JOHN SHUKURU VS REPUBLIC final final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB REGISTRY OF SHINYANGA) AT SHINYANGA CRIMINAL APPEAL NO. 29909 OF 2024 (Arising from the Judgment of the District Court of Kahama at Kahama before Hon C.L. Chovenye - RM, dated on 24th September 2024 in Criminal Case No. 11825 of 2024) JOHN SHUKURU @ MTANZANIA….…......................... APPELLANT VERSUS THE REPUBLIC……………..…………..……………….…RESPONDENT JUDGMENT 28th October & 18th November, 2024 MASSAM, J:. The appellant herein above was arraigned and charged before the District Court of Kahama at Kahama with an offence of Rape contrary to Section 130 (1) (2) e and 132 (1) (2) (a) of the Penal Code Cap 16 R:E 2019. It was alleged that on 24th day April 2024, in the night at Kangewe in Ushetu District within Shinyanga Region, accused person had canal knowledge with girl aged 14 years old for the purpose of hiding her identity she will be termed as a victim. 1 After the full trial, the appellant was found guilty with offence charged, convicted and sentenced to 30 years’ imprisonment and pay compensation of Tshs 500,000/= to the victim. Aggrieved therein, the appellant rightly lodged his appeal in this court with 5 grounds as follows; - 1. That, the trial Magistrate court erred in law and facts to convict the appellant by using poor evidence given by prosecution side while the appellant denied to have committed RAPE. 2. That, the trial Magistrate court erred in law and facts to convict the appellant by using hearsay evidence given by prosecution side. For example, the age of the victim of 14 years old, was not proved by any document i.e Birth certificate. 3. That, the trial Magistrate court erred in law and fact to convict the appellant without following in detail the case procedure, for example No any witness of the police officer who arrested the appellant who brought in court to give the evidence about the incidence of the Rape. 2 4. That, the trial Magistrate court erred in law and facts to convict the appellant’s excessive conviction of 30 years and to pay compensation of Tshs 500,000/ without committing the offence alleged to the appellant. 5. That, the trial Magistrate court, erred in law and fact to convict the appellant by using poor evidence given by prosecution side without considering the defence given by Appellant. In fact, the defence given by the appellant was very important to consider in this case During the hearing of this appeal, the same was argued orally and the appellant appeared in person unrepresented, while the respondent was represented by Mr. Saguya learned State Attorney. In support of his appeal appellant prayed this court to consider his grounds of appeal as it has a merit while Mr. Saguya opposed the appeal and supported conviction and sentence meted and inform the court that will argue the appellant’s grounds of appeal separately. By starting with the first ground of appeal, where appellant complained that trial court convicted him with weak evidence as he denied to commit that offence. It was submission of Mr. Saguya that the evidence adduced by prosecution witnesses proved that appellant committed that 3 offence. Also, the appellant admitted to commit offence in caution statement which was admitted as exhibit P1 without objection, even after the same be read over he did not challenge the same. Again, PW2 who is clinical officer was the one who examined the victim and, in his evidence, he said that victim had no hymen and she had some bruises. PW2 filled PF3 which was tendered as P2 and was not challenged when read over to the court. Also, PW3 who was working with appellant, he told this court the environment which was in their working place and told the court how the said victim entered in that room. Additionally, Mr. Saguya said that appellant entered in that room with victim and closed themselves for long time even the circumstantial evidence show that appellant was the one who committed that offence. Finally, he prayed this court to find that first ground of appeal has no merit and dismiss it. Coming to the second ground of appeal that appellant was convicted by the hearsay evidence and age was not proved. Mr. Saguya argued that the evidence adduced was direct, and the age of victim was 4 proved. Mr. Saguya argued that there are lot of decisions which state that the age of the victim can be proved by nearest relative, victim and medical doctor and in our case the age of the victim was proved by her mother (PW5) who said that victim was born on September 2010. Also she said that her daughter was 14 years old on the commission of that offence. In cross examination appellant did not challenge the age of the appellant, and he prayed this court to find the same without merit and dismiss it. In regard to the 3rd ground of appeal, appellant complained that the policeman who arrested him was not brought to the court. Mr. Saguya contented that no law requires the arresting officer to be called to the court to testify. However, PW3 testified that appellant was arrested by policeman and failure to call that witness was not fatal. Mr. Saguya cemented his argument by citing section 143 of TEA that there was no number of the witnesses required to prove the offence. Finally, he prayed this ground to be dismissed for being unmerited. Responding, ground no 4 appellant complained that he was given an excessive punishment. Mr. Saguya contented that appellant was given the right punishment as per Section 131(1) of the Penal Code 5 gives punishment of 30 yrs for the offence like this. Mr. Saguya added that the trial court was right to order compensation as the law allows criminal compensation as per Section 348(1) of CPA in case of sexual offences. Mr. Saguya prayed that this ground also has no