Msafiri Moris Nyakutwi

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 000029588 OF 2024 REFERENCE NO. 202410162000029588 (Arising from the Criminal Case No. 87 of2023 of the Resident Magistrate Court of Musoma) MSAFIRI MORIS NYAKUTWI........................ APPELLANT VERSUS THE REPUBLIC ...................................................................... RESPONDENT JUDGEMENT 18111 December 2024 & 07th February 2025 M, L KO MBA, J.: This is the decision against an appeal by the appellant who was dissatisfied by the decision of the Resident Magistrate Court (the trial court) where the trial Magistrate convicted the appellant and sentenced to thirty (30) years imprisonment for the offence of incest by male contrary to Section 158 (1) (a) and the offence of unnatural offence contrary to section 154 (1) (a) and (2) both of the Penal Code [CAP 16 R.E 2022]. Page 1 of 14 It was stated in the particulars of the offence that pn diverse dated of June and July, 2023 at Makoko Ziwani area vvithin Musoma Municipality in Mara region, appellant had sexual intercourse and carnal knowledge against the order on nature to his daughter (name withheld) who was 07 years old (victim). Victim is a primary school girl who was noted at school that she had ■ ■ t : । • bad smell. After a thorough inspection she was found not normal and upon r: ■; I ; interrogated by health teacher, the victim said she was raped by her father. ‘ r n ' i .: '■ . " ' Ji the matter was reported to police who then on 17/08/2023 took the victim to Musoma Regional Hospital for examination. As appellant pleaded not guilty 'if - > ' ! ■ ' the matter went to full trial. Prosecution had five (5) witnesses and one (1) exhibit to prove their case, in which the trial Magistrate found both counts were proved beyond reasonable doubt and sentenced the appellant to 30 years. Appellant was aggrieved hence this appeal with five (5) grounds; that i ■ ■ 1. That the trial court erred in law for convicting and sentencing the appellant basing on die weak and incredible evidence of the prosecution as the prosecutidn failed to call the important witnesses. 2. That the trial court erred in law and fact for basing on the Inconsistent and contradictory evidence hence failure to make evaluation and analysis of the evidence produced by the prosecution. Page 2 of 14 3. That the trial court erred in law and facts to convict the appellant without taking Into account the mitigation facts adduced by the appellant. 4. That die trial court erred in law to convict and sentence the appellant by laid on the defective charge sheet which was not supported by the evidence on record. 5. That its trite law in'criminal law that the charge must be proved beyond the reasonable doubt. Hence the trial court erred in law and facts to convict the appellant while the charge was not proved beyond reasonable doubt that the appellant committed the offence of incest by male. . When the matter was scheduled for hearing, Republic was represented by Ms. Beatrice Mgumba, State Attorney, while the appellant fended for himself. Upon oral application by the appellant, the matter was heard by way of written submission. Both parties adhered to filing schedule, and I thank them as facilitate this court to deliver judgment as scheduled. In his submission, appellant expressed that he was dissatisfied by the decision of the trial court and opted to utilize section 359 of the Criminal Procedure Code, Cap 20 RE 2022. Submitting for the 1st ground he was of the position that investigator of the case was supposed to be summoned as witness so that he can testify the whole scenario of his investigation. He Page 3 of 14 went on submitting that all prosecution witnesses did not prove that it was i 1 the appellant who penetrated to the victipi while challenging the findings of PW1 that vagina was wide and there was penetration but it was not proved i that it was appellant who commit that crime. He complained that prosecution ►J 1 i ' depend on victim testimony and trial court was convinced to the victim I t ■ ; I testimony without collaboration contrary to what was decided in Uwezo Zimbwe vs Republic, Criminal Appeal No 49 of 2021. He went on submitting on the second ground that prosecution testimony was inconsistent and contradictory; Apart from the truth that there was no eye witness than victim herself, he complained on the inconsistence on the date of commission of the offence. When PW3 said it was between June and July 2023 while PW1 received a patient on 17/8/2023 one month later. According to him that was cooked and planned evidence as prosecution failed to establish time, day and date when the crime was committed and supplied the decision in Dotto Ikongo vs Republic Criminal Appeal No. 9 of 2005. Appellant further complained that mitigation factor was not considered and the trial court sentenced him 30 years which to him was high punishment. On the 4th ground he submitted that the trial court errored to convict Page 4 of 14 appellant basing on defective charge sheet which was not supported on evidence on record. He went on elaborated that the charge had two counts; incest by male and unnatural offence but none of witness testified on unnatural offence. To him charge sheet did not comply with section 132 and 133 of Cap 20 and statement of offence match with section 130 (1) and (2) (b) and 131 (1) of the penal code which is about sexual intercourse without consent. Appellant complained of the proving the charge beyond reasonable doubt in the 6th ground. He submitted that the trial court errored in law to convict the appellant while it was not proved that appellant committed