NDEGEA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA {K IG O M A S U B -R EG IS T R Y ) A T KIG O M A DC. CRIMINAL APPEAL NO . 19 OF 2023 RA MADHAN NDEGEA APPELLANT VERSUS T H E R E P U B L IC RESPON D EN T (Appeal from the decision of the District Court of Kasulu at Kasulu) (K. V. Mwakitalu, SRM) Dated 29th day of March 2023 In Criminal Case No. 22 of 2022 JU D G M EN T 16/04/ & 10/05/2024 NKWABI, J.: The appellant is piercingly disparaging the decision of the trial court. The district court convicted and sentenced the appellant to serve 30 years imprisonment for rape offence. In addition to the imprisonment term, the appellant was ordered to pay the victim a compensation amount of money at T.shs 3,000,000/=. The offence is contrary to section 130 (1) and (2) ( e) of the Penal Code. I should make it clear that the offence is punishable under section 131 (1) of the Penal Code [Cap. 16 R.E. 2022]. The respondent, in the trial court, levelled allegations against the appellant that on 7th October 2022 the appellant had carnal knowledge of R.C., (true name withheld), a girl aged 14 years. The respondent, therein, 1 p ro ce e d ed to a lle ge tha t the o ffe n c e w a s co m m itte d in K ig un d u villa g e w h ich is w ith in B uh ig w e d istric t tha t is lo ca te d in Kigo m a re g ion . W h e n the h ea ring o f th e e v id en ce o f b o th pa rtie s co n cl u d e d , th e tria l cou rt fo u n d tha t the c h a rg e w as sq ua re ly p ro ved b e yo n d re aso n ab le do u b t. It convicted the appellant with the offence so charged and sentenced him as intimated earlier on. Angry at the decision of the trial court, the appellant lodged this appeal which comprises of six accusations against the trial court. As I intend to treat the grounds of appeal as appellant's submissions on account of his inability to expound the same, I will state and deal conclusively with each ground of appeal one after the other. But the 1st and 2nd grounds of appeal will be dealt with together in the manner submitted by the learned State Attorney. The appeal was disposed of by way of oral submissions. The appellant appeared in person, unrepresented. The respondent was represented by Mr. Fortunatus Maricha, learned State Attorney. When I called upon the appellant to address me on the grounds of appeal, he left it to the State Attorney to submit first, after that, then he would make his rejoinder. The appellant being a layperson had nothing to say in rejoinder submission but recapitulated his earlier position of leaving it to the Court to decide. 2 N o n e th e le ss , e v o lv ing fr o m th e g round s o f a p p ea l the a p p e ll an t is p ra y ing th is C o u rt fo r th e fo llo w in g o rd e rs : i. T h e a p p e a l b e a llo w e d . ii. C o n v ic tio n b e qu as hed an d s e n te n c e o r o rd e r imp o sed to h im b e s e t a s id e a nd th e a p pe llan t b e s e t fre e . 111. The appellant be present at hearing of the appeal. i v. Any other relief for the benefit of the appellant this honourable High Court may deem fit and just to grant. I kick start my deliberation and determination of this appeal with the 1st nd and 2 grounds of appeal. In the 1st ground of appeal, the appellant stated that the learned trial magistrate erred in law and fact by convicting and sentencing the appellant by considering weak evidence adduced by prosecution witnesses which did not prove the case to the required standards of proof in criminal cases. It was beefed up by the appellant in nd the 2 ground of appeal that the learned trial magistrate erred in law and fact by convicting and sentencing the appellant for the offence of rape without any ingredients which constitute the offence he was charged and convicted to. Mr. Maricha, at the commencement of his reply submission, effortlessly confronted the appeal. He started arguing the 1st and 2nd grounds 3 tog e th e r. It was his pronouncement, on those two grounds of appeal, that the evidence of the victim of the offence (PWl) proves penetration and proved that the person who raped her is the appellant. Mr. Maricha also pointed out that the evidence of the medical practitioner corroborates the evidence of the victim of the offence. He asked me to look at pages 11, 22 and 23 of the typed proceedings. He added that the evidence of the DW.1, DW.2 and DW.3 all prove that the victim and the appellant had gone to collect insects/ants (kumbikumbi). Mr. Maricha further said that the PF.3 proves penetration of the vagina. He referred me to the provisions of section 130(1) (2)(e) of the Penal Code and stated that penetration was proved. Further, the age of the