JUMANNE NYAMBURA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 21889 OF 2024 (Appeal from the conviction and sentence of the District Court of Babati in Criminal Case No. 5310 of 2024) JUMANNE NYAMBURA @ MGOGO.......................................... APPELLANT VERSUS REPUBLIC.......................................................................... RESPONDENT JUDGMENT 30th September & 25th November, 2024 KAMUZORA, J. The appellant was aligned before Babati district court (hereinafter referred to as the trial court) for raping a girl aged 12 years (herein referred as the victim). The victim was living with her mother, uncle and other siblings in a house with two bed rooms and one sitting room at Kisese "B" area within Babati district in Manyara region. The victim used to share the bedroom with her brother while her mother used to sleep with two other children who are twins and the uncle used to sleep in the sitting room. On the fateful night of 11/02/2024, the victim's brother had gone out for tuition studies while other Page 1 of 13 family members were resting in the sitting room when they heard a knock at the door. The mother (PW1) opened the door and saw the appellant who was seeking for shelter as it was raining outside. She allowed the appellant to join them in their sitting room but later, PW1 retired to bed leaving behind the appellant, the victim and the uncle (PW3). The victim later retired to her bed leaving behind the appellant and PW3 chatting. As PW3 used to sleep in the sitting room, he also fell asleep leaving the appellant awake. The appellant entered into the victim's room and raped her. The mother and the uncle were awakened by the victim who was screaming that she was raped by the appellant. They heard the victim shouting "mama mama nimebakwa na Mgogo". When PW1 woke up, she met the victim running to her room. She went to the sitting room where she found the appellant already apprehended by PW3. PW1 examined the victim and found that her underpants were on her knees and she had fluid like sperms on her vagina and tummy. The appellant managed to push the uncle and fled away. As it was already night and it was raining, they were unable to leave the house so, they reported the matter in the morning to the hamlet leader and then to the police station. The appellant was arrested, charged, convicted of rape and sentenced to thirty years imprisonment. Aggrieved Page 2 of 13 with both conviction and sentence, the appellant has preferred the instant appeal with six grounds of appeal which can be conveniently summarized and reduced into 4 grounds as follows; 1. The case against the appellant was framed up with cooked, and contradictory evidence. 2. That the victim's evidence was recorded contrary to section 127 (2) o f the Evidence Act [Cap 6 R.E2022]. 3. That the prosecution did not prove its case beyond reasonable doubt 4. That the appellant's defence was not considered. When the appeal was called for hearing, the appellant appeared in person while Ms. Grace Christopher, learned state attorney appeared for the respondent, Republic. The appellant adopted his grounds of appeal which he prayed for this court to consider in its decision. Additionally, he submitted generally challenging the decision of the trial court and contended that, he was framed up for the offence he did not commit. He claimed that, he worked for PW1 and when he tried to ask for his payment, PW1 threatened to fix him if he continued his demands for money. He added that, the trial court did not Page 3 of 13 consider that no neighbor or chairman who testified in court. He prayed for this court to acquit him. In reply, Ms. Christopher opposed the appeal and submitted that, the offence was proved against the appellant. She argued that the victim (PW2) was a child of tender age for she was 12 years old at the time of incident. That, the law is clear that a witness of tender age can testify without oath. Referring page 13 of the trial court's typed proceedings, the learned state attorney submitted that the victim promised to tell the truth. She referred the case of Issa Salum Nambaluka vs Republic, Criminal Appeal No 272 of 2018, TanzLii [2020] TZCA 10 and in Yusuph Molo vs Republic, Criminal Appeal 343 of 2019, TanzLii [2019] TZCA 344, on the requirement of law for a child of tender age to promise to tell the truth and insisted that, the provision of section 127 of the Evidence Act [Cap 6 R.E 2022], (hereinafter referred to as the Act) was complied with even if the recording was not proper. On the argument that there was contradiction in prosecution evidence, the learned state attorney submitted that, the appellant was unable to point out the contradictions in evidence. That, all prosecution witnesses were consistent in their evidence and they explained on how the offence was Page 4 of 13 committed and how the case was filed before the court. She added that, the argument that the appellant was framed for the case, is unjustifiable. On the argument that the defence evidence was not considered, the learned state attorney submitted that, the appellant's defence was considered and it can be seen at page 8 of the judgment. That the trial court found his evidence weak not affecting the prosecution case. On