ABEID SALIM KINGAZI V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI CRIMINAL APPEAL NO. 59 OF 2023 (Originating from Criminal Case No. 113 of 2023 of Siha District Court at Siha) ABEID SALIM KINGAZI …………………………………... APPELLANT VERSUS THE REPUBLIC ……………………………………………. RESPONDENT JUDGMENT 9/04/2024 & 15/04/2024 SIMFUKWE, J. Before the District Court of Siha at Siha (the trial court), the appellant Abeid s/o Salim Kingazi stood charged with t w o offences: 1st Count: Rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap 16 R.E 2022. The particulars of the offence were that on diverse day of May 2022 at Matadi village within Siha District in Kilimanjaro Region, the appellant unlawfully did have carnal knowledge of one girl aged 17 years old who was his sister in-law. 1 2nd Count: Impregnating a primary school pupil contrary to section 60A (3) of the Education Act, Cap 353 as amended by section 22 of the Education Act (Amendment) Act No. 2 of 2016. It was alleged by the prosecution that as a result of the carnal knowledge which the appellant had with the victim on the first count, the appellant did impregnate a standard seven pupil of Lemosho primary school. The factual background is that the appellant is the brother-in-law of the victim. It was asserted that, the appellant had given medicine to the victim who was suffering from nose bleeding for so long. Thereafter, the appellant blackmailed the victim by telling her that she was bewitched by their neighbour to be barren. He convinced her to have carnal knowledge with him as part of treatment of her barrenness. The victim was warned not to tell anyone as the medicine won’t work out. The victim complied to the warning until when it was discovered that she was pregnant, then, she revealed the ordeal to her parents. In his defence before the trial court, the appellant said that he did not talk to his in laws. He was convicted on both counts and sentenced to serve thirty years on each count. The appellant was aggrieved, he appealed on the following grounds: 2 1. That, the learned trial Magistrate grossly erred both in law and fact in failing to note that, failure by the victim of the alleged offences (PW1) to disclose the ordeal against her and name the suspect at the earliest possible opportunity cannot attract the confidence of her testimony before the court of law. 2. That, the learned trial Magistrate grossly erred both in law and fact in convicting and sentencing the appellant on the count of impregnating a school girl, despite the alleged count being not proved to the hilt. 3. That, the learned trial Magistrate grossly erred both in law and fact in using weak, tenuous, contradictory, inconsistent, uncorroborated, incredible and wholly unreliable prosecution evidence from prosecution witnesses. 4. That, the learned trial Magistrate grossly erred both in law and fact in convicting and sentencing the appellant despite the charge being not proved beyond reasonable doubt against the appellant and to the required standard by the law. 3 The appellant prayed that his appeal be allowed, conviction be quashed, sentence be set aside and set him at liberty. During the hearing of the appeal which was conducted through filing written submissions, the appellant was unrepresented while the Republic was represented by Ms. Bora Mfinanga, the learned State Attorney. The appellant started to submit in support of the 3rd ground of appeal which is to the effect that evidence of the prosecution was weak, tenuous, contradictory, inconsistent, uncorroborated, incredible and wholly unreliable. He submitted that, the trial Magistrate failed to note that, the age of the victim was not proved to the hilt as there was contradictory evidence pertaining the age of the victim. He was of the view that the age of the victim was cooked in order to attain a certain end against him. That, the charge sheet indicated that the victim was 17 years old while the victim testified that she was born on 17/12/2006 meaning that she was 16 years old when she was testifying. He made reference to the case of Andrea Francis v. Republic, Criminal Appeal No. 173 of 2014 (unreported) which held that: “….. It is trite law that the citation by a magistrate regarding the age of a witness before giving evidence is not evidence of that person’s age. It follows that, the evidence in the trial must disclose the person’s 4 age. In other words, in a case such as this one where the victim’s age is the determining factor in establishing the offence, evidence must be positively laid to disclose the age of the victim.” The appellant made further reference to the case of Marekano Ramadhani v. Republic, Criminal Appeal No. 202 of 2013 (unreported) in which it was held that: “… We need not emphasize that for a charge based on statutory rape where the age becomes an issue, the exact age of the victim has to be established….” On the 1st ground of appeal, the appellant submitted that, the trial Magistrate failed to note that the victim of the alleged offence (PW1) withheld the information of the alleged ordeal against her for quite a while without disclosing the same to anyone at the earliest possible opportunity nor naming the suspect at the earliest moment. He pointed out that when PW1 was