DICKSON JUDGMENT NEW

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO 116 OF 2023 (Originating from Criminal Case No 13 of 2023 of Kibaha District Court at Kibaha before Hon. J. LYIMO -SRM) DICKSON CHILONGOLA…… ................................................... APPELLANT VERSUS THE REPUBLIC ........................................................................ RESPONDENT JUDGMENT 5th June & 16th August, 2024 MWANGA, J. The appellant before this Court was charged and convicted before the Kibaha District Court for an offense of rape, c/s 130 (1) (2) (e) and 131 (3) of the Penal Code [Cap 16 R.E 2022]. It was alleged by the prosecution that, on the 31st day of January 2023 at Zegereni Mlandizi area within Kibaha District in Coastal Region, the appellant had sexual intercourse with a girl of 9 years old (Name withheld for the sake of covering her identity) The brief background, as depicted from the proceeding, goes thus: The 1 appellant lives with his wife (PW1), the victim, and two other siblings in a house with two bedrooms. There was a complaint that the victim's behavior changed as she started to distance herself from other children. Thus, the victim's mother (PW1) decided to close her eyes on her. On 31/01/2023, the victim's mother woke up and did not find her husband in bed; she then heard the bed noise squeaking as the house had no ceiling board. PW1 went outside and looked at the children's room through a small space between the wall and the door. Since the children slept with the light on, she managed to see her husband kneeling while a child's legs were between him having sex. Afterward, the accused exited the children's room and headed to the bathroom. PW1 went to inspect the children only to find sperm all over the bed; she also inspected the victim's private parts and found sperm. It is further alleged that, while inspecting, the accused came and prevented PW1 from doing her inspection; he then knelt, begging for forgiveness and insisting on settling the matter amicably. PW1 screamed afterward; she went to the ten-cell leader, who inspected the victim and later reported to Mlandizi Police station, where they were issued Pf3. The victim was taken to Mlandizi Health Care, whereby she was attended by Clinical Officer Mr. William Charles William PW5, whose findings revealed that the victim had bruises in her vagina and a watery slippery white or greyish 2 substance and was not a virgin. His findings were recorded in Pf3 and received in court as exhibit P1. The accused was arrested on the same date by the citizens and later on was arraigned in Kibaha District Court to face his charge. When the charge was put to him, the accused pleaded not guilty, which made the prosecution to parade seven (7) witnesses and tendered two exhibits to establish the accused guilty. On his party, the appellant relied on his testimony and two other witnesses. After a full trial, the court was convinced that the prosecution proved its case beyond a reasonable doubt, found the appellant guilty as charged, convicted, and sentenced him to serve the mandatory sentence of life imprisonment because the victim was under 10. Displeased, the appellant is before this temple of justice trying to challenge his conviction and sentence fronting 11 grounds of grievances as summarized hereunder: 1. That the learned trial magistrate erred in law and fact in convicting and sentencing the appellant relying on the evidence of Pw3 (the victim), which was received in contravention to section 127 (2) of the Evidence Act. 2. That the learned trial magistrate erred in law and fact in convicting and sentencing the appellant relying on the evidence of the Doctor (Pw5), 3 which was in contravention to section 130 (4) (a) of the Penal Code. 3. That the learned trial magistrate erred in law and fact in convicting and sentencing the appellant in a case where Pw5 failed to examine the sperms oozing out from the victim's vagina (as alleged) to ascertain whether it was actually from the appellant or not. 4. The learned trial magistrate erred in law and fact by convicting and sentencing the appellant based on improbable and contradictory evidence of Pw4 and Pw5 (Doctor). 5. That the learned trial magistrate erred in law and fact by convicting and sentencing the appellant in a case where there was a possibility of mistaken identity as the incident happened at midnight. 6. That the learned trial magistrate erred in law and fact by convicting and sentencing the appellant where the victim did not see (the face of) who raped her. 7. The learned trial magistrate erred in law and fact by convicting and sentencing the appellant based on contradictory evidence of PW1 and PW2. 8. That the learned trial magistrate erred in law and fact by convicting and sentencing the appellant while none of the children who were alleged lying on the same bed testified in court. 