Judgement Dc

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI CRIMINAL APPEAL NO. 24298 OF 2024 (C/F Criminal Case No. 131 of 2022 in the District Court of Mwanga at Mwanga) DAUDI SAIDI MVUNGI…...……………….............................. APPELLANT VERSUS REPUBLIC....………………………………………………….… RESPONDENT JUDGEMENT 02nd December 2024 & 20th January 2025 MONGELLA, J. The appellant was arraigned before the District Court of Mwanga at Mwanga (henceforth, the trial Court) for the offence of rape under Section 130 (1), (2) (e) and 131 (1) of the Penal Code [Cap 16 R.E 2022]. The particulars of the offence were that: on 21.10.2022 at Sereni Lomwe Village area within Mwanga District and Kilimanjaro Region, the appellant had carnal knowledge of a 07- year-old girl (hereinafter, the victim or PW2. The appellant denied the charge levelled against him rendering the case to proceed to trial whereby the prosecution paraded five witnesses. Page 1 of 12 The prosecution case was on the following account: on 21.10.2022 at around 13:00hrs, the victim came home from school and found the appellant cutting grass. He told her to follow him home so that he could give her money. The victim followed him into his house. Once in his bedroom, the appellant told her to undress. He also took off his trousers and boxers and inserted his penis into her vagina. After the ordeal he gave her TZS. 500/- On 25.10.2022 as PW2 (the victim’s mother) was heading home frow work, at around 17:00hrs, she noticed her daughter, the victim, walking along Msuya road in an environment she described as unconducive. The victim was holding lollipops in her hand. When she questioned her on where she found them, she told him that she was given money to purchase the lollipops by one babu safari. She further told her that she was raped by one Sakaja and the appellant. PW2 reported the matter at Usangi police post whereby they were issued a PF3. The victim was taken to Usangi Hospital where she was medically examined by PW4, a medical doctor. PW4 found the victim’s vagina without hymen. He filled a PF3 which he tendered and was admitted by the trial Court as Exhibit PE1. The appellant was arrested on 26.10.2022 and interviewed by PW5 to whom he admitted to have raped the victim. PW5 tendered the appellant’s cautioned statement which was admitted as Exhibit PE2. Investigation was conducted by PW3 who was handed the file Page 2 of 12 on 27.10.2022. PW3 visited the appellant’s house which was the crime scene. After the prosecution’s account, the trial Court found the appellant with a case to answer. In his defence, the appellant stood for himself and had no exhibit to tender. In his defence, the appellant narrated that he was arrested on 26.10.2022 at Lomwe area near his residence as he left his work place where he worked as a security guard. He denied committing the offence. He alleged that he usually goes to work in the morning and returns at night and on the material day of 25.10.2022, he saw the victim while at the farm. In the end, the trial Court found the appellant guilty. He was convicted for rape and sentenced to life imprisonment. Aggrieved, the appellant had preferred this appeal on the following grounds: 1. That the trial court grossly erred in law and facts to convict and sentence the appellant while prosecution side failure to prove their case beyond reasonable doubts. [sic] 2. That the trial magistrate erred in law and fact to convict and to sentence the appellant on relied to insufficient evidence. [sic] 3. ⁠That trial Magistrate erred in law and fact to convict and sentence appellant on relied to contradictory evidence adduced by prosecution witnesses. [sic] 4. That, trial Magistrate erred in law and facts for failure to consider the evidence adduced by defence side. Page 3 of 12 The appeal was fixed to be resolved by written submissions however, the appellant could not comply with the schedule. When the matter came for necessary orders, he prayed that his grounds of appeal be adopted as his submission in chief. The prayer was granted and the respondents were given time to file their reply submission. Mr. Henry Kasiano Daudi, learned State Attorney acted on the respondent’s behalf. In his reply submission, Mr. Daudi consolidated the first, second and third grounds of appeal alleging that they are all based on whether the case was proved beyond reasonable doubt. Addressing the grounds of appeal, he started by stating the legal position to the effect that the duty to prove the charge against the accused lies on the prosecution. That, an accused person does not assume any burden to prove his innocence. Referring to Section 3(2)(a) of the Evidence Act [Cap 6 R.E 2022], he re-echoed the position that the standard of proof is beyond reasonable doubt. Explaining the charge facing the appellant, he pointed out that the accused was charged for statutory rape under Section 130 (1), (2) (e) of the Penal Code. He said that according to the provision, the offence is established when there is vaginal penetration; age of victim is proved and the accused is found to be the perpetrator. Showing that the offence was proved by the prosecution, Mr. Daudi averred that penetration was proved by PW4, a medical doctor who examined the victim. He explained that PW4 found the victim Page 4 of 12 without hymen, which