HAMIS EDWARD LEBEJO Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA DC CRIMINAL APPEAL NO. 149 OF 2023 (Original Criminal Case No. 138 of 2022 of the District Court of Dodoma at Dodoma Before Hon. J. Musaroche, PRM) HAMIS EDWARD LEBEJO..………………………………………………APPELLANT Vs REPUBLIC …………………………................................................RESPONDENT JUDGMENT Date of last order: 07th October 2024 Date of Judgment: 08th November 2024 E. E. KAKOLAKI, J This is the first appeal by the appellant who is seeking to overturn the decision of the District Court of Dodoma dated 10/10/2023 whereby the appellant was convicted and sentenced to 30 years imprisonment after being found guilty and convicted with the offence of Rape; contrary to section 130(1)(2)(e) and 131(1) of the Penal Code, [ Cap. 16 R.E 2022]. Briefly before the trial court the appellant was charged with offence of rape as cited above after allegedly had sexual intercourse with the girl of 15 years old whom for the purposes of disguising her identity in this 1 judgment, I will be referring her as PW2 or victim. According to the facts garnered from the record on the 09/08/2022 both appellant and victim who are closely related were in attendance of an initiation ceremonies that were held at the home of victim’s paternal uncle at Iringa – Mvumi Village within Chamwino District in Dodoma Region. Victim’s parents were also in attendance and remained there until 22.00 hours when they decided to retire home leaving the victim behind. It is said, no sooner had they departed than the appellant approached the victim asking her to send back home the torch allegedly being the message from her parents, the message which the victim (PW2) worked on as she instantly led her way back home. As she was on the way it is contended, he appellant appeared from behind and held her by neck while in possession of a knife threatening her not to raise alarm before he fell her down unzipped his trousers and took out his male organs which he successfully penetrated into her vagina. It is said the appellant asked her not to disturb him until when he ejaculates but she managed to escape as he was trying to change the style and reported the incident to her parents when reached home who also reported the matter to the suburb chairman who asked them to come in the morning where she issued them with the letter to present at police. On the next day the matter was reported at Mvumi Mission Police 2 post, the victim issued with PF3 (exh. P1) and medically examined by the doctor PW4 who established that, her female organ was penetrated by blunt object as it was bruised. Other prosecution witness who testified on how the victim reported the matter and identified her rapist as the appellant were her father PW1 and the police investigator PW3 who testified to that effect. In his defence at first the appellant denied to have committed the offence claiming that, the case was framed against him by the victim’s father following his misunderstanding with his mother whom they engaged in a fight one day before the appellant came to the rescue of her mother, the defence which was supported by two witnesses, DW2 and DW3. He however at the same time confessed to have engaged himself in sexual intercourse with the victim claiming not to be aware that she was under age. After full trial and having evaluated both sides evidence the trial court was satisfied that, the prosecution had managed to prove its case beyond reasonable doubt against the appellant hence proceeded to convict and sentence him to serve 30 years imprisonment as alluded to above, the conviction and sentence which seem to have irritated the appellant hence the present appeal expressing his dissatisfaction in nine (9) grounds of appeal going thus:- 3 1. That, the learned trial Magistrate grossly erred in law and fact in basing and/ or sustaining the conviction on the contradictory, inconsistent and implausible evidence of the four(4) prosecution witnesses which did not prove the charge the Appellant. 2. That, the learned trial Magistrate grossly erred in law and fact by convicting the accused person(Appellant) while the complainant(victim) did fail to give out the detailed description of the suspect leave alone the intensity of the alleged source of light as it has to stand by the law. 3. That, the trial Court grossly erred in law and fact by convicting the Appellant basing on the procedural irregularities whereas its not clear on the Court record whether memorandum of undisputed facts of the PH were read over to the Appellant contrary to section 192(3) of the CPA [Cap 20 R.E 2019] as this is fatal render both trial and sentence nullity. 4. That, the trial Court grossly erred in law and fact in not drawing an adverse inference against the prosecution side when deliberately failure to call the said hamlet chairman as an 4 independent witness to shake hand the prosecution evidence without undisclosed reason, leave alone the two girls. 