Boniphace Nkinga vs

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA CRIMINAL APPEAL NO. 37397 OF 2024 (Arising from the judgment of District Court Shinyanga in Criminal Case No. 121/2022 before Hon. C.S LANGAU- SRM delivered on 30th November, 2022.) BONIPHACE NKINGA ………………………….…………...…….……… APPELLANT VERSUS THE REPUBLIC………………………………………….....……..……… RESPONDENT JUDGMENT Date of Last Order 26.06.2024 Date of Judgment: 09.08.2024 MWAKAHESYA, J.: In the District Court of Shinyanga at Shinyanga, the appellant, Boniphace s/o Nkinga was tried and convicted of Unnatural Offence c/s 154(1)(a) and (2) of the Penal Code. The particulars of offence as divulged in the charge sheet were that on the 28 th of October, 2022 at Ndembezi area within Shinyanga Municipality in Shinyanga Region, the appellant had carnal knowledge of “SM” (name withheld to protect her identity) a girl aged 3 and a half years, against the order of nature. 1 It was the prosecution’s case that on the material date, while on the way to a shop alongside another minor (PW3), SM was approached by the appellant who under the guise of buying her some sweets (a lollipop) took her to a semi-finished house and sodomised her. SM left the scene hurt and crying and on the way back home she met Marry Nila (PW5) and told her that the appellant had hurt her. PW5 proceeded to take SM to her mother (PW4) who observed SM and found her bleeding and her shorts smeared with blood. This prompted PW4 to report the matter to the police who in turn gave her a PF3 for medical observation. Hamis Machiya Shilinde (PW2), a medical doctor working at Shinyanga Government Hospital, attended SM and observed that her anus had a fracture, was bleeding, had sperms and the same was throbbing. PW2 filled a PF3 and tendered the same during trial where, without any objection from the appellant, it was admitted and marked as Exhibit “P1”. PW2 concluded in Exhibit P1, which was read out in court after admission, that “there is evidence of anal penetration due to presence of tear and anal spasm.” At the end of the trial, the trial court convicted the appellant and, the victim being under the age of eighteen years, sentenced him to the 2 mandatory sentence of life imprisonment. Aggrieved, the appellant filed the present appeal predicated on five grounds which are to the effect that: One, the evidence adduced by the prosecution’s witnesses did not prove the offence he was charged with; Two, PW1’s evidence was incredible and uncorroborated; Three, the evidence by the prosecution’s witnesses was contradictory and incredible; Four, the trial magistrate misapprehended the nature and quality of the prosecution’s evidence which did not prove the charge beyond reasonable doubt; and Five, the trial magistrate failed to judicially evaluate the evidence and came to a wrong conclusion. At the hearing of the appeal the appellant appeared in person, unrepresented, while the respondent Republic was represented by Ms. Caroline Mushi, learned State Attorney. The appellant having adopted his grounds of appeal, opted for the learned State Attorney to reply first and for him to make a rejoinder afterwards. Submitting on the first and fourth grounds of appeal conjointly, the learned State Attorney submitted that, the case against the appellant was proved beyond reasonable doubt. The prosecution’s duty was to prove that: One, the victim was a victim of carnal knowledge against the order of 3 nature; Two, that the appellant (erstwhile accused person) was the perpetrator; and Three, the age of the victim. She submitted further that, he prosecution was able to parade a total of five witnesses and tendered two exhibits. PW1 (the victim/SM) testified that it was the appellant who enticed her with a promise of buying her a lollipop and took her to an unfinished house where he inserted his penis into her buttocks hurting her in the process. SM also stated that, initially she was with PW3. She then went home after the appellant had fled the scene and narrated her encounter to PW5. SM was also able to identify the appellant in court. The learned State Attorney submitted further that SM’s evidence was corroborated by PW5 who testified that on the date of the incident she was at home with SM and PW3 and she sent them to buy groundnuts and after a short while PW3 returned home without SM and when she asked about the where bouts of SM she was told that she had left with “Bony”. PW5 requested PW3 to take her where she had left SM with the appellant and on the way, they met SM who was crying. Upon asking SM as to what had happened, SM responded that the appellant had hurted her. 4 It was the learned State