Bahati Namizyemba vs Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) ATSUMBAWANGA CRIMINAL APPEAL NO. 8039 OF 2024 Reference No. 202403262000008039 (Originating from Criminal Case No, 41 of2023 of Sumbawanga District Court at Sumbawanga) X BAHATI NAMIZYEMBA @ LOTO..................... APPELLANT VERSUS % THE REPUBLIC................. 'X&'jX .......RESPONDENT ? JUDGMENT Being aggrieved by the decision of the District Court of Sumbawanga herein after referred to as the trial court, where the appellant was arraigned for the offence of rape contrary to section 130 (1) and (2) (e) and Section 131, (1); of the Penal Code Cap 16 R.E. 2022, the appellant filed this appeal to this court consisting of four (4) grounds of appeal. A brief background of the offence as it was alleged by the prosecution side, is that on the 09th day of May 2023 at Kizwite area within Sumbawanga Municipality in Rukwa Region, the appellant did have i unlawful sexual intercourse with the victim (name concealed) a girl of six (6) years of age. When the charge was read over to him/the appellant denied the charge laid against him, thus a full trial was inevitable in which, at the end of it, he was found guilty of the offence of rape contrary to section 130(1) and (2) (e) of the Penal Code, [Cap 16 R.E 2019] and he was sentenced to serve thirty (30) years imprisonment and pay a compensation of Tshs. One Million only (1,000,000/=) to the victim. ;< 'iSf Appellant's grounds for appeal were as follows; r'| ’’ ^3^: , i. That, the trial court erred in, law and fact by convicting and sentencing the. appellant, while thecharge/case was not proved On the required standard. ii. That, the . trial court erred in law and fact by convicting and sentencing the: appellant basing on the evidence of the victim ’&!>■ (PV/2) whowas not a credible witness for failure to name the appellant at the earliest time. iii. That, the trial court erred in law and fact by basing its decision of exhibit Pl (PF3) which was filled and signed on 25/05/2023 which was almost two weeks the alleged rape. 2 iv. That, the trial court erred in law and fact by changing the names of the victim and witnesses who appeared in proceedings to its judgment. From the grounds outlined above, the appellant prays for this court to allow this appeal, quash the decision of the trial court and set aside the sentence meted On him. When the appellant was invited to argue his grounds.on the hearing day, he appeared in person and he prayed to thiscourt to allow this appeal and quash the conviction and sentence by the trial court, insisting that .v?• .1. 1v.; : i M'• the grounds of appeal be considered. .iv';# Meanwhile, Ms. God liver Shiyo learned State Attorney represented the respondent, the Republic. She started off by opposing this appeal and stated that she will 'first submit on the 1st and 2nd grounds of appeal together. <;■, She submitted that, in the trial court, the appellant was charged with the offence of rape. That, the victim was a child aged 6 years old, and that on their side, they were required to prove three elements which are: - 1. Age of the victim 2. Penetration 3 3. That the perpetrator was the appellant. She then submitted on the 1st element above that, the prosecution side proved that the victim was 6 years old as stated by her at page 9 of the typed trial court's proceedings. She added further that the age of the victim was also proved by the victim's mother that she is 6 years old as seen at page 7 of the trial court's typed proceedings, Ms. Shiyo proceeded by referring this court to the case ofIsaya Renatus vs Republic, Criminal Appeal No. 42 of 2005 CAT No. 2018 at page 8, where the court held that, the age of the'.victim can be proved by the victim, relative, parents, the doctor or by birth certificate. Therefore, she •- /Xj-J- :x;?\ T'-: •' submitted that the age of the victim in this case at hand was sufficiently proved. Submitting on the.secon.d element, Ms. Shiyo stated that the evidence by the victim (PW2) revealed how the appellant penetrated her. She referred this court to page 9 of the typed proceedings of the trial court, and added that through her testimony, the victim explained how the appellant had sexual intercourse with her by inserting his penis into her vagina. The learned State Attorney insisted that, it has been held in various decisions of the Court of Appeal that the best witness is the victim. She then cited one of the cases in Abdul Mohamed Namwanga @ Madodo 4 vs Republic, Criminal Appeal No. 257 of 2020 at page 19. She then clarified that, in the cited case, the Court held that the best evidence is that of the complainant/victim. In this case at hand, she submitted that the victim named the appellant, and also given her age she was able to explain how the act was done, therefore the witness is credible and she proved penetration. .;V"' Ms. Shiyo then added further that, in proving that the evidence is true, the appellant did not cross examine the witness on the facts, showing that he agreed to the testimony. In support of her submission, she referred this court to the case of Halima Wakan& 2 Others vs Jeremiah M. Mkama, Civil Appeal No. 493 of 2020 at page 16, where it was held that:- "ft is trite law that faiiure to cross examine a witness on an important matter ordinarily implies the acceptance of truth of the witness'evidence" Lastly, Ms. Shiyo submitted on the third element as to who was the perpetrator, in which she insisted that it is clear in the evidence of the victim, that the perpetrator is the appellant. 5. She therefore conclude by submitting that the offence was proved beyond reasonable doubts hence she prays that grounds 1 and 2 be dismissed for lacking merits. The learned State Attorney then submitted on the 3 ground that this ground has no merit at all and stands to be dismissed. That, the appellant misdirected himself as the alleged exhibit was filled on 12/05/2023. That, ■.. 'T?. xj, p? ‘ the judgment was based on the victim's testimony and the doctor's testimony, meaning it did not base on the exhibit alone. Submitting against the 4th ground of appeal, Ms. Shiyb stated that in the proceedings, the victim was referred to by her name while in the judgment she was referred to by a code name, in which it was intended to protect the victim's identity. ’'7.