MISOMINYANZA FINAL for tanzlii fine

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA CRIMINAL APPEAL NO. 34815 OF 2024 (Original Criminal Case No. 17919 of 2024 of Bukombe District Court at Bukombe before K.M Mutembei PRM) MUSSA MISOMINYANZA MASABA------------------------- APPELLANT VERSUS THE REPUBLIC------------------------------------------ RESPONDENT JUDGMENT Date of last order: 20 January 2025 Date of Judgment: 17 February 2025 K. D. MHINA, J. In the District Court of Bukombe, the appellant was charged with the offence of Rape contrary to section 130 (1) (2) (e) and section 131 (2) of the penal code, Cap 16 R.E 2022. In the charge, it was particularized that the appellant, a 72 years man who was a security guard, on 13 June 2024, at Ntengele area in Bulangwa Ward within Bukombe District in Geita Region, did have carnal knowledge of the victim, a girl child aged 11 years, who, for purposes of concealing her identity will be referred to, in this judgment, as the victim. 1 At the trial, the prosecution evidence, which the trial court found sufficiently proved the charge against the appellant, was characterized by five witnesses and two exhibits, briefly was as follows; On the evening of 13 June 2024, the victim who testified as PW1 was sent by her mother (PW2) to the nearest shop to buy some stuff. While passing near the appellant’s workplace, the appellant who was in the guard house called her. When she entered that house the appellant started showing her porn pictures through his mobile phone. The appellant then undressed her clothes and told her to lie down on the floor. The appellant also undressed his clothes and penetrated his penis into the victim's virgin. She severely felt pain and the appellant took a very long time to finish sexing her. The victim further stated that on that date she slept with the appellant till morning and the whole night he was having sexual intercourse with her. That night her mother was on a journey to Bukombe, therefore at home her elder sister, remained. She described the appellant to have long very dick and black. 2 In the morning after being given TZS. 1000/=, the victim returned home. At home, when her elder sister asked her where did she sleep, the victim told her that she slept with the appellant. Later, her sister informed their mother about the ordeal. When her mother inspected her private parts, she was found to have a big wound as a result of deep penetration by the appellant’s pennis. The victim also stated that always she met and had sexual intercourse with the appellant at the guard house, and in total, she was given TZS. 7000/= by the appellant. On her side, PW2 (the victim’s mother) testified that the victim aged 11 years was her 4th child. While she was at home on 20 June 2024, at 20:00 hours she heard a screaming voice coming from the toilet. At the toilet she found, she was the victim was screaming. When she asked her what was wrong, the victim told her that she was feeling severe pain in her private parts when urinating. Upon interrogation, the victim told her that on 13 June 2024, when she was not at her, she was raped by the security guard working a Peter’s threshing machine. That report was confirmed by the victim’s elder sister. 3 The matter was reported to the Chairperson who was a lady who decided to inspect the victim. The victim was found with a big wound. Later, the appellant was arrested and he was identified by the victim. When the appellant was interrogated, he confessed to having intercourse with the victim. When the victim was taken to the hospital for examination, the report indicated that she was raped and she was admitted to the hospital for one day. The victim also disclosed that the appellant was giving her money to “keep the secret”. The victim’s elder sister (PW3) informed the court that on 13 June 2024, the victim who was 11 years old was missing from home. They tried to find her but without any success, thus she informed her mother. The victim returned home the following morning and did not disclose where she was. After their mother returned and when they were at home, they heard a scream coming from the toilet. She was the victim who was screaming and when questioned by their mother she stated attempting to urinate she was feeling severe pain on her private part. 4 After serious interrogation, the victim disclosed being raped by the security guard who was working at Peter's paddy threshing machine. According to PW4, a woman police, who interrogated the appellant, the appellant confessed to having sexual intercourse with the victim. Then, she recorded the appellant’s cautioned statement i.e. exhibit PE 1. In evidence, the medical practitioner (PW5) who examined the victim, on 20 June at 22:00 hours, attended the victim. In his examination, he found that the victim was no longer a virgin and had bruises on her private parts. Then he filled the PF3 i.e. exhibit PE2. In his defence, the appellant stated that his wife died on 12 June 2024, therefore he prepared the burial. When he returned to work on 20 June 2024, whereby he was arrested for the allegations that he raped the victim. In the end, the appellant was found guilty of the offence charged, convicted, and sentenced to thirty (30) years in jail. Undaunted, the appellant filed this appeal with five grounds: - 5 i. That, the trial Magistrate Court erred in law and facts to convict the Appellant by using poor evidence given by the prosecution side while the Appellant denied having committed rape ii. That, the