the argument that the case was not proved, the learned state attorney submitted that, the case against the appellant was proved beyond reasonable doubt. She pointed out that, in this matter, the prosecution had a duty to prove three elements for statutory rape to stand; the age of the victim, penetration and that the accused is the one responsible for the offence. On the element of age, the learned state attorney submitted that, the victim's age was proved by PW1 who is the victim and her mother who both testified that the victim was 12 years old. That, the victim's age was not disputed by the appellant and he never cross examined any witness regarding the age of the victim. Page 5 of 13 Regarding the element of penetration, the learned state attorney submitted that, penetration was proved by the victim in her evidence as she testified that the appellant inserted his penis into her vagina. The learned state attorney referred the case of Kayoka Charles Vs. Republic, Criminal Appeal No. 325 of 2007 TanzLii [2010] TZCA, 145 which referred the case of Mathayo Ngalya @ Shaban Vs Republic, Criminal Appeal No 170 of 2006, to support the argument that penetration is the key aspect and the victim has to state if she was penetrated. She insisted that, in this matter, penetration was proved since the victim stated that the appellant inserted his penis into her vagina. She added that, the victim's evidence was supported by the doctor who testified that the victim was not virgin meaning that, she was penetrated. On the last element, the learned state attorney submitted that, the prosecution evidence proved that the appellant was responsible for offence of rape. She pointed out that, the evidence of PW1, PW2 and PW3 proved that the appellant is the one who committed the offence for they identified him. That, there was solar light at the house and the appellant spent enough time with them thus, they were able to identify him. She urged this court to Page 6 of 13 dismiss the appeal and sustain the conviction and sentence passed by the trial court. I have gone through the records, grounds of appeal and the submissions from both sides. I will start with the 2nd ground on which the appellant is faulting the trial court for recording the victim's evidence contrary to section 127(2) of the Act. The said provision requires a child of tender age before testifying in court, to promise to tell the truth and not lies. Subject to the definition of the child of tender age under section 127(4) of the Act, there is no doubt that the victim in this case was a child of tender age. The learned state attorney readily conceded that there was improper recording of the evidence of the victim as her promise was not recorded in her own words as propounded in numerous decisions. She however insisted that the provision of section 127(2) of the Act was complied with for the court recorded that she promised to tell the truth. The record shows that the trial magistrate recorded that the child witness promised to tell the truth without indicating such a promise. This was contrary to what was directed by the Court of Appeal in numerous cases in which section 127(2) of the Act was interpreted to mean that the child's promise must be recorded in her/his words. See, for instance, the case of Page 7 of 13 Yusufu Molo v. Republic, Criminal Appeal No. 343 of 2017 (unreported). In view of the above authority, the evidence of the victim would have been expunged from the record, but with the amendment brought by the Legal Sector Laws (Miscellaneous Amendments) Act, No. 11 of 2023 which amended section 127 of the Act such error can now be cured. Section 127 was amended and a new sub-section 7 introduced which reads; "(7) Notwithstanding any other iaw to the contrary, failure by a child o f tender age to meet the provisions o fsubsection (2) shall not render the evidence o f such child inadmissible. With the above new sub-section, failure to comply with the provision of section 127(2) of the Act in the matter at hand, is no longer a reason not to consider the victim's evidence. Such evidence will be considered save that, the court will assess its weight in proving the case. Therefore, the 2nd ground of appeal lacks merits and it is dismissed. Having determined the 2nd ground, the rest of the grounds will be determined jointly for they are related to the assessment of evidence. The appellant claimed the offence was not proved beyond reasonable doubt as trial court's decision was based on contradictory evidence of the prosecution side while the defence evidence was not considered. Page 8 of 13 Although the appellant was unable to point out what he considered contradictory evidence, I have keenly gone through the prosecution evidence to see if the evidence was contradictory but, I did not see any contradictions. The argument by the appellant that he was framed for the case when he claimed for his money from PW1 is in my view, baseless. Such argument was not raised during his defence and he never even cross examined PW1 over such allegation. Hence, raising such argument at this stage is nothing but an afterthought. The appellant's defence was literally short for he simply denied being responsible for offence. It was during cross