Attorney’s contention that, SM mentioned the appellant to PW5 at the earliest time. Ms. Mushi referred to the case of Marwa Wangiti Mwita and Another v. Republic, Criminal Appeal No. 6 of 1995, CAT- Mwanza (unreported), where the importance of a victim naming a suspect at the earliest opportune time was highlighted. The learned State Attorney submitted that, SM’s evidence is also corroborated by PW3’s evidence. PW3 narrated on how on the way to the shop (with SM) they met the appellant who told SM that he was going to buy her a lollipop. PW3 also narrated that she told her mother and they went looking for SM. Ms. Mushi submitted that, the appellant did not cross examine PW3 which indicated that he agreed on what PW3 had testified. To prove penetration, the learned State Attorney submitted that, SM’s testimony is corroborated by PW2 who testified that SM was sodomized and there was a fracture on her anus and the same was bleeding. Also, there were sperms and the anus was throbbing, PW2 also filed a PF3 which was tendered in court as Exhibit P1. 5 PW4, the mother of SM also corroborates her testimony when she testified that she had examined SM and found that she was bleeding. The learned State Attorney submitted that, SM testified that the appellant had inserted his “dudu” in her buttocks and the totality of her evidence shows that an unnatural offence was committed against her. Ms. Mushi cited the case of Joseph Leko v. Republic, Criminal Appeal No. 124 of 2023 CAT- Arusha (unreported), where it was held that the victim need not be specific that (in that case it was the offence of rape) the perpetrator inserted his penis into her vagina, in order to prove rape. She submitted that, the same principle applies to the appeal at hand and when SM testified that the appellant had inserted his “dudu” (which means penis) in her buttocks and that she felt pain, it meant that he had sodomized her. Regarding the age of the SM, the learned State Attorney was of the view that the same was proved by PW4 who testified that PW1 was 3 years and 10 months old. She concluded on the first and fourth grounds of appeal by submitting that the appellant’s defence did not shake the prosecution’s evidence. 6 On the second ground of appeal Ms. Mushi submitted that, on the strength of her submission on the first and fourth grounds of appeal, the case against the appellant was proved beyond reasonable doubt. On the third ground of appeal, Ms. Mushi submitted that, the appellant has not elaborated on how the prosecution’s evidence was contradictory. She submitted further that, all the prosecution witnesses were reliable. On the fifth and last ground of appeal, the learned State Attorney submitted that, when looking at the judgment the trial magistrate did evaluate the evidence of the prosecution (from page 6-8 of the judgment) and arrived at the conviction. However, it seems that the appellant’s defence was not fully considered. Regardless, it is not fatal, this court being a first appellate court it can step into the shoes of the trial court and re-evaluate the evidence on record. In rejoinder the appellant had nothing to useful to add apart from stating that his grounds of appeal were meritorious and his appeal should be allowed. 7 Having gone through the records, the grounds of appeal, as well as the parties’ submissions during hearing, I shall now endeavor to determine the appeal. In essence, the first and fourth grounds of appeal are to the effect that the prosecution’s case was not proved to the legal standards, that is, beyond reasonable doubt. The learned State Attorney representing the respondent Republic submitted at great length, weaving her way through the prosecution’s evidence submitted during trial, to show that, not as alleged by the appellant, but that the case against him was proved to the hilt. The victim/SM gave a detailed account on how she was approached by the appellant and taken to a semi-finished building and defiled. Indeed, her narration of how she met the appellant on the way to the shop was corroborated by PW3 who was alongside her. Shortly after the ordeal, SM met PW5 and told her that the appellant had hurted her, PW5 in turn took her to her (SM’s) mother who upon inspecting her and seeing signs of foul play, reported the matter to the police and subsequently went to the hospital. The suspicion that SM was sodomised was proved by PW2 who 8 observed her and found evidence of anal penetration. PW2 tendered Exhibit P1 (a PF3) in which he had recorded his observations. The appellant did not object the tendering of Exhibit P1 nor did he cross examine PW2. Thus, on the strength of Patrick William Magubo