CRIMINAL APPEAL NO 569 OF 2021 MOHAMED JUMANNE V REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MUGASHA. J.A.. LEVIRA. J.A. And MAKUNGU. J.A.^ CRIMINAL APPEAL NO. 569 OF 2021 MOHAMED JUMANNE........................ ................ ............. .........APPELLANT VERSUS THE REPUBLIC............................................................................... RESPONDENT (Appeal from the decision of the Court of the Resident Magistrate of Manyara with Extended Jurisdiction at Babati) (R.A Mwakvolo, SRM-Ext. Jur.^ Dated the 25th day of June, 2021 in Criminal Appeal No. 83 of 2020 JUDGMENT OF THE COURT J d& B hJuly, 2024 MUGASHA. J.A.: The appellant was charged and convicted by the District Court of Hanang at Katesh of the offence of rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code [Cap 16 R.E 2002]. In the particulars of the offence, it was alleged that on 28/9/2018 at or about 21.00 hours, at Endasaboghechan village within Hanang District in Manyara Region, the appellant did have sexual intercourse with a girl aged ten (10) years. The girl shall be referred to as the victim or PW1 in order to conceal her identity. i A brief account underlying the conviction of the appellant is to the effect that: On the fateful day, the victim went to her aunt to collect money for her mother. When returning home, probably because it was already at night, her aunt directed and she was escorted by her cousin brother and while on the way, they happened to meet the appellant. The cousin brother asked and the appellant obliged to escort the victim. The cousin brother then retired to his home. On the way, the appellant asked the victim to have sexual intercourse with her and promised to give her TZS. 1,000.00. Since the victim declined, the appellant laid her down, undressed her and he began to rape the victim. She screamed in vain but managed to escape leaving behind her trouser and khanga at the scene of crime. On the way the victim met one Mzee Baldee and they went together at the scene of crime to pick her clothes. Then, Mzee Baldee took her to the hamlet chairman who escorted the victim home. At home, the victim narrated about the incident to her mother Selina Hawaii (PW2). Upon inspecting the victim's vagina PW2 found it torn and went ahead to call the people's militia who arrested the appellant and took him to the police station. At the police station, after being issued with the PF3, the victim was taken to Endasaki Dispensary and later at Tumaini Hospital. The victim was on 29/9/2018 medically examined by the Doctor, Simon Gerald Nashokingwa (PW3). Besides stating that the victim was complaining to have been raped, the doctor found bruises on the victim's vagina bruises caused by a blunt object. He recorded the medical findings in the PF3 which was tendered at the trial and admitted as exhibit PI. On the other hand, the appellant denied each and every detail of the prosecution account. He claimed to have been arrested by people's militia on 27/9/2018 at 01.00 hours while at home on accusations that he had raped a child. He was taken to the village chairman and later to the Police Endasak and on 28/9/2018 was admitted to bail. However, on 29/9/2018 he was arrested by the police officer, taken to Katesh Police station and arraigned in court. He added that, the victim was not raped because she managed to walk properly and that the case was framed against him because he had a land case with the victim's mother. After a full trial, the trial magistrate was satisfied that the offence of rape was proved against the appellant beyond reasonable doubt. He was convicted and sentenced as earlier stated. His appeal before the first appellate court bore no fruits and the conviction and the sentence were sustained. Still undaunted, the appellant has approached the Court seeking to demonstrate his innocence. In the Memorandum of Appeal, the appellant has fronted five points of grievance as hereunder: 1. That the trial magistrate erred in iaw and fact by wrongly invoking the provision under section 127(2) o f the TEA, [Cap 6 R: E 2019]. 2. That the lower courts erred in iaw and fact by convicting and upholding the appellant's conviction while the charge sheet was incurably defective and no amendment was done in terms o f section 234 (1) o f the CPA, [Cap 20 R: E 2019]. 3. That the lower courts erred in law and fact by convicting the appellant for the offence o f rape under section 130(1), (2)(e) while the age o f the victim was not proved. 4. That the court erred in law and fact in convicting the appellant for the offence o f rape while the prosecution failed to call material witnesses. 5. That the lower courts erred in iaw and fact by relying on the oral testimonies o f PW2, PW3 and PW4 which were wholly hearsay. 