ERNEST KIDABITI NONGA V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI CRIMINAL APPEAL NO. 9474 OF 2024 (Originating from Criminal Case No. 114 of 2022 of Siha District Court) ERNEST KIDABITI NONGA ………………………………. APPELLANT VERSUS REPUBLIC ………………………………………….......... RESPONDENT JUDGMENT 01/07/2024 & 08/07/2024 SIMFUKWE, J. The appellant Ernest Kidabiti Nonga was charged before the District Court of Siha (trial court) with the offence of rape contrary to section 130(1)(2) (e) and 131(1) of the Penal Code, Cap 16 R.E 2022. It was alleged before the trial court that on 23rd day of November 2022 at South Koboko village within Siha District in Kilimanjaro Region, the appellant had carnal knowledge of one LY a girl aged 7 years. 1 The brief facts of the case are to the effect that on the fateful day the victim arrived from school when after changing her uniform, her uncle raped her. The victim noticed that her trouser became wet after being raped, thus she decided to change her clothes. Then, PW3 one Regan Benard Mumbure the brother of the victim noticed that the victim had changed her clothes. He asked her but she was shaking. When asked what had happened, the victim told PW3 that uncle Ernest (appellant) had done a bad behaviour to her by having sex with her. Then, PW3 informed their parents. The appellant was arrested and the victim was taken to the police station where a PF3 was issued to her. Medical examination proved that the victim was raped. PW4 a Medical practitioner who examined the victim, confirmed before the trial court that the victim was raped. He tendered a PF3 to that effect, it was admitted as exhibit P1. In his very brief defence, the appellant informed the trial court that the case was fabricated against him because he had a land dispute with his sister (mother of the victim). After considering evidence of both parties, the trial court found the appellant guilty of the offence charged and convicted him. He was sentenced to life imprisonment. He was aggrieved with both the 2 conviction and sentence. Thus, he appealed before this court on the following grounds: 1. That, the learned trial Magistrate grossly erred in law and fact in failing to note the variance between the charge and the evidence on record. Since the charge displayed that, the alleged offence occurred on 23rd day of November 2022, while the victim (PW2) never at all mentioned nor supported the alleged date. 2. That, the learned trial Magistrate grossly erred both in law and fact in failing to note that, the age of the victim was not proved to establish the statutory life sentence against the appellant. 3. That, the learned trial Magistrate grossly erred both in law and fact in relying upon an inconsistent and contradictory evidence of PW2 which dented her credibility and reliability as a witness, to ground the appellant’s conviction. 4. That, the trial court found that, it was not 1st time for PW2 being sexually abused, but gravely erred in holding that, it was the appellant who ravished her. 5. That, the learned trial Magistrate grossly erred both in law and fact in silently, unprocedurally, illegally and wrongly amending the charge by inserting the subsection which provides the statutory life 3 sentence, which was not featured in the charge preferred against the appellant. 6. That, the learned trial Magistrate grossly erred both in law and fact in failing to note that, the medical doctor’s opinions (PW4) were not free from biasness as he concluded that the victim was sexually abused (For sexual intercourse), while he was not an eye witness of the alleged offence. 7. 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. The appellant prayed this court to allow the appeal, quash the conviction, set aside the sentence and set him at liberty. The appeal was ordered to be argued by way of written submissions. The appellant had no representation while the respondent was represented by Mr. Frank D. Wambura learned State Attorney. In his submission in chief in support of the first ground of appeal, the appellant submitted that it has been emphasized in a number of decisions of the Court of Appeal of our land that, it is incumbent upon the Republic to lead evidence showing that the offence was committed on the date 4 alleged in the charge sheet which the accused was expected and required to answer. The appellant contended that, in this case the charge displays that the alleged offence was committed on 23rd day of November 2022. Surprisingly, that particular date was never at all backed up by evidence on record; particularly that of the key and material witness PW2 who was said to be the victim of the alleged offence. That, PW2 never supported the allegations on the charge sheet that she was raped on the date mentioned on the charge sheet. Therefore, it cannot be said with certainty that the charge was proved to the required standard by the law. The argument on the first ground was cemented with the case of Mathias Samwel vs Republic, Criminal Appeal No. 271 of 2009 (unreported) which held that: “…. when specific date, time and place is mentioned in the charge sheet, the prosecution is obliged to prove that the offence was committed on that specific date, time and place.” Another reference was made to the case of Abel Masikiti v. R, Criminal Appeal No. 24 of 2015 (unreported) in which the Court of Appeal held that: “In a number of cases in the past, this Court held that it is incumbent upon the republic to lead evidence showing that the offence was 5 committed on the date alleged in the charge sheet, which the accused was expected and required to answer. If there is any variance or uncertainty in the dates, then the charge must be amended in terms of section 234 of the CPA. If this is not done the preferred charge will remain unproved, and the