Micheal Masemba vs Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA CRIMINAL APPEAL NO. 58 OF 2023 (Originating from Criminal Case No. 43 of2023 of Miele District Court at Miele) MICHEAL MASEMBA..................... .................................... APPELLANT VERSUS THE REPUBLIC..................................... ..................RESPONDENT JUDGMENT .XT:-':/.': > 22/07/2024 & 23/08/2024 MWENEMPAZI, J. - t J The appellant herein was arraigned before the District Court of Miele (to be referred as the trial court herein forthwith) for the offence of rape contrary to Sections 130(1), (2) (e) and 131(1) of the Penal Code [Cap. 16 R. E. 2022]. ■ f <-".•!■ ••■AX t>_. _r ... ;'L< " It was the prosecution side's case that on diverse dates between 13th to 17th day of March 2023 at Kalovya Village within Miele District in Katavi Region, the appellant did have carnal knowledge of one girl (name withheld) aged 16 years old. i On the 24th day of March, 2023 the appellant was marched to the trial court where the charge sheet was read to him and he pleaded not guilty. However, as a full trial was inevitable, at the end of it, he was found guilty and convicted, and sentenced to serve thirty (30) years imprisonment. Being aggrieved by that decision the appellant herein filed this appeal to this court in which his Amended Petition consisted of three (3) grounds of 'WK appeal in which are reconstructed hereunder; 1. That, the trial court erred in law and fatd: by convicting and sentencing the appellant- while the case was' not proved to the required standard. " Ku 2. That, the trial court erred at iaw and fact by convicting and sentencing theappellantbased on the evidence ofPW1 who wasnota credible witness. 3. That, the trial court erred at law and fact by failure to ■L consider the defence case evidence which is fatal. From the outlined grounds of appeal above, the appellant prays for judgment on his favour and that he be released from custody, and be set free. Oh the 06th day of June, 2024 this matter came for hearing and the appellant enjoyed the legal services of learned counsel Peter Kamyalile, 2 as it was an order from this court that the appellant be afforded legal aid. On the other hand, Ms. Godliver Shiyo learned State Attorney represented the respondent in which in this case, it is the Republic. The counsel for the appellant sought leave of this court for the hearing of this matter be conducted by way of written submissions, a mode which was not objected by Ms. Shiyo. Therefore, this court granted the prayer and thus scheduled the filing of the submissions, in Which the'appellant was to file his submissions in chief on the 13®dayof June, 2024, the respondent was to reply on or before the>21st dayof June, 2024 and the rejoinder if any by the appellant was to be filed on the 26th day of June, 2024. | Appreciatively, both sides did adhere to the scheduling order and the appellant counsel submitted in chief that, the appellant was charged with the statutoryTape of a girl with 16 years old under Section 130(2) (e) of the Penal Code, [CAP. 16 R.E 2022] which provides that: 'A male person commits the offence of rape if he has sexual intercourse with a giri or a woman under circumstances falling under any of the following descriptions: with or without her consent when she is under eighteen years of age, unless the 3 woman is his wife who is fifteen or more years of age and is not separated from the mam" He proceeded that, the case was not proved to the required standards and he outlined the reasons thereof as follows; That, firstly, the Section above provides that in rape of a,girl who is 15 or more years of age, it must be shown that she is not his wife in the particular of the offence as well be proved by prosecution evidence. That, in the present case the prosecution failed to Include such essential ingredient of the offence in the charge as well they failed to prove it. The learned counsel stated, further that the above position was laid, in the case of Kam barage Mayala vs Republic, Criminal Appeal No. 208 OF 2020 [2023] TZCA [13th day of December, 2023: TanzLII] at page 9 where it was held that: r to; \"-’-to, f "This provision creates an offence now famously referred to as statutory ^pe. What are required to be proved are two facts:... it must be proved that, the gid is under 18 years of age and that, if she is 15 or more years of age, it must be shown that she is not his wife." 4 Thereafter, he insisted that, since the prosecution evidence shows that there was allegation of promise to marry, then it was necessary for the prosecution to prove that PW1 was not the wife of the appellant. Coming to his Second reason, Mr. Kamyalile state that, the identification of the accused person was contrary to the law as there was identification