SEMULE JUDGMENT

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY) AT MWANZA CRIMINAL APPEAL NO. 6318 OF 2024 (Originating from Criminal Case No. 69 of 2023 in Misungwi District Court at Misungwi) MPINA SEMULE………………………………………………………………APPELLANT VERSUS THE REPUBLIC……………………………………………....................RESPONDENT JUDGMENT 26th August & 21st October, 2024 KAMANA, J. Mr. Mpina Semule, the appellant was charged before the District Court of Misungwi at Misungwi with the offence of rape contrary to section 130(1) and 2(e) of the Penal Code, Cap. 16 [RE.2022]. He was also charged with the offence of abduction contrary to section 134 of the Code. Concerning the offence of rape, facts had it that on 17th to 18th May, 2023 at Misasi Village within Misungwi District in Mwanza Region, the appellant committed unlawful sexual intercourse with AJ, a girl aged 11 years old. As regards abduction, it was alleged that the appellant unlawfully took away AJ, a girl aged 11 years, out of the protection of her parents. The appellant denied the charges. 1 From the testimony of Ms. Devotha Charles (PW1), AJ, the victim, is the daughter of her deceased brother. Up to the date of the incident, the victim was living with her for two years. She testified that the victim was a standard three pupil at Uwanja Primary School. It was her testimony that on 17th May, 2023 when she returned home around 2045 Hrs, she did not find the victim at home. She reported her missing to the local government office and the police. She evidenced further that on 22nd May, 2024 she received a phone call from the headmaster who informed her that her daughter was found at Misungwi and she should make a follow- up at the police station. The victim (PW2) stated that she is a standard three student at Usagara Primary School. She testified that on the date she did not remember, the appellant approached her and asked her if she knew where she resided. She averred that the appellant took him to the guest house where he gave her water for bathing. He added that the appellant undressed her and inserted his phallus into her vagina. The next day, according to the victim, saw them going to Misungwi where the appellant sold his mobile phone and they went to the appellant’s friend where the appellant inserted again his penis into her vagina. Mr. Simon Amos (PW3) testified that the appellant is his friend and he knows him as Shija. He stated that on 18th May, 2023, the appellant 2 came to his place in the company of a girl aged 11 years. He was introduced to the girl by the appellant as the daughter of the appellant’s brother who had recently died. The witness evidenced that the appellant and the girl slept together on what was stated by the appellant that the girl was still depressed by his father’s death and hence needed his consolation. It was his testimony that on the next day, he realized that the appellant and the girl were not well known to each other. That made him doubt the appellant’s story. Given that, he searched the appellant’s bag and found the phone number of one Shemeji and he called it. When the call was received, he informed the receiver about the appellant and the girl. The receiver handed the phone to her husband who informed him that the appellant is a thief and he always abducts children. Having received the information, the appellant informed the militiamen who arrested him. Upon interrogation, the witness stated that the appellant admitted to having taken the girl from Nyankumbu. Ms. Neema Hosea (PW4), the Clinical Officer at Misungwi Hospital, testified that on 21st May, 2023 while on duty, she examined the victim and found that her vagina was penetrated. She tendered a PF3 she filled which was admitted as Exh.P01. D/Sgt. Rhoda (PW5) testified that she interrogated the appellant and recorded his cautioned statement in which 3 the appellant confessed the charged offences. She testified further that during his and the victim’s stay at Misungwi, they lived in the PW3’s house. Based on such evidence, the trial Court found the appellant with a case to answer. In his defence, the appellant stated that on 18th May, 2023 he was coming from Geita and alighted at Usagara intending to board a car to Sumve. Thereat, he saw a girl who introduced herself as Veronica. The girl told him that she was looking for a job. After examining her age and the fact that she told him that she was from Bukoba, he decided to take her to Nyashishi Police Station. After recording his statement, he was arrested and after two days was taken to Misungwi Police Station before being arraigned before the trial court. He categorically denied having sexual intercourse with the victim. Vehemently, he denied not only to know PW3 but also to spend two days in PW3’s house. He further denied making a voluntary cautioned statement. Based on the evidence adduced, the trial court finds the appellant guilty of rape and abduction. However, for the reasons known to the trial court, the appellant was only sentenced for rape accordingly. Aggrieved, the appellant preferred this appeal which is premised on six grounds as follows: 4 1. That, the presiding magistrate relied and acted upon the PW2’s evidence which was received c/s 127 (2) of TEA, CAP 6 [RE:2022] as the question imposed to the victim was responded by the appellant and not PW2 as required by the law. 2. That the age of the victim was not positively established as required by statutes as the charge sheet indicates the victim was 11 years but before the court, the victim asserted her age was 12 years. 