Juma Makalwe v Republic judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA CRIMINAL APPEAL NO. 40893 OF 2023 (Originating from Criminal Case No. 64/2023 from the District Court of Maswa at Maswa) JUMA MAKALWE ……………….…………….....…………………………APPELLANT VERSUS THE REPUBLIC……………………………………………….……..…… RESPONDENT . JUDGMENT Date of Last Order 19.06.2024 Date of Judgment: 12.07.2024 MWAKAHESYA, J.: In the District Court of Maswa the appellant, Juma Makalwe, was tried and convicted of the offence of Rape c/s 130(1) and (2)(e) and 131(3) of the Penal Code. The appellant was sentenced to life imprisonment, since the victim was seven (7) years old. A brief background of events culminating with the present appeal is that, in the evening hours of 18/07/2023, PW1 sent her daughter “MS” (name withheld to protect her identity) alongside two others (SS and JSD) to the shop to buy batteries while she went on with her domestic chores. 1 After a while, SS and JSD returned without MS, the former informing PW1 that they did not go to the shop with MS. It was later on during the night that PW1 inspected MS and after opening her thighs she found sperms, and when she quizzed MS about what happened the name of the appellant was mentioned, prompting PW1 to inform the local militia “sungusungu” commander (PW4). The appellant was then arrested. It was MS’s testimony that, on the fateful evening while on the way to the shop with her siblings, she met the appellant who took her to the bush and raped her. SS (PW3) also testified about going to the shop with MS and JSD and meeting the appellant on the way and leaving MS standing with the appellant, only to find both of them gone when on their way back. Janeth Wyelid Wakabenga (PW5) gave evidence that she works at Maswa District Hospital and on 19/07/2023 she attended MS and after examining her private parts she found bruises in her genitals, whitish water and no hymen. She concluded that, MS was raped. PW5 filled a PF3 which was tendered in court and marked as Exhibit P2. G. 9602 D/CPL Boniface (PW6), a police officer, interviewed the appellant on 18/07/2023 and tendered the appellant’s cautioned statement during trial. The same was admitted and marked as Exhibit P3. 2 In his defence, the appellant denied committing the heinous crime he was charged with. However, as alluded earlier, the trial court convicted the appellant and sentenced him to the mandatory life sentence. It is against that conviction and sentence that the appellant has preferred the present appeal based on six grounds of appeal which are to the effect that: 1. The prosecution’s case was not proved beyond reasonable doubt; 2. The learned trial magistrate, not being a senior resident magistrate, had no authority to impose a life sentence; 3. The evidence of PW5 (Janet Wyelid Wabakega) was inadmissible since she neither stated her qualifications nor produced her medical registration number. Also, PW5’s evidence was weak in material particular and could not sustain a conviction; 4. The trial court overlooked the fact that, PW5 had no discretion to jump to the conclusion that the victim was raped; 5. The appellant was not taken to a justice of the peace after he confessed to the police; and 6. The appellant was convicted and sentenced without the trial court finding him guilty of the offence he stood charged. 3 At the hearing of the appeal, the appellant appeared in person, unrepresented, while the republic was represented by Ms. Nyamnyaga Magoti, learned State Attorney. The appellant opted for the State Attorney to reply to his grounds of appeal and for him to make a rejoinder later on. Ms. Magoti commenced the respondent’s reply by unequivocally stating that she was resisting the appeal and supporting the conviction and sentence of the trial court. Replying to the first ground of appeal, she submitted that, the offence that the appellant was charged with, that is statutory rape, was proved beyond reasonable doubt as the prosecution had to prove three ingredients: age of the victim; penetration, and the perpetrator. It was her submission that all three ingredients were proved. Concerning age, Ms. Magoti submitted that, the same was proved by PW1 who is the mother of the victim (MS). PW1 testified that she gave birth to MS on 23.12.2015. She also tendered, without objection from the appellant, a birth certificate and clinic card which were received and marked as Exhibit “P1”. As for penetration, MS testified that she knew the appellant who took her to a bush, undressed her and raped her, and that the appellant took his 4 “kidudu” and put it in her “kidudu” and that she felt pain. The learned State Attorney submitted further that, this evidence is corroborated by PW5 who is a clinical officer and Exhibit “P2” the PF3 which showed that MS was raped. As for the third ingredient (the perpetrator), Ms. Magoti submitted that, MS testified that it was the appellant who committed the rape and that she knew the appellant. The learned State Attorney referred to the Court of Appeal decision