Magembe Kasule Yeremia

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 000032047 OF 2024 REFERENCE NO. 202411112000032047 (Arising from the Criminal Case No. 000039759 of2023 of the District Court of Bunda at Bunda) MAGEMBE S/O KASULE @ YEREMIA KASULE............................ APPELLANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT JUDGEMENT 02nd & IO® April, 2025 M. L. KOMBA, J.; This is the decision against an appeal by the appellant who was dissatisfied by the decision of the Bunda District 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) of the Penal Code [CAP 16 R.E 2022]. It was stated in the particulars of the offence that on diverse dated of January to December, 2023 at Kung'ombe area within Bunda District in Page 1 of 10 Mara region, appellant had carnal knowledge with his daughter (the victim whose name is withheld) who was 12 years old. Victim who is standard four pupil at Kung'ombe primary school testified that on 02/12/2023 in the evening her father told her to go and collect some firewood, they went together and when they arrived to the place where they planned to collect the said firewood, appellant ordered victim to remove her clothes and he removed his and started to have sexual intercourse till when they were caught with PW4 a sister of the victim who make an alarm. The alarm was respondent by many people including Juma Kwepa (PW3), wife of Juma Kwepa and Jockan (PW2). Appellant was taken to Bunda Police and later on to Manyamanyama hospital for examination where she was attended by Gloria Neema, (PW6) who tendered PF3 which was admitted as Exhibit Pl. Victim was found without hymen. The trial Magistrate found the charge was proved beyond reasonable doubt and sentenced the appellant to 30 years imprisonment. Appellant was aggrieved hence this appeal with eight (8) grounds; that 1. That, the trial court erred in law to apply the legal standard required to establish incest. 2. That, the trial court on prosecution side failed to prove the essential elements of the offence beyond reasonable doubt. Page 2 of 10 3. That, the trial court lacked on credible evidence stabling the relationship between the accused and the alleged victim as defined under the Pena! Code. 4. That, the conviction was based primarily on the testimony of witnesses, the witness testimony was not reliable and was inconsistent. 5. That, the evidence presented was insufficient to support a conviction beyond a reasonable doubt, the credibility of witness testimony was not corroborated. 6. That, the prosecution failed (tacked) to proper identification to prove the issue of DNA evidence and other forensic evidence Unking him to the crime. 7. That, the trial court violating right to a fair trial due to procedural errors, such as improper handling evidence, denial of the right to legal representation. 8. That, the trial court decision admitted pieces of evidence illegally, the evidence was admitted without proper chain ofcustody. When the matter was scheduled for hearing, Republic was represented by Ms. Beatrice Mgumba, State Attorney, while the appellant fended for himself. Appellant prayed this court to adopt his petition of appeal and was ready to hear from the respondent. Ms. Mgumba objected the appeal and started her submission by combined the 1, 2 and 5 grounds that in that case prosecution were supposed to Page 3 of 10 prove two elements; blood relation exists between appellant and the victim and penetration to the victim. She went on submitting that section 158 of Penal Code, Cap 16 prohibit love relationship between relative, be ground daughter, daughter, mother or sister. In the appeal at hand, she said appellant had love relationship with his daughter which is forbidden by law as was testified by PW1 (victim) that on 2/12/2023 his father told her to go and fetch firewood to and when they reached there, he penetrated victim. That evidence is collaborated by PW4 who testified that he saw her father and his daughter who is PW4 young sister having canal knowledge. PW4 in her testimony insisted that appellant is their father. Another witness who prove the existing relationship is PW5 who testified that appellant is his husband and victim was his daughter. However, when all witnesses testified, appellant did not put questions to witness on whether victim was her daughter. Instead, in his defence, appellant said victim was his daughter. Ms. Mgumba prayed me to find prosecution manage to prove that victim is daughter of the appellant. Second, prosecution was supposed to prove if victim was penetrated and that was done by PW4 and PW1. PW1 testified in court what happened and it was PW4 who saw her father and her young sister having canal Page 4 of 10 5 knowledge and she make yowe, (she shouted) and appellant was arrested. In Selemeni Makumba case the Court of Appeal said in offences of this nature the victim is the proper witness. On top of that clinical officer who examined the victim found the victim lost her hymen and the penetration was not once. She maintained that the offence was proved. The 3rd ground about relationship she informed this court to consider submission on the combined ground and that even during his defence, appellant admitted victim was his daughter. On the 4th ground about credibility of the witness she submitted that prosecution had reliable witnesses. However, she noted contradiction on the age of the victim. When the victim said she was 13 years of age, her mother (PW5) testified that victim was 11 years. She went clarifying that in proving the offence of this nature age is not important if the girl is under 18 years and therefore the contradiction does not go to the root of the case and pray this court to find the same. They believe the trial court assed the victim and found was below 18 years. She