4 9. That the learned trial magistrate erred in law and fact by convicting and sentencing the appellant in a case where it is improbable that Pw1 failed to stop the commission of a crime. 10. That the learned trial magistrate erred in law and fact by convicting and sentencing the appellant to a maximum harsh sentence (Life sentence) without considering that even if the alleged (unproved) offense could be said to have been proved to the required standard, the appellant was/is a first offender hence deserved minimum lenient (30 years) sentence On the strength of the said grounds of appeal, the appellant prays this Court to allow the appeal, quash the conviction, set aside the sentence, and set him free from prison. Hearing of the appeal took the form of written submission as the appellant appeared unrepresented while Mr. Clarence J. Mhoja learned state Attorney, represented the respondent. In his submission, the appellant sought leave of the court to drop the 1st and 2nd grounds of appeal and thus start arguing from the 3rd ground of appeal. At the same time, Mr. Clarence answered the grounds of appeal in seriatim, except for the 5th and 6th grounds, which he consolidated. So, in this Judgment and to properly determine the said nine grounds, I wish to combine grounds with the same gist; thus, the 5th and 6th grounds of appeal, grounds 4 and 7, and the 5 rest will be argued separately. In support of the third ground of appeal, the appellant contended that it was entirely wrong for the trial magistrate to conclude that the slippery white or greyish substance oozing out of the victim's vagina is/are sperms and relied on it to make his decision when the Doctor (pw5) made it clear that the whitish, grayish substance can be sperms or a sexually transmitted disease. To him, the above testimony of pw5 (a doctor) confirmed that it is never known whether the whitish-grayish substance on the vagina of pw3 is a sexually transmitted disease or sperm. Hence, it can never be relied upon as evidence of recent sexual intercourse and since the Doctor (pw5) woefully failed to examine the substance to ascertain whether it is sperms and that it is from the appellant. He argued for the court to find merit in this ground. Responding to this ground of appeal, Mr. Mhoja referred the court to the testimony of PW5 as seen on pages 20 - 23 of the typed proceedings and the judgment of the trial court, especially on page 12, where the trial court was analyzing the evidence, one of the reasons of finding that the appellant raped the victim was the evidence of PW5 that he saw bruises and whitish/grayish substance on her vagina. He said the trial magistrate did not conclude that the whitish/grayish substances were sperms. In his view, the issue of failure on the part of PW5 to ascertain or examine whether the sperm 6 oozing out from the victim's vagina is actually from the Appellant or not is immaterial in proving rape cases. In a short rejoinder, the appellant was insistent that, in proving rape cases, it must be established that it is the appellant's male organ that penetrated the victim's vagina; thus, the doctor had to examine the sperms and find whether the same belongs to the appellant. I have keenly considered both parties' submissions and the lower court record I have perused. In my view, this ground need not deter this court. The reasons I so hold are that, in proving the instant case prosecution had to establish that, the victim is under ten and that there was penetration of the appellant's penis to the victim's vagina. As to whether the sperms found in the victim's vagina were from the appellant or not is immaterial, primarily where the rapist is known. This is so because, as the law stands for proving the offense of rape, penetration, however slight, is sufficient to constitute the sexual intercourse necessary to the offense. See section 130 (4) (a) of the penal code cap 16 R.E 2022. Thus, it is not until the sperms are examined that the court will find that the appellant committed the crime. Whether or not the case was proved to the required standard will be discussed when dealing with the 11th ground of appeal. Thus, this ground is destitute of merit, and the same is dismissed immediately. 7 Next are the 4th and 7th grounds of appeal, where the appellant contends that the trial court convicted and sentenced the appellant based on improbable and contradictory evidence of PW4 and PW5 and contradictory statements between PW1 and PW2. On these grounds, the appellant submitted that PW4, a police officer, and PW5, a doctor who worked in different places, both testified to have received the victim at 3:00 am, which is improbable. To him, that is clear evidence that the witnesses are incredible and should not be believed. Concerning the contradiction between PW1 and PW3, he contended that PWI and PW3 testified differently on the answers given by the accused after his wife found sperm in the children's room. The appellant was insistent that it was not possible