merit. On the last ground of appeal, appellant complained that he was convicted without his defense to be considered so the evidence given was weak. Mr. Saguya argued that prosecution brought six witnesses, all of them proved that appellant was the one who committed that offence, at page no 4-5 of copy of judgment trial court considered the defense but it did not regard his defense as it was weak compared with the one which was brought by prosecution. Finally, he submitted that his defense was considered and prayed 5th ground to be dismissed and bless the decision of the trial court. In brief rejoinder appellant prayed to be left free because he didn’t commit the alleged offence. Upon going through the entire records and carefully considered the submission from both sides, it is in view that the appellant is challenging the conviction against him on the reason that the prosecution did not prove the case against him beyond reasonable 6 doubts. Therefore, the main issue to be determined by this court is to whether the prosecution proved the case against the appellant beyond reasonable doubt. There is no objection that it is a common legal principle that in criminal law the burden of proof lies to the prosecution and the standard is beyond reasonable doubts see Section 110 and 112 which read together with Section 3 (2) (a) of the Evidence Act [Cap 6 RE 2019]. Also, the same principle was stated in the case of Woodmington Vs. DPP (1935) AC 462, the court held inter alia that, it is a duty of the prosecution to prove the case and the standard of proof is beyond reasonable doubt. This is a universal standard in criminal trials and the duty never shifts to the accused, See also the case of Christian Kale & Another Vs. The Republic (1992) T.L.R 302 CAT and John Makorobera & Another Vs. The Republic (2002) T.L.R 296, where it was firmly held that the accused person should only be convicted of an offence, he is charged with on the basis of the strength of the prosecution case not on the weakness of the defense case. 7 The term beyond reasonable doubt is defined in case laws, see Magendo Paul & Another Vs. Republic (1993) TLR 219 where the Court held that: "For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favor which can easily be dismissed." Having considered the above stated legal stance, I shall now, for convenience purpose, address the ground of appeal in the same manner adopted by the learned state attorney. Starting with the first ground of appeal, appellant complained that trial court convicted him with weak evidence as he denied to commit that offence where by Mr. Saguya submitted that the evidence adduced by prosecution witnesses proved that appellant committed that offence as the appellant did admitted to commit offence in caution statement which was admitted as exhibit P1 without objection, even after the same be read over he did not challenge the same. PW2 who is clinical officer was the one who examined the victim and he said that victim had no hymen and she had some bruises. PW2 filled PF3 which was admitted as exhibit P2 and was not challenged and was read over to the 8 court. Moreover, PW3 who was working with appellant told the court that victim and appellant were found in the room and the appellant was arrested. I have scanned the submission from both parties and going through the trial records. The testimony of PW1 shows that he recorded the appellant’s caution statement and admitted to commit offence. Also PW2 who was a clinical officer and the one who examined the victim his results shows that victim has no hymen, has mucus and swollen on labia majora therefore she was raped. Likewise, the testimonies of PW3, PW5 and PW6 revealed that the appellant and victim were found in the room and the appellant was arrested while PW4 (victim) testified that the appellant grabbed her hand and took her in the room where the appellant undressed her skin tight and he took off his clothes and took his penis and insert it to her vagina. It is trite law that the accused who confessed to his guilty is the best witness. See the case of Nyerere Nyague vs Republic, Criminal Appeal No 67 of 2010 CAT Arusha and Twaha Alli & 5 others vs Republic, Criminal Appeal No. 78 of 2004 CAT Dar es salaam. Moreover, caution statement and PF3 were admitted as exhibits P1 and 9 P2 respectively, however the appellant failed to cross examine the prosecution witness which showed that he admitted the evidence of such witness. See the cases of George Maili Kambage vs Republic, Criminal Appeal No. 327 of 2013, CAT Mwanza and Shimiyu Masunga and Another vs Republic, Criminal Appeal No. 572 of 2019 CAT Tabora. Having so observed. I agree myself with Mr. Saguya that the prosecution evidence was strong which proved the offence to which the appellant was charged with and hence the first ground of appeal is unfounded and it is dismissed. Coming to the second ground of appeal that appellant was convicted by the hearsay evidence and age was not proved. Mr. Saguya submitted that the evidence adduced was direct, and the age of victim was proved. Mr. Saguya said that there are lot of decisions which state that the age of the victim can be proved by nearest relative, victim and medical doctor and in our case the age of the victim was proved by her mother (PW5) who said that victim was born on September 2010 so she was 14 years old on the commission of that offence. In cross examination appellant did not challenge the age of the appellant. 