Judgment PAULO NZUNGU v R

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CRIMINAL APPEAL NO. 40123 OF 2023 (Arising from Criminal Case No. 10 of 2023 in the District Court of Sengerema at Sengerema. Before Hon. T.G Barnabas – SRM) PAULO NZUNGU…………………………………………………….…….APPELLANT VERSUS THE REPUBLIC…………………………………………….……………RESPONDENT JUDGMENT 26th August & 26th September, 2024 ITEMBA, J. The appellant, PAULO NZUNGU was arraigned before the District Court of Sengerema at Mwanza for the offence of Rape contrary to sections 130(1), (2)(e), and 131(1) of the Penal Code Cap. 16 RE: 2022. It was alleged that on 12/1/2023 at Michigan lodge, Nyakutala village within Sengerema District and Mwanza region, the appellant had unlawful sexual intercourse with a girl aged eighteen (18) years whom, for purposes of her privacy, she will be referred to, in this judgment, as the victim. According to the evidence adduced at the trial court, the appellant and victim’s father are brothers. On 10/1/2023 the appellant visited the victim’s home. The victim’s father introduced the appellant to the victim as her paternal uncle. Two days later, on 12/1/2023 at around a14:00 hours, the appellant approached the victim claiming that he has 1 bought her a sweater, therefore, the victim should accompany the appellant at a local market to collect it. That, the victim followed the appellant only to end up being raped by the appellant in a building which she later realised that it was a guest house when they arrived at the said guest house, the two were received by Melina Peter (PW2) and the appellant introduced the victim as his daughter and the victim confirmed. Following that rape incidence, the victim went home and reported to her step mother who informed her father. The victim’s father took the victim to Sengerema Health Centre. She was medically examined by Irene Mamuya, a clinical officer (PW4) who also produced a PF3 (Exhibit P1) revealing that the victim had signs of being raped. In his defence, the accused denied having committed the offence and explained that he had grudges with his brother who is the victim’s father that is why they framed him for the offence of rape. After the conduct of the full trial, the appellant was found guilty of the offence of rape and he was sentenced to thirty years’ imprisonment and ordered to pay the victim a compensation amounting to TZS 1,000,000/= (One million). Distressed, the appellant is before this court appealing against the conviction and sentence and fronted the following grounds of appeal thus:- 2 1. THAT, the appellant was convicted on an offence of rape c/s 130(1)(2)(e) and 131 of the penal code chapter 16 of the Revised laws, while the offence of Rape was not proved beyond a reasonable doubt. 2. THAT, the age of the victim was not proved at required standard. i. NALONGWA JOHN V. REP. Cr. App. No. 588 of 2015 CAT at Dodoma. ii. RWEKAZA BERNARDO V. REP. Cr. App. No. 477 of 2016 CAT at Bukoba. iii. EDSON SAIMON MOMBEKI V. REP. Cr. App. No. 94 of 2016 CAT at Mwanza (All unreported). 3. THAT, there was no sufficient evidence to prove that the victim (PW1) was a student of form I at NGWELI Secondary School. 4. THAT, the trial magistrate erred in law and fact to convict the appellant by relied on uncorroborated evidence when the prosecution failed to produce a visitor’s book of Michigani ‘B’ guest house that can corroborated the evidence of PW1, PW2 and PW3. 5. THAT, the trial magistrate grossly erred in law and fact for failure to evaluate the evidence on the record and later convict the appellant on unreliable evidence/defence which inevitably lead to wrong and biased conclusions/inferences resulting to miscarriages of justice. 6. THAT, the trial magistrate grossly erred in law and fact for failure to summarize and evaluate the appellant evidence/defence which inevitably lead to wrong and biased conclusions/inferences resulting to miscarriages of justice. 3 7. That, the trial magistrate grossly erred in both law and fact by convicting and sentence the appellant in the base of a planted case on the appellant. He then prayed to submit 9 additional grounds of appeal as follows: 1. THAT, the trial magistrate erred in law and/or fact to convict the appellant while the prosecution failed to tender the guest Register book of Michigan B guest house, the PW2 did not object that unreasonably failed to note down the name in the guest book which is a pre-request before getting in of the guest. That is unanswered doubt hence it proves it is true at material time these were guest like these. 2. THAT, the lower court misdirected in law and/or fact to convict the appellant by acting upon PW1 and PW2 Dock identification, hence:- (i) The PW2 failed to explain when the appellant went at her work place before an incidence in fact. So as to clear doubt that whether or not they were knowing each other before. (ii) PW1 and PW2 failed to explain the attire put on by the appellant and at which material time, worse enough even the PW2 did not identify the victim while was at the court if is the same. (iii) The unique mark propelled the PW1 and PW2 to identify that was the appellant and not anybody else. 3. THAT, the trial magistrate erred in law and/or fact to convict the appellant while failed to append his signature soon after recorded the evidence of each and every witness, this is c/s 210 of the CPA, 4 [Cap. 20 RE. 2002]. This render an entire proceedings and judgment being nullity. 