for witnesses who were in the same place at the same time to fail to repeat what the appellant said utterly. To him, these are reasonable grounds for not believing a witness, as in the case of Goodluck Kyando. In rebuttal, Mr. Mhoja contended that the evidence from PW4 and PW5 is that on 31/01/2023 at 3 am, the duo was in their working stations, and they met with the victim. According to him, the crucial thing to note from this is that there is nowhere in PW4 and PW5 testimonies that they met with the 8 victim precisely at 3 am. He believed that what was gathered from their testimonies was that at 3 am, they were in their working station, and when they were there, the victim went and got their assistance. He added further that, in their testimonies, it is not mentioned precisely that the victim went there at 3:00. In further view of Mr. Mhoja, even if the PW4 and PW5 would have so stated that, that alone could not have made them incredible as the Appellant would have wished this Appellate Court to hold so because, firstly, what the Appellants term to be a contradiction is about the time i.e. 3 AM of which it has nothing to do with the crucial ingredients constituting an offense of statutory rape he was charged with. Secondly, the appellant did not challenge this during cross-examination, which was accepted as correct. Thirdly, it was not disputed that PW5 received the victim examined and ultimately filled exhibit Pl (the PF.3) on 31/01/2023. Mr. Mhoja placed reliance on the case of Huang Qin & Another vs. Republic (Criminal Appeal 173 of 2018) [2021] TZCA 210 (25 May 2021) TanzLII in which the Court of Appeal on pages 20 - 22 had an opportunity to discuss on the allegation of contradiction on time and held that the so-called contradiction, is immaterial. It did not affect the credibility of the said two witnesses. Mr. Mhoja argued that the contradiction between PW1 and PW3 is 9 baseless as the alleged contradiction is not material. Just like what was held in Huang Qin & Another vs Republic (supra). He was of the view that the issue of sperm on the bed sheet, in this case, did not anyway wash away the credible evidence of penetration given by PW1 and PW3, which was also supported by the evidence of PW5. In his rejoinder, the appellant had nothing useful to add. I have dispassionately considered the fighting arguments by the parties herein. It is true, as submitted by the appellant that the existence of contradictions and inconsistencies in the evidence of a witness is the basis for finding a lack of credibility. Nevertheless, contradictions by any particular witness or among witnesses cannot be avoided in any specific case. Thus, the discrepancies must be sufficiently severe, and matters relevant to the adjudged issue must be considered to warrant an adverse finding. See the case of Dickson Elia Nsamba Shapwata v. Republic, Criminal Appeal No. 92 of 2007 (unreported). In that case, the Court observed that regularly in all trials, everyday contradictions or discrepancies occur in the testimonies of the witnesses due to standard errors of observation or errors in memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence of the incident. The Court added that a material contradiction or discrepancy is not typical of an average person and that 10 courts must determine the category to which a contradiction, discrepancy, or inconsistency could be characterized. On the premises, the Court had this to say; “minor contradictions, discrepancies, or inconsistencies which do not go to the root of the case for the prosecution cannot be a ground upon which the evidence can be discounted, and they do not affect the credibility of a party's case.” In the case of Said Ally Saif vs. R. Criminal Appeal No. 249 of 2008 (unreported), the court had this to say: "It is not every discrepancy in a prosecution case that will cause the prosecution case to flop. It is only where the gist of the evidence is contradictory that the prosecution case will be dismantled. Minor contradictions and inconsistencies on trivial matters that do not affect the prosecution's case should not be made a ground on which the evidence can be entirely rejected”. As can be depicted from the above authority, it is apparent that minor contradictions and inconsistencies in trivial matters that do not affect prosecution should not be grounds for rejecting the evidence in its entirety. 