated that the appellant failed to cross examine the prosecution’s witnesses on important issues which meant that the appellant agreed with the evidence/ testimony of those witnesses. The case of George Maili Kimboge versus Republic, Criminal Appeal No 327/2013, the Court of Appeal noted that failure to cross examine on important things/ issues means agreeing with testimony of that particular witness. It was added that in the respondent’s view, all grounds of appeal have no merits at all thus this whole appeal should be dismissed. Finally, in response to the oral submission by the appellant, it was submitted that incident happened at around 17:00 hours and not 15:00 hours as the tried to impress this court. It was during the broad day light as per evidence of PW 1 and PW

2. 7|Page Having heard both parties on their respective submissions, I have dispassionately considered the grounds of appeal in light of the available records to determine validity or otherwise of the appeal. Generally, all the grounds of appeal focus on failure of the prosecution to prove the case to the required standard. It is important to articulate two main principles guiding criminal cases in this jurisdiction on standard of proof and burden of proof. These cardinal principles are that: one, it is the duty of the prosecution to prove the criminal case against the accused; and two, the standard of proof is that proof beyond all reasonable doubts. As the standard and burden of proof caters for the whole case, the analysis of these aspects should come last to allow disposing other grounds of appeal which essentially form part and parcel of the proof of the criminal case to the required standards. In order to put matters in its right perspective, I shall first and foremost address the existence of ingredients of the offence of rape. Ingredients of rape are mainly two. First, that there was penetration of the victim’s vagina. Second, age of the victim must be below 18 years old. In 8|Page Jafari Juma vs Republic (Criminal Appeal 252 of 2019) [2023] TZCA 216 (3 May 2023) (TANZLII), at page 14, the Court stated that: It is a peremptory principle of law that in statutory

rape cases like the one before us, the age of the victim must be proved. Mr. Mtoi, referred us, to the case of Leonard Sakata (supra) where the Court underlined in imperative terms that in cases of statutory rape, age is an important ingredient of the offence which must be proved. There is in this regard an array of authorities to support this settled position of the law, see for example Rwekaza Bernado v. Republic, Criminal Appeal No. 477 of 2016, Mwami Ngura v. Republic, Criminal Appeal No. 63 of 2014 and Solomon Mazala v. Republic, Criminal Appeal No. 136 of 2012 (all unreported). In the instant appeal, the evidence of PW 1, the victim’s father was to the effect that the age of the victim was 16 years old. Also, PW 2, the victim reiterated that she is aged 16 years old. Thus, the evidence of both PW 1 and PW 2 established the age of the victim. 9|Page In respect of penetration, PW 2 stated that on 6th June 2024 at around 05:00 in the evening she met Ayub Teksi on her way back home from shamba where she went to take hand hoe. The appellant pushed the victim to the bush, undressed her nicker and tight, undressed his short and penetrated the victim before being arrested at the scene of crime. This evidence was corroborated by PW 3 who testified to have examined the victim on 6th June 2024 at around 10:00 pm and found that her hymen perforated and bruises on her vagina. PW 3

tendered Exhibit P.1. which was PF 3 where it was clearly indicated that there was penile penetration. All this evidence falls within the principle in the case of Maligile Maingu vs Republic (Criminal Appeal No.432 of 2021) [2023] TZCA 17303 (5 June 2023) (TANZLII), at pages 16-17, the Court observed that: In terms of the cited provision, to prove the offence of rape, penetration however slight is sufficient to constitute the sexual intercourse necessary to the offence. The basic element to be proved is the penetration of the victim's vagina and there is no need of proving the existence of sperms in the victim's vagina because penetration however 10 | P a g e slight is sufficient to establish rape. See the case of GEORGE MWANYINGILI VS. REPUBLIC Criminal Appeal No. 335 of 2016. In this case, the Court held that: "Once again; we agree with Mr. Mtenga that what is important is the fact that there were bruises in the victim girl's female organ, an aspect which was indicative of the fact that there was penetration which is a crucial ingredient of the offence of rape. We similarly agree with Mr. Mtenga that for the same reasons that penetration was vindicated/the absence of sperms in PW3 female organ is not something material in the case". With regard to evidence on record, it is lucid that offence of rape against the victim aged 16 years old commonly known as statutory rape was

proved. Oral evidence of PW 1, PW 2 and PW 3 and documentary evidence Exhibit PE 1 left nothing to be desired in respect of offence of rape. Both ingredients of statutory rape of penetration of victim’s vagina by a male penis as well as age of the victim were categorically established. 11 | P a g e Regarding evaluation and analysis of evidence of both sides, the principle in Zakaria Samweli Kasuga vs Republic (Supra), at page 9, the Court stated that: It is trite law that, the evidence of both sides be it in criminal or civil matters has to be subjected to an objective evaluation and analysis. The Court stressed that position in Leonard Mwanashoka v. Republic, Criminal Appeal No 226 of 2014 (unreported). Needless to say, the Court has also stated that where both courts below fail to consider the defence case, the Court is enjoined to step into the lower court's shoes and consider it and make its own findings of facts. It is instructive that evidence from both sides must be evaluate and analysis in totality before the court comes to conclusion whether the prosecution has managed or otherwise to prove the case. Such evaluation and analysis entails the trial court summarizing the material evidence of both parties, then subjecting the same to an objective evaluation in light of the applicable legal principles in order to find out strengths and 12 | P a g e weaknesses of the