examination when he raised a defence that he was not at the scene. As opposed to the appellant's claim, such defence was considered by the trial court but given little weight. Despite such defence, there is clear and uncontradictory evidence from the prosecution witnesses; PW1, PW2 and PW3 proving that on the material date of incident, the appellant was at the victim's home. Both PW1, PW2 and PW3 explained that they knew the appellant as they reside in the same hamlet and he went to their house asking for shelter as it was raining. But, when others fell asleep, he took chance by intruding into the victim's room. They were able to identify the appellant because there was solar light in their Page 9 of 13 house. I do not see if such evidence creates any contradiction. The evidence is direct proving that the appellant was at the victim's house on the material date of incident. His claim that he was at lake Manyara is weak and unsupported and does not shake the prosecution evidence which strongly proved that he was at the scene. Both PW1, PW2 and PW3 were credible witnesses as their testimonies were coherent and cogent, thus reliable. In this I am guided by the court of appeal decision in Shabani Daudi vs Republic, Criminal Appeal No. 28 of 2001 followed in Athumani Hassani vs Republic, Criminal Appeal No. 292 of 2017 (both unreported). Now the question is whether the appellant raped the victim. In responding to that issue, three elements discussed by the learned state attorney need to be tested; age, penetration and whether the appellant is responsible for rape. The victim's age was never an issue and thus, it remains that she was a child below the age of 18 years. On other two elements, it was the victim's evidence that, when the appellant entered her room, he blocked her mouth using one hand while using the other hand to undress her and himself. He then inserted his penis into the victim's vagina, she felt pain and struggled to rescue herself from the appellant. She then screamed while running to her mother's room (PW1) Page 10 of 13 and complaining that she was raped by the appellant. The appellant was apprehended at the scene before he had fled away after he overpowered PW3. Her evidence was supported by her mother who claimed to have immediately examined the victim and saw fluid like sperms on the victim's vagina and at her belly. Unfortunately, the victim washed herself before she was sent to hospital as they were also forced to spend a night and report the incident in the morning for it was already late. The victim was examined the next day by PW4. According to his oral evidence and the PF.3, there was no evidence of current penetration for there was no bruises or sperms but, the finger could penetrate easily into the victim's vagina and the victim's hymen was perforated implying that she was penetrated by a blunt object. Basing on the above evidence, I am satisfied that victim was penetrated and the appellant is so responsible. I say so because, despite the fact that the doctor did not see current penetration, the circumstance surrounding the incident suggests that the victim was penetrated and by the appellant. The victim herself claimed that the appellant inserted his penis to her vagina and she felt pain. She complained to her mother and uncle who were at the house and the appellant was apprehended immediately therein. Page 11 of 13 The evidence also reveals that before going to hospital, they passed to the hamlet leader where the appellant was arrested and interrogated and then sent by a militia man to the police. Such evidence was also corroborated by PW5 who is the investigator in this case. When the matter was reported at the police station, PF3 was issued and the victim was sent to hospital almost 18 hours after the incident. The record shows that the incident took place at around 20:00hrs while the victim was examined at 15:00hrs of the next day as shown in the PF3. The doctor admitted that, since the victim cleaned herself before being examined, he could not see any sign of current penetration but he was sure that she was penetrated and her hymen raptured. Such evidence therefore proves not only penetration but the fact that the appellant was responsible for penetrating the victim. It is a settled principle of law that the victim's evidence can stand to prove sexual offence if the court is satisfied that the victim is telling nothing but the truth. In the matter at hand, the trial court believed the evidence of the victim and other prosecution witnesses as proving that the appellant entered the victim's room and raped her. The trial court did not doubt the credibility of those witnesses and I see no reason to interfere because nothing was presented by the appellant which could make this court hold Page 12 of 13 otherwise. I therefore find that the prosecution evidence proved penetration and the appellant was responsible for such penetration to the victim. Basing on the discussion above, I find that the prosecution managed to prove the offence of rape against the appellant. Therefore, I find this appeal without merits and, I dismiss it. The conviction and sentence meted out against the appellant are upheld. DATED at BABATI this 25th day of November, 2024. Page 13 of 13