THEOFIL SALAO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CRIMINAL APPEAL NO. 9405 OF 2024 (C/F Criminal Case No. 190 of 2022 at Karatu District Court) BETWEEN THEOPHIL SALAHO...................................................................... APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT JUDGMENT 14/08/2024 & 11/09/2024 MWENDA, J.: The appellant, Theophil Salaho, was charged, prosecuted, convicted and sentenced to thirty (30) years jail imprisonment before the District Court of Karatu for rape c/s 130 (1) (2) (b) and 131 (1) of the Penal Code, Cap, 16 R.E 2022. Aggrieved, he preferred an appeal to this court challenging the trial court's decision. Summarily, the gist of the matter which led to the appellant's arraignment is that on 7th day of October 2022, at Oldean Kiwanja Village within the District of Karatu in Arusha Region, the appellant did have sexual intercourse with one Lightness D/0 Augustino, a woman of thirty (30) years without her consent. 1 |Page Before the trial court, the prosecution alleged that on the material date the victim (PW1) was at her farm collecting firewood. In the cause, the appellant surfaced and asked her as to why the victim was no longer in love with him. Her response was positive in that she disliked him. Hearing that, the appellant offered her TZS 5,000/= to have sexual intercourse with him but she refused. Her refusal did not make the appellant give up as he further offered her 5 kgs but again, the victim refused. Having refused to have sex with him, the appellant decided to take the matter onto his own hands. He wrestled the victim down and when she tried to resist, he punched her. He then took off her clothes and his too, and then raped her. His act did not take long as he ejaculated shortly afterwards. There after he continued to plead the victim to go with him and collect maize, the offer which was rejected. This matter was reported to the victim's sister-in-law one Felista d/o? and later to the Police Station. The victim was issued with a PF3 for medical examination/check up. At the hospital she was examined and, PW2 (the Doctor) found male sperms. After completion of investigation the appellant was arrested and arraigned before the court. In his defence, the appellant alleged that he was arrested by Ward Executive Officer (WEO) for illegal dealing with charcoal. As he was asked 2|Page about the permit which he didn't have, the WEO asked for money amounting to TZS. 52,000/= but he refused. According to him, this was the reason for his arrest. Further to that the appellant alleged that there were grudges between him and the victim as they were involved in a case for malicious damage to property in 2021 and later, in 2022 a conflict over land ownership where the victim alleged the appellant encroached her land by exceeding the boundary, the allegation which was reported before the WEO. Having considered the evidence from both sides, the trial court found the appellant guilty as charged and sentenced him to serve a jail term of thirty years' imprisonment. Dissatisfied, the appellant filed the present appeal with six (6) grounds. The said grounds are reproduced herein below as follows: 1. That, the learned Trial Magistrate erred in law and facts in convicting and sentencing the appellant on defective charge. 2. That, the learned Trial Magistrate erred in law and facts in not finding that, the victim of offence (PW1) and the Doctor (PW2) were not credible witnesses. 3|Page 3. That, the Learned Trial Magistrate erred in law and facts in not finding that, the prosecution side failed to summon the material witness. 4. That, the Learned Trial Magistrate erred in law and facts in not finding that, there was extraneous matters on the judgment entered. 5. That, the case against the appellant was not proved to the required standards of law. 6. That, the defence evidence was not taken into consideration. When the matter was fixed for hearing, the appellant fended for himself without legal representation while the respondent was represented by Ms. Eunice Makala, State Attorney. In the cause, the appellant prayed this appeal to be disposed by way of written submissions. The court issued a scheduling order and both sides complied. Arguing in support of his appeal, the appellant started with the first ground by faulting the trial court for allegedly acting upon a defective charge sheet. In his elaborations he asserted that at page one of the trial court's judgement it is said that the offence was committed at Oldian Kiwanja while the prosecution evidence stated that Oldian Kiwanja was 4| Page too far from the scene of crime. In support to this argument he cited the case of GODFREY SIMON V. REPUBl IC, Criminal Appeal No. 296/2018. Responding to this ground, Mr. Charles Kagirwa, learned Slate submitted that this ground has no merit as the charge sheet is not defective. According to him, at page 7 of the typed proceedings the victim testified that on the material date she was cutting firewood at the Oldian Village, the same place