was abnormal for a 7-year-old girl. In his stance, the victim’s evidence aligned with the medical evidence. With regard to the victim’s age, Mr. Daudi submitted that the age of the victim is proved by parents, guardians of the victim, the victim and a medical doctor. In support of that position, he cited the case of Issaya Renatus vs. Republic (Criminal Appeal 542 of 2015) [2016] TZCA 218 (26 April 2016) TANZLII. He averred that PW1, the victim’s mother and the victim, testified that the victim was 8 years old at the time they were testifying before the trial Court. That, PW1 stated that at the time the offence was committed the victim was 7years old, a fact also supported by PW4 who examined the victim after the incidence. On whether the appellant was the perpetrator, Mr. Daudi averred that it is settled law that the best evidence in sexual offences comes from the victim. To that effect, he cited the case of Selemani Makumba vs. Republic (Criminal Appeal 94 of 1999) [2006] TZCA 96 (21 August 2006) TANZLII. He contended that the victim mentioned the appellant as the person who raped her after being interrogated by PW1. He added that the victim also stated that the appellant also gave her TZS 500/-, which she used to purchase big bom sweets. That, the victim also identified the appellant at the trial Court as the person who raped her. Referring to the appellant’s cautioned statement, he cemented that the appellant himself corroborated the victim’s evidence. Page 5 of 12 Mr Daudi proceeded to address the alleged contradictions in the prosecution evidence by the appellant. He disputed there being any self-contradictions by the prosecution witnesses. In his stance, the testimonies of the witnesses were consistent. He explained that PW1 testified on how she discovered that the victim had been raped and her testimony was supported by that of the victim. He submitted further that after the ordeal, PW1 and the victim went to Usangi police post whereby they were issued with a PF3. That, they then went to Usangi Hospital whereby PW4 examined the victim. The learned State Attorney supported the findings by the trial Court. He contended that the trial Court rightly found the prosecution witnesses credible, reliable and the evidence sufficient enough. In the premises, he concluded that the case was proved beyond reasonable doubt. He further averred that appellate courts are bound by trial courts’ findings on credibility of witnesses, a fact he fortified with the case of Omari Ahmed vs. Republic [1983] T.L.R 52 which was referred to in Niyonzimana Augustine vs. Republic (Criminal Appeal No. 483 of 2015) [2016] TZCA 669 (22 February 2016) TANZLII. Addressing the 4th ground, Mr. Daudi averred that the defence evidence was considered. To substantiate his position, he referred the Court to page 5 of the trial Court’s Judgement and argued further that the trial Court found the evidence not raising reasonable doubts on the prosecution case. He finalized his submissions by praying for the appeal to be dismissed. Page 6 of 12 I have considered the grounds of appeal as well as the submissions by the respondent’s counsel. Upon observing the grounds of appeal, I agree with Mr. Daudi that the 1st, 2nd and 3rd grounds present matters of evidence, thus can be covered under one issue as to “whether the prosecution proved the charge beyond reasonable doubt.” As submitted by the learned State Attorney, the provision under which the appellant was charged discloses three ingredients of the offence to wit; penetration, age of the victim and that the perpetrator must be the accused. As clear from the provision, consent is immaterial. The offence disclosed in the cited provisions is commonly known as statutory rape which is distinguished from normal instances of rape whereby consent is material. Explaining this concept, the Court of Appeal in Mussa Sebastiani vs. Republic (Criminal Appeal 406 of 2018) [2021] TZCA 119 (15 April 2021) (1) stated: “The general rule is that, sexual intercourse is categorized as lawful or unlawful depending on whether or not there is consent from the female complainant. However, statutory rape under section 130 (2) (e) of the Penal Code with which the appellant was charged is an exception, in that it is considered to be rape whether or not the victim consents to the sexual intercourse.” With respect to the ingredient of penetration, PW2, the victim testified that on 21.10.2022 at 13:00hrs, she saw the appellant cutting grass. He told her to follow him to take money and she followed him to his house. While they were inside his bedroom, he Page 7 of 12 told her to take off her underwear and tight and he undressed his trousers and boxers. He then inserted his penis into her vagina. Thereafter, he gave her TZS. 500/-. Her exact words were: “Alichukua mjusi wake akaniwekea kwenye sehemu yangu ya kukojolea” Even when cross examined, the victim maintained that the appellant raped her. PW4, the medical doctor who examined the victim on 25.10.2022, attested to the fact that the victim’s vagina was penetrated. She testified to finding her vagina without hymen. PW4 further noted that the victim had been vigorously having sexual intercourse as it was no normal for a 7-year-old girl’s vagina to lack hymen. Same facts were reflected in the PF3 filled and