11 With the above understanding, I will determine whether the appellant's alleged contradiction goes to the root of the matter. Going by the facts of this case, I think they are not. The reasons I hold so are not far-fetched; as per records, PW3 narrated how the appellant raped her and that she was taken to the police and later on to the hospital for examination, where it was discovered that there was penetration. To me, the issue as to whether both Pw4 and Pw5 met the victim at the same time is immaterial since the pf3 proves that the victim was received on 31 January 2023, 3hrs after the incident, and was examined and found with bruises and there was proof of penetration. Similarly, the issue as to what was the answer to PW1's question after discovering that her child had been raped by the appellant and sperm spread in bed is immaterial to this case. Therefore, the two grounds are also bound to fail. Next for consideration are grounds 5 and 6, in which, in both grounds, the appellant laments that he was not identified as the perpetrator of the crime. The appellant contends that the incident happened at night, and if there had been solar light of sound intensity in that room, it would have helped PW1 to see which of the children the appellant was kneeling between her legs. He referred the court to page 9 of the proceedings and contended that even Pw3 did not see the culprit as she testified that the culprit used to 12 cover her face before raping her. He believed the culprit covering the victim's face aimed to hide his identity. In Rebuttal, Mr. Mhoja argued that PW3 in her examination in chief, told the court that the appellant 2022 used to rape her, that he used to take his penis and stick it inside her vagina, the act that was done during the night hours and after he has moved the other children sleeping with the victim and after having covered her with the bedsheet, he went on to submit that, according to the victim, within the said room, solar lights were always on while the children were asleep. He went on to submit that, concerning the incident of 31/01/2003, the victim asserts that the appellant raped her and left before her mother entered the room. When her mother (PW3) questioned her about what was wrong, she said nothing. The appellant came preventing the PW1 from seeing her, and upon inspection of her vagina, the victim’s mother realized that the victim was penetrated; she confronted the appellant, telling him that "umezunguka na wanawake wote umekosa ndo unakuja kumbaka mwanangu." Mr. Mhoja insisted that these allegations were not disputed by cross-examination by the Appellant. Mr. Mhoja added that the Appellant is again said to have kneeled and begged for forgiveness, which was also not disputed by cross-examination. It 13 was his submission that, if it was not him, why pray for forgiveness? Why prevent PW1 from seeing her daughter? He argued further that, during cross- examination, the victim answered that she was seeing him (the appellant) before covering her face and lavishing her. This tells it all that the victim visually identified the appellant as a person who was lavishing and ultimately threatening her not to reveal to anyone the awful act; otherwise, he would beat and kill her. Mr. Mhoja quoted the evidence of PW1 on Page 9 of the proceedings. He submitted that the same indicates that PW1 identified the appellant, whom he had known for a considerable time by the aid of the light on the material day. This fact was not disputed during cross-examination. He believed that the rule is clear on failure to cross-examine a witness as it is presumed that what was stated by the witness is true. In this, he placed reliance on the case of Maganiko Petro vs Republic (Criminal Appeal No.552 of 2019) [2023] TZCA 17545 (29 August 2023) TanzLII. He argued further that, during his defense, the appellant said to have been restrained by PW1 while screaming for help but succeeded in pulling her and going outside. To him, that means that the appellant was there. He went on to submit that PW1 evidence on the space that enabled her to see the Appellant lavishing the victim is supported with the evidence of PW6, the investigator, who visited the house and drew 14 a sketch map, which was admitted as Exhibit P2, and testified that, the room which the victim and his siblings used to sleep had a small space of which a hand can go through. This evidence was also not cross-examined. He added that when the Appellant was being cross-examined, he was said to have no dispute with PW3, that she had no reason to lie in court, and that he was the only man in the house where the incident happened. To him, raising the issue of identity at this stage is nothing but an afterthought. Having keenly examined the arguments raised by the appellant and the state attorney, and after critical perusal of the trial Court records and the case laws relied on to establish the merit of this ground, it is evident that the issue for determination is whether the appellant was identified as the perpetrator of the alleged rape or not. The problems of visual identification were well discussed in the case of Waziri Amani v Republic [1980] TLR 250, where the court laid down several factors to be taken into account by the court to satisfy itself on whether the evidence of identification is watertight. The same includes the time the witness had with the accused under observation, the distance at which he observed him, the conditions in which such