Subiri Andson

The Judiciary of Tanzania IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SHINYANGA CRIMINAL APPEAL CASE REFERENCE NO. 202412272000035909 SUBIRI ANDSON MBWAMA ……………………........................................ APPELLANT Versus REPUBLIC……..……………………………………………………………...… RESPONDENT (Originating from the Decision of the District Court of Itilima at Itilima) (Hon. R. P. Kaanwa - SRM) Dated the 29th November 2024 in Criminal Case No. 000028803 /2024 ----------------------------- JUDGMENT 3rd & 10th March, 2025. F.H. MAHIMBALI, J. The appellant Subiri Andson was in the District Court of Itilima at Itilima charged with one offence rape contrary to sections 130 (1) (2) (e) and 131 of the Penal Code Cap 16 R.E. 2002. The particulars of rape alleged that Subiri s/o Andson Mbwama on 7th day of October 2024 at Nguno village within Itilima District in Simiyu region, did have sexual intercourse with one 1 XL (pseudo name) a girl aged 17 years old. He denied the charge, thus the prosecution paraded a total of six prosecution witnesses. It is the prosecution evidence that the victim girl who is 17 years old, was a form three student at Nguno Secondary School in Itilima District in which the appellant (DW1), was the teacher. That on her way to center (Lagangabilili) to meet her friend on the evening of 7th October 2024, she passed through her school premises just to cover herself from rain in which had just started showering, the sooner she reached area. In the course of covering from rain along one corridor of the school’s building, shortly, came out the appellant, who started seducing her that he was in love to and that once she completes her studies, she would be married. While puzzled by her teacher’s seducing words, she was headed to his teacher’s room by being pulled her hand, where there in, the appellant after pushing much his love agenda, undressed her and eventually himself and ordered her to lay back down on the matraced bed, where the appellant came on top of, and did sexual intercourse by taking out his penis and inserted into her vagina where shortly the appellant screamed to ejaculation and poured all the sperms into her vagina. She felt pain. Shortly, she heard the door knock, where then her sibling (PW4) entered in, called out, people gathered and eventually were 2 both arrested and taken to Police. She was later examined by PW2 who established the fact of being carnally known following the victim girl being found with fresh spermazoa and that her hymen off (exhibit P1). The story of being headed/heading into the room of the appellant seemed to be well witnessed by PW3 and PW4. Whereas the PW3 testified to have seen the victim girl (he knows much) heading to the said school building and that even PW4 who had just met the PW3 witnessed the said entry of a girl into that room, PW3 broke the news that it was PW4’s own sister – XL. They jointly went to the appellant’s room, knocked the door and introduced themselves who they were and that they guarded the room against the appellant’s escape. PW4 then informed his father who eventually came, reported the matter to police and then arrest of the appellant was done. On this fact of arrest of the appellant being with the victim girl at school premises (appellant’s room), and that he is a teacher of that school, has been sufficiently corroborated by PW5 (Headmaster of the school) that while he was at Lagangabilili center, he got a message from the appellant’s own mobile phone number that, “Mkuu nimekamatwa njoo”. He went to the scene 3 and met many people and ultimately reported at Itilima police station for further assistance. On her part, PW.6 a police woman testified that, after she had been assigned a police case file for investigation, she interviewed both the appellant and witnesses of the incident, and collected exhibits, she eventually got satisfied that the offence of rape was committed by the appellant. On his sworn defence, the appellant kept on denying his involvement of the alleged rape despite the fact that he admitted the said victim girl to have been seen with in his room. Challenging the victim’s girl age if really was below 17 years old, the appellant in his defense apart from denying the charged offence, tendered exhibit D1, victim’s own statement in which as it was not neat; to him suggested that her age being contradictory to the one in the charge sheet particularizing her being below 18 years old but being of 18 years old at the time of the alleged offence. Just on consideration of the prosecution’s evidence gathered from the witnesses of the said case, the trial court convicted the appellant having 4 been satisfied beyond reasonable doubt that the offence of rape was committed and that the appellant is the one responsible, and thus, accordingly sentenced him to 30 years’ jail imprisonment. The appellant is dissatisfied with the said trial court’s findings of guilty, conviction and ultimate sentence of 30 years imposed thereon. He has appealed to this court armed with a total of five grounds, namely: 1. That: the Trial Court erred in law and facts by convicting the appellant by relying on the prosecution evidence which leaves and raised serious doubts. 