tendered by PW4. Further evidence is found in the appellant’s cautioned statement (Exhibit PE2) in which he admitted to penetrating the victim. I will hereunder reproduce the relevant excerpt of his statement, for ease of reference: “…KDC (the victim) alikuja nyumbani kwangu akaniambia anaomba shilingi mia tano (tshs 500/=) akanunue kalamu na akaniambia usininyime hela na mimi tutafanya mapenzi, kwanza niliogopa kwa udogo wake gafla akaingia ndani kwangu kisha akatoa nguo na siku hiyo alivaa kachupi na taiti na gauni akatoa zote akaniambia njoo tufanye. pale nikashindwa kujizuia nikamuwekea mboo nikashangaa inaingia kama nusu tu lakini nikafanya mpaka nikakojoa kawaida..." Page 8 of 12 As seen from the above quoted excerpt, the appellant himself admitted to raping the victim. In the premises, penetration was adequately proved. The charge upon which this case was founded states that the victim was a 7-year-old girl. The law is settled that the age of the victim can be proved by the victim, parents, relative or birth certificate. In Issaya Renatus (supra) the Court stated: “We are keenly conscious of the fact that age is of great essence in establishing the offence of statutory rape under section 130 (1) (2) (e), the more so as, under the provision, it is a requirement that the victim must be under the age of eighteen. That being so, it is most desirable that the evidence as to proof of age be given by the victim, relative, parent, medical practitioner or, where available, by the production of a birth certificate.” PW1, the mother of the victim as well as PW2, the victim herself, testified that PW2 was 8 years old. An explanation on the variance of the age was well provided by PW1 who, while testifying on 24.04.2023, explained that when the offence took place back in 2022, the victim was 7 years old. PW4 also stated that when the victim came for her medical examination on 25.10.2022, she was 7 years old. In my view, the evidence by these witnesses suffices to demonstrate that the victim was indeed 7 years old when the incidence charged took place. Concerning the identity of the appellant; PW2 described the incidence stating that the appellant raped her in his bedroom. She Page 9 of 12 even visited the crime scene with PW3 whereby she showed PW3 the appellant’s house. The victim identified the appellant while testifying before the trial Court. She even named the appellant to PW1 as one of her assailants. Further, even during cross examination, the victim (PW2) maintained her story whereby she insisted that the appellant was the one that raped her. While the appellant denied the offence, in his testimony, he stated that on the material day of 21.10.2022 he was on the farm. I find his averments correlating with the victim’s testimony that she saw or rather found the appellant cutting grass on the material day. The appellant’s cautioned statement, to which its admission has not been challenged by the appellant, further proves that he was the one that raped the victim on the material day. The law is settled that a confessional statement by accused is the best evidence. This was well stated in Muganyizi Peter Micahel & Others vs. Republic (Criminal Appeal 144 of 2020) [2022] TZCA 499 (9 August 2022) TANZLII, whereby the Court referring the case of Majid Hussein Mboryo & Others vs. Republic (Criminal Appeal No. 141 of 2015) [2015] TZCA 434 (11 June 2015), in which reference was also made to the case of Mohamed Haruna @ Mtupeni and Another vs. Republic Criminal Appeal No. 259 of 2007 (CAT- unreported), concluded that: “Confessional statement is therefore regarded as the best evidence because it comes from an Page 10 of 12 accused himself who admits to have committed the offence in question.” In foregoing observations, I am thus of the view that it was well proved that the appellant raped the victim on the material day of 21.10.2022. With respect to the 4th ground, the appellant alleged that his defence was not considered. Upon observing the trial Court Judgement, I find appellant’s defence evidence been considered. This is particularly at page 5 and 6 of the Judgement. As argued by Mr. Daudi, in considering the defence evidence, the Hon. trial Magistrate found that the same had not raised any doubts on the prosecution’s case. Even if the Hon. trial Magistrate made short remarks on the appellant’s defence; I find the same reasonably done considering that the appellant’s defence was solely on his verbal denial to have committed the offence. The appellant further contradicted himself by stating that he was working at the farm when he saw the victim and later changed and claimed to have been at work on that day working as a security guard. While he as well claimed to have been at work as a security guard during the day, on cross examination he stated to be working from 18:00hrs to 06:00hrs, which is evidently through the night. This ground is thus found to lack merit. In consideration of my observations herein, I find that the prosecution proved the charge against the appellant beyond Page 11 of 12 reasonable doubt. I therefore sustain his conviction and sentence as passed by the trial Court. The appeal is dismissed accordingly. Dated and delivered at Moshi on this 20th day of January, 2025. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 12 of 12