5. That, the learned trial Magistrate grossly erred in law and fact by failing to notice that the victim(PW2) was not a credible witness due to the fact that, she alleged when Appellant raped her she was being ejaculated but when she was examined by PW4 no any scintilla of sperm was found in her vagina. 6. That, the trial Court grossly erred in law and fact by failing to evaluate the evidence given by third party opinion (PW4) whereby penis is not a blunt object but a stiff body flesh during penal erection. 7. That, the trial Court grossly erred in law and fact by failing to comply with provision of section 10(3) and 9(3) both of the CPA [Cap 20 R.E 2019] hence enable the prosecution side to pirate the Court and vaguely inject its witnesses and build up its case from the case already heard in Court. 8. That, the trial court grossly erred in law and fact by failing to consider the defence raised by the Appellant during the trial. 5 9. That, the Judgment of the trial Court offends the provision of section 312(2) of the CPA. As its trite law that: Forgetting or ignoring is so peril unforgivable and not worth taking. At the hearing of the appeal, the appellant appeared in person and proceeded unrepresented while Ms. Fyumagwa learned State Attorney, represented the Respondent/Republic. When invited to argue his appeal the appellant requested the Court to consider his appeal and allow it and left the ball to respondent to counter the same as he could later on seize the opportunity to rejoin if need be. On her side Ms. Fyumagwa expressed respondent’s position from the outset that, was contesting the appeal and sought leave of the Court to argue each and every ground of appeal in seriatim. Starting with the first ground she argued that, the trial court was justified to base its conviction on the four prosecution witnesses as their evidence was not contradictory, inconsistent and implausible as contended by the appellant. She said, it is so as the prosecution managed to prove three ingredients of the offence of Rape that faced the appellant which are age of victim, penetration and identity of the accused person/appellant. On the ingredient of age Ms. Fyumagwa submitted that, the same was established through PW1’s evidence (victim’s father) stating that the 6 victim was born on 07/02/2007 hence 15 years when the offence was committed to her, the evidence which was corroborated by the victim herself (PW2) that she was born on 07/02/2017. According to the learned State Attorney, age can be proved by the victim, parent, close relative, guardian, medical practitioner or birth certificate if any as it was stated in the case for Issaya Renatus Vs. R, Criminal Appeal No. 542 of 2015(CAT) Tanzlii. Regarding an ingredient of penetration Ms. Fyumagwa contended that, victim’s evidence at page 12 of the proceedings clearly expressed on how the appellant raped her by undressing her underpants and took out his penis which he inserted it into her vagina. And that her evidence was corroborated by the doctor who examined her (PW4) as seen at pages 19 and 20 of the typed proceedings when found her vagina bruised by blunt object before he filled in the PF3 (exhibit PE.1), as according to the case of Seleman Makumba vs. R [2006] TLR. 379, the best evidence in sexual offences comes from the victim who in the present matter is PW2. She thus submitted PW2’s evidence on its own is sufficient enough to prove penetration though the same was corroborated by PW4. On appellant’s identity, Ms. Fyumagwa advocated that, the trial court was correct to find the same was sufficiently established as PW2 at page 12 of 7 the proceedings explained on how she identified the appellant whom she knew before for the past 10 years and added that, her identification was doubt free as the rape incident lasted for one hour and there was bright moonlight when he grabbed and threatened her with knife before he succeeded raping her. That aside she added, the victim’s act of mentioning the rapist to her parents at the earliest possible time and before PW3 increased reliability and assurance of her evidence, hence a proof that appellant is the one who raped her. To fortify her submission, she referred the Court to the case of George Seif Amir vs. R, Criminal Appeal No.38 of 2022 CAT Tanzill at page 15 when quoted in the case of Marwa Wangiti Mwita and Another Vs. R [2002] TLR. 39 on reliability and assurance of the evidence of the witness who mentions her assailant to the third party at the earliest possible time. Next in her submission was the 2nd ground of appeal in which Ms. Fyumagwa submitted that, it is not true that PW2 failed to give descriptions of the appellant as at page 12 of the proceedings she clearly stated on how she identified him. That aside she argued, they knew each other before for more than 10 years and that, on the incident date both were at initiation ceremonies. 