evidence, articulation on whether the prosecution’s evidence meets the test of proof to the required standard and whether the defence evidence has to any extent dented the prosecution’s evidence to raise reasonable doubts to the prosecution evidence. In Jackson Stephano @ Magesa & Another vs Republic (Criminal Appeal 130 of 2020) [2022] TZCA 323 (9 June 2022) (TANZLII), at page 16, the Court of Appeal stated that: It is the position of the law that generally failure or rather improper evaluation of the evidence leads to wrong conclusions resulting into miscarriage of justice. In the case of Leornard Mwanashoka Vs Republic, Criminal Appeal No. 226 of 2014 (unreported), the Court underscored useful guidelines on what is to be considered in the evaluation of evidence, stating: "It is one thing to summarise the evidence for both sides separately and another thing to subject the entire evidence to an objective evaluation in order to separate the chaff from the grain. Furthermore, it is one thing to consider evidence and then 13 | P a g e disregard it after proper scrutiny or evaluation and another thing not to consider the evidence at all in the evaluation and analysis." Careful review of the available evidence reveals that trial court in instant appeal managed to properly analysis and evaluate the evidence of both sides and weighed the evidence to find out whether the evidence

of the defence raised doubts. At the conclusion, the trial court found out that the defence evidence did not seriously dent the prosecution’s evidence to warrant holding that reasonable doubts were raised. Indeed, I concur with the analysis of the trial court that the available evidence was sufficient to warrant conviction of the appellant for the offence of rape. I find the lamentation on failure to evaluate the evidence of the parties by the trial court lacks merits. Another ground of appeal was based on weakness of the defence case that trial court used to find out the criminal responsibility on part of the appellant. Upon serious perusal and analysis of the available records I hasten to hold this ground a devoid of merits. 14 | P a g e It is the law in this jurisdiction that the appellant/accused person cannot be convicted on his weakness of his defence rather on strengths of the prosecution’s case. This was the principle in the case of Anthony Kinanila & Another vs Republic (Criminal Appeal 83 of 2021) [2022] TZCA 356 (16 June 2022) (TANZLII), at page 20, where the Court reiterated that: Before we conclude the judgment we wish to make the following point in which we will as well address the question as to whether the appellants were convicted on the strength of the prosecution case or the weakness of their defence as alleged. It is common ground among the legal fraternity

and we think we need not cite any authority to support the legal position that, in any criminal trial, the accused person must not be convicted because he has put forward a weak defence but rather the evidence led by the prosecution incriminates him to the extent that there is no other hypothesis than the fact that the accused person committed the offence with which he stands charged. That in brief is what is called proof beyond 15 | P a g e reasonable doubt which is the responsibility cast on the prosecution side. The court is enjoined to consider the strengths of the prosecution’s evidence as the basis of conviction. In the instant appeal, it can be seen glaring on the proceedings that totality of evidence of PW 1, PW 2 and PW 3 when weighed against the evidence of DW 1, results tilt towards finding the appellant guilty than innocent as the evidence is so watertight. The offence was committed during the broad day light and the appellant was arrested at the scene of crime. All these circumstances, coupled with Exhibit PE 1, which is PF 3 from a medical practitioner makes the prosecution’s evidence strong, consistent and coherent to establish guilty of the appellant. In Majid Hussein Mboryo & Others vs Republic (Criminal Appeal No. 141 of 2015) [2015] TZCA 434 (11 June 2015) (TANZLII), at page 10, the Court illustratively reiterated that: We are very much aware that the burden

of proof is always on the prosecution and it is a trite law that an 16 | P a g e accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence. It is therefore not correct to assert that the appellant was found guilty on the weaknesses of the defence. The court found the accused guilty on strengths of the prosecution’s evidence which demonstrated existence of all ingredients of the offence of rape. The Court found that it was the appellant who committed such offence as per evidence of PW 1 and PW 2 the victim’s father and victim respectively. Thus, ground three is destitute of merits and it is hereby overruled. The appellant challenged the credibility of evidence of the prosecution case. The respondent stated that there was nothing touching on credibility of the prosecution’s witnesses. To address this matter, it is important to reiterate the guiding principle on credibility of witnesses that essentially provides that every competent witness is entitled to be regarded as credible witness unless there are sound reasons to hold otherwise. Issues like contradictions and inconsistencies with evidence of other 17 | P a g e prosecution’s witnesses may be regarded to impair the credibility of evidence of a particular witness. The principle is illustrative in the case of Nyakuboga Boniface vs Republic (Criminal Appeal

No. 434 of 2016) [2019] TZCA 461 (29 November 2019) (TANZLII), at pages 5-7, where the Court of Appeal held that: To begin with, we would wish to make it plain that any person, who is a competent witness in terms of the provisions of section 127 of the Law of Evidence Act, Cap. 6 R.E. 2002 (the TEA), is entitled to be believed and hence, a credible and reliable witness, unless there are cogent reasons as to why he/she should not. See: Goodluck Kyando Vs Republic [2006] T.L.R.