10 I am aware that the first ingredient of rape under section 130(1) (2) (e) of the Penal Code, which is commonly known as statutory rape, besides proof penetration, having concrete evidence of the age of the complainant is predominantly significant. This was emphasized in the case of Isaya Renatus Vs Republic, Criminal Appeal No. 542 of 2015 CAT observed that” We are keenly conscious of the fact that age is of great essence in establishing the offence of statutory rape under section 130(1) (2) (e), the more so as, under provision, it is requirement that the victim must be under the age of eighteen. That be so, it is most desirable that the evidence as to proof age be given by the victim, relative, parent, medical practitioner or where available by production of a birth certificate’’ See the cases of Haruna Mtasiwa vs. Republic, Criminal Appeal No 206 of 2018 (2020) TZCA 230 (15 May, 2020) and Bashiri John vs Republic, Criminal Appeal No. 486 of 2016 [2019] TZCA 89 (16 May, 2019) In the present case age of victim was proved by PW2 (victim’s mother) and PW5 who was a doctor, both testified that the victim was 14 years. Moreover, PW5 went further by stating that the victim was born sept 2010. In all these testimonies, the appellant failed to cross examine the prosecution witness on the age aspect. I agree with Mr. 11 Saguya that the age of the victim was proved. I therefore dismiss the second ground for being an afterthought and incapable of outweighing the strong prosecution evidence. In regard to the 3rd ground of appeal, appellant complained that the policeman who arrested him was not brought to the court. Mr. Saguya argued that no law requires the arresting officer to be called to the court to testify. However, PW3 testified that appellant was arrested by policeman and failure to call that witness was not fatal. Mr. Saguya cemented his argument by citing Section 143 of TEA that there was no number of the witnesses required to prove the offence. After scrutinized the submission of both parties and going through court records. It is my considered view that, the key witnesses were called who are PW2, PW4 and PW5 who testified that the appellant had canal knowledge with the victim. More over the PW3 testified that the appellant was arrested by the policeman. Thus, I associate myself with Mr. Saguya that there is no particular number of witnesses required to testify before the court and the said position was cherished in the case of Bakari Hamis Ling'ambe Vs. Republic, Criminal Appeal No. 161 of 2014 (CAT-unreported) where the Court of Appeal held that: "It suffices 12 to state here that the law is long settled that there is no particular number of witnesses required to prove a case (section 143 of Tanzania Evidence Act, Cap. 6). A Court of law could convict an accused person relying on the evidence of a single witness if it believes in his credibility, competence and demeanor." From the above findings, it is the view of this court that 3rd ground of appeal has no merits and is hereby dismissed. Responding to the 4th ground of appeal, where appellant complained that he was given an excessive punishment. Mr. Saguya contented that appellant was given the right punishment as per Section 131(1) of the Penal Code which gives punishment of 30 yrs. Mr. Saguya added that the trial court was right to order compensation as the law allows criminal compensation as per Section 348 (1) of CPA in case of sexual offences. The respondent’s counsel prayed this ground be dismissed too. Before I respond this ground I wish to quote the law providing punishment for rape. Under section 131(1) of the Penal Code states that; 13 ‘’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 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’’ From the extracted provision of the law. It is plain clear that the minimum punishment for the offence of rape is 30 years, but also the court has power to order the compensation as thinks fit. So, I agree with Mr. Saguya submission that appellant was given a right punishment and the court has power to order the accused person to pay compensation as per section 348(1) of the CPA. Thus, I hereby dismiss 4th ground of appeal because it is unfounded. On the last ground of appeal, where the appellant complained that he was convicted without his defense to be considered, so the evidence given was weak. Mr. Saguya argued that prosecution brought six witnesses, all of them proved that appellant was the one who committed 14 that offence, at page no 4-5 of copy of judgment trial court considered the defense but it did not regard his defense as it was weak compared with the one which was brought by prosecution. In my thorough scanning I see this ground as misplaced. Thus, I associate myself with Mr. Saguya that the defense evidence was considered in page no 4 and 5 to the copy of the judgment but did not convince the trial court for it to accord evidence. It is trite law that failure to consider defense evidence amount to defective judgment. See case of Leonard Mwanashoka vs. Republic, Criminal Appeal No. 226 of 2014 (unreported), Abel Masikiti vs. Republic, Criminal Appeal No. 24 of 2024. However, in the normal circumstances, the prosecution case is firmly proved depending on its evidence and not defense evidence. It is noted from the above findings, that prosecution side proved the case beyond reasonable doubt as it was held in the case of Mohamed Haruna @ Mtupeni & Another Vs. R, Criminal Appeal No. 25 of 2007 CAT (unreported) where it was held that; "of course, in cases of this nature, the burden of proof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an accused person can only be 15 convicted on the strength of the prosecution case and not on the basis of the weakness of his defense." See also the case of Joseph John Makune vs. Republic (1986) TLR 44, George Mwanyigili vs. Republic, CAT Criminal Appeal No. 335 of 2016. For the reasons stated, I find no merits in this appeal and dismiss it in its entirely. It so ordered. DATED at SHINYANGA this 18th day of November, 2024. R.B. Massam JUDGE 16