testifying she said that on May 2022 she had sexual intercourse with the appellant and she conceived. The victim informed her mother about missing her menstruation period, her mother advised her to wait. The victim waited until November when her mother asked her about the person who was responsible, the victim mentioned the appellant. The appellant was of the opinion that failure to disclose the ordeal at the earliest possible 5 opportunity casts serious doubts on the credibility and reliability of PW1 (victim). He cemented his opinion with the case of Marwa Wangiti Mwita and Another v. Republic, Criminal Appeal No. 6 of 1996, which held that: “…...the ability of a witness to name a suspect at the earliest opportunity is an all-important assurance of his reliability, in the same way as an unexplained delay or failure to do so should put a prudent court into inquiry.” Further reference was made to the case of Sadiki Hamis @ Rushikana and 2 Others v. Republic, Consolidated Criminal Appeals No. 381, 382 and 383 of 2017, at page 16 where it was held that: “This Court has consistently held that failure on part of a witness to name a known suspect at the earliest available and appropriate opportunity renders the evidence of that witness highly suspect and unreliable.” The appellant prayed this court to amplify the above cited case laws in resolving the afore mentioned shortfalls in the case at hand and find that the victim’s evidence was totally unreliable. On the second ground of appeal; the appellant submitted that the trial Magistrate convicted and sentenced the appellant on the second count of impregnating a school girl despite there being no sufficient evidence from 6 the prosecution to prove the allegation. That, in order to prove that the appellant was responsible for the pregnancy, the DNA test was of paramount importance. The appellant buttressed his argument with the case of Salim Nicholaus v. Republic, Criminal Appeal No. 327 of 2020 at page 15 where the Court of Appeal of Tanzania held that: “Admittedly, DNA is vital scientific evidence in resolving crimes as it links the accused person with the crime committed.” The appellant explained that there was no DNA test conducted in this case, so as to link the appellant herein with the alleged PW1’s pregnancy. Hence, it cannot be said that the appellant is the one who was responsible with the alleged pregnancy. On the fourth ground of appeal, the appellant submitted that the trial Magistrate erred in law and fact in relying upon a highly contradicted and inconsistent evidence from prosecution side by finding that the appellant raped and impregnated the victim. That, PW1 said that her pregnancy had six months and two weeks. When cross examined, the victim changed her story and said that her pregnancy was eight months contrary to the testimony of the doctor (PW3) who said that according to her examination, the victim’s pregnancy was six months. 7 The appellant concluded that from the above shown discrepancies in the prosecution’s case, it cannot be said that they discharged their duty of proving the charged offences to the required standard by the law. In her reply submission, on the outset Ms Bora opposed the appeal and prayed that it should be dismissed for lack of merit. Starting with the first ground of appeal on failure of the victim to disclose the ordeal and name the suspect at earliest possible opportunity; Ms Bora acknowledged the presence of the principle of naming the suspect at the earliest opportunity possible as it was established in the case of Marwa Wangiti Mwita (supra). She said that according to the statement of the victim at page 5 and 6 of the trial court proceedings, the victim testified that the event occurred on May 2022 but she decided not to tell anyone because the appellant threatened her that in case, she disclosed to anyone what happened, the medicine would not work. Ms Bora was of the view that, that was the reason the victim decided to remain silent until November when she discovered that she was pregnant. Concerning the cited case, the learned State Attorney submitted that although there was a delay in mentioning the appellant, there was explanation that the victim was once cured by the medicine she was instructed to take by the appellant. That she was scared that the second medicine wouldn’t work if she broke the rules 8 set by the appellant. That, the victim informed her sister who remained silent but started abusing her. On the second ground of appeal, Ms Bora replied that DNA test is not a mandatory legal requirement for proving any criminal offence. She submitted that the appellant never disputed the fact that he had carnal knowledge of the victim who believed that he was a witch doctor who could cure her. The learned State Attorney cited the case of Juma Mahamudu v. Republic, Criminal appeal No. 47 of 2013 in which the Court of Appeal of Tanzania at Mbeya held that: “Even if we are holding that a DNA test may reveal better results than other form of examination conducted to a raped lady, the present law does not lay down conditions for DNA in proof of rape cases. Not only that the Country (Tanzania) may not possess sufficient DNA test facilities but we are convinced that the procedures provided under section 240 (3) of Cap 20 suffice to establish and provide correct results in examining the victim relating to such offence, the appellant is charged with.” (Emphasis added) In that regard, Ms Bora was of the view that the second ground of appeal is without merit, she prayed that it should be dismissed. 