observation occurred, whether it was day or night, and whether he knew or had seen the accused before or not. Further, the Court of Appeal at Bukoba, in the case of Phineas Alexander and two others v Republic, Criminal Appeal No 276 15 of 2019, stated that the court has always emphasized that caution should be exercised before relying solely on the visual identification evidence. The above case quoted with approval the case of Chokera Mwita v Republic, Criminal Appeal No 17 of 2010 (Unreported), where the Court held that: “Court should not act on such evidence unless all the possibilities of mistaken identity are eliminated and the Court is satisfied that the evidence before it is watertight.” In the instant appeal, the records reveal that the appellant is the husband of PW1, and they have been living together since 2016. There was an opening space in the children's room where the incident occurred. There is a Solar light that is always on, which helped PW1 to recognize the appellant. For clarity, this is PW1’s evidence as quoted on page 9 of the typed proceedings, where PW1 is recorded to have said: "... When I got there, I peeped from the door. There is an opening between the door and the wall. I saw Dickson (the Appellant) kneeling on the bed while a child's legs were between him, having sex with the child. I didn't see the child because the back in Dickson was facing me. I knew him, and the light was on. I know Dickson (the Appellant), we have moved since 2016. It was a solar light that was on. You could see anything with those lights. The distance between us was not so far; the room was small. The distance is about one and a half meters. I stayed there 16 like 5 minutes…Suddenly, Dickson came seated on the bed, preventing me from touching her." This evidence clearly establishes that the appellant was the one who committed the offense of rape. That aside, Pw3, who claimed to have been raped by the appellant, has known the appellant for a long time as her stepfather, and she testified to have been threatened by her stepfather not to reveal the awful act to anyone; otherwise, she would be killed. Further, according to PW3, it is not the first time the appellant raped her; that aside appellant was arrested on the same night, and even when interrogated by ten cell leader Pw2, Pw4 the Police, the victim confidently mentioned the appellant as the perpetrator of the alleged rape. Thus, the appellant's allegations that he was not identified lack basis; therefore, these grounds have no substance, and the same are dismissed. On the 8th ground of appeal, the appellant contends that the children sleeping with PW3 were not called to testify in court. In this, the appellant submitted that the evidence of PW1 and PW3 bear it that, Pw3 (the victim) sleeps on the same bed with her two younger ones (Yohana and Maria) and that the culprit (unknown) always and before raping PW3, moved the siblings from the bed. To him, if indeed the appellant is the one who raped PW3 that night, the prosecution had to bring these younger ones of PW3 to testify in 17 court that they slept in the bed, but they woke on the floor when they heard the mother screaming. To him, this weakened the prosecution. In this, he relied on the case of Farida Abdul Ismail Vs. Republic, Criminal Appeal No. 03 of 2017 (unreported) on page 24. Responding to this ground of appeal, the respondent cited section 143 of Evidence Act [Cap. 6 R.E. 2022] and submitted that, as to who qualifies or is said to be a material witness, the answer is found on pages 21 - 22 of the recent decision of the Court of Appeal in George Jonas Lesilwa vs. Republic (Criminal Appeal No. 374 of 2020) [2024] TZCA 269 (16 April 2024) TanzLII where it was stated that: "...According to the applicable literature and jurisprudence, a material witness is a witness who can testify about matters having some logical connection with the consequential facts, especially if few others, if any, know about these matters. (See Black's Law Dictionary 8th Ed. Page 1634). Generally, the information the material witness possesses has a strong probative value, and very few, if any witness, possess the same information. It should be needless to say, at this juncture, that probative value is the probability of evidence to reach its proof 18 purpose of the fact in issue..." Based on the above authority, he submitted that the siblings of PW3 (Yohana and Maria), who were asleep during the evil act, do not qualify to be called since they did not observe the act and thus could not be in a position to tell what happened. He insisted that failure to summon the duo did not dismantle the prosecution case. Considering the above submission, I wish to point out that this ground need not detain me much. As per section 143 of the Evidence Act (Cap 6 R.E 2022), what matters is the quality of evidence and not the number of witnesses. Further, as to who should testify, it is the discretion of