4. THAT, the trial magistrate erred in law and/or fact to convict the appellant by acting upon contradictive piece of evidence, the PW3 alleged that, “the victim told me that you sent her to the Michigan guest house”. While the PW1 said “when I entered in the house I do not know if the house was a guest hence that’s why I entered …. I do not see any words written” the contradiction goes to the roots of the case hence it is impossible for the guest house not be written its name and if the PW1 was not knowing how and where the PW3 got those words. 5. THAT, the trial magistrate erred in law and/or fact to convict the appellant while unreasonably failed to summon a potential witness, the step mother alleged father (the appellant brother) even any ten cell leader were not summons, it was not by bad luck but they should have negated their story if would had summoned. He respects S. 143 of TE, [cap 6 RE. 2022] but according to the circumstances of this case the court should had drawn an adverse inference. 6. THAT, the trial magistrate wrongly/unreasonably failed to consider the appellant defence, this style vitiated the conviction imposed upon the appellant. 7. THAT, the age of the victim was not proved hence no certificate of birth, father or any relative were not summoned. 8. THAT, the age of the victim was not proved hence no certificate of birth, father or any relative were not summoned. 5 9. That, the prosecution side failed prove the offence beyond all reasonable doubt. At the time when the appeal was scheduled for hearing, the appellant fended for himself while the respondent was represented by Ms. Fortunata Buvete, Mr. Japhet Ngusa both learned state attorneys and Ms. Beatrice Gerald a state attorney trainee. The appellant, being a layman moved the court to consider all of his grounds of appeal as they are, he had nothing more to add. Replying, the learned state attorney told the court that they support conviction and sentence against the appellant. She started by the 1st and 7th grounds and the 9th additional ground. She submitted that the offence of rape was proved beyond reasonable doubt. That, the republic respondent was supposed to establish the age of the victim and that she was penetrated. That, penetration was proved by PW1 the victim herself who explained how the appellant forced himself into her. He added that, PW1’s evidence is corroborated by the medical Dr. who produced a PF3 to the effect that she examined the victim and found bruises which are signs of penetration. In respect of the age of the victim, she argued that she testified that she was 17 years and in April 2023 she will turn 18. 6 Moving to the 2nd ground and 8th additional ground, she relied on the decision of Jafari Musa v DPP Criminal Appeal no. 234/2019 CAT, Mbeya arguing that, among the people who can establish age is the victims themselves. Responding the 3rd ground, she told the court that in order to prove the offence of rape it is not a legal requirement that the victim must be a student because that applies to offences of impregnating a school girl. The 4th and 7th additional ground were argued jointly that under Section 127(6) of the Evidence Act, it is not necessary to have corroboration in sexual offences. The court need only to believe the victim. That, nevertheless, the victim’s testimony was corroborated by PW2 who explained to have received the appellant and victim at Michigan B Guest House, room 109 where the offence was committed. In respect of the 5th, 6th grounds and 6th and 7th additional grounds she submitted that, the evidence of both parties was properly evaluated by the trial court as it appears from page 3 to 10 of the judgment. And that, the trial magistrate said he believed the victim that she is telling the truth. 7 In respect of the rest of the grounds, which are the 1st to 5th additional grounds. She submitted that, the register book of the Guest House was not necessary because the proceedings reflect that PW2 could not bring the register book because the appellant was his regular customer and he promised to sign in the book later but he did not come back. That the appellant was properly identified and it was not necessary to establish special marks especially because these people were familiar to each other as a daughter and paternal uncle. That, section 210 of the CPA was well adhered to because looking at the proceedings, they are signed on each page. That, there is no contradiction on the scene of crime being a guest house because the victim took PW3 to the place where she was raped and that is when PW3 realised it was a guest house. That, under section 127(6) of the Evidence Act, and based on the case of Selemani Makumba v R 2006 TLR 379, the key witness is the victim therefore, it was not necessary to bring the victim’s father or guardian as a witness because the issues