9 On the 3rd ground of appeal Ms Bora replied that PW1’s evidence was watertight, credible and reliable as PW1 testified that she was 17 years old. She relied on the case of Jafari Musa v. DPP, Criminal Appeal No. 234 of 2019 at page 9, where the Court of Appeal stated that: “If we may move a step further for completeness the proof of age particularly in sexual offences as expounded by case law, is proven by either production of victim’s birth certificate or may come from the victim herself/himself, relative, parent, medical practitioner, a teacher, close friend or any other person who knows the victim.” (Emphasis added) Ms Bora submitted further that before the trial court no one disputed the fact that the victim was under age. Thus, whether the victim was 17 or 16 years old is irrelevant since it was proved that when the appellant had carnal knowledge with the victim, she was under age and a student at Lemosho primary school. That, the appellant did not object when the attendance register from Lemosho primary school was tendered as exhibit. Regarding the issue of period of pregnancy, Ms Bora stated inter alia that the victim discovered that she was pregnant in November 2022 when the pregnancy was six months. PW4 the doctor who attended the victim confirmed that the pregnancy was six months. That, the victim testified that 10 the pregnancy was eight months by the time she was testifying. Thus, the third ground of appeal has no merit. On the fourth ground of appeal, the learned State Attorney replied that the Republic was able to prove the two offences beyond reasonable doubts. She said that on the first offence of statutory rape the prosecution proved the age of the victim through the victim herself (PW1) at page 5 and 6 of the trial court typed proceedings when she testified that she was born on 27th December 2006. That, the victim testified further that she had sexual intercourse with the appellant three consecutive days which was proved by the victim as it was held in the famous case of Selemani Makumba v. Republic [2006] TLR 379. On the second offence of impregnating a school girl; Ms Bora submitted that the Republic was able to prove the offence beyond reasonable doubts by proving two main ingredients of the offence. One, that the victim was impregnated while attending primary school as a standard seven pupil. PW4 tendered attendance register book and the appellant did not object its admission. Two; that the victim was impregnated by the accused person/appellant which was proved by the victim at page 5 and 6 of the typed proceedings of the trial court. That, the victim stated that she never had sexual intercourse with any other person other than the appellant. The 11 learned State Attorney prayed the fourth ground of appeal to be dismissed for lack of merit. Having considered submissions of both parties, the trial court records and the grounds of appeal, the issue for determination is whether this appeal has merit. On the first ground of appeal which is in respect of failure of the victim to report the ordeal at the earliest possible opportunity; on the outset I agree with the authorities cited by both parties. The appellant cited the cases of Marwa Wangiti Mwita and Another and Sadiki Hamis @ Rushikana and 2 Others (supra) which were to the effect that unexplained delay or failure to name the suspect by a witness, renders her/his evidence unreliable. Ms Bora for the Republic supported the case of Marwa Wangiti Mwita (supra) and underscored the words “unexplained delay.” Ms Bora pointed out that the victim testified that she decided not to tell anyone because the appellant had threatened her that in case, she disclosed to anyone what happened, the medicine would not work. I concur with the learned State Attorney that in the instant case the victim explained the cause of her delay to name the appellant. Also, the victim stated during cross examination that she informed her sister the wife of the appellant 12 who remained silent and abused her. In the circumstances of this case, I find the victim as a reliable witness. See the case of Lameck Bazil & Another vs Republic (Criminal Appeal 479 of 2016) [2018] TZCA 191 [Tanzlii] at page 14. On the second ground of appeal that the count of impregnating a school girl was not proved to the hilt; the appellant alleged that, in order to prove that he was responsible for the pregnancy, the DNA test was of paramount importance. He buttressed his argument with the case of Salim Nicholaus (supra). On the other hand, Ms Bora submitted that DNA test is not mandatory legal requirement for proving any criminal offence. That, the present law does not lay down conditions for DNA in proof of rape cases as it was held in the case of Juma Mahamudu (supra). The fact that the victim was a school girl was proved beyond reasonable doubts by PW4 the teacher of the victim who produced an attendance register of standard VII (exhibit P2). In