JUMA SAID BABA NURU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 2826 OF 2024 (Arising in Criminal Case No. 301 of 2022 before the District Court of Bagarnoyo at Bagamoyo) JUMA SAIDI @ BABA NURU .................................................... APPELLANT VERSUS THE REPUBLIC ................................................................... RESPONDENT JUDGMENT Date of Last Order: 29.11.2024 Date of Judgment: 11.12.2024 NGUNYALE, J. The Appellant Juma Saidi @ Baba Nuru was convicted before the District Court of Bagamoyo at Bagamoyo with the offence of rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code [Cap 16 R: E 2022]. It was alleged in the charge sheet that on 05.06.2022 at Udindivu area within Bagamoyo District in coast region the appellant did have sexual intercourse with the victim a girl aged 8yrs. The proper name of the victim has been hidden in order to protect her dignity, alternatively 1 and for the purpose of this judgment she shall be referred to as the victim or PW2. Upon a plea of not guilty, the trail court entertained a full trial. At the hearing the prosecution paraded four witnesses PWI (The grandmother of PW2) who was living with PW2 and she was the one who discovered that PW2 was raped, PW2(The Victim), PW3 (the medical Doctor who examined her) and PW4 (the police officer and investigator). While the Defence had two witnesses DWI(The appellant) and DW2 (The appellant’s wife). Upon a full trial he was found guilty as charge, he was convicted and sentenced to custodial 30 years in prison and to compensate the victim a tune of TZS 1,000,000/= Aggrieved with Being conviction and sentence he preferred this appeal with two (2) grounds of appeal as follows: 1. That, the learned trial magistrate erred in law and facts to convict the appellant based on the evidence of PW2 who was not credible and truthful witness. 2. That, the learned trial magistrate erred in law and facts to convict the appellant basing on evidence of the prosecution witnesses which is lacking and valueless and not proved beyond reasonable doubt. On consensus, hearing took way of written submissions, the appellant filed his submission in person while the respondent’s submissions were filed by Mr. Grey Uhagile, Senior State 2 In his submissions in support of the appeal, the appellant started with the 2''d ground of appeal that, the learned trial magistrate erred in law and facts to convict the appellant basing on evidence of the prosecution witnesses which is lacking and valueless and not proved beyond reasonable doubt. It was his submission that the prosecution case was not proved to the standard required on the following basis; one, the evidence of PW2 and PWI alleged that the offence was committed on 05/06/2022 when the Victim (PW2) was coming from school while that day was Sunday which is not a school day two, the evidence of PWI indicate that she detected the incidence of rape at 3pm on 05/06/2022 while PW3 the medical doctor testified to have examined PW2 the victim on 05/06/2022 at around 2pm. It is his observation that PW2 was examined before the incident was revealed. Three, that the age of the victim was not proved as it was just mentioned by passing without sufficient explanation of the year when she was born which is against the law. He cited the case of lssaya Renatus versus R, Criminal Appeal No. 542 of 2015(2016) TZCA218 [29th April, 2016; Tanzlii). Four, that PW2 in her evidence said that she was given Tsh. 1000 by the appellant but the same was not tendered as evidence and five, the prosecution failed to call important witness including the teacher who was teaching Pw2 and fellow students of the victim who went to school on that date. He cited the case of Boniface Kundakira Tarimo versus R, Criminal Appeal No. 351 of 2008 bolster his arguments. Submitting in support of the 1;t ground of appeal that, the learned trial magistrate erred in law and facts to convict the appellant based on the evidence of PW2 who was not credible and truthful rl//f/mss. He submitted that the court ought to be extra carefully before accepting the evidence of a victim as gospel truth as there is contradiction between PW4 and PW2 but the trial court treated the evidence of the two as the same while in reality they differ as PW4 claimed that PW2 went for medical examination on 09.06.2022 while PW2 in her evidence evidenced to have gone to hospital on 05.06.2022. He added that basing on the contradiction between the witnesses PW2 and PW4; the failure to tender the Tsh. 1000/= as exhibit in evidence and the failure to bring material witness also medical examination being conducted prior to the date of the incidence was revealed by PWI undermines the credibility of PW2. It was his prayer that the court should rule in his favour. On his reply submissions, Mr. Uhagile, SSA regarding the 2-d ground of appeal submitted as follows; on the issue of whether the incident occurred on Sunday and that the victim was from school, the trial Magistrate found that the same was immaterial and it could not exonerate the appellant from committing the offence. The court observed that the 4 testimony by PW2 was corroborated by the rest of the witnesses. Regarding the issue of age of the victim, he submitted that the law is clear that age of the victim can be proved by victim, relative, parent, medical practitioner, or where necessary by production of a birth certificate. He cited the case of Issaya Renatus (supra) to substantiate his view and emphasized that the age of the victim was proved by PWI and the victim (PW2). On the issue of tendering Tsh.1,000/= as exhibit in the prosecution case he submitted that it is not an important requirement in proof of the offence of rape. On the issue of calling material witness by the prosecution, Mr. Uhagile submitted that non of the prosecution witnesses had mentioned witnesses who are important witnesses. The court cannot draw negative inference for failure to call a witness who is not known or who does not exist. On