trial Magistrate Court erred in law and facts to convict the Appellant by using hearsay evidence given by the prosecution side. For example, the age of the victim of 11 years old was not proved by any document i.e. birth certificate. iii. That, the trial Magistrate court erred in law and facts to convict the Appellant by using poor evidence given by the prosecution side. For example, no witness proved in the trial Court that they saw the appellant raped the victim, the evidence given by PW2, PW3, and PW5 were hearsay evidence created by the prosecution side. iv. That, the trial Magistrate erred in law and facts to convict the appellant without considering the evidence given by the Appellant. In fact, it was not fair for the trial Court without considering the evidence given by DW2. v. That the trial Magistrate erred in law and facts to convict the Appellant excessive sentence of 30 years without committing the offence of rape. In fact, my age is 72 years I never commit rape for the victim, what I know, it is true that I was a Security Guard at Peter’s warehouse but I never commit rape or slept with a victim. This offence was created by the prosecution side. The appellant appeared himself unrepresented while the respondent/ 6 republic had the services of Ms. Beatrice Godfrey, learned State Attorney. On his side, the appellant had nothing to add apart from the grounds of appeal and he prayed for this court to consider the same. Resisting the appeal, Ms. Godfrey started by arguing the 1st and 3rd grounds jointly. She submitted that by nature sexual offences are committed in privacy, thus, the victim’s evidence is the key. She explained that at the trial the victim testified that on 13 June 2024, when she passed the place where the appellant was working, the appellant called her and showed her porn pictures, seduced her, undressed her clothes, told her to lie down, and the appellant inserted his long male organ in her vagina. From above, she stated that in offences of this nature, the best evidence comes from the victim as provided under section 127 (6) of the Tanzania Evidence Act and elaborated in the case of Selemani Makumba vs. Republic, Criminal Appeal No 94 of 1999 (Tanzlii), at page 8. Regarding the 2nd ground of appeal, Ms. Godfrey submitted that the age of the child could be proved by the evidence of the parent, 7 relatives, or even the victim as it was held in Rutoyo Richard vs. Republic, Criminal appeal No. 114 of 2017 (Tanzlii) at page 15. She submitted that at the trial both the victim herself and her mother testified that she was 11 years old. As for the 4th ground, Ms. Godfrey submitted that the trial court’s records did not indicate if there was evidence of DW2. During the defence hearing, the appellant testified alone as DW1. Further, the appellant relied on the defence of alibi as his defence, and as indicated at page 4 of the judgment, the trial court considered the defence. On the 5th ground, she submitted that according to section 131 (1) of the Penal Code, a person convicted of rape should be sentenced to a minimum sentence of 30 years. Therefore, the sentence imposed by the trial Court was proper regardless of the appellant’s age. Having objectively gone through the grounds of appeal, the submissions, and the entire records of appeal I will start with the 2nd ground of appeal where the appellant complained that the age of the victim of 11 years was not proved by any document i.e. birth 8 certificate. This should not detain me long and I will briefly explain as follows. It is trite that age is of great essence in sexual offences whose victims are under the age of 18 years. Therefore, in a situation where it is alleged that the victim of sexual offences is under the age of 18, the age of the victim must be proved in the required standard. This is because of the provision of section 130 (2) (e) of the Penal Code, which provides that; “(2) A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under any of the following descriptions – (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.” The law relating to the proof of age of the victim is already settled by the Court of Appeal in the cited case of Rutoyo Richard (Supra) that the age of the child could be proved by the evidence of the parent, relatives, or even the victim herself/himself. Further, in Salu Sosoma vs. Republic, Criminal Appeal No. 32 of 2006 (unreported), where the father of the victim had testified 9 as to the victim's age cited in George Maili Kemboge vs. Republic, Criminal Appeal No. 327 of 2013 (Tanzlii), the Court of Appeal observed that; “We are mindful of the fact that a parent is better positioned to know the age of his child”. At the trial, PW2, the mother of the victim testified that the victim was 11 years old. Even her elder sister (PW3) and the victim herself testified that she was 11 years of age. Therefore, the absence of the birth certificate is immaterial in a case where there is evidence of a parent, relative, or guardian. Therefore, the age of the victim was proved to be 11 years, thus the 2nd ground of appeal is devoid of merits. Coming to the 4th ground of appeal, the appellant is faulting the trial court for convicting the appellant without considering the evidence of his defence. On this, the law is settled in Osca Justinian Burugu vs. Republic, Criminal Appeal No. 33 of 2017 (Tanzlii), that failure to consider defence evidence is fatal to the conviction. 