parade which was improperly conducted during the investigation. He added that, PW1 testified that the appellant was.apprehendedrby her father, and then she was called to identify thei; accused. He added that, PW5 testified they found more people and summoned them to the Police Station, and asked the victim to point' out the person who was staying with her. -S’" Mr. Kamyalile then clarified that, the procedure of identification of the accused was conducted contrary to the identification procedure as there was no any prior description of the appellant before the alleged identification process. He then referred this court to the case of Zilam Hamis vs The Republic, Criminal Appeal No. 489 OF 2022 [2024] TZCA [5th day of June, 2024: TanzLII] at page 21 it was held that:- "We have shown that the requisite of giving prior description of the assailant before mounting identification parade was not complied.... Such omission is fata! and renders the whole 5 exercise of the identification parade worthless with no evidential value." Peeling off his third reason, Mr, Kamyalile submitted that, there was material contradiction which goes to the root of the case. That, PW1 at page 3 of the typed proceedings he testified that the friend of her father saw her and took her home while PW2 testified that he found her at Mapili Road. - W?" Submitting in support of the second ground of appeal, the learned counsel for the appellant stated that, it is trite law that failure to name the: suspect at the earliest opportunity tends to render assurance to the witnesses' credibility. That, in the present case from the 13th day of March, up to the 17th day of March, 2024 when PW1 mentioned the appellant that he was raping her shows that PW1 was not threatened by the appellant in any way which prevented her from mentioning her culprit. :z-! •’ '?i,• v.;• ■! ■ '■>?,. The learned counsel again referred this court to the case of Akwino Mtavangu @ Baba Janet vs Republic, Criminal Appeal No. 379 oF 2021 [2023] TZCA [13th day of December, 2023: TanzLII] at page 14-15 where it was held that:- 6 "It is trite law that the ability of a witness to name a suspect at the earliest opportunity tends to render assurance to the witnesses' credibility. [See Jackson Thomas vs Republic, Criminal Appeal. No. 299 of 2013 (unreported)]. PW2 failure explain the ordeal and name the appellant as the perpetrator casts doubt on her truthfulness and we cannot, but agree with the appellant's defence evidence that his beingiater named by the victim to her said father (PW1) was a rbsult of her being pressed to do so. The probity of the evidence of the victim was questionable and could, therefore, not sustain a conviction for rape against the appellant." ~ '-'Z Submitting on the last ground of appeal, Mr. Kamyalile was of the view that, it is trite law that, non-consideration of the defence evidence is fatal irregularity which vitiates the whole proceedings and conviction as it breaches the rules of natural Justice against the right to be heard and fair trial. He: added that, in the present case the trial magistrate from Page 7- .10 of the judgment dealt with the prosecution evidence only. That, he did not consider the defence evidence at all. The learned counsel supported his view by citing the case of James Bulow & Others vs Republic [1981] TLR 283 and Hussein Idd & Another vs Republic [1986] TLR 166 in which the Court of Appeal held that:- 7 "ft was a serious misdirection on the part of the trial judge to deal with the prosecution evidence on its own and arrive at the conclusion that it was true and credible without considering the defence evidence." From the above submissions, the counsel for the appellant pens off by stating that the appellant prays before this Honourable &urt this appeal be allowed, the conviction and sentence meted on him be quashed and set aside respectively and that he be set free. ■ Responding to the submission made by:the learned counsel for the appellant, the prosecution ;side submitted that it is their submission that the case against the appellant was proved beyond reasonable doubt. That, ’'■ '■ i-> • • ’‘o<:S;"*- * i1 ?• :\r7:f the prosecution bears the burden of proving the case against the accused person beyond reasonable doubt as per Section 3(2) (a) of the Evidence f'h'JV-. •fv4 I"'?’ L-S-'-.1. Act (CAP 6 R.E 2022) and that burden does not shift. They proceeded that, in the instant matter, the prosecution had a duty to prove three things as per the case of John Ngusa vs Republic, Criminal Appeal No. 593 of 2020 [2023] TZCA 17927 (12 December 2023) on page 13 where it was stated that; 8 indeed, to prove the offence of rape contrary to sections 130 (1) (2) (e) and 131 (1), (3) of the Penal Code for which the appellant was charged the prosecution side was expected to prove one, the age of the victim; two, penetration and three that it is the appellant who was the culprit." As per the cited caselaw, the prosecution side are convinced that they had direct evidence from the victim herself which was corroborated by the evidence of other witnesses as well as documentary evidence (Exh No. 1) in which the three elements were proved as follows::—/ That, the age of the victim, was proved by the victim (PW1) on page 3 of the proceedings where she stated to be born on 19/09/2008 which proved that she was below the age of 18 years at the time of the alleged crime. That, this proof was corroborated by the evidence of her father (PW2) on page 5 of the proceedings confirming his daughter was born on the said date. ;. 'T Prosecution side referred this court to the case of Amos Zacharia vs Republic, Criminal Appeal No. 74 of 2021 [2023] TZCA17709 (4 October 2023) on page 10 stated that the age of the victim can be proved by a parent, relative, victim herself, medical doctor, and or birth certificate. 9 That, it is therefore the prosecution's submission that the element of the age of the victim was proved beyond reasonable doubt. Submission regarding penetration, prosecution side submitted that, the same was proved by the victim herself on page 3 of the proceedings where she explained what happened to her by stating that, ...he took off my clothes, he inserted his penis into my vagina...each nigfi&yye had sexual .-s?W intercourse." It is in their submission that this is the very best evidence since it comes As-.: from the victim of the sexual offencewhereasmost of these acts are done in private. That, this is the prerequisite under Section 127(6) of the Evidence Act and cemented in the case of Mawazo Anyandwile Mwaikwaja vs DPP, Criminal Appeal 455 of 2017 [2020] TZCA 268 (3 April 2020) on pages 19-20, Which states that in cases of this nature, the best evidence comes from the victim. Submitting on the issue of whether the appellant was the culprit, the prosecution side submitted that, again this was proved by the victim herself on page 3 of the proceedings where she stated that the appellant introduced himself to her as Michael whom she identified during his arrest and at the dock during the trial. That, this evidence is also corroborated 10 by that of PW2 who states that the victim identified the appellant from among eight persons who were present at the camp. However, the prosecution side acknowledged that in his submission, the appellant claimed that the prosecution failed to prove that the victim was not his wife. They submitted that, PW1 clearly explained the circumstances in which the appellant took her to his camp and from the evidence it is proved that the two were not married,' a fact vyhich was neither raised by the appellant during cross-examination of the prosecution witnesses nor his defence, They then cited the case of Halima Wakara & Others vs Jeremiah M. Mkama, Civil Appeal No. 493 of 2020 [2024] TZCA 331 (8 May 2024) on page 16 stated that; ';'iLTST‘r ".....it istrite law that failure to cross-examine a witness on an important matter ordinarily implies the acceptance of the truth of the witness evidence." Relating the cited case with the instant matter, they insisted that, the failure of the appellant to cross-examine the prosecution witnesses especially PW1 and PW2 on such an important matter implies that he admitted the truth of their evidence which provided that the two were not ii married. It is their submission that this assertion by the appellant is an afterthought and his 1st ground of appeal in its entirety lacks merit and should be dismissed. Submitting on the 2nd ground of appeal which concerns the victim's credibility, it is their submission that she was a credible witness and there are no good reasons for not believing her. They referred this court to the case of Goodluck Kyando vs Republic [2006] TLR 363 where it was stated that; all witnesses are entitled to credence apd his/her evidence believed and accepted unless where there are good, and cogent reasons for not believing the witness, That in the present matter, the trial court had no reason of not believing the victim and it considered her testimony in relation to that of other witnesses to be true. They then added that, the victim is a credible witness as she named the suspect at the earliest opportunity given that she was locked up inside the appellant's place from 13/03/2023 to 17/03/2023. That, after arriving home, she immediately told her father the whole incident as reflected on pages 3, 4, and 5 of the proceedings, and she led him to the crime scene and pointed the appellant out of the others who were at the camp. That, this indeed was in conformity with the case of Lucas Evance @ Bwandu & Another vs Republic, Criminal