JUDGEMENT RAFAEL NOAH

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA DC. CRIMINAL APPEAL NO. 000007445 OF 2024 RAFAEL S/O NOAH .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT JUDGMENT RWIZILE, J This appeal arises from the decision of District Court of Uvinza, in Criminal Case No. 69 of 2023. The appellant was arraigned on the charge of rape contrary to section 130(1) and 131(2) of the Penal Code [Cap 16 R.E 2022]. He was found guilty, convicted and sentenced to 30 years imprisonment. It was alleged before the trial court that on 10th May 2023 at around 2100hours at Nyange village in Uvinza district, the appellant went to the victim’s home. She asked the victim, a girl of 10 years to escort him to the neighbourhood in order to assist him call a girl who he had developed interest on. Unfortunately, the girl in target did not accept the call. When the mission nipped in the bad, the appellant and the victim came back. On the way back home, it is alleged, the appellant forced her into the bushes around and had sexual intercourse with her. When his sexual thirsty was quenched, he left her in grief and anguishing. The victim pulled herself home and reported to her parents. The appellant was arrested and then arraigned. Before the trial court, he denied the charges. The prosecution called therein 6 witnesses who proved to the trial court that the offence was committed by the appellant. He was convicted and accordingly sentenced to a statutory minimum sentence of 30 years, the conviction and sentence he is now appealing against. He has advanced three grounds of appeal 1. That, the trial resident magistrate erred in law and facts in convicting the appellant without considering there was no cogent evidence adduced by the prosecution side which has not proved the charge beyond any reasonable doubt. 2. That, the trial resident magistrate erred in law and in procedure in convicting the appellant without showing under which law or provision of law the appellant was so convicted. This procedural irregularity is fatal; hence there is miscarriage of justice. Page. 1 Hon. AUGUSTINE RWIZILE 3. That, the trial magistrate erred in law and fact in disregarding the appellant’s defence case and on failure to consider the principle that the appellant cannot be convicted based on the weakness of his/her defence but on the strength of the prosecution evidence adduced and proved against the Appellant. At the hearing, the appellant appeared in person. The respondent was under the services of Ms Rehema Mpozemenya learned State Attorney. In his oral argument before me, the appellant submitted on each ground, though briefly that; the offence was alleged committed at 2100hrs as stated in the judgement. But Pw3 said, he came from where she was, and found blood in the victim's pants. It means therefore, the appellant who was arrested at about 8.45 pm, was arrested before the offence was committed. On the second ground, he argued that conviction and sentence of 30 years were not grounded on the law since it was not cited. He did not specify which law. It was therefore against the law, the appellant added. When arguing the 3rd ground, it was the view of the appellant that the PF3 and sketch plan of the crime scene are not the true evidence of rape. The mattress and bed shirts that were alleged found in a pool of blood, were not brought to prove the case. It was his prayer therefore, that this case was not proved beyond doubt. I was asked to allow this appeal. Ms Mpozemenya for the Republic contested the appeal by arguing the 1st and 3rd grounds together, she said the charge was proved beyond reasonable doubt since four things were considered; - penetration, no consent, victim was underage, and it was proved that the appellant is the one who raped the victim. She submitted that Pw4 told the court that on 10th May 2023 at the evening hours the appellant came to collect the victim from her sister and they both went to call a girl. On the way back home, it is when the appellant pushed the victim in the bush, raped her while covering her mouth to prevent her from shouting. After the incident, the appellant left the scene leaving the victim bleeding, the victim dressed and went home to meet Pw3. She submitted that the appellant was named by the victim early, as held in the case of Ahmed Said vs R, Criminal Appeal No 291 of 2015. The same evidence, it was argued was corroborated by Pw3, who said that it is the appellant who left with the victim from home, on return, it is when she, the victim, was found bleeding. Pw3 said she was told by the victim that it is the appellant who raped her. The evidence of the victim was supported by that of Pw1 who examined the victim and found that she was penetrated by a blunt object. It was submitted further that the appellant is 10 years old, therefore she is a child. Deal with the second ground, it was submitted that, section 312(2) of the CPA provides that when a person is convicted, it should be state under which law the punishment was imposed. She added, the trial court complied and no fault on that provision. The appellant made a brief rejoinder that the victim said she was bleeding, the same was not reflected in the sketch map. He added, the victim was taken to the dispensary on a bicycle, yet she testified to leave the scene on foot, he also doubts that if rape occurred in the forest why not seen by people. He also said that the witnesses of the victim were neighbors and relatives. It was his blame that no identification parade was conducted. Page. 2 Hon. AUGUSTINE RWIZILE Having considering submissions of the parties and the trial court record, there no evidence by Pw3 stating that the appellant was arrested at 0845 hours. It is clear therefore the appellant got it wrong. It may perhaps be due to inadvertence, or he so designed to mislead this court. There is a conflict of the evidence of the prosecution that suggests time of arrest was different. In the evidence, as it is in the charge sheet, the appellant was alleged to have committed the offence at 2100hrs on 10th May 2023. Pw3 under cross-examination said, the victim returned home in darkness at around 2000hrs which is indeed in conflict with the charge. But Pw5, a village leader said, he received the report of the incidence through phone call at around 2120hrs. In my view, it is an error, curable under slip rule. It may either be the trial court or the witness. It is so because when the rest