363. There are no rules of thumb in determining the credibility, truthfulness or reliability of a witness. It all depends on how the demeanour of the witness, has been assessed by the presiding Judge/magistrate, and the assessment which is made to the evidence which he/she gives in court. This 18 | P a g e is because the assessment of demeanour, is the monopoly of the presiding Judge/magistrate. Further, in Haruna Bernado & Another vs Republic (Criminal Appeal No.13 of 2013) [2013] TZCA 349 (9 May 2013) (TANZLII), at page 9, the Court stated that: In the case of Mohamed Mahita [1990] T.L.R 3. The Court held that:- " Where the testimonies by witnesses contain inconsistencies and contradictions, the Court has a duly to address the inconsistencies and try to resolve them where possible, else the Court has to decide whether the inconsistencies and contradictions go to the root of the matter." I have perused the evidence on record, in summary it reveals that the victim was caught red-handed at the scene of crime upon the victim raising an alarm. The appellant was found having sexual intercourse with the victim. Such Victim was aged 16 years old. That was PW 1 evidence. Indeed, this evidence tally with that of PW 2 who narrated the ordeal of being pushed forcefully to the bush, being undressed of her nicker and 19 | P a g e tight before the appellant undressed himself and started

penetrating the victim. Further, PW 3, a medical doctor stated to have on the same day examined the victim PW 2 and found bruises in her vaginal part and blood indicating that she was penetrated. It is at this juncture that PW 3 filled in PF 3 which was tendered as Exhibit PE 1. Totality of the prosecution evidence do not create any inconsistencies or serious contradictions that would go to the root of the matter. Thus, the evidence of the prosecution was credible and reliable. The first ground of appeal is dismissed for being devoid of merits. Having found that all ingredients of the offence of rape were well established within the parameters required by the law, it is crucial to restate that in circumstances of the case dictate that prosecution managed to meet both the standard of proof and the duty to prove. In Matibya N g'habi vs Republic (Criminal Appeal No. 651 of 2021) [2024] TZCA 34 (14 February 2024) (TANZLII), at page 7, the Court of Appeal illustratively stated that: 20 | P a g e At the outset, it is instructive to state that, this being a criminal case, the burden lies on the prosecution to establish the guilt of appellant beyond reasonable doubt. In Woodmington v. DPP [1935] AC 462, it was held inter alia that, it is a duty of the prosecution to prove the case and the standard of proof is beyond reasonable doubt. The term beyond reasonable doubt is not

statutorily defined but case laws have defined it. For instance, in the case of Magendo Paul & Another v. Republic [1993] T.L.R. 219 the Court held that: "For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed. " It is noteworthy that, the duty and standard of the prosecution to prove the case beyond reasonable doubt is universal in all criminal trials and the duty never shifts to the accused. 21 | P a g e Given the ample evidence on record that the appellant was arrested at the scene of crime, the incident happened during the broad day light and all ingredients of the offence were established leaves not doubts at all that the appellant is responsible for commission of the offence of rape against the victim. The evidence on record points out to the direction that it is appellant who committed the offence and not otherwise. Thus, the applicability of the principle in the case Zakaria Samweli Kasuga vs Republic (Criminal Appeal 457 of 2021) [2023] TZCA 196 (24 April 2023) (TANZLII), at page 11, where the Court of Appeal noted that: It is elementary that the duty to prove criminal cases lies on the prosecution and the standard of proof is beyond reasonable doubt as dictated by section 114 (1) of the Evidence Act - See also our decision in

Nehemia Rwechungura v. Republic, Criminal Appeal No. 71 of 2020 (unreported). The phrase "prove beyond reasonable doubt" was discussed in the case of Magendo Paul and Another v. Republic, [1993] T.L.R. 219 where the Court stated as follows: "For a case to be taken to have been 22 | P a g e proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed." It can be concluded at this point that evidence of record leaves no doubt that the prosecution managed to prove the case against the appellant to the standard required by the law i.e. the proof beyond reasonable doubts. The evidence left nothing to be desired. In totality therefore, this appeal is delinquent of any merits and it must be dismissed in its entirety for lack of cogent merits. I proceed to dismiss the appeal. As a result, both the conviction and sentence of the appellant was proper and in accordance with the tenets of the law. It is so ordered. DATED at DODOMA this 13th day of December 2024. E.E. LONGOPA

JUDGE 13/12/2024. 23 | P a g e