3. That the PW2’s evidence is/was unreliable and left a lot of unanswerable questions than answers as: (a) She failed even to disclose where the incident took place; (b) At which time and which guest was sent in the first incident. (c) Bad enough that the victim, PW1, PW3 and PW5 were not properly led by the Prosecutor to identify the wrongdoer while was still at the dock. 4. That PW2’s evidence was not corroborated hence even PW4 failed to go further as to how she did examine the victim. PW4 failed to disclose if PW2’s virginity was already perforated or not. 5. THAT, the trial magistrate unreasonably failed to reflect the accused’s defence while composing the judgment. Failure to regard the accused’s defence vitiated the entire proceedings and judgment. 5 6. THAT, the prosecution side failed to prove the offence beyond all reasonable doubt. When the appeal was set for a hearing, the appellant appeared with no legal representation. The respondent had the services of Mr. Benedicto Ruguge, learned State Attorney. The appellant, being a lay person, did not have any useful arguments but prayed the Court to consider his grounds of appeal. Submitting in rebuttal, Mr. Ruguge premised his arguments by supporting the conviction and sentence. On the first ground concerning non-compliance with section 127(2) of the Evidence Act, the learned State Attorney admitted that as per the records, the one who answered the questions put by the Court was the accused. He argued that was a slip of the pen and that the questions were directed to PW2 and replied by her and not the accused. It is true from the records that the one who is reflected as the replier of the questions put by the Court under section 127(2) of the Evidence Act is the appellant and not PW2. However, I agree with the learned State Attorney that was the slip of the pen and the replier was PW2. I take that position as the records show that the particulars of the person who was asked questions by the trial court were of PW2 and not of the appellant. 6 Further, the evidence in chief was provided by PW2 and not the appellant. The ground fails. On the second ground, Mr. Ruguge dismissed the ground as baseless. He contended that PW1 who was the guardian of the victim did not testify the victim’s age. He added that PW3 was incapable of testifying the victim’s age. However, he contended that the victim testified her age as 12 years. He reasoned that by stating her age as 12 years and the fact that she was a standard three pupil, the Court is supposed under section 122 of the Evidence Act to presume that the victim was under the age of 18 years. He buttressed his views by citing the case of Isaya Renatus v. Republic, Criminal Appeal No. 542 of 2015-CAT (Unreported). In dealing with this ground of appeal, I hasten to state that the age of the victim must be proved by either the parent, guardian, teacher, medical practitioner, relative, victim or birth certificate. In the instant matter, as rightly stated by the learned State Attorney, PW1 who is the guardian of the victim did not state the victim’s age. Likewise, PW3 who testified the victim’s age had no such capacity as he was not a relative, teacher or medical practitioner with the necessary knowledge as to the victim’s age. However, according to the PF3 filled by PW4, the victim’s age is recorded to be 11 years. This in my opinion was sufficient enough to 7 establish the victim’s age as the form was filled by the medical practitioner. Concerning the argument that the victim stated her age to be 12 years, it is an established principle that the particulars stated by the witness before swearing are not evidence. I further shake hands with Mr. Ruguge that by stating that she was a standard three pupil, this Court may presume under section 122 that the victim was under 18 years old. The ground is devoid of merits. Having determined the first two grounds, I am of the view that the rest of the grounds of appeal revolve around whether the prosecution proved the case beyond a reasonable doubt. In this, Mr. Ruguge held the view that the prosecution proved the case beyond a reasonable doubt. He asserted that PW2 testified how the appellant undressed her and inserted his penis into her vagina. In this, the learned State Attorney urged this Court to consider the established principle that the best evidence in sexual offences comes from the victim. To support the argument, he cited the case of Selemani Makumba v. Republic [2006] TLR 379. Concerning the offence of abduction, Mr. Ruguge contended that the offence was proved beyond a reasonable doubt. He amplified that PW2 stated that the accused approached her and asked whether she 8 knew her homeplace and then took her to a place unknown to her. He emphasized that PW1 testified that the victim went missing which precipitated her to report the incident to local government offices and police. The learned State Attorney added that PW3 testified how the appellant came to his house in the company of the girl who introduced her as his brother’s daughter. When prompted by the Court as to the way forward when the trial court fails to pronounce a conviction or otherwise concerning the offence of abduction, the learned State Attorney contended that this being the first appellate court is constrained to re-evaluate the evidence and enters its verdict. It is settled law that the first appellate court is bound to step into the shoes of the trial court by analysing the evidence adduced and coming to its conclusion. This position was enunciated in a plethora of authorities including the case of R.D. Pandya v. Republic [1957] EA 336 where the defunct East African Court of Appeal had this to state: ‘It is a salutary principle of law that a first appeal is in the form of re-hearing where the court is duty bound to re- evaluate the entire evidence on record by reading together and subjecting the same to a critical scrutiny and if warranted arrive to its own conclusion. 