LUHENDE HEKE V REPUBLIC 5

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYAGA CRIMINAL APPEAL NO. 129 OF 2023 (Arising from criminal Case No 56 of 2023 at Shinyanga District Court) BETWEEN LUHENDE HEKE @ TUGWA…………………………………APPELLANT VERSUS REPUBLIC……………………………………….…………..RESPONDENT JUDGMENT 5th & 29th March, 2024 MASSAM, J.: The appellant before this court was charged before the District Court of Shinyanga with an offence of Rape contrary to Section 130 (1) & (2) (e) and 131 (3) of the Penal Code, Cap 16 R.E 2019. It was alleged by the prosecution that on 8th day of February, 2023 at Ihapa Village within Shinyanga District in Shinyanga Region, the appellant had sexual intercourse with one J, D/O H (name withheld to hide identity) a girl aged 8 years old. The appellant denied the charge and in order to prove its case, the prosecution lined up three prosecution witnesses and tendered one exhibit to wit; PF3 (Exhibit P1). 1 The facts which led to the arraignment of the appellant were that; PW1 (the victim) testified that on 8th day of February in 2023 when she returned from the school, she found his grandfather at their home place. He took off his and her clothes and inserted his Penis (mdudu) into her vagina while covering her mouth with his hand so that she cannot shout. Thereafter she reported the matter to his grandmother, and they went together to her school where they reported the same to her teacher and then they went together to report at the police station. At the police station they were given PF3 and went to the Hospital for examination. After examination PW2 found that the victim (PW1) was penetrated with blunt object in her vagina and she was still bleeding, she sews the child to prevent bleeding and gave her some medicine and filed PF3. On her side, PW3 (the teacher) testified that her grandfather reported that the victim was raped but they never mentioned the person who raped her. Thereafter the appellant was arrested and arraigned before the court. In his defence, the appellant denied the prosecution assertions. He testified that on the material date he left home at 07:00 am and went to the place where they sell coffee and stay there up to 09:00 am when he went to the councillor’s meeting. While they were at the meeting the 2 Ward Executive Officer (WEO) informed them that there is a child who was raped at the school and when he went home, he found out that it was her granddaughter who was raped. He decided to go to the hospital where his granddaughter was taken when he was rushing at the hospital the six people arrested him and accusing him to rape his granddaughter. His evidence was supported with that of DW2 who said he was with the appellant at the WEO’s meeting on the material day. On his side, DW3 testified that PW3 told them that the victim (PW1) mentioned that he was raped by his fellow student Isaya Thomas who was also arrested on 10/2/2023 but they don’t know what happened at the police station. And also,DW4 (great grandmother of the victim) she was at home the whole day and when the victim went at home she was already raped by another person and the appellant was not at home. DW5 also testified that when he found the victim at home, she told them that she was raped by a boy and not the appellant. After a full trial, the trial court accepted the version of the prosecution's case and the appellant was found guilty, convicted, and sentenced to thirty (30) years imprisonment. 3 Aggrieved, the appellant has preferred this appeal. In the petition of appeal, the appellants have raised five (5) grounds of appeal as follows: 1. That, the learned trial Court Magistrate erred in law and fact in convicting and sentencing the appellant into thirty years imprisonment while the prosecution side failed to prove their case beyond reasonable doubt the standard required by the law. 2. That, the learned trial Court Magistrate erred in law and fact in receiving and relaying on unsworn evidence of a child of tender age (PW1) without the same being corroborated and without following procedures stipulated under section 127 (2) of the Evidence Act, Cap 6 R.E 2019. 3. That, the learned trial Court Magistrate erred in law and in fact for failure to evaluate and analyse evidence on record properly hence reaching to an erroneous decision. 4. That, the learned trial Court Magistrate erred in law and fact for disregarding the discrepancies of the 4 prosecution testimony hence causing injustice to the appellant. 5. That, the learned trial Court Magistrate grossly erred in law and in fact in convicting and sentencing the appellant basing on the evidence of PW2 and PW3 which were incredible because their evidence was highly improbable and implausible. At the hearing, the appellant was represented by Mr. Emmanuel Sululu, learned counsel, whereas the respondent Republic had the services of Mr. Goodluck Saguya, learned Senior State Attorney. The appeal was disposed by way of oral submission which shall be considered in the course of disposing the grounds of appeal. This court in determining this appeal will start by considering one issue whether the prosecution prove their case beyond reasonable doubt on the standard required by the law. It is a cardinal principle that the burden of proving charges against the accused beyond reasonable doubt lies on the prosecution. See the case of Yusuph Abdallah Ally v. Republic, Criminal Appeal No 300 of 2009 (Unreported). In any case of rape falling in the category of the present one in which the victim is a child of a tender age the consent is not mandatory. The 5 prosecution is essentially required to prove three major aspects; one that there was penetration; two, the age of the victim; and three that it was the appellant who committed the act, see Section 130 (1) & (2) (e) of the Code. In our present case it is not disputed that the victim was aged 8 years old and that she was raped as PW2 (the doctor) testified that is vagina was penetrated by the blunt object and she was bleeding which led him to sew her private parts. See exhibit Pe1 (PF3). Also the victim testified that the rapist penis penetrated to her vagina .The dispute is whether it was the appellant who raped the victim. At the trial court, it was from PW1’s testimony that her grandfather (the appellant) inserted his penis (Mdudu) into her vagina and causing him a lot of pain. I am aware that in rape cases the best evidence comes from the victim herself. See the case of Selemani Makumba v. Republic [2006] TLR37. However, the said evidence must be corroborated with the evidence of other witnesses as it was held in the case of Godi Kasenegala v. Republic, Criminal Appeal No. 10 of 2008 (unreported) the Court stated as follows: "It is now settled law that the proof of rape comes from the prosecutrix herself. Other witnesses if they never 6 actually witnessed the incident, such as doctors/ may give corroborative evidence.” In our present case it is clearly that the doctor (PW2) supported the evidence of the victim that she was raped, however, the doctor did not witness the person who raped the victim hence he cannot prove that it was the appellant who raped her. On her side, PW3 (her teacher) testified that the victim did not mention the person who raped her when she went with her grandmother at school. Thus, her evidence did not corroborate that of the victim (PW1). On the other side, it is the duty of the appellant to only raise doubt in the prosecution’s case. In our case the appellant alleged that he was not at home when the incident occurs and that he was at the WEO’s meeting, the evidence which was supported by that of DW2. Further the key witnesses DW4 (great grandmother) and DW5(grandmother) who saw the victim after being raped testified that the victim mentioned that she was raped by a school boy and DW4 added that she was at home the whole day on the material day. Thus, based on the evaluation of the evidence herein above, it goes without saying that the prosecution failed to discharge their duties as they miserably failed to prove their case beyond reasonable doubt as 7 the material witnesses who were the great grandmother and grandmother were not called by prosecution to testify, they left them to testify on the side of defence, that witnesses were material witnesses because there were the first persons who the victim meet when came from school and they are the first persons who were informed about the commitment of the said offence. This means that the prosecution did not fulfil the second limb of their duty in establishing who committed the offence of rape against the victim. So, the 1st ground of appeal is found with merit. As the 1st ground of appeal, dispose of the whole appeal there is no need to determine the remaining grounds of appeal. Given that shortfall, the appeal by the appellant is allowed, the conviction is quashed and the sentence is set aside. The Appellant should be released forthwith from prison unless held further for other lawful reasons. It is so ordered. DATED at SHINYANGA this 28th day of March 2024. R.B. Massam JUDGE 8