8 On the 3rd ground Ms. Fyumagwa, conceded that it is true that the memorandum of undisputed matters was not read to appellant but she was quick to argue that, the irregularity is not fatal as it was held in the case of DPP Vs. Lengai Ole Sabaya and Others, Criminal Appeal No. 231 of 2022(CAT) Tanzlii at page 20. On the 4th grounds of appeal, the learned State Attorney contested its merit submitting that, failure to call the village chairman as independent witness did not dent prosecution case because the law is very clear under section 143 of Evidence Act that, even a single witness can prove the case and that, by the witnesses paraded in court the prosecution proved the case against him beyond reasonable doubt. On the contention of absence of sperms in the victim’s vagina when examined by the doctor as raised by the appellant in the 5th grounds of appeal Ms. Fyumagwa retorted that, the same is meritless since the incidence occurred on 09/08/2022 and victim was examined on 10/08/2022 after length period of time had passed hence removal of possibility of being found with sperms as she might have had taken birth after the incident. As to the contention by the appellant that the victim could not have been penetrated by a blunt object as observed by PW4 rather a stiff body flesh 9 during penal erection as raised in the 6th grounds of appeal she countered, the word blunt object was used to imply a stiff object that penetrated victim’s vagina as what the doctor observed was that penetration was there something which was not denied by the appellant during his defence when admitted to have engaged in sexual intercourse with PW2 without knowledge that she was under 18 years old. She referred the court to the case of Nyerere Nyague vs. R, Criminal Appeal No.67 of 2010(CAT) Tanzlii at page 8 in cementing her submission, where the Court of Appeal pronounced itself that, the best evidence in criminal trial is the confession coming from accused himself. On the 7th grounds of appeal, the leaned State Attorney argued that, the contention that the appellant was not supplied with complainant statement hence the possibility of cooking the case against him by bringing unintended witnesses is unfounded for not prejudicing him anyhow as he was availed with an opportunity to cross examine all prosecution witnesses and later on entered his defence properly. She thus submitted that; the omission is curable under section 388 of the CPA. Next in her response was the 8th ground where she countered that, appellant’s assertion that his defence was not considered by the trial court is untrue since the same was considered as it can be pictured at pages 4 10 and 11 of the impugned judgment and the trial court fully satisfied that the same did not shake prosecution’s case. She thus called the court to dismiss the ground. On the allegation of noncompliance of the provision of section 312(2) of the CPA as raised in the 9th grounds of appeal Ms. Fyumagwa argued that, the law was complied with as seen at page 11 of the judgment. It was her prayer therefore that, on the strength of the above submission this appeal be dismissed for want of merit. In his rejoinder submission the appellant had nothing meaningful to add apart from reiterating his prayer as earlier on done. I had an ample time to internalise the submission made by the parties and revisit the evidence as found in the trial records in a bid to establish whether this appeal has merit or not. The settled principles of law are that, in criminal case prosecution side carries the burden of proving that it is the accused who committed the offence facing him and that, the standard of proof is that of beyond reasonable doubt as stated in section 3(2)(a) of Evidence Act, [Cap 6 R.E 2022]. See also the case of Mohamed Said Matula Vs. R, [1995] TLR.3 and Nathaniel Alphonce Mapunda and Benjamin Mapunda Vs. R [2006] TLR 395 (both CAT). To start with the 1st group of appeal in this case, having reviewed the evidence from both 11 parties I disagree with the appellant’s claim that, the trial court grossly erred to rely on the evidence of four (4) prosecution evidence to convict him on the ground that the same is contradictory, inconsistent and implausible, thus did not prove the case against him beyond reasonable doubt. I so do as according to evaluation of the evidence by this Court which I am about to demonstrate hereunder in the exercise of powers of rehearing of the case and come up with own findings for being first appellate court, the case against the appellant was proved beyond reasonable doubt. As correctly submitted by Ms. Fyumagwa in proving statutory rape under section 130(1)(2)(e) and 131(1) of the Penal Code, the prosecution was enjoined to prove existence of three ingredients of the offence namely, one, victim’s age, second, penetration and third, identify of the person who committed the offence. On the proof of age, I am at one with Ms. Fyumagwa that the evidence of PW1 corroborated by that of victim herself (PW2) sufficiently established that important ingredient of statutory