the prosecution to decide and not the accused person; the only exception is when the witness is a material one whose absence leaves out evidential gaps in the prosecution case. See the case of Yankami Idd or Alfan Idd @ Nyanzabara vs Republic, Criminal appeal No. 249 of 2019 [2023] TZCA (Tanzlii at page 11). Since it is on record that the siblings of PW3 were asleep at the time of the incident and were moved by the appellant before committing the awful act, thus the same were not material witnesses; hence, there was no need to summon them to testify. This ground is also bound to fail for want of merit. Next is the 9th ground of appeal, where the appellant faults the trial 19 magistrate for convicting and ultimately sentencing him. At the same time, it is improbable that PW1 identified PW3 in a dangerous mode in the middle of the night and then did nothing to stop the commission of crime (for instance, by shouting and seeking help from the neighbors) but waited until the appellant satisfied his sexual desire. To him, it was astonishing for a mother to see her daughter being lavished and wait until the lavisher finishes and then come and question her about what matters while she witnessed everything happening. He added that there is no evidence that the gun prevented PW1 from raising the alarm or shouting for help while he was lavishing the victim, but she raised the alarm after finishing the incident. In Response, Mr. Mhoja quoted the evidence of PW1 on why she did not confront her husband during the act. To him, these facts of him (the appellant) being abusive were not controverted by cross-examination. According to him, this ground lacks merit since the Appellant gave reasons for not intervening when the appellant was lavishing PW3. I have keenly considered the submission of both parties in light of the available records, and in my view, this ground is also baseless; the reason I so hold is that the record speaks voluminously on why PW1 failed to stop the appellant from committing the crime. In the typed proceedings, especially on page 10, PW1 is quoted testifying, "...I couldn't enter inside because Dickson 20 is abusive, he beats me..." Again, while being cross-examined by the Appellant, PW1 is reported to have answered: "I was first scared because you are abusive; there is a day you did beat me, strangled me. You even took a machete and beat me on its side..." This proves that PW1 could not have prevented the occurrence of the crime on the spot. On the 11th ground of appeal, the appellant contends that the trial magistrate erred in law and fact by convicting and sentencing the appellant in a case where the prosecution failed to prove their Rape case against the appellant beyond reasonable doubt. In this, he implored the court to find merit in the grounds of appeal raised as the case against him was not proved beyond reasonable doubt. In response, Mr. Mhoja argued that the law is settled in criminal cases that the prosecution must prove the charge against the accused beyond reasonable doubt. In his view, the prosecution proved the charge and discharged its statutory obligation. It was his further submission that the substituted charge leveled against the Appellant and procured his plea on 24/02/2023 was framed under the provisions of sections 130 (1), (2) (e), and 131 (1), (3) of the Penal Code [Cap. 16 R.E. 2022] in which the prosecution 21 was demanded to prove; one, penetration of the appellant's manhood, however slight on the victim's vagina, and two, that the victim was a girl whose age was below 10 years. To bolster his position, he cited the case of Selemani Hassani vs Republic (Criminal Appeal 203 of 2021) [2022] TZCA 127 (22 March 2022) TanzLII on page 19. He went on to submit that, in molestation offenses, the victim's evidence is the best, as per the case of Selemani Makumba v. Republic [2006] TLR 379. Concerning the age of the victim, he was of the view that the same can be obtained from various sources, such as the victim herself, parent, guardian, relative or social welfare officer as per section 114(2) of the Law of the Child Act [Cap. 13 R.E. 2019] and the case of Issaya Renatus vs Republic (Criminal Appeal 542 of 2015) [2016] TZCA 218 (26 April 2016) TanzLII at page 8-9 where the Court held that, it is most desirable that the victim give the evidence as to proof of age, relative, parent, medical practitioner or, where available, by the production of a birth certificate. In given cases, the Court may infer the existence of any fact, including the victim's age, on the authority of section 122 of the Evidence Act [Cap. 6 R.E. 2022]. He contended that the proof of age in the present appeal is gathered from the evidence of PW1 (the victim's mother) and PW3 (the victim herself). 