CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI (CORAM: NDIKA, 3.A.. GALEBA, J.A., And MGONYA. J.A/l CRIMINAL APPEAL NO. 196 OF 2021 ELIA S/O RICHARD SHOO.......... ........ ...... APPELLANT VERSUS THE REPUBLIC .,..... ............ ................ ................. ........RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Moshi) fMutunoi. 3.) dated the 11th day of March, 2021 in DC Criminal Appeal No. 38 of 2020 JUDGMENT OFTHE COURT 5th & 10th June, 2024 NDIKA, J.A.: Elia s/o Richard Shoo, the appellant, was convicted of statutory rape and sentenced to thirty years' imprisonment by the District Court of Hai at Bomang'ombe following his trial. He has filed this second appeal after unsuccessfully appealing to the High Court of Tanzania at Moshi against the said conviction and sentence. The prosecution attempted to substantiate the accusation that the appellant engaged in sexual intercourse with a 10-year-old girl in July 2019 at Lyamungo Kati village in Hai District, Kilimanjaro Region, using the testimonies of four witnesses and a documentary exhibit. To safeguard her privacy, we will not disclose her identity. Instead, we will refer to her as PW1, the codename under which she provided testimony. The prosecution case demonstrated that PW1 was a Standard IV pupil at Move Primary School at the relevant period and that her residence was in the same neighbourhood as the appellant. She claimed that on an undisclosed day in July 2019, while passing by the appellant's residence, he enticed her into the kitchen and requested that she remove her clothing. The appellant's demand was initially met with resistance from PW1, but she ultimately relented when he threatened to discharge his dog on her. In the end, he placed her on the floor and inserted his male member into her vagina. Upon completion of the proceedings, he presented her with sweets and requested that she refrain from disclosing her ordeal to anyone. Allegedly, at least two additional sexual encounters of this nature transpired in the subsequent period. The appellant provided her with a sum of money ranging from TZS. 500.00 to TZS. 5,000.00 on each occasion. Additionally, PW1 disclosed to the trial court that she utilised the funds to acquire a tennis ball and sweets. One of her classmates [name withheld] struck one of their teachers with the ball while she was playing with it at approximately noon on 1st August, 2019. Another teacher (PW2), who also happened to be PWl's grandmother, inquired about the pupil's source of the bail out of curiosity. This investigation ultimately led to PW1 disclosing shocking information regarding her interactions with the appellant. The Village Chairman, PW3 Paul James Mushi, was informed of the situation by PW2 later that day. The appellant was promptly apprehended and transported to the Boma Police Station. Lazaro A. Kessy (PW4), an Assistant Medical Officer at Hai District Hospital, testified that he examined the complainant on 2nd August, 2019. He reported that PW l’s vagina was reddish and that her hymen was perforated in PF3 (exhibit PI). He believed that a blunt object had penetrated PWl's vagina. The appellant was rather brief in his testimony under oath. In addition to categorically denying the accusation against him, he provided testimony regarding the nature of his arrest on 1st August, 2019, without further explanation. The prosecution's case impressed the trial court (Hon. D. J. Msoffe - RM). She found it proven that PW1 was ravished, based on the testimonies of PW1 and PW4, which were supported by exhibit PI. The learned trial magistrate accepted PWl's testimony regarding the identity of the perpetrator of the crime and concluded that the appellant was responsible. She examined the appellant's defence but rejected it on the grounds that it was a mere statement of refutation that "he did not rape the victim. "Consequently, the appellant was found guilty of the offence as charged and sentenced to the mandatory thirty-year imprisonment, as previously mentioned. On the first appeal, the High Court upheld the trial court's findings of fact having taken the view that they were based on rigorously evaluated evidence. Ultimately, the court dismissed the appeal, even though it expunged exhibit PI on the basis that it was not read out after its admission into evidence. The appellant initially submitted seven grounds of complaint; but he subsequently added five supplementary grounds. In our view, the said grounds can be condensed into nine issues arranged in the following logical sequence: one, that the charge sheet was defective for non-citation of the applicable punishment provision; two, that PWl's testimony was recorded contrary to section 127 (2) of the Evidence Act, Cap. 6 ("the Evidence Act"); three, that section 231 (1) of the Criminal Procedure Act, Cap. 20 ("the CPA7') was violated; four, that the age of PW1 (the victim) was not proven; five, that the exclusion of exhibit PI by the High Court debased the prosecution case; six, that the delay by PW1 to report the crime dented her credibility; seven, that the courts below did not comply with section 127 (7) of the Evidence Act before founding the conviction on uncorroborated evidence of PW1; eight, that the appellant's defence was not duly considered; and nine, that the charged offence was not proven beyond a reasonable doubt. During the appeal hearing, the appellant, who was self-represented, prayed that we allow his appeal on the above points as elaborated in his