addition, the victim stated in her testimony that she had never had sexual intercourse with anyone else apart from the appellant. PW3 the doctor who examined the victim confirmed that the victim was found to be pregnant. She tendered a PF3 (exhibit P1) to that effect. With that evidence on record, the prosecution 13 managed to prove beyond reasonable doubts that the appellant impregnated a school girl contrary to the law. Concerning the third ground of appeal that the learned trial Magistrate relied on weak, tenuous, contradictory, inconsistent, uncorroborated, incredible and wholly unreliable prosecution evidence; Ms Bora briefly stated that evidence of PW1 was watertight, credible and reliable. That, the victim stated that she was 17 years old and the appellant did not challenge that fact. With due respect to the appellant, by mentioning her birth date, the victim proved her age on the required standard. It is trite law that the age which the victim states in her personal particulars before being sworn does not form part of her testimony. Even if the said contradiction was there, still the offence of statutory rape could exist as both 17 years and 16 years are below the age of majority. Another contradiction which the appellant noted was in respect of the period of pregnancy. That, in her evidence in chief the victim said that the pregnancy was 6 months and two weeks, when she was cross examined, she said that the pregnancy was eight months. The learned State Attorney disclosed that the pregnancy was six months in November 2022 when the victim discovered that she was pregnant. That, the victim said that the 14 pregnancy was eight months at the time when she was testifying. I have examined evidence of the victim which she narrated before the trial court. It is true that in her evidence in chief the victim said that: “I have 6 months and 2 weeks pregnancy.” When she was cross examined, she stated inter alia that: “It is now 8 months.” I am of settled opinion that having in mind the fact that the victim was a child, the period of pregnancy might have been a challenge to calculate. However, she managed to state when the appellant carnally knew her (end of May 2022) and the date when she did the pregnancy test (15/11/2022) which tallies with the date on the PF3 (exhibit P1). Apart from that, I am of the view the contradiction is minor and it does not exonerate the fact that the appellant raped and impregnated the victim. On the last ground of appeal, the appellant argued that the prosecution case was not proved beyond reasonable doubt. On the other hand, Ms. Mfinanga submitted that the prosecution proved the two offences charged beyond reasonable doubts. The types of rape cases are crystal clear under section 130 (2) (a) to (e) and (3) (a) to (e) of the Penal Code (supra) which provides that: 15 “2) A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions: (a) not being his wife, or being his wife who is separated from him without her consenting to it at the time of the sexual intercourse; (b) with her consent where the consent has been obtained by the use of force, threats or intimidation by putting her in fear of death or of hurt or while she is in unlawful detention; (c) with her consent when her consent has been obtained at a time when she was of unsound mind or was in a state of intoxication induced by any drugs, matter or thing, administered to her by the man or by some other person unless proved that there was prior consent between the two; (d) with her consent when the man knows that he is not her husband, and that her consent is given because she has been made to believe that he is another man to whom, she is, or believes herself to be, lawfully married; 16 (e) with or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man. (3) Whoever- (a) being a person in a position of authority, takes advantage of his official position, and commits rape on a girl or a woman in his official relationship or wrongfully restrains and commits rape on the girl or woman (b) being on the management or on the staff of a remand home or other place of custody, established by or under law, or of a women’s or children’s institution, takes advantage of his position and commits rape on any woman inmate of the remand home, place of custody or institution; (c) being on the management or staff of a hospital, school, day care center, children's home or any other institution, organization or agency where there is a duty of care, takes advantage of his position and commits rape on a girl or woman; 17 (d) being a traditional healer takes advantage of his position and commits rape on a girl or a woman who is his client for healing purposes; (e) being a religious leader takes advantage of his position and commits rape on a girl or woman. The scenario in the present case falls under section 130 (2) (e) and (3) (d) of the Penal Code (supra). From the foregoing discussion, I am convinced that evidence tendered by the prosecution proved the two offences charged beyond reasonable doubts. That said, the appeal at hand has no merit in its entirety. In the event, I dismiss it accordingly. Dated and delivered at Moshi this 15th day of April 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 15/04/2024 18 19