9 As I said earlier, the appellant was charged with an offence of rape under section 130(2)(e) of the Penal Code which provides: ‘(2) A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under the circumstances falling under any of the following descriptions: (d) With or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man.’ The above-quoted provision creates an offence of statutory rape. Given that, the prosecution bears the burden to prove that the accused is the one who had sexual intercourse with the victim with or without his consent. It is further incumbent on the part of the prosecution to prove that the accused’s penis penetrated the victim’s vagina regardless of the extent of the penetration. Likewise, the prosecution must prove that the victim’s age is below 18 years, and if she is 15 years or above, the prosecution must lead evidence that the victim was not married to the accused. As I held when determining the second ground, the prosecution through the Exh.P01 proved the victim’s age to be 11 years. The appellant 10 did not cross-examine the said fact or challenge it during his evidence in defence. That being the case, I am satisfied that the victim’s age was proved to the hilt. Concerning penetration, the victim told the trial court how the appellant undressed her in the guest house before inserting his penis into her vagina. She testified how the appellant took him to Misungwi to his friend’s house where he also inserted his penis into her vagina. PW4 testified that she examined the victim and found that her vagina was penetrated by a blunt object. Relying on the evidence of PW4, the Clinical Officer, I entertain no doubt that the victim’s vagina was penetrated. Having concluded that, I now turn to examine whether there was cogent evidence that the appellant was the one who inserted his phallus into the victim’s vagina. According to the evidence adduced by the prosecution, none of the witnesses, other than the victim, testified to have seen the appellant inserting his phallus into the victim’s vagina. The said evidence was disputed by the appellant who asserted in his evidence that he did not rape her. In support of the conviction and sentence, Mr. Ruguge cited to me the case of Selemani Makumba (Supra) which enunciated that in sexual offences, the best evidence is the one from the victim. I agree with the said position, but I am of the view that the position stated in the cited 11 case is the general one and the victim’s evidence must be thoroughly scrutinized to establish whether the same is cogent. In scrutinizing the victim’s evidence, the court must assess the victim’s credibility and the circumstances of the case. In this, I am inspired by the position of the Court of Appeal in the case of Mohamed Said v. Republic, Criminal Appeal No. 145 of 2017-CAT (Unreported) where it was stated: 'We are aware that in our jurisdiction it is settled law that the best evidence of sexual offence comes from the victim [Magai Manyama v. Republic (supra)]. We are also aware that under section 127(7) of the Evidence Act [Cap. 6 R.E. 2002] a conviction for a sexual offence may be grounded solely on the uncorroborated evidence of the victim. However, we wish to emphasise the need to subject the evidence of such victims to scrutiny in order for Courts to be satisfied that what they state contain nothing but the truth.’ In the same case, the apex Court had this to state: ‘It was never intended that the word of the victim of sexual offence be taken as gospel truth but that her or his testimony should pass the test of truthfulness.’ 12 In the instant appeal, after perusing the records, I am of the opinion that the evidence adduced by the victim leaves a lot to be desired. One, much as I appreciate that the victim was 11 years of age, I do not understand how she failed to raise an alarm when she was taken to the guest house and raped. Under normal circumstances, guest houses are manned by personnel. In that case, the victim was expected to raise an alarm. In her evidence, she did not testify that she was threatened, in any way, by the appellant. If she would have testified that she was under any threat, I would have held otherwise. Two, the victim testified that after sleeping with the appellant, she and he went to Misungwi and slept over at the appellant’s friend’s house where she was raped again. Again, I wonder if that was true, why the victim did not raise an alarm to the appellant’s friend. Further, there was no evidence that the victim was under any threat from the appellant. In my opinion, the victim’s failure to raise an alarm before, during and after all two occasions she alleged to have been raped casts doubt on the prosecution’s case. Such doubt would have been cleared if the prosecution had led evidence that the victim was threatened to the extent of making her afraid of raising an alarm. In this, I am inspired by the position taken by My Lady Nongwa, J in the case of Gift Edward 13 Muyombe v. Republic, Criminal Appeal No. 163 of 2023-HC (Unreported) where she held: ‘It is now part of law that in sexual offences cases if the victim does not raise alarm and is not threatened it diminishes her credibility. In the case of Damian Manyika @ Babu Tanga vs Republic, Criminal Appeal No. 306 of 2022 [2024] TZCA 451 (13 June 2024; TanzLII), the court held; ‘... the victim never raised alarm before, during or after the rape was committed against her on all occasions. Further, there is no evidence that, the victim was under any threat from the appellant not to report the matter.’ Since there is no such evidence that the victim failed to raise an alarm due to threats and provided that there was no evidence that the victim was an imbecile to the extent of making her unaware of what was taking place, I hasten to conclude that the victim was not a credible witness. Three, in her evidence, PW1 was recorded to state that she resides in Geita with the victim. She further stated that the victim was schooling at Uwanja Primary School. The victim in her evidence stated that she was 14 schooling at Usagara Primary School. In this, I asked myself how possible was for the victim to school at Usagara Primary School and live in Geita. Further, her evidence as to where she was schooling differed from the evidence of her guardian. This makes me find that the victim was untruthful and not credible. Having taken the position, it is my holding that the prosecution failed to prove that it was the appellant and no other person who raped the victim. Coming to the offence of abduction, PW1 testified how she found the victim missing after returning from her business. She went on to testify how she reported the matter to the authorities. She further evidenced that she received a phone call from the headmaster who informed her that the victim was at Misungwi Police Station. PW3 testified how he received in his house the appellant and the victim. He evidenced how he suspected that the appellant and the victim were not known to each contrary to what he was told by the appellant that the victim was his brother’s daughter. The witness stated how he phoned Shemeji and relayed the information about the appellant and the victim. It was his evidence that after being told by Shemeji’s husband that the appellant was a thief and abductor, she reported the matter to militiamen who arrested him. 15 On his part, the appellant testified how he met the victim at Usagara and took her to Nyashishi Police Station. He stated that after making his statement at the police station, he was arrested and remanded for two days before being taken to Misungwi where he was charged with the offences of rape and abduction. The appellant testified that he did not rape the victim. He added that he did not spend the nights at PW3’s house and he did not know him. From this evidence, Mr. Ruguge implored this Court to conclude that the appellant was guilty of abduction. In this, I thought it prudent to reproduce section 134 of the Penal Code as follows: ‘134. Any person who unlawfully takes an unmarried girl under the age of sixteen years out of the custody or protection of her parent or other person having lawful care or charge of her and against the will of the parent or of that person is guilty of an offence.’ From the above provision, it is obligatory for the prosecution to prove that the victim was an unmarried girl under the age of 16 years. Further, the prosecution must prove that the accused is the person who took the victim from her parent or any other person lawfully responsible for her care without such parent’s or person’s permission. 16 Concerning age and the fact that the victim was unmarried, this was proved by the prosecution through the evidence adduced by PW4 through Exh. P01 that the victim was of 11 years of age. Further, from the evidence of PW1 and the victim herself, the victim was a standard three pupil which suggests that she was unmarried. However, it is my considered opinion that the prosecution failed to prove beyond a reasonable doubt that the appellant was the person who abducted the victim. I take that position fortified by the fact that there is competing evidence as to where the appellant was arrested so far as the offences he was charged with are concerned. While PW3 testified that the appellant was arrested after he informed militiamen, the said witness did not state exactly where the appellant was arrested. He only stated that upon interrogation, the appellant admitted to having taken the victim from Nyankumbu. On his part, the appellant testified that he was arrested at Nyashishi Police Station after taking the victim to the station from Usagara where he picked her up after she asked him for a job. With this competing evidence, the prosecution needed to field militiamen mentioned by PW3 who arrested the appellant. It is through their evidence, this Court could be placed in a better position to know where exactly the appellant was arrested and for which offence. It has 17 been held that failure to field material witnesses without supplying reasons jeopardizes the prosecution’s case. Given that, I draw an adverse inference against the prosecution that it knew that by fielding the militiamen, their evidence would tarnish its case. See: Aziz Abdallah v. Republic [1991] T. L. R. 71 and Wambura Marwa Wambura v. Republic, Criminal Appeal 115 of 2019 (Unreported) Since it is not clear where exactly the appellant was arrested, I refrain from concluding that the appellant was the one who abducted the victim and spent time with her at PW3’s house. Further, in her evidence, the victim did not state where exactly she met with the appellant other than stating that the appellant took him while she was standing. This left me with an unanswered question. If it is true as PW1 stated that she was living with the victim in Geita and if it is true that the appellant met with the victim at Usagara, then, how the victim was at Usagara? Who took her from Geita to Usagara? In her evidence, D/Sgt. Rhoda (PW5) testified that she recorded the cautioned statement of the appellant. According to her, the accused admitted to committing the offence and that he spent time with the victim at PW3’s house. In the absence of the cautioned statement, I brush off PW5’s evidence as it is mere hearsay. 18 In the upshot, I allow the appeal. The appellant is acquitted of the offences of rape and abduction. Further, an order is issued for the appellant to be released from custody unless otherwise held for other lawful cause. Right To Appeal Explained. Order accordingly. DATED at MWANZA this 21st of October, 2024. KS KAMANA JUDGE 19