Jeremiah Mnyanga Machunga and Kulwa Lugiko vs republic judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA CRIMINAL APPLICATION NO. 37340 OF 2023 (Arising out of Criminal Case No. 234 of 2023 from Kahama District Court) JEREMIA s/o MNYAGA MACHUNDA …………………………….. 1 ST APPELLANT KULWA s/o LUGIKO……………………………………….….…….. 2 ND APPELLANT VERSUS THE REPUBLIC……………………………………………….……..…… RESPONDENT JUDGMENT Date of Last Order 10.06.2024 Date of Judgment: 12.07.2024 MWAKAHESYA, J.: In the District Court of Kahama, the appellants Jeremiah s/o Mnyaga Machunda (the 1st appellant) and Kulwa s/o Lugiko (the second appellant) were each charged with the offence of Rape c/ss 130(1)(2)(e) and 131(1) of the Penal Code, and Unnatural offence c/s 154(1)(a) of the Penal Code. It was the prosecution’s case that, the appellants on diverse dates in July 2023 had carnal knowledge of “MM” (name withheld to protect her identity) and also had carnal knowledge of her against the order of nature. 1 MM (PW1) gave evidence that, one day in July 2023 the 2 nd appellant who was a neighbour, took her to the back of a house and had carnal knowledge of her against the order of nature. MM was explicit that the 2 nd appellant, after undressing her, rubbed saliva on her anus and proceeded to sodomize her. She testified further that, the appellant also raped her on three different occasions. MM also gave evidence that, the 1st appellant, in his room, did the same to her, that is, sodomized her and raped her three times. Both appellants were said to have told MM to keep quiet about the ordeal. These events came to light when one day PW2 who is MM’s brother in law overheard a conversation involving MM and the first appellant which made him believe that MM is engaged in a relationship. Upon PW2 and PW3 (MM’s sister) inquiring MM, she informed them of her interactions with the appellants, prompting PW2 and PW3 to report the matter to the authorities. This version of events was corroborated by PW3 who also physically examined MM and found her anus and genitalia “opened”. 2 F. 2510 D/Sgt Leonard (PW4) testified that he recorded the 1 st appellant’s cautioned statement and tendered the same which was admitted and marked as Exhibit P1. Sumbu Malinganya (PW5), a medical doctor who examined MM testified that, he found her hymen not intact and that there were bruises in her anus and “splinters” (sic) were loose. He concluded that a blunt object must have penetrated MM’s genitalia and anus. PW5 filled a PF3 which he tendered and the same was admitted and marked as Exhibit P2. In their defence, the appellants denied any wrongdoing, with the 2nd appellant testifying that he was previously employed as a watchman by PW2 and the latter has a grudge against him since he owes the 2nd appellant TZS 900,000/= in unpaid salaries. The trial court was convinced with the prosecution’s case and convicted the appellants on all counts. The 1st appellant was sentenced to six strokes of the cane for the charge of rape (the first count) and life imprisonment for unnatural offence (the second count). Meanwhile, the 2nd appellant was sentenced to thirty (30) years imprisonment for the count of rape (the third count) and life imprisonment for the count of unnatural offence (the fourth 3 count), he was also ordered to pay MM compensation at the tune of TZS 500,000/=. Aggrieved by the conviction and sentences meted by the trial court, the appellants have preferred the present appeal which is couched on six grounds that are to the effect that: 1. The trial court erred in convicting the appellants while they pleaded not guilty and the prosecution failed to prove the offences beyond reasonable doubt; 2. The evidence adduced by the prosecution witnesses was hearsay; 3. The age of the victim was not proved, especially by a birth certificate; 4. The trial magistrate did not consider the appellants’ defence and the case was fabricated by the prosecution; 5. PW2 failed to prove that the appellants committed the offences apart from saying that he heard the voice of the 1st appellant; and 6. The prosecution failed to prove that the appellants had connection in committing the offences thus charging them jointly. 