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THE UNITED R EPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CRIMINAL APPEAL NO. 19819 OF 2024 (Originating from the District Court of Mbeya at Mbeya in Criminal Case No. 03 of 2023) JOSEPHAT TIMOTEO….……………...……………………...APPELANT VERSUS THE REPUBLIC…...……………………...……..…….……RESPONDENT JUDGMENT Date: 30 September 2024 & 15 November 2024 SINDA, J.: The appellant was charged and convicted of three counts, the first count was armed robbery contrary to section 287A of the Penal Code, Cap 16 R.E 2022 (the Penal Code), the second count was rape contrary to section 130 (1) and (2) (a) and 131 (1) of the Penal Code and the third count was causing grievous harm contrary to section 225 of the Penal 1 Code. The District Court of Mbeya at Mbeya (the Trial Court) convicted the appellant and sentenced him to serve 30 years imprisonment for the second count of rape and three years imprisonment for the third count of causing grievous harm. It was alleged that the appellant on 20 December 2022 at Galijembe village, Tembela ward, within the District and Region of Mbeya did steal Tanzanian Shillings 300,000/= the property of Agnes Reuben (the Victim or PW1) and immediately before or after stealing the said money used a dangerous weapon to wit a machete to threaten the Victim in order to obtain and retain the money, did carnal knowledge to the Victim without her consent and caused grievous harm by cutting her left upper limb using a machete. It was the prosecution evidence that on the material day the Victim was sleeping in her house. The appellant broke into the house of the Victim and threatened and forced her by using a machete to give him money. He cut her upper limb and raped her. The Victim raised an alarm. The appellant was arrested while trying to escape from the crime scene. Both the Victim and the appellant were taken to the police station. At the police station the appellant recorded a cautioned statement and admitted to committing the offence. The cautioned statement was admitted during 2 hearing. The Victim also at the police station was given a PF3 and went to the hospital. Upon examination, the Victim was found penetrated and her vagina had sperms and blood. The appellant denied to committing the offence. At the end of hearing, the Trial Court concluded that the case was proved to the required standard on the second count of rape and the third count of causing grievous harm. The appellant was acquitted on the first count of armed robbery. Against that decision, the appellant appeals on a number of grounds as follows: 1. That, the Trial Court erred in law and facts to convict the appellant while the charge of rape and causing grievous harm was not proved beyond reasonable doubt. 2. That, the Trial Court erred in law and facts for failure to analyse and evaluate the evidence of prosecution which was weak hence delivering wrong decision. 3. That, the Trial Court erred in law and facts for convicting the appellant, while he was not accorded the right to cross examine the Victim evidence who testified as PW1 during trial and that cause miscarriage of justice. 4. That, the Trial Court erred in law and facts for failure to consider the defence evidence adduced by the appellant herein and the said 3 evidence was never contested, nor cross examined on vital point by prosecution side. 5. That, the Trial Court erred in law and facts for delivering judgment in favour of the respondent, while adducing unclear and weak reasons for ruled in favour of respondent herein. 6. That, the Trial Court erred in law and facts to convict the appellant by relying on PW2 who was not a credible witness and relying on hearsay evidence adduced by PW2, PW3, PW4, PW5 and PW6, which was never corroborated as per the law requirement. 7. That, the Trial Court erred in law and facts for entering judgment in favour of the respondent while the appellant was not identified well. 8. That, the Trial Court erred in law and facts to shift burden of proof from the prosecution side to the appellant. At the hearing of the appeal, the appellant was represented by Mr. Yona Frank, learned counsel. The respondent was represented by Mr. Rajab Msemo, learned State Attorney. Mr. Frank prayed to abandon grounds number three, five, six, seven and eighth. He argued ground number one and two together. He was of the view that the evidence of the prosecution was not proved beyond reasonable doubt in relation to the offences of rape and causing grievous 4 harm. He contended that the Trial Court failed to analyse and evaluate the evidence of the prosecution which was weak hence delivering a wrong decision. He submitted that on the offence of rape the prosecution was to prove that the Victim was raped by the appellant. He further contended that in the offence of rape the court was required to consider the evidence of the Victim. That, at pages 8 and 9 of the proceedings of the Trial Court (the Proceedings), the Victim stated that at 00:00, she was asleep and heard the door was knocked heavily. She added that the solar light was on. She saw the appellant with a machete. The appellant started disturbing her and raped her. Further, the Victim stated that after an hour she recognized the appellant. That, this shows that the Victim doesn't know exactly who raped her. The victim did not state at which point she recognized the appellant. Also, the Victim said there was solar light at night. He argued that this is not enough. That, the Victim did not state how strong the light was for her to recognize the appellant and the records of the