Dalali Minze Sengerema vs Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) AT IRINGA CRIMINAL APPEAL NO. 17831 OF 2024 (Originating from Criminal Case No. 59 of2021 ofthe District Court ofLudewa at Ludewa before Hon. I.M. Ayeng'o, SRM) DALALI MINZE SENGEREMA ............... ............................ . APPELLANT VERSUS REPUBLIC ....... ........................ ............ RESPONDENT JUDGMENT 13? August & Sept, 2024 D.B NDUNGURU, J The appellant herein is appealing against the decision of the District Court of Ludewa (trial court). Before the trial court, he was charged and convicted of rape contrary to section ,130(l)(2)(e) and 131(1) of the Penal Code. It was alleged by the prosecution that on 15th November, 2021 at Ngelenge village, Ludewa District in Njombe region, the appellant had carnal knowledge of the victim (his daughter) aged 10 years. It is the prosecution evidence that on 15th November, 2021 at 00:00 hours while the victim was sleeping together with her siblings, the appellant entered into their room and inserted his penis into her vagina. PW1, the mother of the victim woke up and noticed the appellant missing. She then decided to follow him up. She saw him coming from outside. On inspecting the victim's private parts, she found men's sperms. Later, in the morning PW1 inquired from the victim what had happened the previous night, the victim stated that the appellant had laid on top of her. The matter was then reported to the village authority where the matter was settled but later on the appellant was arrested under the orders of the victim's relatives. In his defence, the appellant raised the defence of alibi. That on the material day he was with Mr. Ndagi cultivating land at Mbungani and spent the night there. The next day he returned home. He was then summoned to the village office and informed of the charge levelled against him. He further stated that the case against him is a frame up as he had not paid bride price at his in-laws. His appeal to this court is against both conviction and sentence. It is based oh six grounds. In the course of hearing, with leave of the court, he added four supplementary grounds making it a total of ten grounds of appeal. The said grounds can be grouped into seven complaints as follows; one, contradictions in the prosecution evidence, two, the appellant's defence was not considered. Three, evidence of medical doctor (PW3) not 2 watertight, four, PW2's testimony is contradictory and received contrary to section 127(2) of the Evidence Act. Five, failure by the prosecution to call important witnesses who slept with the victim, six, the appellant was not properly identified at the crime scene and lastly, the prosecution failed to prove the charge beyond reasonable doubt. In the hearing of the appeal, the appellant appeared in person while Mr. Daniel Lyatuu, learned State Attorney appeared for the Republic. The appellant adopted his grounds of appeal and prayed the court to allow his appeal. The learned State Attorney resisted the appeal. On the 1st complaint, Mr. Lyatuu submitted that the charged offence happened on 15th November, 2021 as appearing on the charge sheet. He submitted further that PW1, the mother of the victim testified that the event occurred on 15th November, 2021 and PW3, the medical doctor who examined the victim attended her on 16th November, 2021. Further, the investigator of the case testified to have been assigned to investigate the case on 17th November, 2021. Therefore, there is no any material contradiction on the date the event occurred. 3 He argued on the 2nd complaint that the trial court evaluated the appellant's defence, however, it was disregarded as the details of aZ/Zvand the time when the event occurred were different, He argued further that the event occurred at night while the details of alibi are that the appellant was not at the crime scene during evening hours, On the 3rd complaint, the learned State Attorney contended that the testimony of PW3 corroborated that of the victim. Further, the PF3 did not show the presence of sperms, thus, it was not possible to conduct DNA. Submitting on the 4th complaint, Mr. Lyatuu submitted that the law is now clear that when receiving evidence of a tender age, it is not necessary to conduct voire dire test. To bolster his submission, he cited the case of Francis Eliud @ Mnyamwezi v. Republic, Criminal Appeal No. 308 of 2022, Court of Appeal - Dar es Salaam (unreported). On the contradictory evidence of the victim, Mr. Lyatuu submitted that the victim had testified that she had not exercised sexual intercourse before being raped by the appellant. Therefore, her evidence was not contradictory. On the failure to call material witnesses, the learned State Attorney pointed out that there is no specific number of witnesses required to prove a fact. Further, the evidence of PW1 is that the said Mingiana and Mungo 4 were asleep, therefore, they did not witness the incident. On the 6th complaint, he argued that the victim identified the appellant using torch light from the appellant as he was not a stranger to her. In addition to that, PW1 testified to have seen the appellant coming from the victim's room. In the last complaint, Mr. Lyatuu argued that the charge against the appellant was proved beyond reasonable doubt. In his view, all the ingredients of the offence were proved, that is, age of the victim and penetration. The age of the victim was proved by both the victim and her mother, PWl. In his further view, penetration was proved by the victim who testified that