v. Lilian Peter Kitali, Civil Appeal No. 41 of 2019 and Christian Ugbechi v. The Republic, Criminal Appeal No. 274 of 2019, both decisions of the Court of Appeal (unreported), the appellant is deemed to have accepted PW2’s testimony as the truth. SM, being the victim was the best witness to give evidence on what transpired (see: Selemani Makumba v. R. [2006] T.L.R. 379) and in the absence of evidence to contradict her one cannot sweep her version of events under the rug. It seems even the appellant, during cross examination, failed to shake her credibility and poke holes in her testimony. Meanwhile, the appellant in his defence, gave a flat denial of committing such offence. In the judgment of the trial court, the learned trial Magistrate, having been in the unique position to observe SM’s demaeanour was of the view 9 that SM told nothing but the truth, that it was the appellant who penetrated her. As pointed out by the learned State Attorney, although the appellant has raised in his third ground of appeal that the evidence of SM was contradictory, he failed to elaborate and prove the same during the hearing of the appeal. On the other hand, SM gave an explicit account of the crime, and I agree that she did not need to be too graphic in order to deliver her evidence, thus using such words as “he inserted his dudu into my buttock” as rightly found by the trial court meant that the appellant sodomised her, see: Hassan Kamunyu v. The Republic, Criminal Appeal No. 277 of 2016, CAT (unreported). Thus, I find that the first, second, third and fourth grounds of appeal lack merit. This leaves the fifth ground of appeal in which the appellant is complaining that, the trial magistrate failed to judicially evaluate the evidence and came to a wrong conclusion. The learned State Attorney conceded that the trial magistrate did not evaluate the appellant’s evidence in the trial court’s judgment. A glimpse of 10 the judgment vindicates her position. Although, in his defence the appellant gave a general denial of committing the crime, the trial magistrate was still duty bound to evaluate the evidence before arriving at a conclusion whether the prosecution had proved its case to the balance required by the law or else. In Leonard Mwanashoka v. The Republic, Criminal Appeal No. 226 of 2014, CAT - Bukoba (unreported), the Court had this to say (at page 5): “It is one thing to summarize the evidence for both sides separately and another thing to subject the entire evidence to an objective evaluation in order to separate the chaff from the grain. Furthermore, it is one thing to consider evidence and then disregard it after a proper scrutiny or evaluation and another thing not to consider the evidence at all in the evaluation or analysis…” This being a first appeal, it is in the form of a rehearing and this court can re-evaluate the evidence afresh and come to a conclusion of its own, see: Ester Jofrey Lymo v. The Republic, Criminal Appeal No.123 of 2020, CAT (unreported). As correctly summed up by the trial court, the appellant in his defence only suggested that he did not know anything about the offence 11 and that he did not commit the offence at all. Pitting his defence against the prosecution’s evidence, it falls short. The prosecution brought material witnesses who proved that the appellant did commit the crime he was charged and convicted of. There is the evidence of SM who is the victim testifying that the appellant sodomized her, PW3 who saw the appellant approach SM on the material date, PW2 who observed SM and found her anus fractured, PW4 and PW5 who were told, by SM, of the appellant’s mischief immediately after the same was committed. The appellant’s hollow denial could not shake the prosecution’s case. Therefore, like the previous grounds of appeal, I find that the fifth ground of appeal lacks merit as well. Before signing off I should add that, as submitted by the learned State Attorney, the age of SM was proved to be three years and 10 months. This was done by PW4, SM’s mother. As it has been held in numerous decisions of the Court of Appeal, Isaya Renatus v. The Republic, Criminal Appeal No. 542 of 2015 (unreported) inclusive: “in sexual offences, proof of age may be given by the victim, relative, parent, medical practitioner or, where available, by the production of a birth certificate.” 12 PW4 being the mother of SM was the proper person to prove SM’s age in the absence of a birth certificate and she duly did. In light of the foregoing I find that this appeal lacks merit and I hereby dismiss it in its entirety. It is so ordered. DATED at SHINYANGA this 09th Day of August, 2024. N.L. MWAKAHESYA JUDGE 13