Trial Court are silent on this. He added that the Victim also did not state if she knew the appellant prior the incidence. Therefore, it was an error for the Trial Court to convict the appellant on the offence of rape. He referred to the cases of Waziri Amani vs R, TLR 1980, Banzi John vs. R, Criminal Appeal No. 644 of 5 2021 CAT at Morogoro (Tanzlii) and Masali Lukanya & Luswaga Leonard vs R, Criminal Appeal No. 625 of 2021, CAT at Tabora (Tanzlii) to cement his argument. He further maintained that the Victim did not mention the appellant as the person who raped her at the earliest time. He added that Amiry Juma Mfyate (PW2), went to the Victim house together with two other people Alex and Yohana. PW2 stated on page 11 of the Proceedings that when they arrived at the Victim house, the Victim was shouting and said someone raped her. In accordance to PW2 evidence, the Victim didn't say who raped her and did not mention the appellant. Failure to mention the appellant at the earliest point brings a lot of questions on whether the appellant committed the offence. He referred the case of Jaribu Abdallah vs R, TLR 2003 at page 271 and Peter Joseph Kimath vs. R (supra), the CAT observed that the Victim did not mention the appellant at the earliest stage. He further argued that the doctor (PW3) stated that he was in his office in the morning and a woman went there claiming that she was raped. He examined her and found that the woman had blood with semen in her private parts. PW3 then filled in the form. This evidence brings a lot of 6 doubt. That, PW3 did not mention the name of the Victim. He added that it is not clear who was examined. He continued that PW3 didn't tell the Trial Court that the blood that was found in the Victim was as a result of being raped. He added that finding semen in the blood does not mean that the Victim was raped. The counsel contended that incident occurred at night around 00:00. PW3 said he examined the Victim in the morning but didn't state the time. Therefore, he argued that we don't know what happened to the Victim between midnight until morning. He added that the evidence of PW3 is not enough to prove the offence of rape beyond reasonable doubt. He referred to the case of Peter Joseph Kimath vs. R (supra) where the CAT stated that the doctor’s testimony established that the victim was penetrated but the evidence does not show that the penetration was a result of rape. It was his opinion that the evidence of PW3 is not enough to prove the offence of rape beyond reasonable doubt. In addition, he argued that there is contradiction on the evidence of PW1 and PW2 which affect the case. That, on page 8 of the Proceedings, PW1 stated that there was solar light. However, PW2 evidence on page 11 of the Proceeding, states that the Victim was using a torch. The contradiction 7 brings doubt on the process of identification of the appellant. He prays the court to evaluate the evidence on the issues identified. On the fourth ground, he maintained that the Trial Court did not consider the defence of the appellant which was not objected. The appellant stated that on that day it was raining, and he stood outside the Victim house to hide from the rain. The Victim shouted that the appellant is a thief and raped her. The defence was not objected by the prosecution in the Proceedings. In relation to the offence of causing grievous harm, he submitted that this offence was also not proved beyond reasonable doubt because in the charge sheet it states that the Victim was cut in her left upper limb using a machete. PW1 evidence on page 8 of the proceedings stated that she was injured on the head and leg. This is contrary to what is stated in the charge sheet. Therefore, the offence was not proved beyond reasonable doubt. In the charge sheet, it stated that a machete was used while PW1 did not state in her evidence that she was injured by using a machete. He added that PW1 was to state that she was cut by using a machete. That was not done as such the offence was not proved. He prayed the court to evaluate 8 the evidence afresh. He referred to the case of Frank Kanani vs. R, Criminal Appeal No. 425 of 2018 to support his argument. In reply to the submission in chief, Mr. Msemo in relation to the first and second grounds submitted that the prosecution proved that the Victim was raped by the appellant. He added that in rape cases the evidence of the Victim suffices. He insisted that PW1 was raped by the appellant. He referred to the case of Seleman Makumba v R, TLR page 379 of 2006 to support his argument. Mr. Msemo submitted that the appellant’s advocate stated that the Victim recognized the appellant after an hour. He added that on page 9 of the Proceedings, the Victim stated that the incident occurred for almost an hour. He insisted that the Victim recognized the appellant because of the solar light, and she was not asleep. He added that the identification by recognition is reliable. Mr. Msemo submitted further that the appellant stated that the Victim did not mention the appellant at the earliest opportunity. He contended that the case of Peter Kimath (supra) is distinguishable to the matter at hand because the circumstances are different. That, in Peter Kimath (supra) the appellant was not found at the scene of crime. In this matter the appellant was caught while trying to escape. He refered to the case of 9 Suleiman Dago @Swalehe vs. R, Criminal Appeal No. 59 of 2022 to support his argument. Mr. Msemo further submitted that the appellant argued that there was a contradiction between PW1 and PW2 evidence. PW1 stated