of the evidence is taken together, there is no suggestion that there is a possibility for the offence to have been committed anything before the stated time in the charge sheet. That is why perhaps Pw5 said, he was informed 20minutes after the alleged time for commission of an offence. Further, the evidence of Pw5 cements the finding. He said, as he arrived, he found the appellant surrounded by people who were livid, with stones in a bid to destroy the appellant. He made an intervention and remanded the appellant. He later called the police at about 2300hrs. For all intents and purposes, the court does not expect all witnesses to memorize each and everything and testify in the similar way in all material terms. All what is important is to consider, if the error is minor or goes to the root of the case. With respect to the appellant, I do not think, this is such an error. Therefore, this ground has no merit. On the second ground it is true that the trial magistrate did not state under which provision of the law the appellant was convicted. This is indeed wrong. It is time the trial court becomes smart enough to state the law upon which the person was so convicted. The effect of failure to adhere to the same is in contravention of section 235 of CPA. That is, the trial court ought to specify the offence charged or rather hold that he was convicted as charged. This is important because, at times, the court may convict an accused of some other offences though not charged with them as in instances falling under sections 300, 301 and in this case section 304 of CPA. But in the case of Abiola Mohamed @ Simba vs The Republic, (CAT), Criminal Appeal No. 291 of 2017 on page 18, faced with the similar issue, the Court Appeal held that; - “The appellant as stated above was well aware from the particulars of the offence, the nature of the offence he stood charged and its gravity. More so, the trial magistrate at the time of conviction stated clearly the offence upon which the appellant was convicted. We do not find that the appellant was ostensibly prejudiced by the failure to state the law...” In this case, the trial magistrate state in a number of times, the gist of the offence, for instance on page 4 of the judgment, raised an issue in respect of the offence charged. I have no doubt, the appellant was not prejudiced and therefore, this ground lacks merit as well. Dealing with the third ground that the offence was not proved. The appellant was alleged to rape a child of 10 years, the offence commonly known as statutory rape where the consent is not material. The ingredients of the said Page. 3 Hon. AUGUSTINE RWIZILE offence are also stated in the case of Robert Sanganya vs. The Republic, (CAT), Criminal Appeal No. 363 of 2019, at pages 12 that: - “… a man commits statutory rape when he has sexual intercourse with a girl under 18 years, with or without her consent.” From the above, in order for the offence to be proved, two ingredients must be met. First, a sexual act, and second age of the victim. From the record, it is not disputed that the victim was raped. Pw1, a clinical officer signifies that the victim was really raped. Even the victim herself, testified to that effect. Her evidence also was supported by Pw2 and Pw3, who said the victim was raped, and it was not disputed to the extent that this court could believe that the appellant was not raped. On her age, I found no doubt, it was proved by the victim herself and her mother, Pw2. They both testified, the age of the appellant to be 10 years as she was born on 13rd March 2013. It was not disputed, and I found no reason to disbelieve their testimony, it is within the ambit of who can prove the age of the victim. Proof of age was stated in the case of Leonard Sakata vs The Director of Public Prosecutions, (CAT), Criminal Appeal No. 235 of 2019 on pages 13-14; "With respect, whilst there may be other ways of proving age such as by evidence given by the victim, relative, parent, medical practitioner or where available by production of a birth certificate, like any other fact age may be deduced from the evidence availed to the court.” From the above, it befits the circumstances in the case before this court. The age of the victim was proved to be below 18 years. In actual fact, the child was of tender age. It is not even at the borderline between underage and the age of majority where confusion and deception on the victim's age may be attempted. But there is no way, one may stage a case that a child of 10 years may look 18 or so. Having proved the above ingredients, the next issue is whether it is the appellant who raped the victim. The evidence of the prosecution side specifically of the victim, Pw4, is to the effect that it is the appellant who left with her from home. The victim came back alone bleeding saying, she was raped. The evidence of the victim is supported by that of Pw3 who said, the appellant left home with the victim, and later the victim was found raped. In sexual offences, the best evidence comes from the victim, in terms of section 127(6) of the Evidence Act, and in support, is the case of John Mgema @ Sabago v. the republic, (CAT),criminal appeal No. 601 of 2017 on page 9: - “We are further abreast with the settled principle that the best evidence in sexual offences is the one which comes from the victim” I have no reason to doubt the evidence of the victim since the trial court did not do so upon seeing her and examining her expressions. There is enough evidence proving the charge even though it was from the relatives and neighbors, since there is no law which prohibits relatives and neighbors to testify, provided, they are telling nothing but the truth, and their story is in the cause of doing thing, see the case of Godfrey Gabinus @ Ndimba & Page. 4 Hon. AUGUSTINE RWIZILE 2 Others vs The Republic, (CAT), Criminal Appeal No. 273 of 2017 at pages 12-13. I find no merit in this ground as well. Lastly, it is not true the trial court did not evaluate the evidence of the appellant. On pages 5 to 6 of the judgement, an effort was made to deal with his defence. On all fours, the trial court did not convict based on the weakness of the defence, but that the defence had weak evidence, which did not cast doubt in a well-founded prosecution case. In the circumstances, I accordingly dismiss the appeal. Dated at KIGOMA this 28th of February 2025 . A. K RWIZILE JUDGE OF THE HIGH COURT Page. 5 Hon. AUGUSTINE RWIZILE