accused shall be entitled to an acquittal short of that a failure of justice will occur.” The appellant cited another recent decision of John Leon Kimario v. R (Criminal Appeal No. 105 of 2021) TZCA [2024] (06 June 2024) at page 12-14 where it was held that: “…….in this case we do not think the charge was proved, for there is a clear variance between the two; the charge and the evidence.” Guided by the above cited cases, the appellant implored this court to find and hold that the charge laid on his door was not proved due to core reason that evidence from the prosecution side did not support the charge. Arguing the second ground of appeal, the appellant submitted that in proving the offence of statutory rape, the age of the victim is one of the crucial elements to be proved beyond reasonable doubt. He said that, in this case the prosecution never at all bothered to establish the age of the victim of the alleged offence (PW2); taking into account that the age of 6 PW2 was one of the factors that the trial Magistrate took into consideration in imposing a harsh and severe life imprisonment sentence upon the appellant. It was insisted that none of the prosecution witnesses testified on the age of the victim as the particulars of the victim which were stated by the prosecutor and the victim herself prior to her testimony were not part of evidence. To buttress his contention, the appellant subscribed to the case of Andrea Francis vs Republic, Criminal Appeal No. 173 of 2014 (unreported), in which the Court of Appeal of Tanzania 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 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 cited another case of Isaya Renatus vs Republic, Criminal Appeal No. 542 of 2015, in which the Court of Appeal of Tanzania held that: 7 “We are keenly conscious of the fact that age is of great essence in establishing the offence of statutory rape under section 130(1)(2)(e) ……the evidence as to proof of age may be given by the victim, relative, parent, medical practitioner or where available, the production of a birth certificate.” It was the opinion of the appellant that in this case the age of the victim was not at all proved to the standard required by the law. He prayed that shortfall to be resolved in his favour. On the third ground of appeal, it was submitted that the trial court failed to note that the victim (PW2) was telling pure lies before the court, and her evidence was full of contradictions and inconsistencies which dented her credibility and reliability as a witness. Reference was made to page 10 of the trial court proceedings where PW2 testified that when she came from school she met with the accused (now the appellant) and her brother Jeremiah. That, after being raped the one who showed up was one Regan. Also, PW2 testified that the ordeal against her took place outside the house on a bench. The appellant was of the view that it was impossible for a mentally fit person and an adult like him to commit such a shameful and cruel act to a child PW2, outside the house during day time. He 8 commented that the story was cooked and fabricated against him in order to achieve a certain end known to PW2’s parents and PW2 herself. Discussing the fourth ground of appeal, the appellant contended that the learned trial Magistrate misdirect herself when composing judgment and stated that it was not the first time for PW2 to be sexually abused. He made reference to page 4 – 5 and page 7. It was noted that there is nowhere in PW2’s evidence where she stated that she was regularly sexually abused. On the fifth ground of appeal, the appellant submitted that he was charged under sections 130(1)(2)(e) and 131(1) of the Penal Code. However, while entering verdict of guilty and while imposing punishment upon the appellant, the trial Magistrate silently, unprocedurally, illegally and wrongly amended the charge and inserted subsection three (3) of section 131 of the Penal Code which prescribes a statutory life sentence. The appellant complained that he was prejudiced as he did not know that he was charged with the offence which attract a harsh and severe life sentence. Therefore, he did not properly marshal his defence evidence. On the 6th ground of appeal, the appellant faulted evidence of the medical doctor (PW4) who testified that the victim was sexually abused by a male 9 person while he was not an eye witness. He cemented his assertion with the case of Peter Joseph Kimath vs R, Criminal Appeal No. 373 of 2020, in which the Court of Appeal held that: “…To us, PW2’s testimony established that PW2 was penetrated but the evidence does not prove that the penetration was a result of rape.” On the last ground of appeal, the appellant concluded that the case against him was not proved beyond reasonable doubt as required by law. Replying the grounds of appeal Mr. Frank Wambura learned State Attorney on the outset, stated that this appeal has no merit. On the first ground of appeal which concerns variance between the charge sheet and evidence on record; it was contended that the ground is baseless as it was stated by the prosecution witnesses that the offence was committed on 23rd November 2022. It was through the testimony of PW1 and PW2 that the date of commission of offence was mentioned. Mr. Wambura replied further that it is a cardinal principle of law that dates stated in the charge sheet should be the same with the dates which will be stated by prosecution witnesses. He cited the cases of Marki Said @ Mbega v. Republic, Criminal Appeal No. 204 of 2018, Salum Rashid Chitende v. Republic, Criminal Appeal No. 204 of 2015 and Abel 10 Masikiti v. Republic (supra) which held that the date stated in the charge sheet must be proved by the prosecution. On the second ground of appeal Mr. Wambura replied that at the