Isack Maembe vs Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA CRIMINAL APPEAL NO. 13275 OF 2024 (Originating from Sumbawanga District Court in Criminal Case No, 79 of2020) ISACK S/O MAEMBE............................. ..... ............. .......... APPELLANT VERSUS THE REPUBLIC ............ RESPONDENT JUDGMENT MWENEMPAZI, J. The appellant was charged in the District Court of Sumbawanga at Sumbawanga, hereinafter referred to as the trial court, with the offence of Incest by . Males contrary to section 158(1) (a) of the Penal Code [Cap. 16 R.E. 2019]. It was alleged by the prosecution that the appellant, Isack s/o Maembe on divers' dates between the months of February to the month of March, 2020 at Kantalamba Area within Sumbawanga Municipality in Rukwa Region, did have a prohibited sexual intercourse with one -BBS',. a girl aged 12 years old who is to his knowledge his granddaughter. When the charges were read to the accused, the appellant herein, he denied that i he committed the offence. Upon hearing of the case, the trial court found the appellant is guilty and convicted him with the offence charged and sentenced him to serve a term of 30 years imprisonment in jail. The appellant is aggrieved with both conviction and sentence by the trial court. He has filed this appeal in order to challenge the.said conviction and sentence. There are five grounds of appeal as follows: 1. That, the prosecution side failed to prove the charge against the appellant as required by law standard. 2. That, the trial court erred in point of law and fact to convict and sentence the appellant relying on the evidence adduced by prosecution's evidence while it fails to note out that the prosecution side failed to call the one who alleged to receive a report from the victim that after the incident occurred, she reported the matter to one mama Gibo in order for the court to satisfy itself. 3. That, the trial Magistrate court erred in law point and fact by convicting and sentence the appellant without taking into consideration that there was contradiction in the age of the victim while the prosecution side testified before the court that the victim is 2 a child of age 11, but the PW4 he testified before the court that the victim is a child of 12 years old the something which brings doubts in the eye of law. 4. That, the trial court erred in law point and fact to convict and sentence the appellant basing on the prosecutions witness while did not observe that all prosecutions witnesses were not sworn at the time of hearing this case. 5. That the trial court had incurably gone astray in point of law and fact to convict and sentence the appellant basing on contradiction evidence from the prosecution's evidence. The appellant prayed for judgment and order of this court allowing the appeal, quashing the trial court judgement and setting aside the sentence meted to the appellant. At the hearing of the hearing of the appeal, the appellant was unrepresented and the respondent was being represented by Ms. Scolastica Mwacha, learned State Attorney. The appellant in his submission he prayed this court to consider the grounds of appeal and allow the appeal and set him free. 3 The Counsel for the respondent in reply to the appellants submission, which essentially is a reply to the grounds of appeal, she submitted by stating; first and foremost, that they are opposing the appeal. The following are the reasons; One, responding to the first ground of appeal, the counsel submitted that from the charging section 1-58(1) (a) of the Penal Code, [Cap16 R.E 2019] the elements of the offence were proved. The elements.of the offence are the knowledge that the victim is his granddaughter, penetration and biological relationship. The element of knowledge, the accused knew that the victim is his granddaughter. In the proceedings, paragraph 9 at page 10, the victim said her grandfather is Isack Maembe. The appellant did not cross examine on the point. In the case of Issa Hassan Ula Vs. Republic, Criminal Appeal No. 129/2017, Court of Appeal of Tanzania (Mtwara) it was held that failure to cross-examine a witness on an important matter is tantamount to admission of its truth. Another element, is penetration. The prosecution proved that element too. At page 10 of trial proceedings, at paragraph 5 the victim explained how 4 the appellant raped her. At the last paragraph the victim testified that the appellant had sexual intercourse with her twice. That statement has been corroborated by PF3 where it was observed that the victim was not virgin and there was proof of penetration. The other element is biological relationship, the prosecution was able to prove the blood relationship between the appellant and the victim. At paragraph 4, page 20. That shows how the victim and the appellant are related. That statement is corroborated by evidence at page 10. The counsel submitted that they have the opinion that the prosecution was able to prove the relationship between the appellant and the victim. In total, the counsel for the respondent submitted that the first ground of appeal has no merit and the same should be dismissed. On the 2nd ground of appeal, the appellant complained that the prosecution failed to call mama Gibo, the person who was given information. The counsel argued that in the case Seleman Makumba Vs. Republic, Criminal Appeal No. 94 of 1996, Court of Appeal of Tanzania (Mbeya) observed at page 8 paragraph 2 that "true evidence of rape has to come from the victim". 