rape as both testified to the effect that, PW2 was born 07/02/2007 thus was 15 years old at the time of commission of an offence. I so hold as it is settled now that age of the victim can be proved by the victim himself/herself, relative, parent, guardian, medical practitioner or birth certificate if any as it was also pronounced in the cases 12 of Issaya Renatus (supra), Edson Simon Mwombeki Vs. R, Criminal Appeal No. 94 of 2016 and Mohamed Jumanne Vs. R, Criminal Appeal No. 569 of 2021 (both CAT) Tanzlii. Regarding to the ingredient of penetration there is evidence of the victim (PW2) to the effect that, on the fateful day when her parents had gone home the appellant who was known to her before informed her of the directives by her parents to send them a torch at home which directives she complied with and that, while on the way home the appellant grabbed her by neck and pulled her down while threatening her with a knife he had in possession. PW2 went on to state on how the appellant torn her skin tight and underwear before he unzipped his trousers and then took out his penis which he inserted into her vagina and asked her not to disturb him until when he ejaculates but she managed to escape from his hands when he attempted to change the style and went straight home where she informed her parents who in turn also reported the matter to suburb chairman whom later on in morning went back to her for introductory letter to police. It was in her further testimony that, after reporting the matter at police she was issued with a PF3 and undertaken medical examination at the Hospital which PW1 disclosed to be Mvumi Mission Hospital and attended by PW4. It is this PW4 who corroborated 13 her evidence in that when examined her he was satisfied that, she was penetrated by a blunt object as her vagina was bruised. He also tendered the PF3 to fortify his testimony which was admitted as exhibit P1 proving that, indeed PW2 was penetrated. It is the position of the law that under section 130(4) of the Penal Code, what is important is for the prosecution to lead evidence proving penetration however slight it is which is an important ingredient in proving the offence of rape. See the cases of Ex B. 9690 SGT Daniel Mshambala Vs. R, Criminal Appeal No. 183 of 2004 and Mathayo Ngalya @ Shabani V R, Criminal Appeal No. 170 of 2006 (both CAT-unreported). It is also trite law as pronounced in the case of Selemani Makumba (supra) and other cases that, the best evidence in sexual matters comes from the prosecutrix. See also the cases of Hamis Halfan Dauda Vs. R, Criminal Appeal No. 231 of 2019 (CATunreported). In the present case since PW2 whose evidence this Court has no reason to doubt, proved penetration of her vagina which evidence was corroborated by PW4 and PF3 exhibit P1, showing that PW2 had her vagina bruised suggesting to be penetrated by blunt object, like the trial court this Court is satisfied that, the element of penetration was proved beyond reasonable doubt. 14 The last ingredient is identity of the accused person in which this Court having revisited in the record is convinced that under the circumstances that prevailed in this case the best evidence on identification of the rapist comes from PW2 as rightly submitted by Ms. Fyumagwa. As alluded to above when dealing with the second ingredient it is this witness who identified and mentioned the appellant to both PW1 and PW3 as the person who penetrated her private parts (vagina) on the fateful day while on the way to home since the appellant was known to her before almost ten (10) years ago. She said, apart from knowing him before the appellant and her parents were also in attendance of the initiation ceremonies during day time until night where he saw him clearly, the fact which was corroborated by PW1. She added that, in identifying hi on the incident night was also aided by the bright moon light hence unmistaken identity of her rapist as she encountered him for an hour when perpetrating the said offence. I am alive to the living principle of law that, evidence on visual identification during night to perpetrators of an offence made by a single witness is unsafe to be acted upon unless there is other corroborative account. See the cases of Hassan Kanenyera and Others Vs. R [1992] T.L.R 100 and Shamir John Vs. R, Criminal Appeal No.166 of 2004 (Unreported). However, in this case the fact that the 15 appellant was known to her before and the fact that, the two were both at the initiation ceremonies during day time before the appellant purposely passed to her the untrue message purportedly coming from her parents to return the torch home in which PW2 acted on hence easy for him to execute his evil intention and given the uncontroverted facts that, on that night there was bright moonlight and the two were in close proximity during the said unlawful sexual intercourse, this Court like the trial court is left without any scintilla of doubts that, the appellant was