that there was solar light while PW2 stated PW1 was using a torch. He argued that PW1 stated that there was solar light inside the house. He added that PW2 evidence on page 11, shows that PW2 stated that PW1 was using a torch outside her house. Therefore, there are no contractions. He referred to the case of Goodluck Kyando vs. R, 2006 TLR 363, where the CAT stated that every witness must be taken to be credible unless there are reasons not to do so. He found that all the witnesses were credible and there were no reasons to doubt their evidence. Regarding to evidence PW3 which was objected by appellant. He argued that PW3 did not state who penetrated the Victim. PW3 was only required to prove that the Victim was penetrated. He found that private parts of the Victim had blood and semen. It was the respondent view that PW3 proved that the Victim was penetrated and tendered PF3 which was not objected. He submitted that the case Omary Awami (supra) is distinguishable because PW3 proved that PW1 was penetrated. He prayed the first and second ground is dismissed. 10 In relation to the offence of causing grievous harm, he submitted that the appellant advocate stated that the Victim said she was injured on the head and leg while the charge sheet stated that she was cut in the limb using a machete. He argued that there are no any contradictions in the charge sheet and the testimony of the Victim. That, the Victim stated that the appellant used a panga to harm her and raped her. He added the word limb is a synonym to the word leg. It is a settled principle that the variance in a charge is cured by the evidence. He stated that if the court sees that there was a contradiction, it can evaluate the evidence of PW1, PW3 and the PF3. He added that case of Frank Kanani vs. R (supra) is distinguishable because the PF3 stated that the victim sustained harm and did not mention were she sustained the harm. He further added that on page 15 of the Proceedings, PW3 said the wound was caused by a sharp object and the Victim said she was injured in the head and leg. Therefore, the offence of causing grievous harm was proved. In relation to the fourth ground, Mr. Msemo submitted that because this is a criminal case the prosecution has to prove the case beyond reasonable doubt. He added that the defence of the appellant was an afterthought. That, he had sufficient time to cross examine PW1, but he did not do so. 11 He referred the case of Shekhe Salehe vs. R, Criminal Appeal No. 149 of 2023 CAT at Tanga to cement his argument. He submitted further that in this case the appellant had time to cross examine the witnesses i.e. PW1, PW2, PW3 and PW4 on his defence but he did not do so. He continued that on pages 4 and 7 of the judgement of the trial court (the Judgement), the Trial Court directed itself on the evidence provided by the appellant but found that it holds no water and proceeded to convict the appellant. He submitted that this was an afterthought. He prayed that the appeal is dismissed and the conviction and sentence is sustained. In rejoinder, the appellant’s advocate reiterated on his submission in chief and prayed the court to consider the appeal. I have gone through court records, grounds of appeal and submissions made by parties. I find the three remained grounds of appeal can be discussed under one issue of whether this case at the Trial Court was proved to the required standard and the defence was considered. It is a position of law that the burden of proof in criminal case lies on prosecution side and the standard of proof is beyond a reasonable doubt as emphasized in the case of Mohamed Haruna@ Mtupeni & Another 12 vs. R, Criminal Appeal No. 25 of 2007 (unreported) where it was held that; "Of course, in cases of this nature, the burden of proof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence.” Also, it is a settled position of law the first appellate court is in form of re hearing and has duty to re evaluate and come with its finding if it necessary. This was stated in the case of Kaimu Said vs. Republic, Criminal Appeal No 391 of 2019 where the Court of Appeal pronounced that “We understand that it is settled law that a first appeal is in the form of a re-hearing as such the first appeal court has a duty to re-evaluate the entire evidence in an objective manner and arrive at its own finding of fact, if necessary” Now discussing the above issue on whether the case at the Trial Court was proved to the required standard on the offence of rape and grievous harm and the appellant defence was considered, this court being the first appellate court I will re-evaluate the evidence on records afresh. I will 13 also in course of deliberating this issue address the points raised by appellant in the grounds of appeal. To prove the case on the offence of rape the main ingredient which was required to be proved by prosecution was that the Victim without her consent was penetrated by the appellant. It is also a position of law that the best evidence in rape cases come from the Victim. This was provided in the case of Seleman Makumba vs. Republic [2006] TLR 379 which held that: “True evidence of rape has to come from the victim, if an adult, that there is penetration and no consent, and in case of any other women, where consent is irrelevant, there is penetration” In this case at the Trial Court, the Victim stated that on the material day while sleeping someone pushed her door and entered her room and her for sexual intercourse. She refused and she was injured on her leg, head and was raped. She raised an alarm, then people came and arrested the accused when he tried to run. The evidence of the Victim was corroborated with evidence of PW3 who examined the Victim and conclude that the Victim was penetrated had blood and sperms in her vagina. 