introductory part PW2 told the trial court that she was seven years old. That, neither the trial court made the required inquiry nor was the victim cross examined on the stated age. Therefore, the stated age of the victim went unchallenged and therefore the truth. The argument was buttressed with the case of Amos Jackson v. Republic, Criminal Appeal No. 439 of 2018, CAT at Shinyanga, at page 8. On the issue of failure to cross examine the victim about her age, it was submitted that it is trite position of the law that failure to examine amounts to admission of fact. Reference was made to the case of Nyerere Damian Ruhele v. Republic, Criminal Appeal No. 501 of 2007, CAT at Mwanza, page 7 where it was stated that: “We are aware that there is a useful guidance in law that a person should not cross examine if he/she cannot contradict. But it is also trite law that failure to cross examine a witness on an important matter ordinarily implies the acceptance of the truth of the witness’s evidence.” 11 The third, fourth, fifth and seventh grounds of appeal were replied jointly. The learned State Attorney submitted that the fact which was to be proved was on whether the appellant raped the victim or not. Thus, the prosecution brought a number of witnesses to prove the offence of rape committed by the appellant and not to prove how many times the victim had been sexually abused. It was submitted further that the charge against the accused person was proved beyond reasonable doubt because evidence was not contradictory, inconsistent and the credibility of the victim was strong. Mr. Wambura noted that it is a cardinal principle of law that the best evidence comes from the victim as it was held in the case of Selemani Makumba v. Republic, Criminal Appeal No. 94 of 1999, CAT at Mbeya, at page 8 where the Court stated that: “True evidence of rape has to come from the victim.” Mr. Wambura went on to submit among other things that the testimony of the victim left no room for any kind of doubt or creating any contradiction, as the victim of crime explained well what happened on the material date and time without leaving any doubt. He insisted that, oral evidence of the victim was direct. The victim was able to name the accused person as soon as she was asked by her brother. The said brother 12 of the victim (PW3) testified that on 23/11/2022 he met the victim changing her clothes. Then, he asked her as to why she was changing clothes, the victim told her brother that uncle Ernest had done a bad habit to her. Mr. Wambura cited the case of Ahmed said v. Republic, Criminal Appeal No. 291 of 2015, CAT at Arusha in which the Court borrowed the principle extracted in the case of Wangiti Mansa Mwita and Others v. Republic, Criminal Appeal No. 6 of 1995 in which the Court 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 an unexplained delay or complete failure to do so should put a prudent court into inquiry.” It was observed by Mr. Wambura that in the current situation, it is very obvious that PW2 was sure as to who raped her so long as she named the appellant immediately when asked by her brother. Contesting the sixth ground of appeal, the learned State Attorney submitted that what was stated by the doctor was just an opinion. He said that in the case of Yusuph Molo v. Republic, Criminal Appeal No. 343 of 2017, CAT, at Iringa, page 13, it was stated that: 13 “Expert opinion is not binding to the court in arriving to its decision but is rather persuasive.” Thus, the trial court was not bound with what the doctor said. The court reached its finality after being satisfied that all necessary elements of the offence were proved beyond reasonable doubt. That is because the best evidence comes from the victim. Concerning the amendment of the charge by inserting the subsection which prescribes the statutory life sentence; Mr. Wambura responded that literally there is no mandatory position of the law that non citation of penal section renders the charge sheet defective. He made reference to the case of Bakari Juma v. Republic, Criminal Appeal No. 38 of 2020, CAT at Moshi, at page 5 where the Court cited the case of Abdul Mohamed Namwanga @ Madodo v. Republic, Criminal Appeal No. 257 of 2020, which stated that citing a penal section in a charge sheet is not a statutory requirement under the Criminal Procedure Act. Thus, the act of the trial Magistrate to sentence the appellant using a proper section which was not cited in the charge sheet, is not fatal since it is a proper section for the committed offence. In conclusion, Mr. Wambura urged this court to dismiss the entire appeal, conviction and sentence of the trial court be upheld. 14 Having considered submissions of both parties, the grounds of appeal and the trial court’s record, the issue is whether the raised grounds of appeal have merit. Starting with the first ground of appeal, the appellant faults the trial court for failure to discover that there was variance between the charge sheet and evidence tendered by the prosecution. He explained that the victim did not mention the date of commission of offence. The learned State Attorney submitted that the date of commission of offence was mentioned by other prosecution witnesses. Therefore, there was no variance. I have gone through the proceedings of the trial court. It is true that the victim (PW2) did not mention the date when she was raped. However, evidence of the rest of prosecution witnesses showed that the victim was raped on 23/11/2022. I am of considered view that evidence of the victim was corroborated by evidence of other prosecution witnesses. Hence, there was no variance between the charge sheet and evidence tendered. On the second ground of appeal, the appellant’s grievance is that the age of the victim was not proved to establish the