in Selemani Makumba v. Republic [2006] T.L.R. 379 where it was held that the best evidence in sexual assault cases is that of the victim. It was her contention that, MS being the victim, was the best witness. The learned State Attorney submitted further that, there is also circumstantial evidence, and that is the evidence of PW3. PW3 was alongside MS going to the shop and on the way, they met the appellant and interacted with him, and MS was left with the appellant. The learned State Attorney went on to submit that, there is also an oral confession from the appellant where he confessed before PW4. She went on to submit that, in the Court of Appeal case of DPP v. Nuru Mohammed Gulamrasul [1988] T.L.R. 82, it was held that a confession given before a witness is enough to convict an accused person. The appellant 5 had confessed before PW4 who is a local militia leader. The appellant also confessed to a police officer, PW6. The appellant’s cautioned statement was tendered as Exhibit “P3” without any objection from him. The learned State Attorney cited the Court of Appeal decision in Mohamed Haruna @ Mtupeni v. Republic, Criminal Appeal No. 259 of 2007 (unreported), where it was held that the best evidence is that of the accused who confesses to his crime. Submitting on the second ground of appeal, Ms. Magoti stated that, the law is crystal clear, the Minimum Sentences Act provides that, for offences that fall under Chapter XV of the Penal Code, of which the appellant was charged with, a magistrate has to give sentence that is provided for under the Act. The learned State Attorney went on to submit on the third and fourth grounds of appeal conjointly. She conceded that PW5 did not mention her qualifications but, regardless, the offence of rape was proved through other evidence. The learned State Attorney with regards to the fifth ground of appeal submitted that, it is not necessary for an accused person to be taken to a justice of the peace after making a confession before a police officer. Thus, 6 there was no need for the appellant to be taken to a justice of the peace. She submitted further that, section 131 of the Criminal Procedure Act (the CPA) dictates that a suspect should be recorded with a caution. Also, the appellant never intimated to the police that he wanted to be taken to a justice of the peace. Submitting on the sixth and last ground of appeal, Ms. Magoti submitted that, the trial court did convict the appellant and therefore this ground lacks merit. In rejoinder, the appellant, being a layman, simply submitted that his grounds of appeal be considered as they are meritorious and prayed for his appeal to be allowed. Having gone through the record and submission of the parties I shall now determine the appeal. MS who is the victim gave evidence on how the appellant took her to the bush and proceeded to rape her. She also mentioned that, the appellant took his “kidudu” and put it in her “kidudu”. On the strength of Hamis Kayanda v. The Director of Public Prosecutions, Criminal Appeal No. 166 of 2018 and Hassan Kamunyu v. The Republic, Criminal Appeal No. 7 277 of 2016 (both unreported), the words used proved penetration of the victim’s genitalia by the appellant’s male organ. Penetration was also proved by PW5 who observed MS’s private parts and found bruises and no hymen and whitish water and concluded that MS was raped. Perhaps I should pause here a bit and make the following observations: One; PW5 did not mention his professional capacity. It is on record that he stated that he is “C/O Maswa District Hospital”. The learned State Attorney was adamant that “C/O” meant “clinical officer” but I was not impressed. “C/O” could also mean “care of” as so often used in correspondences or even “commanding officer” military wise. I urge Magistrates to refrain from the use of abbreviations unnecessarily as oftentimes they create unwarranted confusion which might lead to injustice. Two; coupled with the first observation, PW5 did not state his professional education. It is not on record whether he is a degree holder, diploma holder or certificate holder. Thus, it cannot be ascertained if he falls within the ambit of a “medical practitioner” as per the Medical, Dental and Allied Health Professionals Act, 2017. The prosecution led this witness with a high degree of laxity when it came to identifying his professional education 8 not knowing that it was crucial in determining whether he was qualified to conduct the observations he did on the victim. Three; Exhibit P2, the PF3 was not duly filed. It contains various fields that need to be completed in order to give it authenticity, the registration number of the medical practitioner who fills it inclusive. PW5 did not fill in that field. I am of the view that this was fatal. Every field in the form which caters for the identity and qualification of the medical practitioner ought to be filed accordingly and with utmost clarity, taking greater care to avoid abbreviations which are not clear to those outside the