10 In the instant appeal having scrutinize the trial court’s judgment, it is clear the appellant's defence was not considered at all. It only features at the facts of the case part of the judgment where the trial court reproduced the defence as testified at the trial. However, despite that anomaly, I will take a similar route as it was held in Nyakwama Ondare@ Okware vs. Republic, Criminal Appeal No. 507 of 2019 (Tanzlii) and Alex Mwashilindi and another vs. Republic, Criminal Appeal No. 626 of 2020 (Tanzlii), by stepping into the shoes of the trial court and evaluate the evidence to analyse if the defence case raised any doubt and shake the case for the prosecution. In Nyakwama Ondare@ Okware (Supra), the Court of Appeal held that the purpose is to avoid delays or remit the case. Therefore, I will that in due course as I consider the 1st and 3rd grounds of appeal. Now, coming to the 1st and 3rd grounds of appeal. These two grounds are intertwined, they both revolve around whether the case was proved beyond reasonable doubt. On this, it is elementary that; 11 First, the onus of proving a criminal case is always on the prosecution to prove the case and never shifts away from the prosecution. Second, the standard of proving a criminal case is beyond reasonable doubt. See Daimu Daimu Rashid @ Double D vs. Republic, Criminal Appeal No. 5 of 2018 (Tanzlii), where the Court of Appeal held that; “…the cardinal principle of the criminal justice system in Tanzania is that the prosecution bears the burden of proving its case beyond a reasonable doubt....’’ Third, it is the duty of defence in criminal trials only to raise doubt against the prosecution case and not otherwise. See D.P.P vs. Ngusa Kejela @ Mtangi and another, Criminal Appeal No. 276 of 2017, CAT (Tanzlii). Fourth, in rape cases, there are elements which must be established and proved beyond reasonable doubt. Those elements were elaborated by the Court of Appeal in Seleman Msuya vs. Republic, Criminal Appeal No. 456 of 2020 (Tanzlii). It was held that; “For the offence of rape to be established three elements must be proved beyond a reasonable doubt. One, age of the victim; 12 two, penetration and, three that an accused person is the one who committed the alleged offence”. In the instant appeal, as previously alluded to when I determined the 2nd ground of appeal, the prosecution evidence proved beyond reasonable doubt that the victim was 11 years old at the time the offence was committed. The evidence of her mother (PW2) proved the age of the victim. Regarding penetration, the key witness was the medical practitioner (PW5) who testified that the victim was penetrated and had bruises. In the PF3 (Exhibit PE2) it was recorded that; “Intensive evidence of penetration, where hymen not intact, redness around the vulva. Other genitals are normal in atomic position but bruises noted”. Therefore, there was proof that the victim was penetrated. On the third element regarding who raped the victim, the law under section S. 127 (7) of the Tanzania Evidence Act provides that for the offence of which the appellant was convicted, the best evidence comes from the victim. Further, there is a plethora of authorities on the subject such as the cited case of Seleman Makumba (Supra). See also Nimo Samu vs. Republic, Criminal Appeal No. 31 of 2019 (Tanzlii). 13 However, before relying on the evidence of the victim to enter conviction, courts must scrutinize that evidence and satisfy itself that the evidence is truthful, coherent and reliable. This was insisted by the Court of Appeal in Mohamed Said vs. Republic, Criminal Appeal No. 145 of 2017 (Tanzlii), where it was held that; “We think that it was never intended that the word of 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 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”. In scrutinizing and assessing the testimony, there are ways in which the credibility of a witness can be assessed. The Court of Appeal in the cited case of Nimo Samu (Supra), while citing its earlier decision of Shabani Daudi vs. Republic, Criminal Appeal No. 28 of 2001(unreported), held that; “The credibility of a witness can also be determined in other two ways, that is one, by assessing the coherence of the testimony of the witness, and two, when the testimony of the witness is considered in relation to the evidence of other witnesses”. 14 In the instant appeal, having scrutinized the victim's evidence, she narrated how the appellant invited her to the guard house, they watched porn movies, and the appellant seduced and raped her. She also testified on how her mother found her in a lot of pain and at that point revealed it was the appellant who had sexual intercourse with her. When considering the victim’s evidence in relation to the evidence of other witnesses, I find that her mother (PW2) and elder sister (PW3), stated that upon questioning the victim, she revealed that the appellant was the one who raped her. Further, there was evidence of PW4, the police officer who interrogated the appellant. She stated that the appellant confessed to raping the victim and she recorded the cautioned statement (Exhibit P1). In the cautioned statement the appellant confessed that on 13 June 2024, it was the fifth time to had the ordeal with the victim. The previous four times he was only “brushing” his pennis in the victim’s vagina without “entering” her. But on 13 June 2024 after watching porn movies, he penetrated the victim and “break” her hymen and the victim bled. That night 15 the victim slept in his guard house till morning. That cautioned statement