victim was proved to be 14 years old and parroted the case of Peter Bugumba @ Cherehani v. Republic, Criminal Appeal No. 251 of 2019. He put forward that PW.2, the mother of the victim, proved the age of the victim that she is aged 14. The victim knows the culprit as they are relatives, stressed Mr. Maricha. I have studied the complaint maintained by the appellant and the refutation submission advanced by the learned State Attorney for the respondent. The tests for proving rape in the circumstances of this case have already been outlined by the Court of Appeal in various decisions 4 su ch de cisio n s in cl ud e d the case o f Mathayo Ngalya @ Shabani v. Republic, Criminal Appeal No. 170 of 2006, CAT where it was stressed that: ''For the offence of rape/ it is utmost importance the evidence ofpenetration and not simply to give a general statement alleging that rape was committed without elaborating what actually took place. It is the duty of the prosecution and the court to ensure that the witnesses give the relevant evidence which proves the offence. . . . The essence of the offence ofrape is penetration of the male organ into the vagina. '' Further, the Court of Appeal has spoken its stance in Godi Kasenegala v. Republic, Criminal Appeal No. 10 of 2008 CAT (unreported) where it was stated that: ''It is now settled law that the proof of rape comes from the prosecutrix herself. Other witnesses if they never actually witnessed the incident such as doctors. may give corroborative evidence. " See also Hassan Kamunyu v. Republic, Criminal Appeal No. 277 of 2016, CAT, (unreported) where it was underscored that: 5 "The current position is that in proving that there was penetration in a rape case, it is not always expected the victim will graphically describe how the penis was inserted into the victims vagina. There is a string of cases on this point. In view of the authorities respecting the offence of rape from which we have found it apposite to borrow a leaf, by the victim referring to a "dudu'; PWl was simply referring to the appellants penis. By saying ''anaingiza dudu lake kwenye mkundu wangu" he simply meant the appellant inserted his penis into his (PWl s) anus. From what transpired, we are satisfied that the appellant was correctly convicted on the first, second and third counts on the strength of unsworn evidence of PWl, PW2 and PW3; children of tender years. The appellants complaint to the effect that their evidence was not corroborated and therefore illegal is without basis. The victim of the offence clearly testified that the appellant did take his penis and inserted it into her vagina. They had sex and after having sex, the appellant told her not to tell anyone. I am satisfied that PWl is a 6 c re d ib le w itn e s s I do n o t se e a n y th in g tha t pu ts h e r c re d ib ility in to qu e s tion . In d e e d, d u rin g the te s tim o n y o f PW .1 it w as h o tly c o n tes ted th a t the v ic tim w as ra p e d b y th e a p p e ll an t. S he w a s c ro s s -e x a m ine d a t leng th abou t it a n d tha t sh e h ad h a d s e x w ith a c o ns truc tio n w o rk a t a s e c o n d a ry s c h o o l. T h a t a ll eg a tio n w a s d is p u ted b y P W .1 a nd e x p la ine d th a t tha t p e rs o n c o u rte d h e r b u t re fu sed to g iv e in . T h a t p e rs o n too k h e r ro s a ry a n d s he h ad to g o w ith a fr ie n d to recl a im it. I th in k tha t P W .l 's e v id e n c e is tru th fu l. I a c c e p t it a s w a s a c c ep ted b y th e tria l c o u rt . A n o t h e r im p o r t a n t a s p e c t t o p r o v e s t a t u t o r y r a p e it is c r u c ia l t o p r o v e t h e a g e o f th e v ic tim o f th e o ffen c e . T h e m a n n e r o f p ro v in g a g e w a s c a te g o ric a ll y sta te d in Jafari Musa v. OPP, Criminal Appeal No. 234 of 2019, CAT, (unreported) where it was underlined that: ''If we may move a step further for completeness the proof ofage particularly in sexual offences as expounded by case law, is proved by either production of the victims birth certificate or may come from the victim herself/himself, relative/ parent; medical prectttioner. a teecner, close friend or any other person who knows the victim - See Elia Johum v. Republic, Criminal Appeal No. 306 of 201 ~- and Issaya Renatus v. Republic, Criminal Appeal No. 542 of2015 (both unreported). 