4 At the hearing of the appeal the appellants appeared in person, unrepresented, while the respondent was represented by Ms. Nyamnyaga Magoti, learned State Attorney. The appellants opted for the respondent to reply to their grounds of appeal and for them to make a rejoinder. The learned State Attorney having intimated that she was resisting the appeal went on to submit the first and second grounds conjointly. It was her submission that, the evidence adduced by the prosecution during trial was firm and was not hearsay. The prosecution was able to prove the offences without leaving any doubt. The appellants were each charged with two offences, the same being rape and unnatural offence. The prosecution was able to prove three ingredients of rape which are: age, penetration and that the appellants were the perpetrators. The learned State Attorney went on to submit that, the age of MM was proved by PW3, the sister of MM, who testified that MM was 12 years old. As the Court of Appeal held in the case of Isaya Renatus v. The Republic, Criminal Appeal No. 542 of 2015 (unreported) age of a victim can be proved by the victim herself, relative, parent, medical doctor or birth 5 certificate. In the case at hand the age was proved by a relative, who is the victim’s sister. Regarding, penetration, it was the learned State Attorney’s submission that the same was proved by MM (PW1) who is the victim. She testified that the 2nd appellant called her at the back of the house, and had carnal knowledge of her against the order of nature, she felt pain but the appellant told her not to scream. Further to that, the 2nd appellant had sexual intercourse with her on three different occasions. PW1 proved that the 2nd appellant raped her thus proving penetration. MM went on to testify that the 1st appellant also raped her and had carnal knowledge of her against the order of nature. Ms. Magoti was adamant that MM proved penetration. The learned State Attorney went on to submit that, MM’s evidence is corroborated by that of PW5. PW5 examined MM’s private parts and found that her hymen was not intact and that a blunt object had entered her female genitals, and that she had bruises in her anus and the sphincter muscles were loose, and when she was instructed to cough, feces came out which meant that a blunt object had penetrated her anus. 6 On the third ingredient which is whether it was the appellants who committed the offences, the learned State Attorney was of the view that MM proved the same. MM named the appellants and being the victim, her evidence is the best evidence as it was held in the case of Selemani Makumba v. Republic [2006] TLR 379. The learned State Attorney concluded that, the prosecution’s evidence was direct evidence and not hearsay and was able to prove the offences facing the appellants. Submitting on the third ground of appeal that touches on the age of the victim, Ms. Magoti referred to her previous submission that the same was proved by PW3. On the fourth ground of appeal, the learned State Attorney submitted that, the prosecution did not frame the appellants and that in arriving at its decision the trial court considered the appellants’ defence but found it wanting. Regarding the fifth ground of appeal, the learned State Attorney submitted that, the trial court did not convict the appellants by using PW2’s evidence, but rather used a collection of evidence including that of PW1, PW5 and Exhibit P2. 7 On the sixth and last ground of appeal, she submitted that, the appellants committed the offences against the same victim, thus it was proper to charge them together and the trial court to convict them together. With leave of the court, the learned State Attorney submitted that, the 1st appellant was 18 years at the time of commission of the offence, and the court, on the second count of unnatural offence, after convicting him sentenced him to life imprisonment. However, section 160B of the Penal Code, provides that the court should not give a cruel punishment to persons of or below 18 years of age and that life imprisonment itself is a cruel punishment. Therefore, she urged this court to exercise leeway of choosing the type of sentence to give the 1st appellant. However, she was also of the view that a thirty-year imprisonment sentence would suffice. When called upon to respond, both appellants made a prayer for their grounds of appeal to be allowed and for them to be set free. The first appellant did not even respond to the issue raised by the learned State Attorney about the type of punishment to be meted to him in view of section 160B of the Penal Code. 8 Having considered the record of the trial court, the grounds of appeal as well as the submissions made by the learned State Attorney, it is apparent that MM gave a detailed account of what befell her at the appellant’s hands. MM, aged 12, like any other witness is entitled to credence (see: Goodluck Kyando v. Republic [2006] T.L.R. 369; Nyakuboga Boniface v The Republic, Criminal Appeal No. 434 and Christian Ugbechi v. The Republic, Criminal Appeal No. 274 of 2019 (both unreported). I have seen nothing on records to suggest otherwise than that she was telling the truth. As submitted by the learned State Attorney, MM’s evidence is corroborated by that of PW5 who examined her and confirmed that a blunt object has penetrated her genitalia and her anus. Not