the offence of incest by male. He prayed this court to allow his appeal. Respondent submitted on the first ground that prosecution called five witnesses and they have proved all what was needed to be proved in court. Basing on the decision in Goodluck Kyando, 2006 TLR 363 Ms. Beatrice submitted that failure of the prosecution to call investigator did not make the case against the appellant not to be proven to the required standard. Submitting on the second ground she insisted that there was no inconsistence because it is the fact that crime was committed between June Page 5 of 14 and July in the year 2023 and it was on 11/8/2023 when the class teacher, PW4 noted bad smell from the body of the victim and it was when the offence * i * * 1 ' J 1 was revealed by the victim. She confirmed that that it was on 17/8/2023 when victim was examined and was discovered that she was raped and lost hymen and insisted there was no inconsistency. She cited the decision in 1 Mohamed Said Matula vs Republic, 1995 TLR. 3 that it is the duty of the ■ •’ > .jl ' ' : court to decide whether contradiction goes to the root of the matter. On the third ground State Attorney submitted that the mitigation factor was considered and refer me to page 8 of the judgment that the trial Magistrate considered mitigation of the appellant. It was her position that court record <* 1 'I ’■ t is sanctity document and cannot easily be impeached as it depicts what ' k r * exactly transpired in the of the day as was in Halfan sudi vs Abieza Chichili 1998 TLR 527. State Attorney went on submitting on the 4th ground about defective charge sheet which was not proved beyond reasonable doubt. She narrated that the appellant was charged with the offence of incest by male and unnatural offence contrary to section 158 (1) (a) and 154(1) ((a) and (2) of the Penal code respectively, and he was convicted of the offence of incest by male as PW1 report revealed that the victim vagina was wide open hence prove Page 6 of 14 penetration on victims' vagina. She admitted that report proved nothing on sphincter hence the offence of unnatural sexual intercourse was not proved. However, she insisted that failure to prove unnatural offence does not mean that incest by male was not proved while the available evidence show that the appellant had sexual intercourse with his daughter. Ms. Mgumba went on submitting that in order to prove the offence of incest by male, prosecution ought to prove penetration and relationship. She went on submitting that penetration was proved by the victim who narrated how she was approached by the appellant and was ordered to undress when she refused, appellant undressed the victim and had sexual intercourse, victim was beaten when she shouted. She prayed this court to believe the victim as was decided in the case of Selamani Makumba vs Republic 2006 TLR 376. She insisted that the evidence was collaborate by PW1 who is medical practitioner that the victim vagina was wide open. About relationship both victim and appellant testified that they are father and daughter hence section 158 (1) of Cap 16 was contravened as father is prohibited to have sexual relationship with his daughter. She insisted that prosecution managed to prove the case beyond reasonable doubt and all grounds of appeal lacks merit, she urge me to dismiss the appeal. Page 7 of 14 Appellant did not file rejoinder although he was allowed to do so in the filling order. ' '' I have the task of deciding whether the appeal has merit by analysing 'I \ ■ grounds of appeal as fronted by the appellant. The legal position about - < J-’! proving the case was rightly stressed by the Court of Appeal of Tanzania I I 1 , . . when dealing with an appeal before it, in the case of Nkanga Daudi vs Republic, Criminal Appeal No.316 of 2013 when they say; 'It is the principle oflaw that the burden ofproofin criminal cases rest squarely on the shoulders of the prosecution side unless the law T'Jt * 1 T" otherwise directs and that the accused has no duty of proving his r ! z 1 * innocence. Generally, the appellant is complaining that the offence charged was not 1 proved to the required standard which js beyond reasonable doubts. He attacks charge sheet and the testimony. On the charge sheet, he complained that he was charged with incest by male and unnatural offence but charge sheet did hot comply with section 132 and I 133 of Cap 20 and statement of offence match with section 130 (1) and (2) (b) and 131 (1) of the penal code which is about sexual intercourse without consent. I read charge sheet and found the appellant was charged under section 158 (1) (a) and 154(1) (a) and (2) of the Penal Code respectively Page 8 of 14 just as submitted by State Attorney and the offence under section 154 was not proved hence as per judgment uttered on 30th November 2023 appellant was convicted on only one offence of incest by male. I find the offence convicted with is found in charge sheet. Let us now analyse if the offence was proved beyond reasonable doubt so as to sustain conviction. PW1 is medical practitioner who attended the victim and tendered Exhibit Pl. In his finding he testified that the victim vagina was open and she lost hymen. About un natural offence he found the body was intact. PW2 was living with accused and victim. She informed the trial court that around July 2023 she went on safari and leave victim at home who was sleeping to Nyamubilingi. To her surprise, she was called at school and was informed by teachers that the victim was raped by her father, statement which was confirmed by the victim who added that she was afraid to inform that grammy. PW2 did not testify on bad smell although she was living with the victim. The smell from the victim according to PW4, was all over the class. Page 9 of 14 PW4 testified that there was bad smell in class and it was from the victim. PW5 testified that 11/8/2023 she was handled two pupils by PW4 and one of the pupil was victim. She had bad smell, yvhen PW5 wanted to check her status, a girl run away and was assisted by fellow pupils to bring back the to the teacher. According to PW5 the victim had whitish discharge and so she ordered her to go home and take bath. When she returns from home (after bath) she interrogated her and mentioned her father to have been raping her when grandmother was in safari. Grandmother was called and was h ' informed of the incident. PW5 went on testify that victim was hot walking properly and she (PW5) was !