7 In th is c as e , th e v ic tim h e rs e lf a n d h e r m o th e r sta te d tha t P W .2 w h o sta ted th a t R .C. is a ge d 1 4 y ea rs a s s h e w as b o rn o n 28 /0 8 /200 8 . T h a t w a s too th e e v id e n c e o f P W .1 the v ic tim o f th e o ffen c e w h o s a id , s h e w a s a g e d 14 y e a rs w h e n s h e w a s g iv ing e v ide n c e . I d o n ot s e e a n y re a s o n to d ou b t th e fi n d ing o f th e tria l c o u rt in res p ec t o f th e a g e o f the v ic tim o f the a lle ge d o ffe n c e . T he 1st and 2nd grounds of appeal are disapproved by this Court. On the 3rd ground of appeal, the appellant maintained that the trial court magistrate erred in law and fact· by convicting and sentencing the appellant by relying on hearsay evidence adduced by the prosecution witness on the material point. Breaking his silence regarding the 3rd ground of appeal which is that the trial court based its decision on hearsay evidence, Mr. Maricha state that that is not correct. He pointed out that the 9th page of the judgment is clear that the evidence of the victim proved the charge. I have explored the judgment of the trial court, I find nowhere the trial court relied on hearsay evidence. There is the evidence of PW.1 who is the victim of the offence who gave an account of what happened to her. In any way, the appellant did not even elaborate on his claim that he was 8 c o n v ic te d b a s ing o n h ea rsa y e v id e n c e . T h e 3 rd ground of appeal crumbles to the ground. Advancing further in the criticism of the decision of the trial Court, the appellant stated that the trial court magistrate erred in law and fact by convicting and sentencing the appellant on incredible, tenuous, contradictory and uncorroborated evidence adduced by prosecution witness. Due to the fact that even alleged victim contradicted herself when she alleged that she told the appellant that she can't be pregnant because it was the last day of her menstrual period, how then could she become pregnant while she was aware that she could not be pregnant. He urged me to look for it on the 12 page of the case proceeding copy. Touting the respondent's evidence against the 4th ground of appeal which stated that the evidence is inconsistent and uncorroborated. Mr. Maricha outrightly rejected the ground of appeal. He explained that there are no any inconsistences in the testimony of the victim. Further, it was his view that the evidence of the victim is corroborated by the testimony of the medical practitioner. He also claimed that the defence evidence tries to hide something but admitted that they had gone to collect insects (kumbikumbi). It is actually the defence which contradicted itself about 9 th e dista n c e , p o in te d M r. M a ric h a a nd a d de d tha t tha t c o rro b o ra te s the c a s e o f th e resp o n de n t. I h a v e cl o s e ly e v a lu a te d th e a lle g e d c o n tra d ic tio n , I a m o f the v ie w th a t the c on tra d ic tio n is m in o r a nd d oe s n o t g o to th e ro o t o f th e m a tte r. I u n he s ita ting ly a c c e p t th e s ta n d v ie w o f the lea rn ed S ta te Att o rn e y fo r the re sp o n de n t. T h e 4 th ground of appeal fails. The next line of complaint maintained by the appellant is that the learned trial magistrate erred in law and fact by convicting and sentencing the appellant despite of the doubt raised on the prosecution witness such as doctor when he failed to explain to the court which laboratory test did he use to know the pregnancy age of the alleged victim, not only that but also how the victim managed to proceed with the alleged ard work despite of the alleged incident of being raped and injured by the appellant. Mr. Maricha retorted very briefly about the 5th ground of appeal whereby he stated that the 5th ground of appeal is not a sufficient ground to invalidate the conviction. I agree with Mr. Maricha. It is mundane law that in rape cases, the testimonies of medical practitioners are mere corroborative. This is the position taken in various decisions of the Court of Appeal including of 10 Y u d a J o h n v . T h e R e p u b lic , Criminal Appeal No. 238 of 2017, CAT (unreported) where it was held that: "In rape cases the testimony of the doctor or PF3 are not the only evidence to prove rape. Other evidence on the record can prove it ... '~ One may also wish to have a look at the case of OPP v. Shida Manyama @ Seleman Mabuka, Criminal Appeal No. 288 of 2012, CAT (unreported) where it was stated that: ''It must always be kept in mind that an expert is not a witness of fact and as such his evidence is really of an advisory character ... His real function is to put before the court all the materials together with reasons which induced him to reach that conclusion. It is from this date, material reason, etc that the court though not an expert may form its own judgment " My above position is further supported by Agness Liundi