written arguments he lodged in advance, without providing any further details. The appeal was vehemently opposed by Ms. Verediana Mlenza, learned Senior State Attorney, who was ably supported by Ms. Grace Kabu and Mr. Isack Mangunu, learned State Attorneys. Beginning with the first ground of appeal, it is on record that the offence was laid under sections 130 (1) and (2) (e) and 131 of the Penal Code, Cap. 16 ("the Penal Code"). The contention here, based on Godfrey Simon & Another v. Republic, Criminal Appeal No. 296 of 2018 [2022] TZCA 8 [11th February, 2022; TanzLII], is that the charge is fatally defective for non-citation of the applicable punishment provision, which is sub-section (1) of section 131. We think that Mr. Mangunu fully answered the issue at hand. Citing Bakari Junia v. Republic, Criminal Appeal No. 38 of 2020 [2023] TZCA 5 1764G [22nd September, 2023; TanzLII], he argued that the omission was inconsequential. We fully agree with him. As we stated at length in Abdul Mohamed Namwanga @ Madodo v. Republic, Criminal Appeal No. 257 of 2020 [2022] TZCA 123 [21st March, 2022; TanzLII] that, while it is desirable, citation of a penal provision in a charge sheet is not a statutory requirement under the CPA- Given that there is no dispute that the statement of the offence as well as the corresponding particulars of the offence fully informed the appellant of the nature and ingredients of the offence, we find no substance in the first ground of grievance. As aliuded to above, the complaint that PWl's testimony was recorded contrary to section 127 (2) of the Evidence Act features as the second ground. On this issue, the appellant relied on an extensive written submission he made based on our decision in John Mkorongo James v. Republic, Criminal Appeal No. 498 of 2020 [2022] TZCA 111 [11th March, 2022; TanzLII]. In essence, he contended, at first, that PW1, a child witness of tender years, was allowed to testify on a promise to tell the truth without being asked any preliminary questions to test her understanding of the meaning and nature of oath. Secondly, he argued that contrary to the guidance in John Mkorongo James {supra), the promise to tell the truth did not come directly from PW1. 6 In contrast, Mr. Mangunu argued, relying on Kastuli Charles @ Akoonay v. Republic, Criminal Appeal No-. 414 of 2020xzc [2023] TZCA 17659 [26th September, 2023; TanzLII], that PWl's vow to tell the truth, as extracted by the trial court, met the requirement of section 127 (2) of the Evidence Act. At first, we wish to recall that in Issa Salum Nambaluka v. Republic, Criminal Appeal No. 272 of 2018 [2020] TZCA 10 [21st February, 2020; TanzLII], we interpreted section 127 (2) of the Evidence Act, as amended, to the effect that it permits a child of tender age, that is, a child whose apparent age is not more that fourteen years, to give evidence on oath or affirmation or to testify without oath or affirmation but upon promising to tell the truth, not lies. It is evident at page 7 of the record of appeal that, after recording PWl's personal particulars, the trial magistrate indicated that the witness had "promised to tell the truth"and started receiving her evidence. We think that this approach met the requirement of the law as explicated in our numerous decisions including Issa Salum Nambaluka {supra) and Kastuli Charles {supra). It is worth recalling that, in the latter case we held that: 7 "... since from the record, PW4promised to tell the truth and not lies thus having complied with the provisions o f s. 127 (2) o f the Evidence Act, the fact that the trial court did not ask her questions to determine the manner in which she would give evidence does not have any effect as regards the validity o f her evidence." On the same parity of reasoning, the appellant's contention that PWl's promise was recorded in a reported speech is of no moment. We should, in addition, state that we are cognizant that, as a matter of practice, trial courts invariably follow the same pattern before allowing witnesses to testify on oath or affirmation. The second ground eventually fails. The third ground of complaint alleges that section 231 (1) of the CPA was violated. In the first place, it is accurate that the trial court is obligated to inform the accused of his rights under the said provisions in order to allow him to defend himself after the prosecution case has been concluded and a prima facie case established. The appellant expressed his disappointment that the trial court did not adhere to the said provisions without providing further details. Conversely, Ms. Kabu contended that the appellant was properly informed of his rights by the trial court, and he subsequently opted to defend himself under oath. We concur with Ms. Kabu's assertion that the trial magistrate duly recorded the appellant's choice to take the stand and testify under oath even though she did not explicitly state in the record that she addressed him regarding his rights under section 231 (1) of the CPA. His assertion that his defence rights were not addressed is rendered false by this fact. We proceed to the fourth ground, which is that the age of PW1 was not established. In his written argument, the appellant addressed this complaint. The crux of his argument is that the victim's age, which is a critical component of statutory rape, was unsubstantiated, as none of the witnesses, including PW1, provided testimony regarding it. It was also argued that the trial magistrate's citation in PWl's personal particulars that she was ten years old before she began testifying was no evidence of her age. Mr. Mangunu correctly acknowledged that the prosecution did not provide any evidence to explicitly establish PWl's age, even though she stated that she was ten years old while providing her personal details. We are aware that the medical examination report (exhibit PI) that PW4 submitted during the trial would have served as adequate evidence of her age. However, as previously mentioned, it was expunged from the record on the first appeal because of a procedural transgression. 