• 1 ’•! ' forced to escort her home as she. had difficulties in walking. What I managed !! * J to gain form PW5 testimony is that, victim was walking properly while under escort of the class teacher but the difficulty in walking was experienced when 'i - । she said he was raped by her father. Why am I say so it is because PW5 r .i J n ; testified that victim run away when she (PW5) wanted to check why she was smelling bad. If victim managed to run away that means she was able to walk. That being not enough, PW5 said she ordered victim to go and take bath. At 1 ! that time victim went home alone, without difficulties but latter when she Page 10 of 14 informed her grammy that victim was raped by her father, it was when victim walks in difficult to the extent of being escorted. She testified that unnatural offence was noticed even by eyes but PW1 testified there was sign of unnatural offence. The Court once ruled that witness who tell a lie on one material point should hardly be believed in rest of points. See Mohamed Said vs The Republic, Criminal Appeal No. 145 of 2017 and Zakaria Jackson Magayo vs The Republic, Criminal Appeal No. 411 of 2018. In her testimony, the victim informed the trial court that she was raped by her father when grandmother was in safari. That was between June and July 2023 when school was closed. She went on testified that one the second time her father had sexual intercourse against order of nature. The point here is that, the crime was committed when the school was closed. However, PW4 testified that attendance of the victim was not good as she was going to school one day per week or two dayis but she was riot going to school the whole week. A reasonable man may ask when was that crime committed, was it during holiday or when the school was in operation. Victim went on testified that the day she had sexual intercourse against order of nature, his father slept with her till morning and she went to school. When cross examined by the appellant, victim testified that schools were closed. Page 11 of 14 But latter on, victim testified that she was un able to go to school because r! ! [ - . she was feeling pain. Which school was that. Worse enough, she informed the trial court that she practiced sexual intercourse against order of nature but when she was medically examined, j ' ’■.<? * ' ‘ her private part was found intact. Was the victim telling truth?. Was she . ’■ r!i r unable to walk? Was it during school holiday or the school was in operation. Was there bad smell to the extent the whole class experience that kind of smell which was not noticed by grandmother at home? r f CriminalI Appeal No. 145 of 2017 the In Mohamed Said vs Republic, ! ! j Ip.' Court stated: We think it was never intended that the word of the victim of the 1 f sexual offence should be taken as gospel truth but that her or his testimony shouldpass 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 punish offenders only in deserving cases.' Further in Juma Antoni vs. Republic, Criminal Appeal NO. 571 of 2020 the court further said; Page 12 of 14 'where the only evidence is that of the victim or a witness of tender age the court is required to receive such evidence notwithstanding that it is not corroborated. However, the court is cautioned not to act on such evidence to convict an accused person, unless it assesses the credibility of the victim's account or of the witness of tender age and satisfy itself that such evidence is truthful.' The above cited case insists on the basement of the credibility of the victim testimony and satisfy itself the victim was telling truth. The testimony of the victim in the case at hand creates doubt if she was telling truth as was analysed, she was inconsistent. Being the first appellate court, this court had advantage of analysing the entire evidence and come up with its finding. See. The Registered Trustees of Joy in The Harvest vs Hamza K. Sungura, Civil Appeal No. 149 of 2017. I subscribe to the principle annunciated in Selemani Makumba vs Republic, Criminal Appeal No. 94 of 1999; however, the circumstance of this case shows the victim was not telling truth and therefore, I find the prosecution failed to prove the case beyond reasonable doubt that it was the appellant who raped the victim. The doubts pointed has to benefit the appellant. See Halfan Ismail @ Mtepela vs Republic, Criminal Appeal No. 38 of 2019. Page 13 of 14 In the upshot I find the appeal has merit, I hereby order immediate release of the appellant from prison unless he is lawful detained. DATED at MUSOMA this 07th day of February, 2025. M. L. KOMBA JUDGE Judgment delivered in the presence of appellant who was present in person while the respondent was represented by Ms. Damary Nyange. Right of appeal explained. M. L. KOMBA Judge 07 February, 2025 Page 14 of 14