5 The act of the prosecution calling the victim and the fact that she testified how the appellant has been involved in sexual acts with her it is enough to prove the offence of incest by males against the appellant. Farther to the point the counsel cited Section 143 of Evidence Act, [Cap 6 R, Ei 2019] which provides that there is no specific number of witnesses necessary to prove a certain fact. She thus argued that on the point it was not necessary to call mama Gibo. The counsel for the respondent prayed to submit on the ground 3 and 5 together. On the complaint that there were contradictions the counsel submitted that as she submitted earlier, the best evidence in rape cases comes from the victim. At page 10 paragraph 1 the victim testified that she is 11 years old. Since best evidence comes from the victim, we pray this court to believe that the victim is 11 years old. Also, the fourth ground challenge the trial that all witnesses did not testify on oath. PW1 who is the victim, she testified that she is 11 years old. Section 127(2) of Evidence Act, [Cap 6 R.E 2019], the victim in is categorized as a child of tender age. As per the section she was not 6 obliged to swear. However, she was required to promise to tell the truth all the time. In the typed proceeding at page 10 paragraph 3 the victim stated that: "I promise to tell truth and truth only". PW1 was not obliged to swear but to promise to speak the truth. All other witnesses, PW2 (page 14), PW3 (page 18), PW4 (page 20), did swear before testifying. On the basis of the arguments advanced the counsel submitted that they are praying that this appeal be dismissed and the decision of the trial court be upheld. In rejoinder, the Appellant submitted that in regard to the person who was not called, mama Gibo, the appellant question as to how could the magistrate be able to verify the truth without calling the witnesses. The appellant also submitted that on the first ground, that victim has not been raped. The person who reported that the victim has been raped lied. The appellant stated that he lives at the place where there are people. But that person has not been mentioned and has not been taken to court. 7 The state attorney has stated that the victim was questioned. She was asked only one: question. The same case from the police. The victim was required to identify the perpetrator. She was hesitant but then agreed that I am the one. The victim has not shown or the prosecution has not shown that there were any efforts to resist or at list by screaming. I have as well heard the submission by the parties, the appellant and the learned State Attorney representing the Republic. The question for my consideration is whether the offence the appellant has been charged with has been proved to the required standard. The record is clear that the victim, BBB testified in court as PW1. It has not been disputed that she is biologically related to the appellant. She, stated in her testimony that the appellant is her grandfather. It has remained unshaken to be the sole truth. On the other point, she stated she has been living at the homestead of her grandfather and she has testified that their life at home they were three. The grandfather, grandmother, herself and others. However, the grandmother chased her husband out of their home based on the same complaints by PW1. The events occurred when PWl's grandmother and others had gone to the farm. The alleged tragedies or offence was committed twice on the different days. She says when she 8 complained to her grandmother, one Devotha, she was canned on the reasons she is a liar. The other attempt to disclose the wrongs by her grandfather was a report to one Mama Gibo. A neighbor. The two witnesses were not called to testify. I understand from the testimony of the victim, PW1, David Felix Maembe, PW4 and the appellant, Devota Matofali passed away when the case was being heard, I have also cross checked the trial court proceedings, all. witnesses did testify on oath save for PW1 who promised to speak the truth according to the requirement of law given her age. Also, there is nothing to suspect that there was reliance on contradicting testimony in the decision. It is worth noting however as the court of appeal observed in the case of Deogratius Deemay Gurt vs. The Republic, Criminal Appeal NO. 553 of 2016, Court of Appeal of Tanzania at Arusha that minor contradictions are bound to occur among witnesses. An the cited case, the Court referred to the case of EMMANUEL JOSEPHAT v. R (supra), where it was held: "l¥e would like to begin by expressing the genera! view that contradictions by any particular witness or among witnesses cannot be escaped or avoided in any particular case" 9 Under the circumstances, I find the complaint not to have any merit at all. However, I doubt if the case against the appellant was proved to the required standard. My concern, are whether it is possible the events complained of by PW1 could proceed without being known by the people around, given that the child had courage to escape due.to the disturbances and humiliations as she testified at the hearing. Another question is how would Devota Matofali(now deceased) the wife of the appellant caned PW1 her granddaughter as a liar after she has reported to her and then chased her husband from home based, on the offence reported; and why Mama Gibo was not called to testify on what she. was told by PWl, assuming that Devota Matofali was trying to save her husband. In law, failure to call a material witness to testify without good reasons attracts adverse inference to be held against the party with the duty to prove a material fact. In the case Azizi Abdalah V Republic [1991] T.L.R 71 (CA) "the general and well-known rules is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify on materia! facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution." 10 In our case, Mama Gibo is a neighbor to the appellant, there was no sufficient reason adduced for not calling her which renders the inference be drawn in favour of the appellant. I understand, under section 1.27(6) of the Evidence Act, Cap. 6 R.E.2022, evidence of PW1 may suffice to warrant conviction of the appellant. However, given the gaps and or doubts raised herein above, I find the case has not been proved to the standard required by law. For the reasons, the appeal is allowed. Judgment and conviction of the appellant are quashed, sentence is set aside.and I order that the appellant should be released forthwith unless otherwise he is being held for another lawful cause. It is ordered accordingly, Dated and signed at Sumbawanga this 23rd day of September, 2024. T. M.MWENEMPAZI JUDGE li Judgment delivered this 23rd day of September, 2024 in Judge's chamber in the presence of the appellant and Ms. Godliver Shiyo, State Attorney for the Respondent. T. mTmwenempazi JUDGE Right of further appeal explained. 12