2. That: the trial Court erred in law and facts by believing the evidence adduced by the Victim and Clinical Officer while lacking credibility on the eyes of the law. 3. That: The trial Court erred in law and facts for failure to analyses, evaluate and determine properly the evidence adduced at the trial. 4. That: the trial Court erred in law and facts for failure to adhere the fair trial principle to the appellant for being bias during the trial. 5. That the trial court erred in law and facts by failure to consider the evidence of the appellant together with its exhibit DW1 which creates a contradiction of the age of the victim. 5 During the hearing of the appeal, the appellant was represented by Mr. Masunga, learned advocate whereas the Respondent Republic, was represented by Mr. Kadata, learned state attorney who resisted the appeal. In arguing the grounds of appeal, the first and the fifth added ground of appeal were planned to be jointly argued. With, the first ground of appeal enjoined with the fifth ground of appeal, the appellant’s grief is, the prosecution had not established its case beyond reasonable doubt as per law and that it is the duty of the court to consider the evidence of both parties. It is only upon looking at both evidence, there must be reasons as to why one side’s evidence is accepted against the other party’s evidence. In bolstering his argument, Mr. Masunga cited the case of James Peter V. Republic, Criminal Appeal No. 73 of 2020, HC at Dsm Registry (pages 5 -7) and the case of Sadick Kitime V. Republic, Criminal Appeal No. 483 of 2016 CAT at Iringa (see pages 9 to 13). Thus, not considering the defense testimony is fatal, and conviction arising there from cannot stand as it vitiates the conviction. Looking at the impugned judgment, after the trial court had summarized the case's evidence, he averred that there is nowhere in the said judgment that the defense testimony was considered in reaching that verdict. In his considered view, the trial magistrate had completely not 6 considered the defense testimony of DW1 and his exhibit D1 in which the age of the victim suggests being altered. The same is not stated anywhere in the said judgment in relation to defense testimony. As it creates doubt of the age of the victim, the trial magistrate ought to have given a look on that. In his considered view, the said victim, had already attained the age of majority (18 yrs). Since the said Exhibit D1 has a warning key, that any alteration therein must be dully signed, but the said exhibit D1 had not complied with it. Therefore, failure by the court to consider the defense testimony not only vitiates the conviction, but greatly affected the reasonable doubt, valuable as it was. As to the second ground of appeal, the grief is, there was no any credibility of the PW1 and the clinical officer (PW2). He clarified that credibility of a witness is measured by two ways: Consistency of his/her own testimony and secondly by considering his/her evidence together with other witnesses ( Raphael Mhando V. Rep, Criminal Appeal no. 54 of 2017, CAT at Tanga - at pages 6-7). As per page 4 of the impugned proceedings, PW1's testimony is in inconsistency with other prosecution's testimony. He submitted that, in her testimony, PW1 stated that she had been taken to dispensary and later to Nguno Hospital, but PW2's testimony is to the effect 7 that the witness is from Lagangabilili. It is not clear as to why from dispensary, she went to Nguno Hospital. It is not stated as to when they had been at Lagangbilili dispensary and later to Nguno Hospital. Also PW1 had stated that she was induced, but with D1 exhibit, it states that she had been pulled inside by force. As per section 164 (1) (c) of the TEA, the credibility of a witness can be assessed by comparing it with one's former statement. That a witnesses' version can be subjected to scrutiny if the same offers various stories. Even the PW2's testimony is clear that in his examination, had not discovered anything until when she had used microscope device, is when he established that those fluids in the vagina had sperm structure. But when examined as to how long sperms do exists into the vagina, he stated up to 72hrs. That notwithstanding, the PW2 had not stated how old the said sperms found into PW1's vagina had lived. Since that testimony is lacking and in consideration of the fact that the said witness kept on moving from one place to another, it was possible that there might have been someone else (male person). Thus, it was not safe for the trial court to enter conviction against the appellant as done in such doubts. With the third ground of appeal, he submitted that, the trial court had not properly analyzed, assessed and evaluated the facts of the case as 8 per evidence in record. Had the trial court properly evaluated the evidence in record, he is confident that wouldn't have arrived at the proper verdict other than the one entered. As per evidence of PW1, immediately after they had been in, then the inner door was knocked from outside, it was absurd that the said PW1 did not name them and that the said persons were in demand of money. He kept on insisting that as per digest of PW3 and PW4's evidence, it is them who knocked the said door. Similarly, PW5's testimony is clear that these siblings needed money (8,000,000/=). Thus, if there was a real rape, why negotiations. A further reading of this testimony (PW5), is clear that there were many people at the scene where others had even mixed the appellant with the Headmaster. It is thus clear that, the PW5's testimony that they were plotted to arrest the appellant. Therefore, had the trial magistrate directed his minds well in connection of this evidence, he is also confident that, would have arrived at very different verdict. Furthermore, he argued that the conduct of PW1, PW3 and PW4 make their evidence being very questionable. Imagine a form 3 girl, that immediately after rain had started showering, she escaped to the School corridor. Suddenly, PW4 (victim's brother) resurfaced, and that they made an immediate call to the PW1's father. 