v. Republic [1980] T.L.R. 46 CAT where it stated that: "The court is not bound to accept medical testimony if there is good reason for not doing so. At the end of the day, it remains the duty ofthe trial court to make a finding and in so doing, it is incumbent upon it to look at and 11 assess, the totality of the evidence before it including that of medical experts." One could as well wish to have reference to Magina Kubilu @ John v The Republic, Criminal Appeal No. 564 of 2016, CAT (unreported) where it was stressed that: ''However, the foregoing notwithstanding, as rightly submitted by Ms. Tuka, the contents of the PF3 were eloquently covered by the oral testimony of Dr. Luganga Vedasto who prepared it. We agree that the testimony of PW3 sufficiently proved the evidence that would otherwise have been found in PF3. As we observed at p. 20 of the typed judgment in Masalu Kayeye (supra), relying on our previous unreported decision in Edward Nzabuga v. Republic, Criminal Appeal No. 136 of2008, an expert opinion cannot override oral evidence of a person who witnessed the incident and physically examined a victim. We added that penetration can be proved orally by the victim and other witnesses; without an expert opinion or oral evidence by experts. " I hold that the 5th ground of appeal, is, as explained above, wanting in merits. It has to go down swinging. 12 In h is la s t lin e o f c ritic is m , th e a p p e lla n t cl a im ed tha t th e lea rn e d tria l m a g is tra te e rred in la w an d fa c t b y c o n v ic tin g a nd s e n te n c ing th e a p pe lla n t d e s p ite o f th e stro n g e v ide n c e a dd u c e d b y th e d e fe n ce w itn e ss tha t th e re w e re toge th e r w ith th e a p pe ll an t a n d a lle g e d v ic tim on th a t d a y a t th e a ll e g e d a re a a nd n o th ing w ro n g w a s done b y th e a p p e llan t to the a ll e g ed v ictim . th T u rn in g to th e 5 ground of appeal which is that the defence was not given its due credit. Mr. Maricha explained that the victim told the trial court that they she went with the appellant to collect grass. He reiterated his earlier stance that the evidence of the victim is sufficient to convict the appellant. In the end, Mr. Maricha prayed that the appeal be found to be unmerited and it be dismissed while the conviction be upheld. With due respect to the appellant, I disagree with his arguments on the basis of the decision of the Court of Appeal of Tanzania in Jafari Musa v. OPP, Criminal Appeal No. 234 of 2019, CAT (unreported) it was stated that: "We have considered this ground and the arguments thereon. We wish to begin by appreciating that in the past failure to consider a defence case used to be fatal irregularity. rtowever. with the wake of progressive 13 Jurisprudence brought by case law, the position has changed The position as it is now, where the defence has not been considered by the courts below, this Court is entitled to step into the shoes of the first appellate court to consider the defence case and come up with its own conclusion." Again, looking at the defence of the appellant, one finds corroboration to the evidence of the prosecution as he admits that at the material time he was with the victim of the sexual offence. I take solace for my stance in Rungu Juma v. Republic [1994] T.L.R. 176 (CAT) where it was stated that: '~... We are of the view that the appellant's admission that he was present at the scene of crime on the ...material day does to some extent corroborate the complainant's {PWlJ the child evidence that it was he who attacked the appellant and stole his cattle. That a child's evidence may be corroborated by the defence of the accused is evident from the decision in R. v. Okelo Anyaro (1938) 5 EACA 140. Appeal dismissed" It turned that the charge was determined on credibility of witnesses. The trial magistrate had the advantage of seeing the witnesses testify before 14 h im . I d o n o t fi nd a n y jus tifi c a tio n to fa u lt h is fi n d ing s b as in g o n th e c red ib ility o f w itn e s s e s . T h e a c c o u n t o f e v en ts g iv e n b y th e a p pe llan t d id n o t co n v in c e th e tria l m a g is tra te . I ca n n o t fa u lt th e tria l ma g is tra te b e c a u s e I h a v e n o b a s is fo r d o in g th a t. F in a ll y , the a p p e a l is found to b e de v o id o f m e rits . It is d is m is s ed in en tire ty . T h e d e c is io n , tha t a re th e co n v ic tio n a n d se n ten c e m e te d o u t a g a in s t the a p p e lla n t, b y th e tria l c o u rt is u p h e ld . It is s o o rd e re d . DATED at KIGOMA this 10th day of May, 2024. ~ J. F. NKWABI JU D G E 15