YOHANA ANDREA KAPERA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL APPEAL NO.31718 OF 2024 (Arising from Criminal Case No. 8729 of 2024 of Shinyanga District Court Before: C.S LANGAU SRM) YOHANA ANDREA @ KAPERA …………………………APPELLANT Versus REPUBLIC…………………………………….…………RESPONDENT JUDGMENT 11th December 2024 & 24th January, 2025 MASSAM, J:. In the District Court of Shinyanga at Shinyanga appellant one Yohana Andrea @ Kapera was charged with the offence of rape C/s 130 (1) (2) (e) and 131 of the Penal Code, Cap. 16 R: E 2022. It was alleged that on unknown dates of October 2023 at Kitangili area within Shinyanga Municipality in Shinyanga Region, did have canal knowledge of a girl aged 10 years for the purpose of hiding her identity she will be termed as victim. The trial court after heard the case found accused guilty as charged and he was convicted and sentenced to serve 30 years imprisonment and to pay the victim Tshs. 300,000/= as compensation. Aggrieved with such conviction and sentence, appellant has approached this court marshalled with three grounds of appeal as follows; 1 1. That, the trial court magistrate erred in law and fact to rely on the weak evidence of the prosecution side which failed to prove the case beyond reasonable doubt. 2. That, the trial court magistrate erred in law and fact when failed to summon important witness who have been mentioned as the link of the whole incident, especially the victim’s teachers and the student who saw the victim and her friend shows each other private parts. 3. That, trial court magistrate misleads herself to convict and sentence the appellant without disclosing the reasons of rejecting the appellant’s defense. In the hearing of this appeal the appellant appeared in person unrepresented, whilst the respondent was represented by Mr. Goodluck Saguya State Attorney and the matter was heard orally. In arguing his appeal, the appellant submitted that he had a quarrel with Mama Kulwa as her children were stealing his wood fixed to the fence. He reported the matter to their hamlet chairman who came and reconcile them but after one week he was arrested by three policemen for allegation that he raped victim. He stayed for one month 2 at the lock up without taken to the court. He added that the victim testified that she was on her way from school when she was raped. Again, he contended that he had a quarrel with Mama Kulwa thus why this case has framed. Also, the trial court did not consider his defence and lastly, he submitted that neither teacher nor student came to testify to the court. On his part, Mr. Saguya S/A for respondent supported conviction and sentence meted and argued grounds of appeal separately. Starting with ground no 1, appellant complained that the trial court convicted him with the weak evidence. Mr. Saguya argued that appellant raped a girl of 10 years old and the victim testified that at October 2023 she was from shop to home, she met appellant who sexual intercourse but she afraid and run away. The next day victim met appellant again who threaten to kill her if she run away, so victim stopped and appellant took her to unfinished house ‘’Pagale’’ and had sexual intercourse with her, after that she went to school and the other day victim met appellant and had sexual intercourse with her to the same place. Additionally, Mr. Saguya submitted that on 11.3.2024 PW1 was at school with her friend Karen showing each other their private parts, and 3 the matter was reported to the teacher who asked them where did they saw it, Karen said that she learnt it from her mum's phone but victim said that she learnt it from appellant and victim said that she did not tell anyone as he was threatened by the appellant. Apparently, Mr. Saguya contented that being statutory rape the father of the victim proved the age of victim to be 10 years and the victim told her father that she failed to tell him because of the threat which she got from the appellant. Moreover, medical officer supported the evidence of PW1 that he examined the victim and found out that the victim had no hymen and her private parts was open which prove that victim was penetrated, and he filled the PF3 which was tendered and admitted by the court. Coming to second ground of appeal, appellant complained that the trial court failed to call material witnesses, for example the said teacher who called the victim and her fellow students. Mr. Saguya submitted that the law is very clear that there is no number of witnesses needed to prove the charge and failure to call material witnesses was not fatal. Responding to third ground, appellant complained that he was convicted without considered his defence. It was the submission of Mr. Saguya that in page no 9 of the judgment the court discussed the 4 reasons why his defence was not considered because mama Kulwa was not a party of the case but also the mother of the victim. On his rejoinder, appellant said that he did not rape the victim, but had a quarrel with Mama Kulwa, whose children were stealing his wood fixed to the fence. The victim father was informed by the teacher that the victim was raped while doctor said that he found no bruises in her private parts, but victim had fluently penetrated. Lastly, the appellant insisted the court to consider his ground of appeal and left him free. Having heard both parties on merit and upon scanning the trial courts records, my deliberation of this appeal to the best. I find out that, the major contention between the parties is whether the prosecution side proved the case beyond reasonable doubt. It is a trite law that onus of proving in criminal cases is always in the side of the prosecution, as elaborated in the case of Joseph John Makune vs. Republic (1986) TLR 44 at page 49 where the court of appeal held; - “the cardinal principle of our criminal law is that the burden is on the prosecution to prove its case, no duty is cast on the accused to prove his innocence. There are a few well known exceptions to this principle one example being where the accused raises the 5 defence of insanity in which case he must prove it on the balance of probabilities.’’ Also, per Section 3 (2) (a) of The Evidence Act provides the standard of proof that "A fact is said to be proved when - (a) in criminal matters, except where any statute or other law provides otherwise, the court is satisfied by the prosecution beyond reasonable doubt that the fact exists;'' Likewise, Section 110 (1) of the Evidence Act provides that, "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”. See the case of Anthony Masanga vs. Penina (Mama Mgesi) and Another, Civil Appeal No. 118 of 2014. Notably, in order to satisfy that the case was proved beyond reasonable doubt, it is important to look at section 130 (1) (2) e whereby basic ingredients of rape offence is provided for, while punishment is under Section 131 (1) of the Penal Code, Cap. 16 R.E 2022. For clarification Section 130 (1) (2) e of the Penal Code reads that 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 6 girl or a woman under circumstances falling under any of the following descriptions: (a) N/A (b) N/A (c) N/A (d) N/A (e) with or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man. Therefore, it is clear that for the offence of rape to be established; - first, there must be penetration of a male organ (penis) into the vagina of the victim, second, accused person must be the one who is responsible for the act and lastly, the age of the victim must be proved. Back to our case, starting with ground no 1, appellant complained that the trial court convicted him with the weak evidence. Mr. Saguya argued that appellant raped a girl of 10 years old and the victim testified that at October 2023 she was from shop to home, she met appellant who told her to have sexual intercourse but she afraid and run away. The next day victim met appellant again who threaten to kill her if she run away, so victim stopped and appellant took her to unfinished house ‘’Pagale’’ and had sexual intercourse with her, after that she went to 7 school and the other day victim met appellant and had sexual intercourse with her to the same place. Additionally, Mr. Saguya submitted that on 11.3.2024 PW1 was at school with her friend Karen showing each other their private parts, and the matter was reported to the teacher who asked them where did they saw it, Karen said that she learnt it from her mum's phone but victim said that she learnt it from appellant and victim said that she did not tell anyone as he was threatened by the appellant. Also, Mr. Saguya contented that being statutory rape the father of the victim proved the age of victim to be 10 years and the victim told her father said that she failed to tell him because of the threat which she got from the appellant. Moreover, medical officer supported the evidence of PW1 that he examined the victim and found out the victim had no hymen and her private part was open which prove that victim was penetrated, and he filled the PF3 which was tendered and admitted by the court. I am aware that in sexual offences, the best evidence comes from the victim, such principle presupposes that the victim's evidence is credible. See: Abiola Mohamed @ Simba v. Republic (Criminal Appeal No. 291 of 2017) [2021] TZCA 632 (2 November 2021, TANZLII) 8 and Mohamed Said Rais v. Republic (Criminal Appeal No. 167 of 2020) [2022] TZCA 479 (20 July 2022). In those cases, the court discussed in details the amount of caution which courts should take in handling cases involving sexual offences and the credibility of the victim. The testimony of PW1 on records shows that in October 2023 she run away from having sexual intercourse with accused and she didn’t report anywhere, on the following day she had sexual intercourse with appellant and there after she went to school as usual and on other date they went to unfished house ‘’pagale’’ and had sexual intercourse. Now this court asked the question why the victim did not report the matter immediately? and how the appellant who is aged 67 years can rape a victim with 10 years and still went to school as usual without any problem? I think the answer of these questions raise many doubts on the credibility of PW1 and her evidence is unreliable and this court agree with submission of appellant that the prosecution failed to prove the case beyond reasonable doubt. In regard to the PF3 which was admitted as exhibit P1. The procedure of tendering the same was not adhered. The accused did not object to the admission and the same was admitted. The PF3 was read over in court, but since it has been tainted in the process of admission 9 the PF3 is no long of evidential value and it hereby expunged from record and the remaining evidence is so weak to sustain a conviction. Moreover, the prosecution was bound to prove that the victim was below the age of 18 years when the alleged rape was committed. Age in statutory rape is fundamental element and must be established and proved beyond reasonable doubt. As of now the issue of age goes to the root of the whole case of rape and determine the issue of the sentence. That being said, the question herein is whether the age of the victim was proved as required by law? From the evidence on record, the victim (PW1) mentioned her age to be 10 and her evidence was supported with her father. The court of Appeal in developing this good principle on the need to establish the age of the victim as per the case of Renatus Isaya v Republic, Criminal Appeal 542/2015 CAT Tabora, did not intend to require the court to believe on general statements. The proof of age must be concrete, viable and reliable, general statement cannot be accepted at this era of statutory rape. No specific date, month, year or even