9 Lastly, with the fourth ground, that the trial court had failed to observe the fair trial principle, thus was prejudiced, he submitted that, basing on the reflection of the trial court's proceedings (at page 19 and 20), there was a P.O filed, but the proceedings do not establish the determination of the said matter. However, there is a ruling about it. To him, the trial magistrate just from the beginning, seemed not to be interested with hearing the appellant's concerns in anyhow. With all this submission, he humbly prayed that this appeal be allowed, conviction be quashed and sentence be set aside. And in lieu thereof, the appellant be set at liberty or any other remedy as the court may deem fit and just to grant as per circumstances of this case. In resisting the appeal, Mr. Kadata submitted as follows: with the first ground of appeal which is enjoined with the fifth ground, he conceded with the appellant's counsel that in the impugned judgment, there was no good consideration of the defense testimony and its exhibit. He also admitted that, none compliance to it, is fatal to conviction, as stated in the case of Oscar Justinian Burugu V. Republic, Criminal Appeal No. 33 of 2017. However, in the case of Ngaru Joseph and Another V. Republic, 10 Criminal Appeal 172 of 2019, the High Court in this matter being the first appellate court, he implored that, has the legal obligation of stepping into the shoes of the trial court and evaluate the evidence by itself. Thus, on this concession, he humbly prayed that this Court to step into the shoes of the trial court, and re-appraise the evidence thereof, and come up with its own findings as it deems fit and proper to rule. As regards to the issue of contradictions as raised, Mr. Kadata humbly urged this court not to consider the alleged contradiction, as the age of the victim has been well stated. On the issue of age, two witnesses: PW1 and PW2 had stated it all by establishing that she was 17 years being born on 11th December 2006. Even PW2 also restated the same, and so is exhibit P.1. He stated that, in the case of Isaya Renatus V. Republic, Criminal Appeal No.542 of 2015 at page 8 lists persons who can establish an age of victim. It be noted that at the trial court, the issue of date of birth, was not disputed. Neither was there any cross examination on this issue. Failure to cross-examine on material facts as this, renders it admissible. Thus, raising it now, is a mere afterthought, he argued. As regards to contradictions and inconsistence in evidence, such a thing should only be considered when it goes to the root of the case - see 11 Mohamed Said Matula V. Republic [1995] TLR 03 see also Dickson Elia Nsambasakwata V. Republic, Criminal Appeal No. 92 of 2007. In the case of Issa Hassani Uki V Republic, Criminal Appeal No. 129 of 2017: Human recollection is not infallible, a witness is not expected to be right in minute details when retelling the story. Recounting, Mr. Kadata submitted thus, such a minor discrepancy as pointed out by Mr. Masunga, are minor ones and thus cannot reasonably shake the prosecution's evidence. Submitting on the manner the said incidence had occurred, it is clear that it was of short timing and lasted for a short time. PW2's testimony (at end), says all, alluded Mr.Kadata. Making his recollection to the case of Sano Sadick and Another V. R, Criminal Appeal 623 of 2021, the CAT, which restated the issue of minor recollection that are supposed to be disregarded, insisted Mr. Kadata. Thus, such a discrepancy being a minor, this court should only consider it as a mere shock. Thus, this ground of appeal as well, be disregarded in line of his argument. As regards to the credibility of witnesses, he too resisted it as well. He submitted that in his assessment of witnesses' credibility, is purely the domain of the trial court. Therefore, as the trial court had done its job well, thus it must be respected. Citing the case of Goodluck Kyando, V. 12 Republic [2006] TLR 363, on credence of witnesses, he wondered why such evidence should not be accorded weight but of defense? A there is no good reason explained, he urged this court to disregard it. Citing the case of Shabani Daudi V. Republic, Criminal Appeal No. 28 of 2000, on credibility of witnesses, he submitted that the court has to weigh the evidence of one witness against the other. In this case, PW1's testimony was well presented and supported by PW2 that there was sperm into her vagina. It be noted that the PW2's testimony was of that an independent witness. Thus, he urged the Court to dismiss this ground of appeal as well. Making a reply to the third ground of appeal that the