medical profession. Having made the above observations, I think it is unsafe to rely on Exhibit P2 and for the shortcoming of lacking the registration number of the author, I expunge it from record. However, on the strength of Jamal Ally Salum v. The Republic, Criminal Appeal No. 52 of 2017 and Hamis Kayanda v. The Director of Public Prosecutions, Criminal Appeal No. 166 of 2018 (both unreported), I have treated the evidence of PW5 like that of any other witness, apart from an expert witness. Having done so, PW5’s testimony corroborates that of MS that there was penetration. There is also the evidence of PW4, the local militia chairperson who testified that the appellant admitted to having raped MS. As submitted by 9 the learned State Attorney in DPP v. Nuru Mohammed Gulamrasul (supra) it was held that a confession before a reliable witness is sufficient to find a conviction. The records show that PW4 was a credible witness and there is nothing to suggest otherwise. Again, there is the confession of the appellant (Exhibit P3) which was tendered, uncontested, by PW6. The appellant confessed to having inserted his manhood in the genitals of a minor after tricking her with sugarcane and candy. All these elements proved penetration, which is an essential element in rape. Concerning age of MS, PW1 proved it through oral account, where she testified that MS was her child, aged seven, and she was born on 23.13.2015. She also produced a birth certificate and a clinic card (Exhibit P1) which corroborated her oral account. Thus, age of MS was proved without doubt. As for identity of the perpetrator, the evidence of MS, PW1 and PW4 before whom the appellant confessed to having committed the rape points to the appellant as the perpetrator. Exhibit P3 as well, whereby the appellant himself confessed. 10 Therefore, from the above, the first and fourth grounds of appeal fail and are accordingly dismissed. The third ground of appeal is partly allowed and partly dismissed. As stated previously, it was proved that MS was seven years of age at the time the appellant ravished her and the punishment for raping a child under the age of ten years as provided under the Penal Code, section 131(3), is life imprisonment. The trial Magistrate had no discretion to award a lesser punishment as section 5(d) of the Minimum Sentences Act, provides that: “5. Notwithstanding the provisions of section 4- (a) N/A. (b) N/A. (c) N/A. (d) Where any person is convicted of any sexual offence specified under Chapter XV of the Penal Code, as amended by the Sexual Offences Special Provisions Act, the court shall sentence such person to imprisonment for a term prescribed under that Chapter.” Since the offence of which the appellant was charged and convicted with falls under Chapter XV of the Penal Code, the trial Magistrate (Resident Magistrate) had jurisdiction to pass the sentence that was passed. Therefore, the second ground of appeal falls short. 11 The appellant is also lamenting that he was not taken to the justice of the peace after confessing to the police. However, as submitted by the learned State Attorney in reply, there is no legal requirement that once a suspect has confessed to the police then he should be taken to a justice of the peace. The practice and law being that a confession before a justice of the peace must be freely and voluntarily given by the prisoner (see Petro Teophan v. The Republic, Criminal Appeal No. 58 of 2012 (unreported) CAT-at Dodoma) which in turn would mean that, it is the suspect who offers to make the extrajudicial statement. There is nothing on record showing that the appellant offered to make such a statement and was not afforded an opportunity of doing so. The fifth ground of appeal is, therefore, devoid of merit. The sixth and last ground of appeal need not detain us, at page 9 of the judgment, it reads: “From the foregoing reasons, it is my considered conclusion that the prosecution side has proved their case beyond reasonable doubt against accused person (sic), Juma Makalwe is hereby convicted u/s 235 of CPA Cap 20 RE 2022 as charged…” Meanwhile, section 312(2) of the CPA reads: “312.- (1) N/A. 12 (2) In the case of conviction, the judgment shall specify the offence of which, and the section of the Penal Code or other law under which, the accused person is convicted and the punishment to which he is sentenced.” Based on the decision of the Court of Appeal in Emmanuel Phabian v. The Republic, Criminal Appeal No. 259 of 2017 (unreported) the trial court, albeit lackadaisically, convicted the appellant. It was sufficient for the trial magistrate to state that the appellant was convicted as charged, since at the beginning of the judgment, it was made clear that the appellant was charged with the offence of rape c/ss 130(1) & (2)(e) and 131(3) of the Penal code. Having found so, the sixth ground of appeal also fails. Inevitably, the appeal, lacking in merit, is dismissed in its entirety. DATED at SHINYANGA this 12th day of July, 2024. N.L. MWAKAHESYA JUDGE 13