of age and penetration was established by the victim herself. She finalised her submission that, section 143 of the Evidence Act, does not state the specific number of witnesses to be relied in court. In his brief rejoinder, the appellant insisted that the register book of the alleged guest house was an important document. That, the age of 8 the victim was not certain because sometimes it is stated to be 17 and then 18 therefore it was important for the victim’s parents to testify. And finally, if the victim claims that her father is the appellant’s brother, it was important for the said father to testify. That the victim was lying because initially she said she did not know if the scene of crime was at the guest house how did she direct his father and the investigator? That, did not prove to the court that he was a medical doctor. Even after the appellant asked him to. And that, the victim did not identify him at the court by pointing him a finger. Following the rival submissions by parties, the vital issue to be determined is whether the prosecution managed to prove the case beyond reasonable doubt. The law is clear under section 3(2)(a) of the Evidence Act Cap. RE: 2019, that in criminal matters, a fact is said to be proved where the court is satisfied that the prosecution, beyond reasonable doubt, managed to prove that the fact exists. While the prosecution has a burden to prove the case beyond reasonable doubt, the accused only needs to raise some reasonable doubt on the prosecution case and he need not prove his innocence. See Mwita and Others vs Republic [1977] TLR 54 and Mohamed Haruna @ Mtupeni & Another vs Republic, Criminal Appeal No. 25 of 2007. 9 The offence of rape is created under sections 130 and 131 of the Penal Code to wit; 130.-(1) It is an offence for a male person to rape a girl or a woman. (2) A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions: (a) –(d) N/A; (e) with or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man. (4) For the purposes of proving the offence of rape- (a) penetration however slight is sufficient to constitute the sexual intercourse necessary to the offence; 131.-(1) Any person who commits rape is, except in the cases provided for in the renumbered subsection (2), liable to be punished with imprisonment for life, and in any case for imprisonment of not less than thirty years with corporal punishment, and with a fine, and shall in addition be ordered to pay compensation of an amount determined by the court, to the person in respect of whom the offence was committed for the injuries caused to such person. 10 In the present appeal, there are a total of 16 grounds of appeal however, they can be narrowed and rephrased that, the prosecution case was not proved beyond reasonable doubt for the following five key issues: i. The age of the victim was not proved. ii. Key witness like the victim’s father and step mother were not called, the guest house’ register book was not produced. Therefore, the victim’s testimony was not corroborated iii. Contradiction on prosecution’s evidence over whether the victim knew if the crime scene was a guest house or not. iv. The appellant was not properly identified. v. The trial court did not consider the appellant’s defence and it did not sign on each page. Starting with the issue of age, essentially, age is of the essence in establishing the offence of statutory rape under section 130(1)(2)(e) of the Penal Code, Cap 16 RE: 2019. Moreso, under the provision, for a statutory rape to be established, it is a requirement that the victim must be under the age of eighteen years. See the case of Robert Andondile Komba vs DPP, Criminal Appeal No. 465 of 2017 among others. In any criminal proceedings apart from applications, the document which institute a case is the charge sheet. That is where the five W’s of the case or the particulars of the case are established. Basically, all the 11 prosecution’s evidence is aimed at proving which is stated in the charge sheet. As correctly submitted by the appellant, there is a contradiction on the victim’s age and the prosecution did not mention anything on such contradiction neither at the trial or appellate stage. In the present case, I have noted that the charge sheet mentions the victim as ‘a girl of 18 years’. In her testimony, the victim does not state her age until when cross examined where she stated that ‘I have 17 years and on April 2023, I reach 18 years’ (sic). I have noted that the victims PF3 (Exhibit P1) reveals that, the victim went to the hospital accompanied by her father and her estimated age reads 18. It is trite law that a medical practitioner can testify on the issue of age. See Isaya Renatus vs. Republic, Criminal Appeal No. 542 of 2015. I have considered this discrepancy and here my observations, One; the charge sheet and PF3 reveals that the victim was of 18 years, Two; under the Penal Code, rape can be committed to a girl or woman of under the age of 18 years, yet, rape can still be committed to a girl/woman above the age of 18 years if she did not consented. Three; Considering that the victim is 18 years as per the charge sheet and evidence of