didas so simwanza vs republic 2008 tzhc 327 25 july 2008

IN T H E HIGH COURT OF TANZANIA AT MTWARA CR IMINAL APPEAL NO 106 OF 2005 (O riginal Kihva A-uisoko District Cr. C ass no. 6 J '2005 B efo re: S.G. C leophas Esq - DM DIDAS S/O S 1 M W A N Z A ...................................................................A P P E L L A N T VERSUS T H E R E P U B L I C : ...................................................................................R E S P O N D E N T 21/7/2008 & 25/7/2008 .Judgement Rwevemimm In Kih va District Court ( D C ) Cr. Case 6 1 / 2 0 0 5 , the appellant Didas Simwanza was charged, tried and convicted o f rape c/s 130 nj' tiie Penal code as ainenued by ihe Sexual O j fences Special Provisions Act No. 4 o f 1998. popularly known by its acronym - S O S P A . 1 le was sentenced to 30 yrs imprisonment. The facts at trial were brief. On the night o f 12/6 2 0 0 5 . P w 1 a policeman was on usual police duties following up information that there were bandits in Mavuji village. A ccom pa n ie d by other officers and the village leader P w 3 he went to the house of'one Mw anahawa and knocked the door o f the room where the appellant was. They found 3 people there. Th e appellant was lying on the mat together with the v ic tim P w 2 (herein after the girl), while another man was sleeping on the bed. On b e ing questioned, the girl disclosed that the appellant was her boyfriend and she was a primary school girl aged 15. A ccordin g to Pw*and P w 3, they called the head teacher who confirmed that the girl was a standard V I I pupil at his school. That teacher however, was not called to testily. T h e girl h e r s e l f admitted to have been found in a room with the appellant who was her boyfriend since 2 0 0 4 , they used to have sex and the appellant had promised to marry her on completion o f her education. In defense, the appellant admitted to have been found as described and deposed that; even the g ir l’ s parents knew o f their relationship and condoned it but that he did not that Pw2 was a school girl until after his arrest. In his memorandum o f appeal adopted at the hearing -since the appellant did not wish to be present, he raises a number o f grounds key ones am ong them that; the teacher was not called to testify to corroborate the story that the girl was a pupil at his school; that there was no birth certificate to prove the g i i T s age; that there was no evidence that he had raped the girl; and therefore that he was convicted on insu ff icient evidence. Mr. H yera state attorney does not support conv iction . He submits that there was no evidence adduced at trial to prove that the girl was below' 18; that lack o f p r o o f o f age in a statutory rape case is fatal to the prosecution’s case. I agree. It is true that from the evidence on record w h ich is summarized above, none o f the witnesses save the girl testified in respect o f age. In the absence o f a birth certificate, which may not be easily av ailable given realities o f life in the village, the prosecution should have at least called the girl’ s parents-who were apparently available, to testify on the girl’ s age. T h is court M c h o m e J., has held in Emmanuel Kibona and Others v. R, 1995 T L R 241 that “ evidence o f a parent is better than that o f a medical doctor . . .as regards the girl’s ag e” . I should add that a parent’s statement on age should be believed unless there are good reasons to find otherwise. T h e value o f the parent’ s testimony on age has been confirm ed in a number o f cases by the Court o f Appeal ( C A ) including Mustafa Ramadhan Kihiyo v. R, Cr. Appeal 2 5 / 2 0 0 5 (dated 6 / 7 / 2 0 0 6 , T a n g a sub registry-unreported), a case where one o f the issues on appeal was age o f the complainant. T h e appellant on second appeal to the CA argued that the com plainan t was an ’ adult like h i m s e l f and not below 14. T h e C A held that “we a re satisfied that the com plainant was eleven y ea rs o ld w hen she was raped. H er natural fa th e r sta ted that sh e was born in M ay 1986. S he was therefore, below 14 o f age. ” T o conclude, I am satisfied that from the evidence on record age o f the victim an important ingredient, was not proved. On im portance o f p r o o f o f age in these kind o f cases, I find it opportune to repeat my observation in a case decided recently, Hamisi Ally Tupatupa v. R, HC Cr Appeal 144/ 2005 (Mtvvara registry) where I observed that: “ This is yet another o f the many crim inal a p p ea l cases I h ave h an d led at this station, involving the o ffen ce o f statutory ra p e - w here conviction was en tered without a specific fin d in g by the trial court that the victim was a g irl o r woman below 18, a key ingredient in these offences. ” I con c lu d e d therein that: “I n eed not em phasize the im portance o f establishin g a g e o f the victim in statutory ra p e cases, f o r age is the very basis upon w hich the offen ce is crea ted out o f facts which would otherw ise p ro v e con sen su al sex. The evidence o f a g e in such cases must be d eliberately sought by investigators, prop erly p resen ted by the p rosecu tor an d sp ecifically ev alu ated by the court f Although the best p r o o f o f age is a birth certificate, authorities above show one other wav o f " mf obtaining the required p r o o f and I believe there are several others. There is yet another interesting aspect in this case rightly alluded to by the appellant in the M A where he c o m p la in s that there was no e v id e n ce to prove that the appellant had sex with the girl on the date in question. 1 agree that there was no such ’ evidence, i f anything, the fact that there were 3 people in the room implying that ordinarily, no sex took place that day. Admittedly they had had sex on prior occa sions. P r o o f o f sex on the date alleged in the charge sheet was vital. In a c a se with similar facts, Simon Abonyo v. R, Cr. Appeal 1 4 4 / 2 0 0 5 (dated 1 6 / 3 / 2 0 0 7 , M Z A sub registry, unreported) the appellant was convicte d because there was e v id en ce that the appellant and the girl (victim) had had sexual intercourse on unspecified dates. His conviction was upheld by the H C but on second appeal to the C A , the court allowed the appeal because there had been no p r o o f that the of fence took place on a date alleged in the charge sheet. T h e court concluded by stating that uthe im portance o f proving the o ffen ce as a lleg ed in the ch a rg e hardly needs to be ov er em p h a siz ed ”. Th e s a m e position was taken by that court in Christopher Rafael Maingu v. R, Cr. Appeal 222/204 (dated 16/3/ 2007, MZA sub registry-unreported) follow ing its decision in the prior cases o f Ryoba Mariba @ Mungare v. R, Cr. Appeal 7 4 / 2 0 0 3 where it held that “it was incum bent upon the republic which h a d ch arg ed R yoba M ariba with raping S ara on 20/10/2002 to lea d eviden ce show ing exactly that Sara was ra p ed on 20/10/2002 Sim ila rly in the instant case, there was no e v id e n ce to prove that rape o ccu rred on 1 2 / 6 / 2 0 0 5 , the date stated in the char ge sheet. This appeal should for that second reason succeed . I b e l ie v e I am duty bound to remind the D C that the o ffen ce o f rape is a criminal case like any other and a serious one for that matter, attracting serious c o n s e q u e n c e s , as such all ingredients o f the o f f e n c e as stated in the charge sheet must be proved beyond reaso nab le doubt. In view my conclusions above, I quash the ap p ellan t’ s conviction, set aside the sentence and order his im m ediate release unless he is otherwise lawfully held. It is so ordered.