which was mentioned in the charge sheet. In a bid to deliberate on this ground, I have revisited the records of the trial court and noted that according to the charge sheet, the offence was committed at Oldean Kiwanja Village but, while testifying before the trial court, the victim (PW1) said the incident occurred at Oldian Village near the river. Although the said places seem to be slightly different, this court formed an opinion the same does not go to the root of the case. See the case of MOHAMED MATULA V. REPUBLIC, (1995) T.L.R.3 where the court insisted that minor contractions are bound to happen at the prosecution side. In this matter, had the contradiction been major, the appellant would have cross examined the victim in that regard and raise the same in his defence which he did not do. That said, this court is of the view that raising the same at this stage is an afterthought. This ground is without merits, and it hereby fails. 5| p age Arguing on the second ground of appeal, the appellant submitted that the trial court erred in law by not finding that the victim (PW1) and the doctor (PW2) were not credible witnesses. Further to that he wondered as to why the victim would have a conversation with the person who raped her and did not report the incident to mama Alex who was the first person to meet her after the incident. The appellant went further to submit that while in her testimony in chief the victim said that she was raped when she was coming from collecting firewood, during cross examination she said she was raped when she was coming from work. As for PW2 (the Doctor) the appellant doubted him for examining the victim after one day has passed, an examination which he alleged it revealed that the victim was raped while he did not subject the male sperms to laboratory test. Having said so, the appellant concluded that PW2 was not a credible witness. I response, Mr. Charles, submitted that PW1 and PW2 were credible witnesses. He submitted further that failure of the victim to disclose the act to the person whom she met is not an issue. As for PW2 (the doctor), he submitted that examining the victim one day after the incident does not do away the fact that the victim was raped. In support to this, he cited the case of GODLUCK KYANDO V. REPUBLIC [2006] TLR 376. 6|Page To deliberate on this ground, it is important to point out that in rape cases, true evidence comes from the credible victim who can tell what befell unto her and the person responsible. This position was discussed in various decision of the court of appeal. In the case of SELEMANI MAKUMBA V. R, CRIMINAL APPEAL NO. 94 OF 1999, the Court held as follows, that: "True evidence of rape has to come from the victim, if an adult, that there was penetration and no consent, and in case of any other women where consent is irrelevant that there was penetration." Also see the case of JOHN MGEMA @SABAGO V. THE REPUBLIC, CRIMINAL APPEAL NO. 601 OF 2017 at Page 9, where the Court of appeal held as follows, that: "We are further abreast with the settled principle that the best evidence in sexual offences is the one which comes from the victim" On top of the above legal position, it is also the position of the law that the evidence of the victim should not always be believed. While emphasizing that position, the court of appeal in MOHAMED SAID V. REPUBLIC, CRIMINAL APPEAL NO. 145 OF 2017 held inter alia that: 7| Page "We think it was never intended that the word the victim of sexual offence should be taken as gospel truth but that her or his testimony should pass the test of truthfulness. We have no doubt that Justice in cases of sexual offences requires strict compliance with the rules of evidence in general, and S. 127(7) of Cap 6 in particular, and that such compliance will lead to punishing the offenders only in deserving cases. The takeaway from the above is that the evidence of the victim of sexual offences must be tested on its truthfulness before being acted upon. In convicting the appellant, the trial court relied on the evidence of the victim of rape and that of the Doctor. That being the legal position, I have put the victim's evidence under scrutiny and noted the following. Firstly, the victim's evidence indicates that the incident took place on the broad daylight by appellant who was a known person/familiar to her. This witness testified on how the appellant approached and seduced her to have sexual intercourse with him and when she refused, he wrestled her down, punched her when she tried to resist before he raped her. This witness also testified on how, after having raped her, the appellant appealed to her to go and collect 5 kgs of maize, 8|Page the offer which she refused. Putting her evidence under scrutiny, I am satisfied that the victim was telling nothing but the truth because she was consistence in her testimony as she was not shaken during cross examination. Her evidence falls in the ambit of the decision of the Court in SELEMANI MAKUMBA V. THE REPUBLIC (SUPRA). In his defence, the appellant tried