^ Winding up, Ms. Shiyo submitted that this appeal has no merit and that she prays for this court to dismiss it and uphold the decision of the trial court. Thereafter, the appellant had no rejoinder. It was thus the turn of this to determine this appeal on merit. After hearing the submissions made by the appellant and the learned State Attorney respectively, and reading the grounds of appeal filed by the appellant and the records of the trial court, I am fortified that the only determinant issue in this appeal is whether 6 the testimonies of PW1, and PW2 were sufficient to convict the appellant. Despite the fact that the appellant in his submission prayed for all of his grounds of appeal be considered, and the learned counsel for respondent addressed all the grounds-of appeal in her submission/1 intend pot to deal with all the grounds of appeal. In the case of Simon Edson @ Makundi ,4pF' vs Republic, Criminal Appeal No. 5 of 2017, the Court of Appeal stated that, the appellate court is bound to. considerthe grounds of appeal presented before it and in so doing, neednotdiscussall of them where only a few will be sufficient to dispose; of the appeal. The situation in the ‘■'<7 't- present appeal permits that coursed. < y For that reason, I will deal with ’the first and the second grounds of appeal as I am of the firm consideration that the two grounds will fully settle this matter before this court. The appellant's complaint in the first ground of appeal is to the effect that his case was not proved to the required standard, and on the second ground of appeal, he complained that PW2 was not a credible witness for failure to name the culprit at the earliest opportunity. PW1, the victim's mother testified that on 12/05/2023 noticed bruises on the vagina of her daughter (PW2) and as she asked her what happened, 7 PW2 answered her that she was raped by a person known as Loto also known as Bahati. She testified further that, on 09/05/2023 she had sent her daughter to buy a phone. She did inform the chairman on the facts, and the appellant was arrested and taken to the police station. The victim (PW2) had testified that it was the appellant who raped her at his residence by inserting his "dudu" in her vagina.and that she knew him before the incidence. -it-, PW3, the medical practitioner testified that,.on 25/05/2023 she performed a general examination on the victim who was suspected of being raped, and indeed she observed healing bruises and pain and that there was no hymen. She then filled, in the PF3? It is true that, the ability of a witness to name a suspect at the earliest opportunity is an assurance of his reliability. See: Marwa Wangiti Mwiata & AnotherVs. Republic (2002) T.L.R, 39, In the present case, the victim named the appellant some four days later when she was purportedly being washed by her mother. It means, the dates after the incident occurred, the victim never took a bath at all until on 12/05/2023. Naming the appellant that late without even saying if she was threatened not to Utter a word to anyone about the incident, makes this court to doubt the credibility of the victim. 8 Nevertheless, in her testimony, given her age, she never testified as to why she went at the appellant's residence, and whether it was during the day or night, and if during the insertion of the so-called "dudu" was she filling pain as in most cases as far as rape is concerned or not. All these unanswered questions were to be heard from the mouth of a true victim. Even worse, the testimony of PW1 ruined it all. She testified that she noticed bruises on her daughter's vagina on 12/05/2023 when she was washing her. That day was the third day after-she had sent her to buy a phone on 09/05/2023. My considerable; question is, who washed the victim on 09th, 10th and 11th and never saw the bruises until when PW1 . sj<■ 1J;,i1-yvsj-. -v' saw them on the 12th day of May. That question goes unanswered too. PW1 also testifies that, she had sent PW2 to buy a phone(The other question is whether any parent with her right mindset can sent a child of six (6) years to the shop to buy a phone), but also, PW1 did not say where she sent her, and given the particulars of the appellant on the charge sheet that he is a barber, it is clear that PW2 was not sent to the appellant because he does not sell phones as it is not reflected anywhere in the records. PW1 also did not tell the court as she was told by the victim that she was raped by the appellant, where did the incident occur, was it at his shop as she was sent to buy a phone or at his residence as the victim 9 claimed in her testimony. Therefore, PW1 herself does not know where was her daughter raped. As for PW3, in her testimony as a medical practitioner, she testified that she conducted general examination on the victim on the 25th day of May 2023, and she saw healing bruises, and that there was pain and also there was no hymen. Her testimony did not point to the appellant as the offender but rather that the victim was indeed raped/ -; . I should point out that, I do agree with the learned State Attorney that the age of the victim was proved andJt is not in dispute. I also agree that ''/A, "//S. the victim indeed faced this shameful torture as per the medical practitioner's testimony and also the contents of the PF3 (Exhibit Pl). It is however, .my firm holding that the appellant was not the perpetrator "ST. in this case as thereds no any vivid evidence that points to him. As pointed out in the most: celebrated case of Selemani Makumba vs Republic [2006]TLR 379 which held that, in sexual offences the best evidence is that of the victim; in this case at hand it is quite the contrary, the evidence of the victim is too flimsy to convince me that the appellant is guilty. Since the appellant's conviction was solely based on the evidence of PW1 and PW2, there is no gainsaying that their testimonies were not sufficient to warrant conviction of the appellant, and therefore, the prosecution case 10 lacked legs to stand on. In the event, this appeal is hereby allowed. The appellant's conviction is quashed. The sentence and the order of paying compensation of Tshs. 1,000,000/= are hereby set aside. I consequently order his immediate release from prison unless he is otherwise lawfully held. It is so ordered. Dated and signed at Sumbawanga this 23rd day of July, 2024. T. M. MWENEMPAZI JUDGE Judgment delivered in judge's chamber this 23rd day of July, 2024 in the presence of appellant in person and Mr. Frank Mwigune, Learned State li