KAMAMA SAYI SAYI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB REGISTRY OF SHINYANGA) AT SHINYANGA CRIMINAL APPEAL NO. 25817 OF 2024 (Arising from the Judgment of the District Court of Itilima at Itilima before Hon L.M Gambago SRM, dated on 19th August 2024 in Criminal Case No. 37827 of 2024) 7 KAMAMA SAYI SAYI ….….......................................... APPELLANT VERSUS THE REPUBLIC…………….………….……………….…RESPONDENT JUDGMENT 24thSeptember & 11th October, 2024 MASSAM, J:. The appellant herein above was charged before the District Court of Itilima at Itilima with an offence of Rape contrary to Section 130 (1) (2) e and 132 (1) (2) (a) of the Penal Code Cap 16 RE 2022. It was alleged that on 4th day June, 2024, at about morning hours at Longalombogo village in Itilima District the accused did canal knowledge to a girl aged 8 years. The name of the victim is hidden for dignity and shall be referred as victim or PK. After the full trial, the appellant was found guilty with offence charged, convicted and sentenced to 30 years imprisonment. 1|Page Aggrieved with conviction and sentence meted, he preferred the present appeal with the following grounds; - 1. That, the trial magistrate court erred in law and fact to hold conviction to unequivocal plea of guilty which is contrary to the law stipulated. 2. That, the learned trial Magistrate court erred in law and in fact to enter wrong decision when he failed to call an independent witness in court to prove the allegation 3. That, the evidence produced by the public witness did not collaborate each other hence left a shadow of doubts. During the hearing of this appeal, the same was argued orally and the appellant appeared in person unrepresented, while the respondent was represented by Mr. Saguya learned State Attorney. In submitting his appeal, the appellant prayed this court to left him free. In response, the learned State Attorney for respondent strongly opposed the appeal and supported both conviction and sentence meted by the trial court. With regard to the grounds of appeal submitted by the appellant. The respondent counsel urged the said ground of appeal separately. 2|Page Arguing, the first ground of appeal, the appellant complained that he was convicted by unequivocal plea of guilty which is contrary to the law. Mr. Saguya responded that this case was not pleaded guilty as the case went on full trial as per Section 229 (1) of CPA and prosecution side brought five witnesses to prove the case, and victim was among them and he prayed this ground to be dismissed for want of merit. In regard to second ground, the appellant complained that trial court erred by convicting him without calling the independent witness. Mr Saguya submitted that the court record shows that the victim was alone with the appellant as her parents were not at home in that circumstances it could be hard for prosecution to get independent witness. However, in this case the only independent witness was the doctor (PW4) who examine PW1 and found that her vagina had bruises and there was penetration as exhibit P1 shows. Moreover, Mr. Saguya added that in sexual offences the best evidence comes from the victim and victim was with appellant alone on material date and victim testified what happened. He prayed this ground to be found unmerited and the same to be dismissed. 3|Page The last ground of appeal, appellant complained that he was convicted with uncollaborative evidence. It was submission of Mr Saguya that the evidence given was strong and reliable to convict appellant as the victim said that she knows the appellant as he was living with him at the same house. Also, all witnesses including victim mentioned the age of the victim together with the evidence of doctor (PW4) in his victim's PF3 he supports that the victim age was 8 years old. Mr. Saguya added that the prosecution side did prove that appellant was the one who committed that offence and not anyone else because the victim was the one who mentioned him and also there was confession from PW1 to PW2 concerning the one who committed that offence. More on that PW3 participated to arrest appellant while PW5 a police man re arrested appellant. He was of the view that the offence was proved beyond the reasonable doubt. Meanwhile, Mr. Saguya said that the sentence given was contrary to law. He prayed this court to step into shoes of the trial court which erred in law to punish appellant to face imprisonment of 30 years while the victim had 8 years. He forties his argument by referring Section 131(3) 4|Page of Penal Code that the right punishment required to be given was life imprisonment and not 30 yrs as he was given. Finally, he prayed this court to give the right punishment to appellant and find the appellant appeal with no merit as the same was brought without any merit. Upon going through the entire records and carefully considered the submission from both sides, it is in view that the appellant is challenging the conviction against him on the reason that the prosecution did not prove the case against him beyond reasonable doubts. Therefore, the main issue to be determined by this court is to whether the prosecution proved the case against the appellant beyond reasonable doubt. There is no objection that it is a common legal principle that in criminal law the burden of proof lies to the prosecution and the standard is beyond reasonable doubts see Section 110 and 112 which read together with Section 3 (2) (a) of the Evidence Act [Cap 6 RE 2019]. Also, the same principle was stated in the case of Woodmington Vs. DPP (1935) AC 462, the court held inter alia that, it is a duty of the 5|Page prosecution to prove the case and the standard of proof is beyond reasonable doubt. This is a universal standard in criminal trials and the duty never shifts to the accused, See also the case of Christian Kale & Another Vs. The Republic (1992) T.L.R 302 CAT and John Makorobera & Another Vs. The Republic (2002) T.L.R 296, where it was firmly held that the accused person should only be convicted of an offence, he is charged with on the basis of the strength of the prosecution case not on the weakness of the defense case. The term beyond reasonable doubt is defined in case laws, see Magendo Paul & Another Vs. Republic (1993) TLR 219 where the Court held that: "For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favor which can easily be dismissed." Starting with the first ground of appeal, appellant complained that he was convicted by unequivocal plea of guilty which is contrary to the law. Mr. Saguya responded that this case was not pleaded guilty as the case went on full trial as per section 229 (1) of CPA and prosecution side 6|Page brought five witnesses to prove the case, and victim was among them. I have gone through the trial records in regards to plea taking. Let’s me quote what happened at the trial; - Court: The charge sheet is hereby read over to the accused person with language fully understood. Accused’s plea: Siyo kweli. Accused’s signature: sgd. L.M. GAMBAGO-SRM 10/06/2023 Court: Plea of not guilty entered. L.M. GAMBAGO-SRM 10/06/2023 From the above trial court records, the appellant pleaded not guilty and there was no unequivocal plea of guilty thereto. Thus, I agree with Mr Saguya that the appellant pleaded not guilty and the case went on full trial as per Section 229 (1) of CPA and the first ground of appeal is found unmerited and the same is dismissed. 