statutory life sentence against him. The learned State Attorney was of the view that the age of the victim which she mentioned prior to giving her testimony sufficed to prove that she was seven years old. Respectfully, it is trite law that 15 particulars of the witness given prior to taking oath are not part of evidence. I therefore agree with the appellant that evidence adduced by all prosecution witnesses did not establish that the victim was actually seven years old when she was raped. Nevertheless, it was established that the victim was in standard three when she encountered the tragedy. It may happen that sometimes you may find a child of above ten years in class three. In that case, I hesitate to believe that the victim was above eighteen years. Since it has not been said that she was in MEMKWA class (adult education), given the education system of our country, it goes without saying that the victim was below eighteen years. I subscribe to what was stated in the case of Issaya Renatus v. Republic (Criminal Appeal No. 542 of 2015) [2016] TZCA 218 (29 April 2016), at page 8 – 9 of the judgment, that: “That being so, it is most desirable that the evidence as to proof of age be given by the victim, relative, parent, medical practitioner or, where available, by the production of a birth certificate. We are, however, far from suggesting that proof of age must, of necessity, be derived from such evidence. There may be cases, in our view, 16 where the court may infer the existence of any fact including the age of a victim on the authority of section 122 of TEA......” Based on the above findings, the second ground of appeal succeeds to the extent of sentence only. Meaning that the trial court should have sentenced the appellant to a minimum mandatory statutory sentence of rape, that is thirty years imprisonment. Regarding the complaint raised on the third ground of appeal that evidence of the victim was contradictory and inconsistent; I join hands with the learned State Attorney that evidence of the victim was not contradictory. The appellant is trying to twist words while what was stated by the victim was straight forward. The victim said that her brother Jeremiah had gone to chase a dog when she was raped. Then, Regan another brother of the victim saw her after she had changed her clothes for the second time. The issue of being raped on a bench during day time is not strange as rape can be committed any where, at any time. On the fourth ground of appeal the appellant was of the view that since it was found that it was not the first time for the victim being sexually abused, it was wrong to find that he was the one who had raped the victim. Mr. Wambura for the Republic contended that the fact sought to be proved was whether the appellant raped the victim or not. He added 17 that the prosecution paraded a number of witnesses to prove the offence of rape and not how many times the victim had been sexually abused. I agree with the learned State Attorney that in the instant case evidence on record proved beyond reasonable doubts that the victim was raped by the appellant. The victim named the appellant soon after the incidence when she was asked by her brother Regan. PW4 the doctor who attended the victim stated his findings before the trial court. That, laboratory test revealed that the sample collected from the victim had puss, blood and fresh spermatozoa. A PF3 filled by PW4 was tendered before the trial court to substantiate what was stated by PW4. On the issue of amendment of the charge sheet done by the trial Magistrate by inserting subsection (3) to section 131 of the Penal Code (supra); the learned State Attorney observed that the same was not fatal. I am of considered opinion that failure to cite the penal subsection is curable under section 388 of the Criminal Procedure Act, Cap 20 R.E 2022. Moreover, based on the fact that I have varied the sentence of life imprisonment herein above, the amendment effected by the learned trial Magistrate is irrelevant. On the sixth ground of appeal the appellant faulted the trial court for relying on medical doctor’s opinion on the reason that it was not free from 18 bias. It was the opinion of the Respondent that the doctor’s opinion was not binding to the court, rather, it was persuasive as it was held in the case of Yusuph Moto v. Republic (supra). With due respect to the appellant, it is trite principle that the decision of the court is based on evidence adduced before the court and applicable law. Opinions of experts have persuasive value as correctly stated by the learned State Attorney. On the strength of the findings on the above grounds of appeal, it is crystal clear that the seventh ground of appeal is devoid of merit as the charge of rape against the appellant was proved beyond reasonable doubt. The two key elements of rape were clearly proved through the evidence of PW2 the victim and PW4 the medical practitioner who attended the victim, together with exhibit P1. Also, the appellant was named by the victim to be the perpetrator of the offence. The defence of the appellant that he was victimized with the offence because he had a land dispute with his sister is a pure afterthought as he did not shake evidence of PW1, PW2 and PW3 when they testified. He did not cross examine PW1, PW2 and PW3 in order to establish that they had an interest to serve as alleged by him. That being the case, conviction against the appellant is hereby confirmed and life imprisonment sentence meted by the trial court against the 19 appellant is substituted with thirty years imprisonment as a minimum sentence for the offence of rape. Appeal partly allowed in respect of sentence only. Dated and delivered at Moshi this 8th day of July 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 08/07/2024 20