trial magistrate had failed to analyze, evaluate and assess the evidence in record, he too opposed it as being devoid of any merit. That notwithstanding, he humbly prayed that this Court being the first appellate court, is privileged to step into the shoes of the trial court and compose its own judgment as per law, persuading the court vide the case of Wolde Kaler and 2 others V. Republic, Criminal Appeal no. 686 of 2020 at page 7. On the issue of biasness, he submitted that it is not reflected as per case's proceedings. Thus, the appellant's ground of appeal is misconceived. Reading the proceedings as it is, there was no display of prejudice as alleged 13 as the trial was fair. However, the ruling in record, is dumb as to what was the issue that led to the writing of the said ruling and what was the verdict. Having submitted all this, he left the ball to the Court to rule accordingly in consideration of the facts of the case that since court record is a serious document, there must be presumption of correctness of it as it must always reflect the true events. Its impeachment must be based on solid established facts and not by frivolous words or complaints. In winding up his submission in chief, Mr. Masunga reiterated his submission in chief and added that, so long as there is concession by the Republic that there was no consideration of the defense testimony, the available remedy is to vitiate the conviction as it is a serious error committed by the trial court. The cited case of Ngaru by Mr. Kadata that this court should then step into the shoes of the trial court and re-appraise the evidence by itself, is not a proper remedy as per the circumstances of this case and that the cited authorities in support of re-appraisal is distinguishable in the circumstances of this case. 14 On contradiction and inconsistence, he insisted that in his considered view, goes to the root of the case. Thus, the Republic's view is tantamount to injustice. As per PW1 and PW2's evidence, it is very clear that the trial court had erred to prop on incredible evidence. Similarly, reiteration was on valuation of the evidence and on the P.O raised, is not reflected in the proceedings or in the judgment. Thus, basing on them, he humbly prayed that this appeal be allowed. Having heard the submissions from both learned minds, it is now high time this Court to consider the merits and demerits of the appeal whether it is brought with sufficient knowledge or not. This being a criminal case, it is always the prosecution’s first and fundamental duty to discharge its duty of proof beyond reasonable doubt on the existence of the alleged offence. The charged offence being a statutory rape, it seems clear that sexual intercourse with a girl under eighteen (contrary to section 130 (1) (2) (e) of the Penal Code) is a strict liability offence. Any efforts by the appellant to establish the victim’s age before engaging her in sexual intercourse does not constitute a good defence against the full force of statutory rape, which is 15 the crime of having sexual intercourse with a girl under eighteen with or without her consent (see Chaba Shelembi vs Republic (Criminal Appeal No 658 of 2021) 2024 TZCA 988 (25 October 2024) (1)). If one is disguised by the victim’s age and proceeds to have sexual intercourse with her, still commits a statutory rape offence on establishment that she is a minor and that was carnally known. To start with, I too associate myself to the concession of the both learned minds that the trial magistrate in this case, miserably failed to consider at any pinch the defense testimony. We are led by the wisdom of the CAT in her several decisions on this stance. It is trite law that, trial court must always evaluate competing evidence in record and be satisfied of her position basing on the thorough evaluation of the said evidence (See Mosi Chacha Iranga Another vs Republic (Criminal Appeal No 508 of 201). I am mindful that, the Court has always taken a grave view of the failure to consider the accused person's defence and regards it as making a resulting conviction unsafe. For example, in Ally Patrick Sanga V. R, Criminal Appeal No. 341 OF 2017 [TANZLII], it reiterated the duty of courts to objectively evaluate defence evidence; failure of that makes conviction unsafe: 16 "We think that in a first appeal, the first appellate court was supposed to objectively evaluate the gist and value the defence evidence, and weigh it against the prosecution case. Failure to re-evaluate evidence of the defence constituted an error of law and by affirming a conviction based on evidence which had not been duly reviewed was also another error which renders the conviction unsafe." Therefore, as the first appellate court, I am now duty bound to re- evaluate the whole evidence as summarized above. I hereby do as follows: Traversing the all facts of this case, it is undisputed that the said victim girl was found with the appellant and in his room. It is also unchallenged that the victim girl was 17 years by the time of the incident. The vital question in re-evaluation of the said testimony is whether she was carnally known. PW1 says yes, she was known so by the appellant and on his matraced bed. PW2 – examining doctor says yes, he established spermatozoa from the victim’s vagina. This in law, is corroboration