9 Nevertheless, we concur with the learned State Attorney's assertion that PWl's age can be inferred from the fact that she was a Standard IV pupil at Move Primary School at the relevant time, in accordance with section 122 of the Evidence Act, as elucidated in Issaya Renatus v. Republic, Criminal Appeal No. 542 of 2015 [2016] TZCA 218 [26th April, 2016; TanzLII], The said provision enables any court to infer the existence of certain facts: 122. A court may infer the existence o f any fact which it thinks iikeiy to have happened, regard being had to the common course o f natural events, human conduct and public and private business, in their relation to the facts o f the particular case, "[Emphasis added] In Issaya Renatus {supra), we stated that, although it is preferable for the victim, relative, parent, medical practitioner, or the production of a birth certificate to provide evidence of age, the court may still infer the victim’s age based on the above provision in certain circumstances. The Court ruled as follows in that case, relying on that provision: "In the case under our consideration there was evidence to the effect that, at the time o f testimony, the victim was a ciass five pupii at Twabagondozi Primary School. Furthermore, PW1 was introduced into the witness box as a child o f tender age, following which the trial court conducted a voire dire test Thus, given the circumstances of this case, it is in the least, deducibie that the victim was within the ambit o f a person under the age o f eighteen." The above holding is equally applicable in this instance. It is reasonable to infer that PW1 was a person under the age of eighteen years, given that the evidence indicates that she was aStandard IV pupil at the material time and that she entered the witness box as a child of tender years. This is in accordance with the common course of natural events and human experience in our country, which do not, as a matter of course, permit adults to attend primary or childhood education in regular primary schools. The fourth complaint is dismissed. There is no necessity for us to be preoccupied with the fifth grievance. Ms. Kabu was correct in her assertion that the prosecution case was not adversely affected by the High Court's excision of exhibit PI (the medical examination report) on the basis that its contents were not read out after its admission. The testimony of the medic (PW4) regarding his findings on the victim, which were consistent with her having experienced vaginal penetration by a blunt object, was not erased or obliterated by the 11 exclusion of that document. Consequently, the complaint at hand is devoid of substance. The sixth ground of appeal is fundamentally rooted in the protestation that PWl's failure to report the crime in a timely manner undermined her credibility. It is a fact that PW1 claimed that her initial sexual encounter with the appellant took place on an undisclosed day in July 2019. However, the matter was allegedly reported to the police on 1st August, 2019, following the "tennis ball" incident that resulted in her salacious revelations. Ms. Kabu, on the other hand, contended that PW1 was prevented from reporting her ordeal earlier, due to the appellant's threats and inducements, which included money and sweets. It is true that the credibility of the witness in issue should be called into question due to the unexplained delay in naming a suspect - see Marwa W angiti Mwita & Another v. Republic [2002] T.L.R. 39. Nevertheless, as we previously stated in Selemani Hassani v. Republic, Criminal Appeal No. 203 of 2021 [2022] TZCA 127 [22nd March, 2022; TanzLII], this principle must not be applied reflexively without considering the specific circumstances of the case. In that event, we observed the following: "We think that while it can apply fairly unrestrictedly in respect of, say, cases involving property offences, it will not apply with equal force in cases concerning sexual offences where immaturity o f the victim, death threats or shame- associated with such offences may dissuade the victim from reporting the matter with promptitude/' In that case, we cited the Supreme Court of the Philippines' observation in the case of People o f the Philippines v. SP01 Arnulfo A. Aure and SP01 Marlon H. Ferol, G.R. No. 180451, October 17, 2008, with approvai: "Delay in reporting an incident o frape due to death threats and shame does not affect the credibility o f the complainant nor undermine her charge o f rape. The silence o f a rape victim or her failure to disclose her misfortune to the authorities without loss o f material time does not prove that her charge is baseless and fabricated. It is a fact that the victim wouid rather privately bear the ignominy and pain o f such an experience than reveal her shame to the world or risk the rapist's making good on his threat to hurt or kill her. "[Emphasis added] 13 In this