the 1;t ground of appeal which questions the credibility of PW2, he submitted that every witness is entitled to credence and his evidence ought to be believed unless there are cogent reasons as to why he or she should not be believed. He cited the case of Nyakuboga Boniface versus Republic, Criminal Appeal No. 434 of 2016. He insisted that PW2 was a credible witness as she clearly stated how the rape took place and also, she managed to name the accused person at the earliest time to PWI. Regarding the contradictions in the prosecution evidence he agreed '@@ that there might be some contradictions and inconsistencies but the same does not go to the root of the case and that a contradiction can only be considered as material if they go to the root of the case. See Dickson Elia Nsamba Shapwata and Another versus Republic, Criminal Appeal No. 92 of 2007. It is his conclusion that the case against the appellant was proved to the standard required by the law and he invited the court to dismiss the appeal and uphold the conviction and sentence. In his rejoinder the appellant reiterated his submissions in chief by emphasizing that the case was not proved beyond reasonable doubt and on the issue of age of the victim, he added that he was charged with statutory rape hence the proof of age of the victim was necessary as it was held in the case of Charles Makapi versus Republic, Criminal Appeal No. 85 of 2012. It was his prayer that the appeal be merited. I appreciate the work done by both parties in their submissions. As the grounds of appeal stands this court is invited to re-evaluate the evidence on record in a bid to answer the raised issue so as to determine as to whether the prosecution case was proved beyond reasonable doubt. It is a principle of law that, in proving any criminal offence, the prosecution bears the burden of establishing that, the offence was committed and it is the accused person and nobody else who committed the offence charged See the cases of Mohamed Said Mqtula versus Repu [1995] T.L.R 3 and the case of Samson Matiga versus Republic, Criminal Appeal No. 205 of 2007. Starting with the 2-d ground of appeal the way the submission was made, the appellant questioned about the date the incident occurred. He lamented that the victim stated that she was from school while in reality it was on Sunday. In the prosecution evidence it is revealed that, all witnesses mentioned the incidence to have occurred on 05.06.2022 when the victim was coming from school. It is true that the material date according to the calendar it was on Sunday but it is my finding that this cannot fault the prosecution evidence because none of the prosecution witnesses said that it was a school day. Though she might have gone to school on Sunday for any other business, the key point to note is whether the important elements of rape were proved to the required standard. On the second issue relating the medical examination of the victim PWI by PW3 at 2pm while PWI stated to have discovered the incident at 3pm and she was the one who took PW2 to the hospital, it is unfortunate that the respondent did not make a reply on this but upon my perusal to the trial court records it is observed that PW3 in his evidence as per the typed proceeding at page 17 it is indicated that: 'I recall on 05/06/2022 around 2pm evening while on duty (emphasis added) ,M The above quoted phrase is also observed in the handwritten proceedings. Following the evidence of PWI that after she observed that PW2 was raped at 3pm she went to report to the police station then they went to the hospital, it is my finding that the trial Magistrate aimed to write 8pm and that is why he added the word evening after the 2pm. Therefore, this should not disturb the prosecution evidence. About the age of the victim, I agree with the appellant that as he was charged with statutory rape, proof of the victim’s age was of paramount important and it is the requirement of the law. Under section 130 (1) (2) (e) of the Penal Code, proof of age is obligatory to establish that the victim is under the age of eighteen years old. Case laws have established on who may prove the age of the victim. In the case of Issaya Renatus (supra) which was referred to by both parties the Court of appeal made it clear that : - 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." In his submissions the appellant stated that the age of the victim was not proved and it was just mentioned by passing by PWI and she did not mention the year she was born. In resolving this point, I revert to the records where it has been observed that PWI in his testimony stated that the victim was aged 8 years and the accusl not cross examine her anything relating to the victim’s age which means that he had no dispute with the age of the victim. According to case cited above, PWI who is the grandmother of the victim was a person capable of proving the victim’s age. This complaint about age has no merit. The witness PWI just mentioned age of the victim to be 8 years old, she did not mention the date and year of birth of the victim. The same were not necessary. The Court of Appeal in Issaya Renatus (supra) further stated that: 'We are, however, far from suggesting that proof of age must, of necessity, be derived from such evidence. There may be cases, in our view, where the court may infer the existence of any fact including the age of a victim on the authority of section 122 of TEA ..... In the case under our consideration there was evidence to the effect that, at the time of testimony, the victim was a class five pupil at Twabagondozi Primary School. Furthermore, PWI was introduced into the witness box as a child of tender age, following which the trial court conducted a voire dire test. Thus, given the circumstances of this case, it is, in the least, deducible that the victim was within the ambit of a person under the age of eighteen." Returning to our case, PW2 was established to be a child of tender age and she was a primary school pupil