to PW1’s evidence. The argument that there was found no vaginal bruises, has not been a defense in law in disestablishing the fact of penetration. Since penetration however slightest constitutes rape, it doesn’t matter whether the 17 said penetration causes vaginal injuries. I say so on the basis that each genital organ has its own size structure. There are others blessed with good big structures (a baby’s hand); and others with minor ones – joked as an okra (kibamia - a female finger size penis). Likewise, to females’ genital organs. So, depending on the size of the two pairs of genital organs that meet, a vaginal bruise is legally not a scientific finding of penile penetration but just a corroboration of that fact. However, the presence of spermatozoa into the victim’s vagina upon a testimony that she was carnally known, is a corroboration of the said fact. The issue of age raised by the appellant in his defense and vide D1 exhibit (victim’s statement), it is value less, since the victim clearly stated being born on 11th December 2006, thus on 7th October 2024 (the date of being known carnally by the appellant) was in law still 17 years. There is nowhere in the PW1’s testimony that the appellant had challenged this age and date of birth. The denial of Mr. Masunga’s prayer on recalling of some prosecution witnesses upon his subsequent engagement was considered nothing but an afterthought of filling in some gaps in which the appellant failed to attack promptly. 18 That there was inconsistency of PW1 and PW2’s testimony, I have failed to grasp it properly as alleged. In essence I agree with Mr. Masunga that that credibility of a witness is measured by two ways: Consistency of his/her own testimony and secondly by considering his/her evidence together with other witnesses ( Raphael Mhando V. Rep, Criminal Appeal no. 54 of 2017, CAT at Tanga - at pages 6-7). However, in the case at hand, the alleged inconsistency is at all not there, but just being pressed to be seen that it exists. As well argued, a witness story in court will not be 100% identical with what was stated at Police. If that is to happen, then it is like Bongo star search competition in which the candidates keep on cramming the artists’ songs for reproduction in fine tune and proper dancing steps and style to imitate the legend Diamond or his counter part Harmonize. The testimony giving is not a dramatic event for one to exhibit his/her power of cramming and retelling. It is generally just a recollection of what had transpired and what you properly recall. Therefore, the argument that she was first seduced to love but later forced to enter inside for the said love are not contradictory statements to warrant incredibility. This is just a kick of a dying horse. 19 It is trite law that every witness must be given a credence. I have not encountered a serious concern that PW1 and PW2’s evidence forming the basis of the appellant’s conviction should be impeached. Furthermore, I am cognizant that in view of the inherent nature of the offence of rape or any other sexual offence where only two persons are usually involved when it is committed, the testimony of the complainant is very crucial and must be examined and judged cautiously. Indeed, in this context, as held, for instance, in Selemani Makumba (supra), that the best proof of rape (or any other sexual offence) must come from the complainant. Consequently, the complainant's credibility becomes the most important matter for consideration. If the evidence of the complainant is credible, convincing and consistent with human nature as well as the ordinary course of things, it can be acted upon singly as the basis of conviction - see section 127 (6) of the Evidence Act (See also Onesmo Laurent @ Salikoki vs Republic (Criminal Appeal 458 of 2018) [2022] TZCA 594 (30 September 2022). The attack on the integrity and reliability of PW1 and PW2’s testimony and evidence (Exhibit PI) is clearly beside the point. The argument that there was money demand of 8,000,000/= whether truly demanded or not, in anyway could not substitute it with rape. 20 The offence named rape was sufficiently executed as per existence of minor age and penetration. It is not part of the law that demanding it watered down or mitigated the committed offence, though perhaps it could have persuaded the said offence from not been reported, in which it was another offence of corrupt transaction. As far as the issue of biasness is concerned merely on denial of recalling prosecution witnesses, I think is short of moment. The grant or non-grant was court’s discretionary. In my considered view, it was rightly exercised. There was no such a compelling situation of recalling the said witnesses merely because of advocate’s engagement. In the upshot, though evaluating of the evidence is the trial court’s primary and fundamental duty, having revisited and reviewed the said evidence in record, I agree with Mr. Kadata that the appeal is brought without sufficient cause and should be dismissed as I hereby do in its entirety. The appellant’s defense testimony neither constituted any reasonable doubt nor shaken the prosecution’s evidence. That sad, the trial court’s conviction and sentence meted out, are hereby upheld and confirmed. 21 DATED at SHINYANGA this 10th March, 2025. F.H. Mahimbali Judge 22