case, PW1 was a child of tender years who testified that the appellant's threats were a weight on her shoulders, preventing her from disclosing the specifics of the sexual misconduct. We readily concur with Ms. Kabu's assertion that, in addition to her immaturity and the threats, she was easily swayed by the appellant due to the sweets and money involved. These factors conspired to prevent her from disclosing the information. The delay that has been complained about is undoubtedly justifiable and rational in the circumstances. It did not undermine her credibility. We now proceed to the argument that the courts below did not adhere to section 127 (7) of the Evidence Act prior to establishing the conviction on uncorroborated evidence of PW1. Since we are of the opinion that this grievance is founded on subsection (6j of section 127 of the Evidence Act, rather than subsection (7), we have extracted both subsections as follows: "6) Notwithstanding the preceding provisions o f this section, where in criminal proceedings involving sexual offence the only independent evidence is that o f a child o f tender years or o f a victim o f the sexualoffence, the court shall receive the evidence, and may, after assessing the 14 credibility o f the evidence o f the child of tender years [or] as the case may be the victim o f sexuai offence on its own merits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceedings, the court is satisfied that the child o f tender years or the victim o f the sexual offence is telling nothing but the truth. (7) For the purposes o f this section the term !sexuai offence'means any o f the offences created in Chapter XV o f the Penal Code:" We understood the appellant's complaint as being that the courts below acted on the uncorroborated testimony of PW1, a child of tender years and the victim of the charged sexual offence, without due regard to the requirement under section 127 (6) above. Assuming for a moment that PWl's evidence was uncorroborated, it could only be acted upon if the trial court was satisfied that PW1 told nothing but the truth. Ms. Kabu's counterargument was succinct. That no corroboration was required in the circumstances of this case. Since in the instant case the courts below accepted PWl's testimony as truthful, corroboration was not required in terms of section 127 (6) of the Evidence Act. Even if it were assumed, arguendo, that corroboration was necessary, we are of the view 15 that the testimonies of PW2, PW3 and PW4 supplied it to the victim's version. While PW2 materially supported PWl's version on how the despicable revelations were made following the tennis ball incident, PW3 adduced in support of how the appellant was arrested after the village functionaries learnt of the alleged crime. Moreover, PWl's evidence on the alleged sexual act was consistent with the medical evidence adduced by PW4. That her vagina exhibited a perforated hymen consistent with her having experienced vaginal penetration by a blunt object. We, therefore, reject the seventh ground of appeal. The argument in the eighth ground that the appellant's defence was not properly considered is evidently irrelevant. We previously suggested that the appellant's defence consisted of a general denial, without providing any further details. The defence was considered and rejected by both courts below, as Ms. Kabu correctly submitted. The appellant's refutation was disregarded by the trial court as a mere statement. Our jurisprudence instructs that a general denial of liability is not only a self- serving defence but also an inherently weak shield that would crumble upon the trial court's recognition of the prosecution's case as a truthful account. The foregoing determination leads us to the concluding inquiry: was the charged offence adequately established? Mr. Mangunu correctly argued that the prosecution was required to establish the following in order to prove the offence of statutory rape the appellant faced, predicated on sections 130 (1), (2) (e) and 131 (1) of the Penal Code: one, that the prosecutrix underwent vaginal penetration; two, that the prosecutrix was under eighteen years of age at the time of the sexual act; and three, that: the accused was the perpetrator of the sexua! act. Having examined the testimonies of the four prosecution witnesses, we are satisfied that the evidence on record was soundly evaluated by the courts below. At the forefront, it was undoubted that the prosecutrix was raped. Her testimony on the alleged sexual act was consistent with the medical evidence adduced by PW4. Secondly, based on our conclusion on the fourth ground, PW1 was established as a girl aged under eighteen years. Her immaturity, therefore, rendered immaterial the question whether she consented to the sexual act or not. Lastly, as to identity of the culprit, the courts below gave full credence to the prosecutrix's testimony mentioning the appellant as the rapist. On this basis, we respect and uphold the concurrent finding by the courts below that the appellant ravished PW1, a girl aged under eighteen years. In the end, we find that the appeal was lodged without any semblance of merit. We dismiss it in its entirety. DATED at MOSHI this 7th day of June, 2024. G. A. M. NDIKA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered on this 10th day of June, 2024 in the presence of the appellant in person and Ms. Bertina Tarimo, State Attorney for respondent/Republic, is hereby certified as a true copy of the original. 18