Appeal 392 of 2018 [2021] TZCA 470 12 (16 September 2021) on page 16 where it quoted with approval the case of Marwa Wangiti & Another vs Republic [2002] TLR 39 On page 43 and held that; the ability of a witness to name a suspect at the earliest opportunity is an all-important assurance of his reliabilityf in the same way unexplained delay or complete failure to do so should put a product court inquiry." It is therefore the prosecution's side submission; that"/the ability of the victim herein to name the suspect at the earliest opportunity assures her credibility that it was the appellant who raped her and no anyone else hence, the 2nd ground lacks merit and should be dismissed. Coming to the last ground of appeal; the prosecution side agrees that the court did not consider the defense as stated. However, they submitted that, since this court is the 1st appellate court, it has the power to evaluate the same and consider it. In support of their argument, they cited the case of Nyakwama Ondare @ Okware vs Republic, Criminal Appeal No. 507 of 2019) [2021] TZCA 592 (21 October 2021) in which it stated on page 16 that; 13 "... The trial court is bound to evaluate the evidence of the prosecution and defense side before it arrives to the conclusion of the case for and against the issues framed for determination. Indeed, if this task is not performed by the trial court the first appellate court has an obligation to consider it and come to the conclusion.” Therefore, they submit that this court can step into the shoes of the trial court and evaluate the defense evidence for consideration. Otherwise, the prosecution side submits that this appeal lacks merit and should be dismissed, and they pray that this Honourable Court upholds the conviction & sentence imposed to the appellant by the trial court. n“ ‘‘W •• As there was no any rejoinder made by the counsel for the appellant, it was this court's turn to determine this matter as to whether it is meritious beforethis court. In dealing with this matter, I will determine the three grounds of appeal as raised by the appellant herein. Starting with the 1st ground, in proving the offence of rape, the prosecution side has to prove, one, age of the victim, two, penetration and three, is that the appellant is the culprit. This has been the holding 14 in various cases and it has been stipulated under Sections 130(1), (2)(e) and 131(1), (3) of the Penal Code Cap 16. In the records before me, specifically the typed proceedings of the trial court at page 3, PW1 testified that she is a student of Standard Seven at Kalovya Primary School, and she has 16 years of age as she was born on the 19-h day of September, 2008. PW2, her father at page5testifiedthat the victim ai his daughter, that she is the second'i.orn:<hdsh,snaHais born on the 19th day of September 2008. W In the case of Issaya Renatus vs Republic, Criminal Appeal No. 542 of 2015 (unreported) the Court stated as follpws:-' " We are keenly conscious of the fact that age is ofgreat essence in estabiishing the offence of statutory rape under section 130 (1) (2) (e) the more so as, under the provision, it is a requirement that the victim must be under the age of eighteen. 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........" [Emphasis is mine] 15 In this case, I do not hesitate to state that I am satisfied that the age of the victim (PW1) was sufficiently proved by herself and her father (PW2) as their testimonies reveal. With regard to the issue of rape, it is noteworthy that it entails penetration. According to section 130 (4) (a) of the Penal Code penetration, however, slight constitutes the ingredient of the offence of rape-KThis was_ also reiterated in the case of Amir Rashid vs Republic/CriminalAppeal No. 187 of 2018 (unreported) in which the Courtof Appeal cited with approval its earlier decision in the case of Hassan Bakari @ Mamajicho vs Republic, Criminal Appeal No. 103 of 2012 (unreported) and stated as follows: - 4^ "The other catchword is penetration. Simply put, it means the penis entering the vagina. Such entering, however slight it . w be,is an important ingredient to the offence of rape " In the matter at hand, PWl's evidence was to the effect that when she ’ I’,", W;' taken by the appellant and stayed with him, each day they were sexual intercourse in which she described it as the appellant inserting his penis into her vagina. See page 3 of the typed proceedings. 