was never objected to its tendering or challenged by way of cross-examination. Therefore, that means the content of the statement was admitted by the appellant. See Anna Moises Chissano vs. The Republic, Criminal Appeal No. 273 of 2019(Tanzlii), where it was held that; “An accused is expected to challenge a witness's testimony by way of cross-examination or object to the tendering of a documentary or physical exhibit during the trial. Once certain evidence goes into the record unchallenged, it is, in law, taken to have been admitted by the accused”. From the above discussion, I find that the evidence of the victim was not only truthful and credible but also coherent and reliable that he was the appellant who raped her. Nothing indicated that she was not telling the truth. In his defence, the appellant stated as follows, I quote; “My wife died on 12/6/2024 I prepared the burial ceremony of my life. On 20/6/2024 I returned to my workplace during the night I did see two people who were asking my boss’s number 16 provided them. Later my boss did come at the whorehouse where I was guarding false so the victim and my boss victim and arrested me on allegations that it was alleged that I raped the victim I was taken to the neighbours' house later I was asked about this case. They started to beat me. Later the police officer attended the scene they are arrested me. Later at about 10:00 p.m. I was released from police custody and taken to the hospital, I was removed. I was ordered to remove all clothes and remain naked. The doctor started to touch my penis. I denied to rape the victim. Later I was returned to the police station your hon I have nothing about this matter”. Therefore, in his defence he raised two issues; one the defence of alibi that from 12 June to 20 June 2024, he was attending the burial of his wife and two; a general denial that he did not commit the offence. Subjecting the appellant’s defence to the prosecution case I have the following; One, regarding the defence of alibi the appellant did neither give the 17 prior notice before the hearing nor furnished the prosecution with the particulars of the alibi at any time before the case for the prosecution is closed. He did not even call the relatives or persons whom he was with at the burial as he claimed. In Kubezya John vs. Republic, Criminal Appeal No. 488 of 2015 (Tanzlii), the Court of Appeal while citing Masudi Amlima vs. Republic [1989] T.L.R. 25, held that; "The appellant's defence of alibi was properly rejected. He did not give the notice required under section 194 (4) of the Criminal Procedure Act, 1985, and he did not call the person he claimed was with him at the time of the commission of the offence" Therefore, the appellant’s defence of alibi is of no weight and it was never proved. Two, regarding the general denial, it is my view that it fails to shake the prosecution case. Nothing was raised to raise doubt against the prosecution case. Having deliberated as above, it is therefore the complaint in the 1st, 3rd and 4th grounds of appeal do not have merits. Thus, I dismiss both grounds. 18 On the last ground in which the appellant complained that the sentence of 30 years was excessive without considering his age of 72 years, this also should not detain me long. The law in this is general that this court being the appellate court will normally not interfere with a sentence imposed by the trial Court unless satisfied that the sentence was manifestly excessive, that the sentencing court failed to consider a material circumstance, or that it erred in principle. See Misango Shantiel vs. The Republic, Criminal Appeal No. 250 of 2007 (Tanzlii). After the trial court convicted the appellant for the offence of rape it sentenced him to thirty (30) years in jail. In the circumstance where the offender is an adult and the victim above ten years old. The applicable provision in sentencing is section 131 (1) of the Penal Code which reads as follows; “131.-(1) Any person who commits rape is, except in the cases provided for in the renumbered subsection (2), liable to be punished with imprisonment for life, and in any case for imprisonment of not less than thirty years with 19 corporal punishment, and with a fine, and shall, in addition, be ordered to pay compensation of an amount determined by the court, to the person in respect of whom the offence was committed for the injuries caused to such person”. [Emphasis provided] The above provision of law makes it clear that the sentence for the offender may range from thirty years as a minimum sentence to life imprisonment as the maximum penalty. This is because of the words as couched in the provision of law. The law gives the courts discretionary powers in sentencing; however, the discretion is limited and “squeezed” to a sentence of thirty years to life imprisonment. Therefore, the thirty-year sentence imposed against the appellant was on the minimum side under the provision of law. Therefore, despite the appellant's age, there was no other option other than sentencing him according to the law. Thus, the 5th ground is also devoid of merits. In view of the foregoing, both grounds of appeal are devoid of merits and I found no reason to interfere with the findings of the trial 20 court on the guilt of the appellant on the charged offence. Consequently, find no merit in the appeal and I dismiss it. It is so ordered. K. D. MHINA JUDGE 17/02/2025 Court: The right to appeal is fully explained to the parties. K. D. MHINA JUDGE 17/02/2025 21