to create reasonable doubts by alleging that there was grudges between the victim and himself over the land dispute and malicious damage to property. However, despite alleging that there were cases/suits to that effect, he failed to even mention the case number and the court involved. I believe his defence did not create any reasonable doubt. Again, the appellant tried to fault the findings by P.W.2 that he discovered sperm in the victim's private part, a sign that she was raped. The appellant doubted the time spent from when she alleged to be raped to the date of examination (one day). I have considered the appellant's argument only to find it with no substance. This is because, examining the victim after a day won't do away the fact that the victim was raped. It is to be noted that PW.2 testified on what he observed and there was no evidence tendered to doubt his competence. Even if the said evidence is discarded 9| Page (which is not the case) still the prosecution evidence is not dented based on the victim's evidence. That said, I also find no merits in this ground and, it Is hereby dismissed. Regarding the third ground of appeal, the appellant submitted that the prosecution side failed to summon material witness. According to him a better witness to explain the missing link was Felister (the victim's sister- in-Law) who was the first to be informed over the rape incident. To augment his point, he cited the case of SAMWEL NYERERE V. REPUBLIC, Criminal Appeal No. 65 of 2020. On his part, Mr. Charles responded in that there was no use of calling the said person since the victim explained what befall unto her. Further to that, he referred this court to Section 143 of the Law of Evidence Act, Cap 6 R.E 2022 in that no particular number of witnesses is required to prove a particular case. This court has considered the submission from both sides regarding this ground only to find substance in the submission by the learned state attorney. As per Section 143 of the Law of evidence Act, no number of witnesses is required to prove a certain fact. Further to that it is the prosecution side which decides on whom to call to testify a certain fact. On that note, the evidence from the so-called Mama Alex would be of no 10 | P a g e use as she did not witness the appellant raping the victim. As discussed above, true evidence in this matter came from the victim herself. That said, this court finds this ground without merits, and it is hereby dismissed. As for the 5th ground of appeal, the appellant complained that the offence of rape was not proved beyond reasonable doubt. It was the appellant's submission that the offence against him was not proved as there was a variance between the place where the alleged offence was committed and that his evidence was not taken into consideration. On his part, Mr. Charles responded in that the trial magistrate reached its verdict after being satisfied that the prosecution had discharged its duty by proving the case beyond reasonable doubt. He submitted further that the victim (PW1) explained what befell unto her and PW3 (the doctor) acknowledged that there was vaginal penetration. He was of the view that in rape cases the best evidence comes from the victim and he referred this court to the case of SELEMAN MAKUMBA V. REPUBLIC [2006] TLR 374. In this part, this court wish to point out that under Section 130 (1) (2) (b) of the penal Code, Cap 16 R.E 2022, a male person commits an offence 11 | P a g e pe he has sexual intercourse with a woman without her consent. Tie said provision provides as follows, that: (1) It is an offence for a male person to rape a girl or a woman. (2) A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions: (b) with her consent where the consent has been obtained by the use of force, threats or intimidation by putting her in fear of death or of hurt or while she is in unlawful detention;" From the above, in proving rape under the above section, the prosecution is required to prove that the appellant had sexual intercourse with the victim and the same was done without her consent or if there was a consent it was obtained under threats. See the case MASHAKA MUSSA V. THE REPUBLIC, CRIMINAL APPEAL NO. 15 OF 2016 (CAT at Dar es Salaam- Unreported). In the present case, PW1 (the victim) testified how she was raped by the appellant. The detail on what transpired is as appearing when this court was determining the second ground of appeal. 12 | P a g e Her evidence was supported with that of PW2 (the doctor) who examined the victim after the incident and found male sperm and gave her medicine to protect her with HIV. This witness tendered exhibit Pl (PF3) to support what he explained. From the said evidence, this court is of the firm view that the prosecution proved its case against the appellant beyond reasonable doubt. In the upshot, I find no merit in any of the grounds of appeal. The appeal stands dismissed in its entirety. Right of appeal is fully explained Ordered accordingly. DATED at ARUSHA this 11th day of October, 2024.