22 PW1, while examined in chief on 03/03/2023, as depicted on page 8 of the typed proceedings, said the victim was born on 07/08/2013 and was nine years old by then. He argued that, by a simple calculation, when the incident occurred on 31/01/2023, the victim, born on 07/08/2013, was yet to reach ten years. In addition, he submitted that the victim herself, as depicted on page 16 of the typed proceedings, is said to be nine years old. He was insistent that, that was enough proof of the victim's age. In concluding this point, he contended that the age issue was not disputed, and the appellant did not cross-examine the evidence of age; thus, it is clear that the victim was below ten years old. On the issue of penetration, Mr. Mhoja was of the view that the evidence first was given by the victim herself, on pages 16 to 17 of the typed proceedings, as she says the lavisher, who is the Appellant, and her stepfather used to rape her since 2022. That he used to take his penis and stick it inside her vagina, and she did not reveal the incident because the Appellant threatened to beat and kill her if she attempts doing so. And on the material date, i.e., 31/01/2023, she said to have been raped again by her father. She recognized her as inside the room; a solar light was left on while they were asleep. The victim further revealed the conduct of her stepfather (Appellant) after the incident, that he attempted to block her mother from accessing her 23 after the incident. Further, he begged for forgiveness for raping her. According to him, these facts were not disputed by the Appellant, and what he asked the victim during cross-examination was on the issue of identification, which she said to have seen him before covering and raping her. He submitted further that the victim's evidence on penetration is supported by the evidence of her mother, PW1, who, on 31/01/2023, saw the Appellant, who was known to her, lavishing the victim aided by the solar light to identify the Appellant. He added that the Appellant's conduct before PW1 suggests his guilt. He said after the incident, the Appellant came and attempted to access the victim and that he begged her not to scream as he was going to tell her why he did that so that they could settle the matter. He believed that the appellant did not even dispute the fact of settling the matter during cross-examination. According to him, the other evidence supporting the incident of penetration comes from the Clinical Officer (PW5), who examined the victim and filled the PF.3, whose evidence reveals that the victim's vagina had bruises and water slippery white or grayish substance, which suggests that there was the penetration of something blunt. It was his further submission that during cross-examination, the appellant admitted to have been living with the victim and having no dispute with the victim, that they were in a good relationship, and that he had no reason to come to court and lie, same as for the PW2 ten- 24 cell leader. To bolster his position, he cited the case of Nyamasheki Malima @ Mengi vs Republic (Criminal Appeal 177 of 2020) [2022] TZCA 326 (9 June 2022). Based on all these, he believed the case was up to the required standard. I have canvassed parties' arguments for and against this ground of appeal. Undoubtedly, the appellant was charged with the offense of raping a nine years old school girl contrary to, among others, sections 130 (1), (2) (e), and 131 (3) of the Penal Code. In essence, for the prosecution to secure a conviction in this category of rape, they have to prove that the victim was a child under ten years of age and that she was carnally known by the appellant. There are plenty of cases supporting the above stance, such as the case of Robert Andondile Komba vs. DPP, Criminal Appeal No. 465 of 2017, George Claud Kasanda vs DPP Criminal Appeal No 376 of 2017 CAT at Mbeya, Isaya Renatus vs. Republic, Criminal Appeal No. 542 Of 2015, CAT at Bukoba (Unreported) and Jackson David @ Linus vs Republic, Criminal appeal No. 284 of 2019 CAT at Bukoba (Unreported) to mention few. In the instance appeal, it is on record that when the victim was raped, she was nine years of age. Regarding the question as to whether the appellant carnally knew her, the case of Selemani Makumba v. Republic (supra) expresses clearly that, in sexual offenses, the victim's evidence is the best. In 25 the present appeal, the evidence of the victim (Pw3) was evident that her stepfather raped her and that it was not the first time. She also explained that she knew the appellant before the incident as she is living with him as her stepfather. About whether the accused penetrated his male sex organ to the victim, the evidence of Pw3 being the best evidence explained clearly how the appellant raped PW3, and her evidence was corroborated by that of PW1 and PW2, who saw the victim on the date of the incident and inspected her private parts. Further corroborated by PW5, a doctor who examined the victim after elapse of 3 hrs and found that she had bruises on her vagina, with white discharge; and was not a virgin, hence concluded that the blunt