16 PW3 who was an expert witness, apart from conducting pregnancy examination to the victim he did inspect her private parts and found out that the hymen is not intact although the records before are short on whether the victim's hymen was intact before the incidence. The last aspect is, was it the appellant who had sexual intercourse unlawfully with the victim. It is in the records that the victimwell identified the appellant as the culprit for she had stayed with him for about four days under the same roof. When going through the typed proceedings at L':J page 3, PW1 testified that it was the appellant who-stopped her as she was going to the farm and introduced himself to her as Michael, and he insisted that he wants to marry her and forced her to stay with him for about four days. She added that, each day they had sexual intercourse and she did identify him at the dock during the trial. From the testimonies of the prosecution witnesses as seen in the records and given the entire scenario, I am against the submission made by the counsel for the appellant, that there were allegations of promise to marry and that it was necessary for the prosecution side to prove that PW1 was not the wife of the appellant. In this, I do declare that there was no any suggestive circumstance that PW1 was the wife of the appellant; this is even evidenced by the appellant himself in his own testimony in which he 17 did not attempt to shake the prosecution evidence by insisting that the victim was his wife or rather he had plans to marry her. Therefore, as far as the first ground of appeal is concerned, I do join hands with the submission made by the prosecution side and I hold that this ground is meritless and proceed to dismiss it. ^5, Coming to the 2nd ground of appeal, again, the submission made by the prosecution side is too healthy for me to concur witfythis side. Indeed, all witnesses are entitled to credence and' his/her evidence believed arid accepted unless where there are good and cogent reasons for not believing the witness. However, credibility of a witness could be derived from his/her ability to name the culpritat the earliest opportunity as held in the famous case of Marwa Wangiti & Another vs Republic (supra) i>-.A • ' as cited by the prosecution side. In this case at hand, as rightly submitted by the prosecution side is that the victim was able to name the culprit at the earliest opportunity as she was seen by her father's friend and took her home, when she was asked where she was, she told him the truth and her father went to the camp and apprehended the appellant. Again, I hold the 2nd ground of appeal to be meritless. 18 Coming to the fast ground of appeal, I should straight away point out that, the appellant's 3rd ground of appeal is vital as highlighted by the counsel for the appellant, and the respondent side also conceded that the trial court did not consider the defence of the appellant in its decision. I have read carefully the judgment of the trial court and I am satisfied that the appellant’s complaint was and still is well taken. The appellant's defence was not considered at all by the trial court in the evaluation of the evidence in which it is the most crucial stage injjudgment writing. Failure to evaluate or an improper evaluation of: the-evidence inevitably leads to wrong and/or biased conclusions Or inferences resulting in miscarriage of justice. <5^ :- ?• \:•?,T ’ - •, J.?-j-Ac' It is universally established jurisprudence that failure to consider the defence is fatal and usually vitiates the conviction. See, for instance, Venance Nkuba& Another vs Republic, Criminal Appeal No. 425 of 2013 (unreported) where it was stated that: - "777/5, infraction alone would have sufficed to quash the conviction..." 19 However, as rightly submitted by the prosecution side that this court being the first appellate court, it is obliged to re-evaluate the entire evidence on record and derive its own conclusion if needed to. In doing so, I did go through the appellants defence and it is unfortunate that his testimony does not shake the entire prosecution evidence. The appellant only testified on where he had worked and the day he was arrested and charged with the offence of rape. 'A, A? I should insist in grief that, as the a p pel la nt's, defence was not considered by the trial court, I should proceed to allow the 3rd ground of appeal for it has merit and also quash the conviction as I am required to, but again it is quite the opposite that the appellant's defense does not change my mind as to hold that the prosecution side had proved the case against him to the required standard Of the law. That said and-done, I find this appeal to be meritless and proceed to dismiss it in its entirety. The decision of the trial court is hereby upheld. It is so ordered. Dated at Sumbawanga this 23rd day of August, 2024. T. M. MWENEMPAZI JUDGE 20 Judgment delivered this 23rd day of August, 2024 in the judge's chamber in the presence of appellant in person and Mr. Samwel Kipesha, Advocate for Appellant, Ms. Atupele Makoga, Learned State Attorney and Mr. Ladislaus Akaro, Learned State Attorney for the respondent. 21