14 On the count of grievous harm, the ingredient which was required to be proved by the prosecution was that the appellant caused injuries to the Victim. That, the injuries amounted to grievous harm and that the grievous was unlawfully done. To prove this offence, the Victim stated that on the material day after the appellant entered her room with a machete. He injured her on the leg and head. This piece of evidence was corroborated with evidence of PW3 who stated that after she examined the Victim and found that she had a cut wound on the left thigh caused by a sharp object. The appellant on his defence stated that on the material day he was going to the local bar. On the way, it started to rain and went to hide outside the house of the Victim. The Victim raised an alarm, when people came, she told them that the appellant is a thief and raped her. The appellant said he told them that he was hiding from the rain. However as correct argued by the state attorney the fact that appellant raped and injured the Victim was not cross examined by the appellant during hearing. In the case of Nyerere Nyague vs. Republic, Criminal Appeal No. 67 of 2010 (unreported), the Court observed that: 15 “As a matter o f principle, a party who fails to cross examine a witness on a certain matter is deemed to have accepted that matter and will be estopped from asking the trial court to disbelieve what the witness said.” Since the fact that the appellant raped and injured the Victim was not challenged by the appellant during cross examination in the line of the above authority, I find that the appellant accepted that matter and his point raised during his defence that he went to hide outside the Victim house because it was raining was an afterthought. Regarding the appellant complaint that he was not identified, I find that the same lack merit. In the case of Suleiman Dago @Swalehe vs. R, Criminal Appeal No. 59 of 2022 at page 8 the CAT the court stated that: “We agree with the learned Senior State Attorney that the circumstance of the case did not call for the identity of the appellant. It is clear in evidence, from the testimony of PW4 (the victim) and PW3 (the eyewitness), that the appellant was arrested on the spot and put under arrest. He was later handed over to the police who preferred the charges against him later. What identification did the appellant want? We are of the view, like the learned Senior State Attorney, that identification of the appellant was not necessary in the circumstances.” Also, in the case of Alex Mwashilindi & Another vs. Republic (Criminal Appeal No. 626 of 2020) [2023] TZCA 18008 (15th December, 16 2023) TanzLII, the court relied on previous decision in Jibril Okash Ahmed v. Republic, Criminal Appeal No. 331 of 2017 which the court held that "... where an accused person is chased from the scene o f crime even in difficult conditions such as night without losing sight o f him and is successfully arrested, that constitutes sufficient evidence that he is responsible for the commission of the offence." In this case at hand the appellant was chased and arrested from the scene of crime. It is my opinion that the issue of identification was immaterial on the circumstance of this case because the appellant was chased and arrested from the scene of crime without losing sight. In addition, on the appellant complaint that PW3 did not mention the name of victim during her evidence. This point also lack merit because even thought PW3 on her evidence didn’t mention name of the Victim. She tendered PF3 which was admitted in court without any objection from appellant. The PF3 was read in court. In the PF3 the name of the Victim was mentioned. In the complaint that PW3 did not tell the court if the blood and semen found in the vagina of the Victim was result of being raped and it does not mean that finding semen and blood means that the Victim was raped. 17 In that respect, I reiterate my above deliberation that the best evidence in case of rape come from the Victim. The Victim evidence was clear and stated that she was raped by the appellant. PW3 evidence was just corroborative. On the appellant complaint that the offence of causing grievous harm was not proved because the charge sheet stated that the Victim was cut in her left upper limb using a machete while the Victim stated that she was harmed in the head and leg. In that aspect, I agree with state attorney that the word limb and leg have the same meaning. Also, regarding to the complaint that the charge sheet stated that the machete was used while PW1 in her evidence did not state that she was injured by using a machete. I have gone through PW1 evidence, PW1 stated that she saw the appellant with machete. He went to the bed where she was sleeping and asked for money. She was scared and gave him the money. The appellant asked for sexual intercourse and the Victim refused. Then, he injured her on the head and leg. PW3 evidence also stated that her wound was caused by sharp object. Based on the above analysis I find that this case at the Trial Court was proved to the required standard. The appellant defence accorded no weight and the evidence was properly analysed. 18 I find no need to interfere with decision of the Trial Court. The appeal is devoid of merit and dismissed. Right to appeal is explained. DATED at MBEYA on this 15 day of November 2024. A. A. SINDA JUDGE 19