YAHAYA MBARUKU 222 Edited J Kamuzora

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 28141 OF 2024 (Appeal from the conviction and sentence of the District Court of Kiteto in Criminal Case No. 6534 of 2024) YAHAYA MBARUKU...................................................................... APPELLANT VERSUS REPUBLIC RESPONDENT JUDGMENT 18th November & 10th December 2024 KAMUZORA, J. The appellant was aligned before Kiteto district court (hereinafter referred to as the trial court) for two counts of unnatural offence and rape. It was alleged that, on 2/3/2024 at Orkine village within Kiteto district in Manyara Region the appellant raped and had carnal knowledge against the order of nature, of a girl aged 12 years old (herein referred as the victim or simply PW1). A brief factual background underlying the instant appeal as could be gathered from the record is that, on 02/03/2024, the victim was Page 1 of 13 sent to the shop by her mother (PW2) to buy cooking oil. On her way back home, she met the appellant whom she referred as White, a friend to her late father. There was a brief conversation between the appellant and the victim before the appellant grabbed and forced her to his house. The appellant undressed the victim and himself, took her on the bed, applied some white powder on the victim's private parts and inserted his penis on the victim's anus and vagina. After he had finished, the victim dressed herself and ran to her home. On the following day, the appellant bought the victim new slippers while warning her not tell anyone. On the next day, the victim narrated the ordeal to her teacher at school and the victim's mother (PW2) was summoned at school and informed that her daughter (the victim) was raped. The matter was then reported at the police station where the victim was issued with PF3 and sent to Orkine dispensary. She was attended by PW4, a medical doctor and in his evidence, the doctor claimed to have found bruises and the victim's labia minora and labia majora and the victim was experiencing pain suggesting that she was penetrated. He however explained that although the victim was in pain, there was no evidence of penetration in her anus. The appellant had a general defence for he denied to have committed the offence. The trial court was however convinced with Page 2 of 13 the prosecution evidence hence, found the appellant guilty of both unnatural offence and rape, convicted and sentenced him for both counts; life imprisonment for unnatural offence and 30 years imprisonment for the offence of rape. The appellant was displeased with the conviction and sentence meted out against him thus, he has preferred the instant appeal with 7 grounds of appeal which after a careful scrutiny, can be reshaped and reduced into 5 grounds as follows; 1. There was contradiction of the prosecution evidence regarding the age of the victim and the class she was studying. 2. The appellant's house was searched without search warrant. 3. There was delay in arraigning the appellant before the trial court. 4. The PF3 was improperly admitted as exhibit. 5. The offence was not proved beyond reasonable doubt against the appellant. When the appeal was called for hearing, the appellant appeared in person while Mr. Jonson Ndibalema, learned state attorney appeared for the respondent, republic. The appeal was disposed orally and when invited to expound his grounds of appeal, the appellant submitted generally that, he did not commit such offence. He basically recounted his grounds of appeal Page 3 of 13 that, he was arrested and searched but no one was present at the time of search. That, he was retained in police cell for 6 days before he was sent to court. He contended that, the ward education officer who reported the matter at the police station, was not called to testify in court. The appellant further submitted that, there was contradiction on the victim's age and the class she was studying. That, while the victim claimed in her evidence that she was in standard four, the charge sheet revels that she was in standard five. That, while the victim claimed to be 11 years old, the charge sheet shows that she was 12 years old. He prayed for this court to allow the appeal and acquit him. In reply, Mr. Ndibalema supported the conviction and sentence passed against the appellant. On the 1st ground, the learned state attorney submitted that, there is no contradiction in evidence adduced. That, since the appellant was charged with statutory rape, the law requires the age of the victim to be proved. He argued that, age can be proved by either the victim, relative or doctor or by birth certificate as per the case of Makende Simon vs Republic, Criminal Appeal No. 412 of 2017 CAT at Mwanza TanzLii. He submitted that, the age of the victim was stated by the victim Page 4 of 13 and corroborated by the doctor, PW4 thus, the contradiction referred in the evidence of PW1 and PW4 is minor. On the 2nd ground, the learned state attorney submitted that, PW5 met the appellant on the road and arrested him but the appellant asked for time to go and close his house as he was living alone. That, they went together to the appellant's house and PW5 went with him inside