to mention MM’s evidence and that of PW5 (as regards the state of her private parts) is direct. There is also Exhibit P1 which is the cautioned statement of the 1 st appellant, whereby he admits having carnal knowledge of MM. As regards age, MM testified that she was 12 years old and so did PW3 (her sister). These are competent witness to prove the age of MM (the victim), the legal position being as provided in Al-Jabir Mwakyoma v. The 9 Republic, Criminal Appeal No. 463 of 2018 (unreported), where the Court of Appeal held that: “…a birth certificate is but one of various means of proving the victim's age in a sexual related offence. The law does not make it the only means…” The other means of proving age being through the evidence of the victim, relative, parent, medical practitioner (see Isaya Renatus (supra) and George Claud Kasanda v. The Republic, Criminal Appeal No. 376 of 2017 (unreported)). From the evidence on record, the age of MM was adequately proved even in the absence of a birth certificate. Therefore, the above suffices to dispose of the first, second, third and fifth grounds of appeal. The same are devoid of merit. In his defence, the first appellant alleged that he was beaten by the police to sign his statement, while the second appellant alleged having a grudge with PW2 leading to the latter frame him. At pages 14 to 16 of the judgment of the trial court, the learned trial magistrate went to great length to evaluate the evidence of the appellants and concluded that the appellants committed the offences they were charged with. I cannot fault the learned trial magistrate. The evidence of MM and PW5 was overwhelming against 10 both appellants. Likewise, the version of the second appellant, of the existence of ill will with PW2, does not make any sense. PW2 testified in court and the second appellant, when examining him, did not bring up anything concerning bad blood between them. To do so during his defence seems to be an afterthought. Having found so, the fourth ground of appeal lacks merit as well and is dismissed. With regards to the sixth ground of appeal, I subscribe to the learned State Attorney’s position that, indeed the appellants committed the offences against the same victim and thus it was proper to charge them jointly. The offences were committed within close proximity in terms of time and thus it would have been impractical for the appellants to have been tried severally. I do not see how trying and convicting the appellants in the same trial has prejudiced either of them. Therefore, the sixth ground of appeal is also dismissed for lacking merit. Regarding the sentences meted out by the trial court, as submitted by the learned State Attorney, section 160B of the Penal Code provides that: “160B. For promotion and protection of the right of the child, nothing in Chapter XV of this Code shall prevent the court from exercising – 11 (a) reversionary powers to satisfy that, cruel sentences are not imposed to persons of or below the age of eighteen years; or (b) discretionary powers in imposing sentences to persons of or below the age of eighteen years.” Meanwhile section 154 provides that: “154(1) Any person who– (a) has carnal knowledge of any person against the order of nature; or (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, commits an offence, and is liable to imprisonment for life and in any case to imprisonment for a term of not less than thirty years. (2) Where the offence under subsection (1) of this section is committed to a child under the age of ten years the offender shall be sentenced to life imprisonment.” [Emphasis supplied]. With all due respect to the learned State Attorney, I do not subscribe that life imprisonment is a cruel punishment, or sentence rather, as it might be befitting in some instances regardless that the offender is 18 years. However, what I do gather is that the trial court erred in determining the punishment for the count of unnatural offence for both appellants. In 12 accordance with section 154(1)(c) of the Penal Code, the proper sentence should have been 30 years imprisonment. In the upshot, the appellants’ appeal is dismissed in its entirety. The conviction of the trial court is upheld, and the sentence of six sticks of cane for the first appellant for the first count remains intact. However, the sentence for the second count is reduced to thirty (30) years imprisonment. Meanwhile, the second appellant is to serve thirty (30) years imprisonment for the third count and thirty (30) years imprisonment for the fourth count, these prison terms are to run concurrently. The compensation order of TZS 500,000/= against the second appellant also remains intact. It is so ordered. DATED at SHINYANGA this 12th day of July, 2024 N.L. MWAKAHESYA JUDGE 13