she was raped by the appellant and also the medical officer. The learned State Attorney raised an issue on the propriety of the charge. He argued that the relationship between the victim and the appellant is that of father-daughter relationship, thus, the proper charge should have been incest by male instead of rape. In his opinion, this did not prejudice the appellant as ingredients in both offences are the same. To support his opinion, he cited the case of Chora Samson @ Kiberiti v 5 Republic, Criminal Appeal No. 516 of 2019, Court of Appeal - Musoma (unreported). In his rejoinder, the appellant contended that the bruises in the victim's vagina might have been caused by the doctor's fingers when examining the victim. Thus, his evidence should be disregarded. He contended further that the victim being of tender age, the court ought to have examined her intelligence and ability to testify first. The appellant faulted his identification at the crime scene. In his view, it was not possible to be identified as he was the one holding the torch directing it towards the victim. Again, the prosecution's failure to call the witnesses who were sleeping in the room with the victim is fatal. The victim had also denied being involved in any sexual intercourse. In his view, the charge against him is a frame up as he has conflicts with his family. In disposing the appeal, I will discuss the appellant's complaints against the evidence on record. I begin with the appellant's complaint that there are contradictions in the prosecution evidence. PW1 in her evidence testified that she saw the appellant coming from outside. Her testimony is as follows: 6 "When I woke up I could not find my husband in bed, he later came from outside and stood in the sitting room. " She is later recorded as follows: 7 stepped off the bed heading to the sitting room where I saw him coming from the children room." When cross examined by the appellant, she stated: 7 saw you getting off the Children bed. You were covered in "Shuka" Holo slept between her youngsters... When I saw you, you were not off the bed." In my view, the above pieces of evidence from PW1 are contradictory in nature. I now move to the evidence of the victim, PW2. It is trite law that the victim is the best witness in sexual offences per the case of Selemani Makumba vs Republic [2006] TLR 379. In her evidence, the victim on cross examination stated as follows: 7 was in bed with Mumbi, you covered my mouth and inserted "Mboro" in my "kidudu"... You jumped off the bed when mother heard the noises." 7 From the above evidence, it seems that PW1 was alarmed by the victim's noise. However, this was not stated in the testimony of PW1. The victim and her mother are not expected to differ in material facts of the case. This court is duty bound to decide whether the said contradictions are only minor, or whether they go to the root of the matter. This position was stated in Mohamed Said Matula v. Republic [1995] TLR 3. In my view, the contradictions in the evidence of PW1 and PW2 are contradictions that go to the root of the case and affect their credibility. Another complaint by the appellant is that important witnesses were not called to testify. I agree with the learned State Attorney that there is no required number of witnesses required to prove a fact, see the case of Yohanis Msigwa v. Republic [1990] TLR 148. However, the law is settled that failure to call a material witness may entitle the court to draw an adverse inference against that party. This was the position in the case of Abubakary Sadick @ Mangi v. Republic, Criminal Appeal No. 311 of 2020, Court of Appeal - Mwanza (unreported). In the present case, both PW1 and the victim testified that the victim was sleeping between Ming 1 and Mungo. In normal circumstances these could have been the first people to hear any noise that the victim made instead of PW1 who was 8 sleeping in another room. The prosecution did not explain why they were not called to corroborate the victim's evidence. The court, thus, draws an adverse inference for such failure as the said witnesses may have given evidence against the prosecution. I now move to the appellant's complaint that he was not identified at the crime scene. In her evidence, PW1 and the victim, stated that they identified the appellant due to the torch light and the way the appellant walks. Was this identification watertight? It is not disputed that the appellant was well known to the victim before the incident as he is her father. However, it was not enough for the victim to only state that she identified the appellant by the torch light and the way he walks. She should have stated some features that enabled her to identify the appellant as the event occurred at night as testified by both the victim and PW1. PWl's evidence on the other hand cannot corroborate the victim's evidence as pointed earlier as her evidence is full of contradictions which ought to be resolved in favor of the appellant. Based on the above discrepancies in the prosecution evidence, I am inclined to hold that the charge against the appellant was not proved beyond reasonable doubt, which is the appellant's last complaint. Having 9 held that the charge against the appellant was not proved beyond reasonable doubt, I see no need to discuss the remaining complaints. In the event, I find merits in the appeal. I allow it. I quash and set aside the appellant's conviction and sentence. The appellant be set at liberty unless otherwise lawfully held for another offence. D.B. NDUNGURU JUDGE 09/09/2024 10