the house as he was already under arrest. That, PW5 did not search the appellant rather, he observed what was mentioned and described by the victim. He was of the view that, the circumstance of this case is different from what is stated under section 42 (1) of the CPA, Cap 20 RE 2022 since there was no search conducted in this case. On the 3rd ground, the learned state attorney submitted that, there are no evidence from the prosecution or defence side showing that the appellant spent 6 days at the police station. He added that, if so retained, the appellant could have secured police bail as per section 64 (2) of the CPA. On the 4th ground, the learned state attorney submitted that, the PF3 was properly tendered and admitted as per the case of DPP vs Sharif Mohamed @ Athuman and 6 others, Criminal Appeal No 74 of 2016 Page 5 of 13 [2016] TZCA, 635 in which; relevance, materiality, competency and reliability were considered. He pointed out that, the PF3 tendered related to the case, it was a material and competent evidence which could be relied upon and it was tendered by the proper and trusted person, PW4 who attended the victim. That, the document was properly admitted and read loudly in court as can be seen at page 23 to 24 of the proceedings. On the 5th ground, the learned state attorney submitted that, the case against the appellant was proved to the standard required. That, PW4 explained clearly and supported his evidence with documents proving that the victim was penetrated for she had pain and bruises on her vagina. That, although the doctor did not find proof of penetration on the victim's anus, the learned state attorney maintained that the victim was sodomized and raped for the victim's evidence proved penetration. He argued that, the victim's evidence can stand without any corroborating evidence. He referred section 127 (6) of the Evidence Act, [Cap 6 RE 2022] and urged this court to dismiss the appeal. Having gone through the record and parties' rival submissions, I will start my discussion with the 1st ground of appeal which refers contradictions on the prosecution's evidence. On the argument that there was contradiction Page 6 of 13 regarding the age of the victim, the charge sheet reveals that the victim was 12 years old at the time the offence was committed. In her evidence, the victim mentioned that she was 11 years old. PW4 who is the victim's mother and PW5 mentioned that the victim was 12 years old. In my view, the difference in age may be because of errors in counting for a child and in the circumstance of this case, it does not go to the root of the matter. Whether the victim was 11 or 12 years, it does not negate the fact that she was below 18 years old at the time the offence was allegedly committed thus, a child within the meaning of the law. My reasoning above also covers the contradiction regarding the class in which the victim was attending. It is true that while recording her particulars the victim mentioned that she was in standard five but in her evidence, she stated that she was in class four. PW3 claimed that the victim was in class five. The contradiction referred above is in my view, minor and does not go to the root of the matter. Whether the victim was in standard 4 or 5 or not at school at all, it is immaterial. What is important is the proof of her age and if she was penetrated. Having found that she was below 18 years old, the remained facts for proof are wthere there was penetration and whether the appellant was responsible for such penetration or not. Therefore, I find no merit in the 1st ground of appeal. Page 7 of 13 As to the 2nd ground of appeal, the appellant claimed that his house was searched without warrant. I do not find any merits in this ground because no evidence of search was used by the trial court for there was no search conducted in the appellant's house. In his evidence PW5 just narrated that after he arrested the appellant, he escorted him to his house so that he could lock the door and that is when PW5 saw the items described by the victim in her statement. Such evidence was not even the basis of the trial court's decision therefore, I do not find any merits in the 2nd ground of appeal. On the 3rd ground of appeal, the appellant claimed that there was delay in his arraignment before the trial court. It is true that the appellant was sent to court six days his arrest. PW5's evidence shows that he interrogated the victim on 5/3/2024 and thereafter he went to arrest the appellant but the record shows that the appellant was aligned for the first time before the trial court on 12/3/2024. While I agree that there was unexplained delay in his arraignment before the trial court, I do not find such delay to have occasioned failure of justice. It would have been considered serious if the delay was intended to obtain unjustified confession. Since the appellant was Page 8 of 13 unable to demonstrate failure of justice caused by that delay, I find no merit on the 3rd ground of appeal. On the 4th ground, the appellant claimed that the PF3 was improperly admitted but did not further explain how it was improperly admitted. I therefore opted to assess the record and see if the admission