studying class four and voire dire test was conducted, there is no doubt that her age falls within the ambit of the age below 10 years old. The appellant also questioned about the Tsh. 1000/= which PW2 claimed to have been given after being raped. With this, I agree with Mr. Uhagile that tendering the money as exhibit has nothing to do with proof of statutory rape. The prosecution had a legal duty to prove the age of the victim, existence of penetration and that the appellant was the person who raped the victim. On the issue of calling important witnesses, the appellant observed that the prosecution had a duty to call teachers and students from the school where the victim was studying and the failure to do so weakened the prosecution evidence. It is true that the failure to call important witness attracts drawing of negative inference to the prosecution case. See the case of Shilanga Bunzali versus The Republic, Criminal Appeal No. 600 of 2020 the Court of Appeal reiterated the position held in the case of Azizz Abdalah versus Republic [1991] TLR 71. It is my view that a witness is said to be an important witness when he or she can testify on the material facts which links the accused to the offence committed and the victim. The prosecution side is at liberty to choose the witnesses it wishes to parade for proving a case, the appellant cannot assume such responsibility without raising a reasonable doubt to it. The complaint that the material witnesses were not called carries no weight. In the circumstances 2-d ground of appeal fails in its totality, Regarding the 1;t ground of appeal where the appellant was testing the credibility of PW2. He invited the court to discredit the witness PW2 following the contradictions found in the evidence between PW2 and PW4. He elaborated that PW2 told the court that she was examined by PW3 on 05.06.2022 while PW4 told the court that PW2 went to the hospital on 09.06.2022. It is a general rule that the best evidence in sexual offences comes from the victim, however, the court must be satisfied that what is stated by the victim is nothing but the truth by testing the credibility of the witness. It is also a trite law that every witness is deemed to be credible and reliable witness unless there are cogent reasons to the contrary. See the case of Goodluck Kyando versus Republic [2006] T.L.R. 363. In assessing credibility of a witness, the court of appeal in the case of Shabani Daudi versus Republic, Criminal Appeal No. 28 of 2000 it was observed that: 'The credibility of witness is the monopoly of the trial court but only in so far as the demeanor is concerned. The credibility of a witness can also be determined in two other ways; one, when assessing the coherence of the testimony of the witness. Two, when the testimony of that witness is considered in relation with the evidence of other witness including the accused person" See also the case of Nyakuboga Boniface (supra) and the case of Salum Ally vs Republic, Criminal Appeal No. 106 of 2013 on the same position. Gathering the trial court records, I have no doubt that the witness was credible. The witness PW2 testified evidence which is coherent as she was able to give her evidence in a consistent manner from when she was being examined in chief by the prosecutor, to when she was being cross- examined by the appellant. On the second part which inquire linking the victim’s evidence with other prosecution witnesses including that of the accused. In linking the evidence between PW2 and PW4 it is true that the same have a contradiction but to my considered position the contradiction does not harm the credibility of PW2 for two main reasons. One, PW4 testified to be the investigator of the case but he pointed out that when he was given the file the accused was already arrested and that means he was the one who received PWI and PW2 at the first time at the police station and issue them with the PF3. This means that he did not play any role in facilitating the medical examination. Therefore, the date of the medical examination cannot be in his finger tips, he was testifying on what he read from the police case file. Two, the contradiction does not go to the root of the case as rightly submitted by Mr. Uhagile. It has been observed in a number of cases that, no E every co radiction or discrepancy 12 on witness's account is fatal to the case. Minor discrepancies on details due to normal errors, lapse of memory on account of passages of time cannot make the prosecution case to fall. See the cases of Kavula Willium & another versus The Republic, Criminal appeal no. 119 of 2020 and Dickson Elia Nsamba (supra). I therefore count the contradiction of PW4 as a normal error of observation or a lapse of memory; as there is no doubt that PW2 was raped on 05.06.2022 and that the medical report proved that she was raped, according to the evidence of PWI and PW3 the victim was taken to hospital on 05.06.2022. The discrepancy in the evidence of PW4 especially on the date of attending medical examination cannot discredit the evidence of PW2. On the last part of the 1;t ground of appeal on the failure to tender Tsh. 1,000/= in evidence which was given to PW2 by the appellant I will not detain on it because the basic ingredients of the offence have been proved to the required standard. The lst ground of appeal is also rejected. Before I conclude, I reminded myself the provision of Section 131 (1) of the Penal Code which provides sentence for a person who raped a girl of under 10 years old. The proper sentence is life imprisonment. The sentence of thirty years imprisonment is substituted with life irnprisonrnent. All said and done, I find the grounds of appeal raised by the appellant are devoid of merit save for the substitution of the sentence. Appeal dismissed. It is so ordered. Dated at Dar es Salaam this 11th day of December, 2024. D. P. Ngunyale JUDGE Judgement delivered this llth day of December, 2024 in presence of the appellant in person. D. P. Ngunyale JUDGE 14