correctly identified as that amounted to identification by recognition which is more satisfactory, more assuring and more reliable than identification of a stranger. See the case of Nicholaus Jame Urio Vs. R, Criminal Appeal No. 224 of 2010 (CAT-unreported) quoting with approval the decision of Court of Appeal of Kenya in Kenga Chea Thoya Vs. R, Criminal Appeal No. 375 of 2006 (unreported). PW2’s evidence is corroborated with that of PW1 and PW3 whom she mentioned the soonest, the appellant as the person who raped her. PW2’s evidence mentioning the appellant to PW1 and PW3 I convinced is reliable and credible one as the principle of law that, mentioning the assailant to the third party at the earliest possible time is an assurance and reliability of the witness. See the case of Marwa Wangiti Mwita and Another Vs. R [2002] TLR. 39. As prosecution 16 evidence is not enough the appellant in his defence confessed to have had sexual intercourse with the victim allegedly without knowledge that she was under 18 years old. This was in both his evidence in chief and during cross examination. This court has no reason to doubt his evidence which corroborated prosecution case as the best evidence in criminal matters is that of accused person confessing commission of an offence. In case of the case of Paul Maduka and 4 Others Vs. R, Criminal Appeal No. 110 of 2007 (CAT-unreported) on similar subject the Court of Appeal observed that the very best of witnesses in any criminal trial is an accused person who confesses his guilt. In view of the above I find the first ground of appeal is wanting in merit and dismiss the same as prosecution witnesses displayed no contradictions or inconsistences in their evidence reasonable enough to dent prosecution case. The analysis of evidence in the first ground of appeal answers most of the remaining grounds of appeal which I will address briefly. As to the 2 nd ground of appeal I find the complaint that PW2 failed to give descriptions of the appellant during that night is unfounded as victim’s evidence as correctly submitted by Ms. Fyumagwa, sufficiently identified the appellant thus there was no need on her side to give descriptions to a person whom she knew before and were together throughout the day at the initiation 17 ceremonies on the incident date and further that, it is the same person who passed to her the intentional wrong message so that she could go home early where he seized an opportunity to rape her. As that is not enough as stated above, the two engaged in sexual intercourse for almost an hour and there was enough light from the moon that enabled her to mistakenly identify him. Under the circumstances I do not see how important was the requirement of the identifier under such circumstances to give descriptions of her assailants whom she knew before. I thus disregard the ground. On the complaint in the 3rd ground of appeal of non -compliance of the provisions of section 192(3) of the CPA for trial court’s failure to read to the appellant the memorandum of undisputed fact, I find the same not denting prosecution case as the omission to so do does not vitiate the proceedings. I so find as the settled law is that, an irregularity in the conduct of preliminary hearing does not vitiate proceedings hence I disregard the ground too. Next for determination is the 4th ground in which the appellant is faulting the prosecution for its failure to procure in court as witness, the hamlet chairman who he considers to be an independent witness. I think this ground need not detain this Court much as the principle of law based on interpretation of the provision of section 143 of 18 the Evidence Act is that, no specified number of witnesses for proving a certain fact is dictated by the law. It is not all evidence that comes out during investigation which is always presented in court as the prosecution is at liberty to sort which evidence they would need to prove their case and not for the defence to choose for then as it was also held in the case of Ally Mkombozi vs. R., Criminal Appeal No 7 Of 2007 where the Court of Appeal had the occasion to deal with a complaint that witnesses who were at the scene of crime were not summoned to testify for the prosecution and observed thus: “…As for the omission by the prosecution to call witnesses from the neighborhood and omission to tender the underpants of the complainant, our observation is that what the prosecution was required to do was to prove their case on the standard required. They were at liberty to sort out which evidence they needed to establish their case. After all, it is not all evidence which comes out during investigation is relevant for proving the case for the prosecution. This grievance lacks substance.” (Emphasis supplied) In this case like in the above cited case since the prosecution had the burden of proving its case, that it is the appellant who committed the 19 offence and managed to discharge it, then I do not find any