some particulars to authenticate the information for instance, production of birth certificate, clinic card, if any, school registration and other reliable and acceptable document proving her age. 10 A simple mention that the victim had 10 years, in my considered view, can be made by any other person. Her parent was in good position to prove the age of the victim but the same was not done. With this brief analysis. I am settled in my mind that before the trial court, the age of the victim was not proved as required by the law. So according to that I disagree with Mr Saguya that the age was proved. Moreover, on the issue of delay of reporting the matter. The trial court record shows that the offence took place in October 2023 however the matter was reported on 13/03/2024 which was more than 5 months without reporting the matter and this arises doubt if her evidence can be reliable. In the case of Director of Public of Prosecution vs Simon Mashauri, Criminal Appel No. 394 of 2017 (CAT) it was held that “Besides that, PW1 did not report to the police station at the earliest opportune time. In that night, she took shower which was not proper in the circumstances and slept. In the next morning, she went to the church. The question we ask our selves, was it wise idea going to church instead of taking the necessary steps of reporting the rape incident to the police station.PW1 said she did not do it during that night because it was late. We think, if that was the case, reporting to the police in the following day would have been the first 11 thing to do instead of going to church and waiting to report to PW7 first. We find her evidence to be unreliable (Emphasis added)’’. This court has found it unsafe to convict an accused person in such unexplained delays in reporting the matter to police since the occurrence of the offence. See also the case of Tito Paulo Kuchungura vs Republic, Criminal Appeal No. 570 of 2020 (CAT), Thomas Msemakweli vs Republic, Criminal Appeal No. 91 of 2019 [2020] TZHC 452 (31 MARCH 2020) TANZLII. In the premises I find the first ground of appeal has merit and it is allowed. Coming to second ground of appeal, appellant complained that the trial court failed to call material witnesses, for example the said teacher who called the victim and her fellow student. Mr. Saguya submitted that the law is very clear there is no number of witnesses needed to prove the charge and failure to call material witnesses was not fatal. I am aware that there is no number of witnesses need to prove the charge as it enshrined under section 143 of the Evidence Act. It is trite law that any person who is in a better position to explain some missing links in the case is a material witness. This is a person to whom the incident was reported to first, therefore he had information or 12 knowledge of the subject matter which is material to the outcome of the case. See: Director of Public Prosecutions vs. Sharif s/o Mohamed @ Athumani & Others (Criminal Appeal 74 of 2016) [2016] TZCA 635 (5 August 2016, TANZLII) and Ahamad Salum Hassan @ Chinga v. Republic (Criminal Appeal No. 386 of 2021) [2023] TZCA 44 (22 February 2023, TANZLII). Also in the case of Aziza Abdalah V. Republic [1991] T.L.R 71, the court held that, “The general and well known rule is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify to material facts. If such witnesses are within reach but are not called without sufficient reason being shown; the court may draw an inference adverse to the prosecution” The above principle was also debated in the case of Mashimba Dotto @ Lukubanija vs. Republic, Criminal Appeal No, 317 of 2013 and CRDB Bank PLC vs. Africhick Hatchers Ltd & Another, High Court Commercial Case No.97 of 2017 whereby in these two cases it was held that, 13 “Where a party fails to call a material witness without any justification, the court should draw an adverse inference against the party who failed to do so”. Guided by the above authorities. The trial court record shows that the victim informed the teacher and her fellow students that the appellant raped her, however the same was not called to testify before the court. Also victim and other witnesses testified that victim was a student at town Primary school but no teacher nor student called to proof the same, also no exhibit was brought to the court to prove the same. In my view, I think the same were material witnesses and failure to call the two without sufficient reasons being shown dented the prosecution case. In the premises, I find the second ground of appeal has merit and it is allowed. Responding to third ground, appellant complained that he was convicted without consider his defence. It was the submission of Mr Saguya that in page no 9 of the judgment the court discussed the reasons why his defence was not considered because mama Kulwa was not a party of the case but also the mother of the victim. In my thorough scanning of the trial records. I associate myself with Mr. Saguya that the defence evidence was cons 14 idered in page no 9 of the copy of the judgment but did not convince the trial court for it to accord evidence. It is trite law that failure to consider defence evidence amount to defective judgment. See case of Leonard Mwanashoka vs Republic, Criminal Appeal No. 226 of 2014 (unreported), Abel Masikiti vs. Republic, Criminal Appeal No. 24 of 2024. However, in the normal circumstances, the prosecution case is firmly proved depending on its evidence and not defence evidence. From the above analysis. I find the third ground of appeal has no merit and it is hereby dismissed. With all these observations, I find this appeal has merit. I quash the conviction and set aside the sentence and order the appellant's immediate release from custody unless otherwise lawfully held. It is so ordered. DATED at SHINYANGA this 24th day of January, 2025. R.B. Massam Judge 15