object penetrated her. Further, the record reveals how the incident was reported to the ten-cell leader, who inspected the victim's private parts and found sperm and later on reported it to the police station. That aside, the victim mentioned the appellant to be the perpetrator of the rape to Pw2 and Pw4, the police officer, the standard which is required by the law as accentuated in Manyinyi Gabriel @ Gerisa v. Republic, CAT-Criminal Appeal No. 594 of 2017 (unreported) Looking at PW1’s and Pw3's evidence, nothing conveys any dissatisfaction with their evidence concerning the incident and lacks credence to theirr testimony. Their evidence was substantial concerning the incident's 26 occurrence and who committed it. The allegation that the appellant was not correctly identified has no basis because, as per the record, the incident occurred at home in the victim’s room, with solar light around. The victim knew the appellant even before the incident, as they are living together, and it is not the first time the appellant raped her. While the appellant is alleging that the case was framed against him by PW1, his wife, as they are not in good terms, there is nothing raised by him to discredit the evidence of PW3 as by his evidence he describes the victim as a good person with no reason to lie in court. In my profound view, if PW3 had conspired with her mother to frame a case against the appellant as alleged by the appellant, her evidence could have been different. Thus, the appellant's evidence could not discredit the credible evidence of Pw3. That aside, as earlier explained, the evidence of PW3 was straightforward; she gave a detailed account of how her stepfather entered her room, covered her face with a sheet, and ordered her not to shout before he raped her. And on being cross-examined, PW3 was consistent that it was the appellant who raped her. Therefore, since the appellant did not shake PW3's evidence, it is my finding that the prosecution case was proved to the hilt; thus, this ground also lacks merit and is dismissed. 27 Lastly, is the tenth ground of appeal in which the appellant contends that he was given an excessive sentence of life imprisonment while he was the first offender. In his view, the trial magistrate used section 131 (1) of the Penal Code to sentence him, the section that does not carry the sentence of life imprisonment but rather 30 years' imprisonment. He implores the court to consider the same to avoid a miscarriage of justice. In response, Mr. Mhoja submitted that the accused was arraigned formerly on 17/2/2023 under the charge of rape which was preferred under section 130(1) (2) (e) and 131(1) of the Penal Code [Cap. 16 R.E. 2022]. And particulars of the charge revealed that he was charged for raping a girl of ten (10) years old. But the typed records of Appeal on page 3 reveal further that on 24/02/2023, the charge sheet was amended, and the new charge was framed under section 130(1) (2) (e) and 131(3) of the Penal Code [Cap. 16 R.E. 2022], and the victim of the rape was mentioned to be nine years old. Mr. Mhoja argued that, Since the second charge or amended charge was framed under the provisions of 130(1) (2) (e) and 131(3) of the Penal Code [Cap. 16 R.E. 2022] and the particulars of the offense show clearly that the victim of rape was nine years old, the appellant is barred from lamenting on the sentence imposed on him because, under section 131(3) of the Penal 28 Code [Cap. 6 R.E. 2022] the minimum sentence to an offender of rape who lavished a girl under the age of 10 years is life imprisonment. It was his submission, therefore, that the trial magistrates' hands were tied; she could not impose any lesser offense than life imprisonment. I have dispassionately deliberated the rivalry submission by the parties concerning this ground. In my view, this ground is unfounded and need not take much of my time. Section 131(3) of the Penal Code, which is a sentencing section on the offense that the appellant was charged with, provides that; “(3) Subject to the provisions of subsection (2), a person who commits an offense of rape of a girl under the age of ten years shall on conviction be sentenced to life imprisonment”. I had time to peruse the trial court record. As per the charge sheet, the victim is nine years old, and there was no dispute during the trial. The victim's mother expressed clearly that the victim was born on 07/08/2013. As rightly submitted by Mr. Mhoja, since the incident occurred on 31/01/2023, it is apparent that the victim has yet to reach ten years. Thus, the allegation is baseless, and the same is dismissed. Consequently, this appeal lacks merit, and it is denied immediately. It is so ordered 29 MWANGA J. JUDGE 16/08/2024 COURT: Judgment delivered at Dar es Salaam in chambers this 16th August 2024 in the presence of Appellant in person and Phoibe Magiri, learned State Attorney for the Respondent. MWANGA J. JUDGE 16/08/2024 30