PW4, the next question is whether she consented to the act. 12 The answer to this issue is in the negative. I say this because One; the victim herself testified that she has been penetrated by force by the appellant he even hurt her. Two, PW2 told the court that she saw the victim coming out of the guest house and she was furious. Three; The victim reported the incidence immediately to her step mother who also reported to her father and shortly thereafter her father went to the guest house to find out the details from PW2. I find that, these acts cannot be done by a girl or woman who consented to sex. If she consented, the victim would have not informed anyone on the incidence especially being of a younger age and still living with her parents. Therefore, I take note of the discrepancy on the victim’s age but whether she was 17 or 18, it does not affect the fact that she had sexual intercourse with the appellant without her consent, and that amounts to rape. Regarding the second rephrased issue, I have considered that, it was the victim’s father who linked the victim and the appellant, he also went to the scene of crime just after the incidence. Therefore, he was an important witness. The proceedings are silent on why he was not called. However, despite his importance he was not a key witness in a sense that his absence does not affect the prosecutions’ case. I therefore agree with the learned state attorney that, based on the 13 nature of the case being sexual offence, it was not necessary to call the victims’ parents because under section 127(6) of the Evidence Act, the victim’s evidence suffices in proving the offence of rape. Likewise, the guest house register book was important but not necessary evidence especially when PW2 admitted that the appellant promised to write his names later and he did not. I tend to believe PW2 because she mentioned that the appellant was a regular customer therefore it is likely to allow him to write his name later. The second ground has no merit. In respect of the contradiction raised by the appellant, the law is settled that in evaluating contradictions, the court has to decide whether the contradictions are only minor or whether they go to the root of the matter before deciding on the fate of the appellant. See Mohamed Haji Ali v Director of Public Prosecutions, Criminal Appeal No. 225 of 2018 - [2018] TZCA 332. Therefore, it is not every discrepancy in the prosecution's witnesses that will cause the prosecution's case to flop. It is only when the heart of the evidence is contradictory then the prosecution's case will be ripped out. The contradiction which is explained here is with regard to whether the victim knew the scene of crime was a guest house or not. I take note that, this is also an important aspect because if the victim knew it was a guest house she would have sensed that the appellant has intended to rape her and by 14 entering, she consented. However, it is in evidence that the victim was cross examined she stated she was a stranger in that place and she did not know whether the place was an ordinary house or a guest house. This ground lacks merit. In the fourth rephrased ground, the appellant is challenging that he was not properly identified. He expound further that the victim ought to have pointed the finger at her when he was at the dock and she should have mentioned any special mark on the appellant’s body. Without delay, I think this ground has no merit. My reasons are; on what transpired at the scene, the incidence is explained to have happened in the day light, the victim and appellant knew each other before, in terms of Waziri Amani v R (1980) TLR 250 wazairi, further, PW2 saw the victim and appellant entering the guest house and the victim leaving. Moving to what transpired at the court, the appellant was the only one at the dock and if he had any issue with his identification he should have question the victim, but he did not. This ground lacks merit. The appellant’s defence was considered. Under page 14 and 15 of the judgement the trial magistrate considered the appellant’s defence that there was no proof of him being at the guest house and that he had grudges with his brother that is why he fabricated the case against him 15 and he found this defence to be weak. As for the signatures, I have gone through the hand written proceedings, the trial magistrate signed properly. Therefore, this ground as well, lacks merit. Lastly, I agree with the respondents that in the charge of rape, it is not necessary to prove that the victim was a student. Based on the evidence on the analysis above, I find that the prosecution managed to prove their case beyond reasonable doubt. Accordingly, I find the appeal is devoid of merit and it is hereby dismissed in its entirety. I proceed to uphold the conviction and sentence imposed on the appellant Paulo Nzungu. It is so ordered. The Right of Appeal is explained to the parties. Dated at Mwanza this 26th day of September 2024. L.K.J. ITEMBA JUDGE Judgement delivered today 26th day of September 2024, in the presence of the Appellant and Ms. G. Mnjari, RMA and in the absence of the respondent. 16