of the PF3 met the legal requirement. It is a settled principle that, documentary evidence must pass through three stages; first, be cleared for admission, two, be admitted in evidence and three, be read out in court. This settled principle has been underscored in numerous decisions, to mention but few; Robinson Mwanjisi and Three Others v. The Republic [2003] T.L.R. 218, Walii Abdallah Kibuta and Two Others v. The Republic, Criminal Appeal No. 181 of 2006, Kurubone Bagirigwa and Three Others v. The Republic, Criminal Appeal No. 132 of 2015, Lack s/o Kilingani v. The Republic, Criminal Appeal No. 405 of 2015 Issa Hassan Uki v. The Republic, Criminal Appeal No. 129 of 2017 and Kassim Salum v. The Republic, Criminal Appeal No. 186 of 2018 (All unreported). Going through the record specifically pages 23 to 24 of the proceedings of the trial court, the said PF3 was tendered in court by PW4 (the medical doctor) who prepared it. Before tendering the PF3, PW4 laid a foundation Page 9 of 13 and the appellant was invited to address the court if he had any objection in which, he had no objection. Then the PF3 was admitted and it was read after its admission. Therefore, the admission of the PF3 was in line with the settled principle. Therefore, the 4th ground of appeal lacks merits. Lastly, on the 5th ground of appeal the appellant invites this court to re-evaluate the evidence and see whether the case against the appellant was proved to the standard required. I am mindful of the position of the law that, the best evidence in sexual offences comes from the victim. In the matter at hand, the victim knew the appellant as he used to be her late father's friend. After the incident, the appellant tried to silence the victim by buying her gift and warning her not to disclose the ordeal to anyone. She however decided to tell her teacher and the teachers evidence shows that, it was after her fellow student reported to the teacher that she was not feeling well. Upon interrogating her, she disclosed that she was raped by White. When the victim's mother was summoned at school and asked if she knew while, she agreed and the appellant herein was identified as White. From her evidence, the victim well narrated the ordeal which befell her. The appellant was known to the victim, he grabbed and took her in his house where he applied some powder on her private parts and he inserted his penis Page 10 of 13 into both her anus and vagina. Her evidence was corroborated by her mother (PW2), her teacher (PW3) and the doctor (PW4). In her evidence, PW2 claimed to have observed the victim's changes after her return on the date of incident and upon examining her, she saw blood on the victim's anus and vagina but the victim claimed to have scratched herself. Two days later, the victim decided to spill the beans by telling PW3 and this is after the student reported her and reported to the teacher that she had a problem. When she was questioned by the teacher, she narrated that she was raped by the appellant. Therefore, although there was a delay in revealing the incident, the circumstance could have triggered such delay. As opposed to what was held in numerous decisions that the ability to name the suspect at the earliest opportunity reassure the reliability of a witnesses, in sexual offences, things are different. The hesitation in immediate reporting the culprit is mostly associated with number of reasons; fear, anger, threat, embarrassment or allurement/tempting offers from the suspect. While anyone expected for the victim to name the suspect to her mother after being spotted bleeding, she quickly mentioned that she scratched herself. This may be out of fear for her mother and even the Page 11 of 13 suspect or that she was embarrassed. I say so because, she was able to disclose such fact to her teacher after being reported by her fellow students and upon being examined after two days, the doctor still found bruises on her labia majora and labia manora and evidence of penetration to her vagina. The appellant also allured her with gift by buying her slippers and warning her not to tell anyone. Thus, delay in the circumstance of this case did not erode the credibility of the victim's evidence. However, the victim claimed that she was penetrated both in her anus and vagina but, the corroborating evidence shows that she was only penetrated on her vagina. The doctor mentioned in his evidence that although the victim was experiencing pain, it may be a sign of an attempt but her anus was not penetrated. I am convinced with the evidence from the medical doctor (PW4) for there was no evidence of either bruise of loose sphincter mussels for him to conclude that there was penetration in the victim's anus. I therefore partly find merit the 5th ground of appeal. Basing on the discussion above, the appeal is partly allowed to the extent that the prosecution evidence proved the offence of rape but did not prove unnatural offence. The appellant is acquitted of unnatural offence but Page 12 of 13 shall continue serving the sentence passed for the offence of rape. Other orders remain undisturbed. DATED at BABATI this 10th day of December, 2024. D. C. KAMUZORA JUDGE Page 13 of 13