prays this ground to be found with no merit. Page 5 of10 The issue of DNA and forensic evidence was found of less important as Ms. Mgumba submitted that prosecution had enough evidence to prove the offence as PW4 who is daughter of the appellant, she saw appellant while having canal knowledge with her young sister and some neighbours gathered when they head alarm and managed to arrest the appellant at the scene. Even appellant did not put questions to victim relevant to the case, his cross examination did not shake the prosecution case and therefore she insisted that failure to have DNA report does not exonerate appellant from the offence. Ms. Mgumba was of the submission that ground number 7 is afterthought because appellant informed trial court he will defend under oath and he did not say he will have advocate. In cases of this nature, she clarified that right to legal representation is not automatic, appellant was supposed to ask for assistance from legal aid providers as it is provided under section 33 (1) of Legal Aid Act Cap 21 RE 2019. And in Makenji Kamura vs Republic Criminal Appeal No. 30 of 2018 at page 7 and 8 right to legal representation was discussed and, in that case, appellant did not make effort to engage advocate and the Court make a position that legal representation is not automatic right. On 8th ground about chain of Page 6 of 10 custody, State Attorney clarified that the only exhibit was PF3 which was tendered by PW6 who was a clinical officer and was the one who examined the victim. Witness managed to lay foundation of the exhibit before he tendered in court and appellant did not object tendering of the said exhibit and was read in court as required. She prayed me to find this ground is with less merit. She finally submitted that prosecution had credible witnesses whose testimony prove the offence against appellant and prayed this court to uphold conviction. When given time for rejoinder, appellant informed this court that he has 7 children and 3 more children of my sister who is dead whom is taking care of and is bread earner to that big family so he prayed for acquittal. I have the duty of deciding whether the appeal has merit by analysing grounds of appeal as listed in petition of appeal. The legal position about proving the case was rightly stressed by the Court of Appeal of Tanzania 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 of law that the burden of proof in criminal cases rest squarely on the shoulders of the prosecution side unless the law Page 7 of 10 otherwise directs and that the accused has no duty of proving his innocence'. Generally, the appellant is complaining that the offence charged was not proved to the required standard which is beyond reasonable doubts. I shall analyse grounds of appeal serially as submitted by State Attorney. 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. In the combined grounds 1, 2, 3 and 5 appellant complained of the proving the offence beyond reasonable doubt. Reading the testimony of prosecution witness, I found PW1 explained how she was asked to go and collect fire wood but when they reached the place his father ordered her to undress and he has canal knowledge. The two were found with PW4 who informed the trial court she saw her father(appellant) having canal knowledge with her young sister(victim) and when she saw them, she make an alarm. The same was testified by the victim that her sister (PW4) found them in fragrante delicto and make an alarm which was responded by PW3 who found victim and PW4 at the scene while appellant was moving towards his home but he was stopped. PW3 asked appellant Page S of 10 why he moves while his children were making an alarm. The testimony of PW3 collaborates what was testified PW4 that she went to the farm and found their father with victim as all three were found by PW3. Apart from the testimony of the victim, the offence was witnessed by an eye witness. I subscribe to the principle annunciated in Selemani Makumba vs Republic, (supra) which is relevant to the case at hand. About relation, PW1, PW4 and PW5 testified that appellant is father of the victim and therefore I find the offence was proved to the required standard. At the 4th ground appellant is complaining of contradictions. PW5 and PW1 differ on the age of the victim, and the age when proved dictates the punishment. Considering the age of PW4 who is the sister of the victim when testified was 16 years, simple calculations suggest a young sister cannot have more years than elder one and therefore this court found the victim was below 18. However, the contradiction did not go to the root as major ingredient is existing relationship. So far as the offence was committed on open space and PW4 explained during trial that it was daytime means she managed to see clear and she know both appellant and victim so she recognized them. I find there was no need of DNA as Page 9 of 10 appellant was identified at the scene with three witnesses (PW1, PW3 and PW4). As submitted by State Attorney on ground number 7 legal service to appellant was not automatic, he was supposed to hire on his owned or request for service from legal aid providers just submitted by State Attorney. I subscribe to the position in Makenji Kamura vs Republic (supra). So far as he did not request for assistance of the trial court during his trial, he cannot complain at the appeal that he was denied legal representation. The only exhibit in this case did not exchange hands form its maker, clinical officer (PW6) was the maker and was the one who tendered exhibit during trial, there is no irregularity found regarding exhibit which was PF3. Generally, I find the appeal with less merit and I hereby dismiss it. DATED at MUSOMA this 10th day of April, 2025 Mk M. L. KOMBA JUDGE Page 10 of 10