6. That the lower courts erred in law and fact in regarding and believing the evidence o f PW1 (victim) as credible while her evidence does not fall with the context and import o f section 127(7) o f the TEA, [Cap 6 R: E 2019]. The appellant as well presented to us his written arguments which shall be considered in this decision. At the hearing, the appellant who appeared in person, unrepresented adopted the grounds of appeal and his written arguments. He implored us to allow the appeal and set him free. On the part of the respondent, Republic, Ms. Lilian Kowero, learned Senior State Attorney who co appeared with Ms. Grace Madikenya and Mr. Godfrey Nugu, both learned State Attorneys, did not support the appeal. From what we have gathered in the Memorandum of Appeal and the written arguments of the appellant, basically the appellant's complaint hinges on two fronts namely: one, the trial was flawed with procedural irregularities and the trial was vitiated for non-compliance with the provisions of section 234 (1) of the Criminal Procedure Act [CAP 20 R.E 2019], the provisions of section 127 (2) and (7) of the Evidence Act [ CAP 6 R.E 2019] which is the gist of the 1st and 3rd grounds of appeal; and two, that the charge was not proved at the required standard because the age of the victim was not proved, the prosecution did not parade material witnesses and thus, the conviction wrongly relied on hearsay evidence of PW2, PW3 and PW4 and the incredible account of the victim which is the gist of grounds 3, 4, 5 and 6. In the circumstances, we shall dispose of this appeal beginning with the grounds 2 and 1 and finally grounds 3, 4, 5 and 6. In respect of the appellant's complaint on the charge being defective, it was the appellant's contention that, the evidence is at variance with the charge on the place of occurrence of the fateful incident. He pointed out that, whereas the charge shows that the rape incident was at Endasaboghechan Village, the victim stated that the incident occurred at Kichangani. In this regard, the appellant argued that, in the absence of any clarification from the prosecution side and since the charge was not amended in terms of section 234 (1) of the CPA, the charge was not proved to the hilt and as such, the conviction was not proper. This was opposed by Ms. Kowero who maintained that the rape incident occurred in the village stated in the charge and as such, it was argued that neither is the charge defective nor is the evidence at variance with the charge. It is settled law that, the evidence marshalled by the prosecution must support the charge in order to prove the allegations against the accused person. In the present case the contending arguments are in respect of the certainty of the scene of crime. At page 9 of the record of appeal the victim's account in relation to her residence and that of the appellant and where she was coming from and the place she was raped indicates as follows: "I live in Endasaboghechan I'm a student at Endasaboghechan Primary School. I know the accused. I live with the accused in the same village. ...On 28/09/2018 at 16.00 hours I was at my aunt place who lives with us in the same village. I went to take money. I did not find her. My aunt arrived at 19.000 hours and gave me money ...to take to my mother. My aunt told my cousin brother to escort me. My cousin brother escorted me on the way we met Mohamed Jumanne and my brother asked Mohamed to escort me while my brother went back home. Mohamed escorted me and, on the way, Mohamed asked me to give him an issue and he will give me Tshs. 1,000/= (aiisema naomba nikupe buku) I refused to give him an issue, On arriving at kichangani Mohamed the accused felled me down and undressed my trouser. The accused took his penis and inserted in by vagina...". From the above excerpt, the victim's home and the residence of the victim's aunt where she went to collect money and kichangani area are within the same village of Endasaboghechan. Thus, in the absence of any contrary evidence that kichangani is in a different village, we are satisfied that besides the charge sheet being correctly drawn in terms of section 7 132 and 135 of the CPA, the victim's account on the place of occurrence of the rape incident is not at variance with the charge. Thus, the amendment of the charge as suggested by the appellant was uncalled for and the 2nd ground of appeal is not merited. Next on the alleged procedural flaws which is in relation to the manner in which the evidence of the victim was received and attended is the appellant's complaint that section 127 (2) of the Evidence Act was not complied with because the victim's promise to tell the truth in her evidence was not preceded by any inquiry by the trial magistrate. He thus argued that the evidence of the victim was wrongly acted upon to ground the conviction. He cited to us the case of ISSA SALUM NAMBALUKA VS REPUBLIC, Criminal Appeal No. 272 of 2018 at pages 11, 12 and 13. On the other hand the respondent Republic challenged the appellant's complaint having pointed out that, there is no law