substance in the appellant’s complaint hence dismiss this ground. In the 5th ground of appeal appellant’s assertion is that, the trial court failed to note the victim (PW2) was not reliable witness when testified that when the appellant was raping her ejaculated while the doctor did not find the alleged sperms when examined. After revisiting PW2’s evidence, I do not buy appellant’s story as what PW2 told the trial court is that the appellant warned her not to disturb him until when he ejaculates but she managed to escape from his custody when he changed the style. There is nowhere PW2 said he raped her until when he ejaculated as the appellant would want this court to believe. The grievance therefore I find is unmerited and dismiss it. Next is the 6th ground of appeal on the contention that a penis cannot be blunt object as suggested by PW4 in his evidence which the court relied on to convict the appellant but rather stiff body fresh during penal erection. Again, I do not find any merit in this ground as I endorse Ms. Fyumagwa’s submission that, the use of the term blunt object by PW4 signified the stiff object used to penetrate victim’s vagina and nothing else. In my opinion that is a matter of semantic rather than real object as PW4 20 could not have concluded that the blunt object was penis since he was not present at the scene of crime when the offence was committed. As such the appellant himself confessed in his defence to have had sexual intercourse with the victim without his knowledge that she was under 18 years old the piece of evidence that defeats his own complaint in the above ground of appeal. In the 7th ground it is true as admitted by the learned State Attorney that, the appellant was not availed with complainant’s statement. However, I do not see as to how such non-compliance prejudiced him as rightly put by Ms. Fyumagwa. He was at all time availed with opportunity to cross examine all prosecution witnesses including the victim who was the complainant in this matter and later on be able to enter his defence after comprehending the nature of his accusations. In short, the omission is not fatal for being curable under section 388 of the CPA as it did not occasion any injustice on the appellant’s side. This ground of appeal is wanting too in merit. The 8th ground of appeal refers to appellant’s assertion of nonconsideration of his defence by the trial court, which grievance I find to be meritless too. It is not true as contended by the appellant that his defence was not considered as the plain truth as submitted by Ms. 21 Fyumagwa is that, the trial court considered it as seen at page 11 of the impugned judgment but found to be contradictory hence afterthought as while raising a defence of alibi stating that he was not at the scene of crime on that date, at the same time confessed to have been engaged in sexual intercourse with the victim without his knowledge that she was under 18 years old. It is the law that, denial of accused defence does not necessarily mean the same was not considered as what the defence evidence provides is to raise doubts to the prosecution case and not proving accused’ innocence since it is the prosecution which is legally bound to prove its case, which in this case the Court is satisfied that they managed to discharge such noble duty. I therefore dismiss this ground. Lastly is the 9th ground of appeal concerning compliance of the provision of section 312(2) of the CPA providing for citation of the offence and the section of the law in which the accused person is convicted under, the mandatory requirements which the appellant asserts were not complied with the trial court. Having glanced at the impugned judgment, I disagree with the appellant’s contention instead endorse Ms. Fyumagwa’s submission that, the same was complied with to the letters since the trial court at page 11 of the its judgment specifically stated and I quote for easy of reference: 22 ’’I hereby find accused person guilty of the offence of rape c/s 130(1),(2)(e) and 131(1) of the Penal Code, [Cap. 16 R.E 2022] and convict him accordingly. Order accordingly. J.S. Musaroche. PRM 10/10/2023 Viewing from the above excerpt of the judgment it is without any ambiguity that the provision of section 312(2) of CPA was complied with to the letters hence dismiss the 9th ground of appeal. From the above discussion and findings of this court, the appellant’s appeal has no iota of merits as I hereby uphold the trial court’s findings on both conviction and sentence imposed on the appellant and proceed to dismiss it in its entirety. It is so ordered. Dated at Dodoma this 08th day of November, 2024 E. E. KAKOLAKI JUGDE 08/11/2024. 23 Court: This Judgment has been delivered at Dodoma today on this 08th day of November 2024, in the presence of appellant in person, Ms. Magreth Fyumagwa, State Attorney for the respondent and Ms. Veradina Matikila, court clerk. Right of appeal fully explained E. E. KAKOLAKI JUGDE 08/11/2024. 24