7|Page In regard to second ground, the appellant complained that trial court was erred by convicting him without calling the independent witness. Mr. Saguya submitted that the court record shows that the victim was alone with the appellant as her parents were not at home in that circumstances it could be hard for prosecution to get independent witness. However, in this case the only independent witness was the doctor (PW4) who examine PW1 and found out that her vagina had bruises and there was penetration as exhibit P1 shows. Moreover, Mr Saguya added that in sexual offences the best evidence comes from the victim and because in that date victim was with appellant alone and victim testified what happened. Looking to the trial court’s records, PW1 testified that she had sexual intercourse with appellant and the said date and time she was alone at home because her parents were not present. Her evidence was collaborated by independent witness PW4 a medical doctor who said that the victim was penetrated and her vagina had bruises. Therefore, I agree with Mr. Saguya that appellant was not convicted without the independent witness as in this case PW4 was a independent witness and also it is trite law that the best evidence in sexual offence comes from the victim who said that she had sexual intercourse with appellant. See the case of Seleman Makumba vs. Republic, Criminal Appeal No. 194 8|Page (unreported) where the court held that “True evidence of rape has to come from the victim if an adult, that there was penetration and no consent, and in the case of any other woman where consent is irrelevant there was penetration” From above analysis. I found that the second ground of appeal has no merit and is hereby dismissed. The last ground of appeal, appellant complained that he was convicted with uncollaborative evidence. It was submission of Mr. Saguya that the victim had 8 years and her evidence was corroborated by the evidence of PW2, PW4 and PW5. Mr. Saguya added that the evidence of PW1 shows that she had sexual intercourse with appellant. Her evidence was corroborated by PW2 and PW3 who testified that the appellant had sexual intercourse with victim and PW4 a medical doctor testified the victim was penetrated and had bruises. More on that PW3 participated to arrest appellant while PW5 a police man re arrested appellant. He was of the view that the offence was proved beyond the reasonable doubt. Clearly, the offence of rape is established when the following ingredients; - One - there was male penis penetration to a girl reproductive organ; Two - if a girl was below the age of 18 years, it is 9|Page immaterial whether the girl gave consent or otherwise. If a woman was above the age of majority, that is, above 18 years old, then such penetrations should be without her consent to constitute rape. These elements are reflected under sections 130 (1) (2) (e) of the Penal Code Cap 16 RE 2022. I have gone through submission of both parties and the proceedings of the trial court. Indeed, the testimonies of PW1 shows that she was 8 years and her evidence was supported by PW2 (victim’s father) who said that the victim was born on 10/05/2016, that evidence was corroborated by the evidence of PW4 and PW5 who testified that the victim had 8 years. Also, the evidence of PW1 shows that she had sexual intercourse with appellant and no one else. Her evidence was corroborated by PW2, PW3 who testified that the appellant had sexual intercourse with victim and PW4 a medical doctor testified the victim was penetrated and had bruises. It is noted from the above findings, that prosecution side proved the case beyond reasonable doubt as it was held in the case of Mohamed Haruna @ Mtupeni & Another Vs. Republic, Criminal Appeal No. 25 of 2007 CAT (unreported) where it was held that; 10 | P a g e "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." See also the case of Joseph John Makune vs Republic (1986) TLR 44, George Mwanyigili vs Republic, CAT criminal Appeal No. 335 of 2016. In consideration of above analysis. I am of the view that the prosecution side proved the case beyond reasonable doubt and the third ground of appeal dies a natural death. Looking to the issue of punishment given, Mr. Saguya said that the punishment given was contrary to the law as the victim was 8 years old so she was under 10 years so appellant was supposed to be punished under Section 131(3) of the Penal Code, so he prayed for the court to interfere and give the proper sentence. I am aware that this being the first appellate court it is entitled to re-evaluate the entire evidence on record by reading it together and 11 | P a g e subjecting it to a critical scrutiny. As it was held in Philipo Joseph Lukonde vs. Faraji Ally Saidi, Civil Appeal No. 74/2019 (CAT – Dodoma Unreported) that: “This being a first appeal, this Court has a duty to subject the entire evidence on record to a fresh re-evaluation and come to its own conclusions.” However, the same will be done if the trial court failed to properly evaluate the evidence presented before it. Having heard the submission from the respondent counsel, this court revisited Section 131(3) of the Penal Code, provides that: “Subject to the provisions of subsection (2), a person who commits an offence of rape of a girl under the age of ten years shall on conviction be sentenced to life imprisonment’’ Guided by the cited authority and going through the trial courts, the evidence shows that the victim had 8 years. Thus, this court do support the issue raised by the counsel for the respondent that the sentence imposed to the appellant was against the law. As per the cited law the 12 | P a g e appellant was supposed to be sentenced to life imprisonment instead of 30 years imprisonment given. In view of the aforesaid, I find and hold that this appeal has no merit. I uphold the conviction and the appellant is now sentenced to serve life imprisonment instead of 30 years imprisonment. I accordingly dismiss the appeal. Ordered accordingly. DATED at SHINYANGA this 11th day of October, 2024. R.B. Massam JUDGE 13 | P a g e