which requires the victim's promise to tell the truth to be preceded by an inquiry by the trial court. Thus, it was argued that the victim's account was properly received and acted upon to convict the appellant. The manner of recording the evidence of a child witness is regulated by the provisions of section 127(2) of the Evidence Act which stipulates as follows: "Section 127 (2) A child o f tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell lies". The cited provision allows the child of a tender age to give evidence without oath or affirmation and before giving evidence, the child must promise to tell the truth to the court and not to tell lies. See the case of GODFREY WILSON VS REPUBLIC, Criminal Appeal No. 168 of 2018 and JOHN NGODA VS. REPUBLIC, Criminal Appeal No.45 of 2020 (both unreported). According to the record, the victim of the offence (PW1) was ten years old as per the evidence of PW3 and exhibit PI. What transpired at the trial before the victim testified is reflected at page 10 of the record of appeal as hereunder: " PW1; [ victim] Aged 11 years old, Christian. Court; PW1 is a girl below 14 years old and she is addressed as to whether she promise to tell the truth. Sgd PW1: To lies I will be committing a sin I promise to tell the truth before the court. 9 Court: PW1 promised to tell the truth and she understands the effects o f telling lies". It is glaring that the victim's promise was not preceded by any inquiry by the trial magistrate. A follow up question is whether the absence of the inquiry vitiated the victim's account. Our answer is in the negative because according to section 127 (2) of the Evidence Act, what is paramount is for the child witness to promise to tell the truth and not lies prior to giving evidence which must be reflected in the record. See: YUSUPH MOLO VS REPUBLIC, Criminal Appeal No. 343 of 2017 and MSIBA LEONARD MCHERE KUMWAGA VS REPUBLIC, Criminal Appeal No. 550 of 2015. In the premises, the law does not require that the inquiry preceding the promise must be recorded as suggested by the appellant. In this regard, there is not dispute that PW1 did promise to tell the truth before her evidence could be recorded. The case of ISSA SALUM NAMBALUKA VS REPUBLIC (supra) cited to us by the appellant is distinguishable because in that case the victim was examined on oath which is not the case in the present matter. Therefore, section 127(2) was not contravened in any manner and the appellant's complaint in the 1st ground is devoid of any merit. 10 Ultimately, in the remaining grounds 3, 4, 5 and 6 the appellant is faulting the conviction contending that the charge was not proved at the required standard because: One, the age of the victim was not proved and her evidence was not credible and the contradictions in the evidence of the victim and that of the doctor on the victim's age; two, improper reliance on the hearsay evidence of PW2, PW3 and PW4 which was wrongly acted upon to ground the conviction; and three, failure by the prosecution to parade as witnesses the cousin brother of the victim and Mzee Baldee which entitles the court to draw an inference adverse to the prosecution. In opposition of what was contended by the appellant, the learned Senior State Attorney submitted that, the age of the victim features in the PF3 as acknowledged in the oral account of the doctor who examined the victim and established that she was actually raped as reflected at pages 15 and 16 of the record of appeal. That apart she submitted, on the same day, mentioned to her mother that it is the appellant who had raped her. Thus, it was Ms. Kowero's argument that, the victim gave the best and credible account on how she was raped by the appellant which was corroborated by the testimony of PW2, PW3 and PW4. In this regard it was thus argued that, there was no need of parading as witnesses Mzee li Baldee and the victim's cousin given that none of them did see the appellant raping the victim. It is trite law that in statutory rape as the case herein, the age of the victim is an essential element which must be proved that the victim was under the age of eighteen years at the time of commission of the offence. See: ALEX NDENDYA VS REPUBLIC, Criminal Appeal No. 340 of 2017 and SOLOMON MAZALA VS REPUBLIC, Criminal Appeal No. 136 of 2012 (both unreported). In the latter case the Court stated: "The cited provision o f iaw makes it mandatory that before a conviction is grounded in terms o f section 130 (2) (e), above, there must be tangible proof that the age o f the victim was under the age o f eighteen years at the time o f commission o f the offence". Proof of the age can be given by a parent, guardian, victim, teacher or medical practitioner. See: PETER BUGUMBA@CHEREHANI VS. THE REPUBLIC, Criminal Appeal No.251 of 2019, ISSAYA RENATUS VS. REPUBLIC, Criminal Appeal No. 542 of 2015 and SHANI CHAMWELA VS. REPUBLIC, Criminal Appeal No.481 of 2021 (all unreported). In the instant case, the PF3 exhibit PI recorded on 29/9/2018 when the victim was medically examined shows that the victim was ten years as 12 recorded therein which was confirmed by the doctor. Thus, since the trial was conducted a year later, when the victim adduced evidence, she had already attained the age of eleven (11) years as reflected in the citation of her particulars at page 10 of the record of appeal. This, rules out the contradictions as suggested by the appellant pertaining to the uncertainty on the age of the victim. In the premises, since the age of the victim was stated in the evidence, the essential element of age in statutory rape was proved and as such, the appellant's complaint in the 3rd ground of appeal is without merit. Next is the complaint that, the cousin brother of the victim, mzee Baldee and the Hamlet chairperson who claimed to have seen the appellant with the victim and to whom the incident was reported at first instance were not summoned to testify. The appellant invited the Court to draw an inference adverse to the prosecution. The question at stake is whether material witnesses were not paraded and if such failure discredited or rather impeached the prosecution case. In the case at hand, none of the witness did see the appellant raping the victim. PW2, PW3, PW4 and those not paraded as witnesses were all told about the rape incident by the victim on the same day. Besides, PW2's to whom the victim narrated the ordeal and mentioned the 13 appellant, her evidence was crucial because she had inspected the victim and found that she was actually ravished. Then PW2 reported the matter to the people's militia which enabled the arrest of the appellant on the same day. After the matter was reported to the police, the victim was taken to the hospital where the doctor established that the vagina of the victim was actually penetrated by a blunt object. In the premises, failure to parade those alleged to be material witnesses did not impeach the prosecution case. Besides, the appellant was at liberty to call those witnesses not paraded by the prosecution to testify for the defence case so as to discredit and impeach the prosecution case which was not the case. In the premises, grounds 4 and 5 of the appeal are not merited. Finally, is the appellant's complaint that the victim's account was not credible and as such, it was wrongly acted upon to ground the conviction. The prosecution maintained that; the victim's account was credible as she had narrated how she was raped by the appellant. It is trite law that, the quality and reliability of a witness hinges on credibility of the testifying witness and among the settled criteria of determining the reliability and credibility of a witness is the ability of the victim to mention a suspect at the earliest moment. 14 It is settled law that, the credibility of a witness is the monopoly of the trial court which has the advantage to see and observe the demeanour of a witness when adducing evidence. However, in appellate jurisdiction the Court can still determine the credibility of a witness by assessing the coherence of testimony of that witness and two, when the testimony of that witness is considered in relation to the evidence of other witnesses including that of an accused person. See: SHABANI DAUDI VS REPUBLIC, Criminal Appeal No. 28 of 2001, ELISHA EDWARD VS REPUBLIC, Criminal Appeal No. 33 of 2018 (both unreported). Moreover, among the settled criteria of determining the reliability and credibility of a witness is the ability of the victim to mention a suspect at the earliest moment. In the matter under scrutiny, we are satisfied that, the victim account is entitled to credence on the basis of credible account as to how she was raped by the appellant whom she mentioned to her mother on the very day. The victim was familiar with the appellant as they all resided in the same village. The victim's account on the rape incident was corroborated by the testimony of her mother who upon inspecting her found that she was actually raped as confirmed by the medical doctor who had examined the victim shortly after the incident. Besides, the 15 prosecution account was not shaken or impeached by the defence which did not cast any doubt thereto. In the circumstances, the charge of rape was proved against the appellant at the required standard thus, the 6th ground of appeal fails. In view of our re-evaluation of the evidence we find no cogent reasons to disturb the concurrent findings of the two courts below as we are satisfied that the conviction of the appellant is justified and proceed to dismiss the appeal in its entirety. DATED at ARUSHA this 6th day of July, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Judgment delivered this 8th day of July, 2024 in the presence of the appellant in person/unrepresented and Mr. Alawi Maraji, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. *