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IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: NDIKA. J.A.. MWAMPASHI. 3.A. And MGEYEKWA. J J U CRIMINAL APPEAL NO. 679 OF 2021 BAYO PASCHAL @ BANGA @ BAYO SAMBIYE............................ APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Arusha) (Kamuzora. J/) Dated the 3rd day of November, 2021 in Criminal Appeal No. 113 of 2020 JUDGMENT OF THE COURT 6th & 14th August, 2024 MGEYEKWA. J.A.: Bayo Paschal @ Banga @ Bayo Sambiye, the appellant, stood trial at the District Court of Babati at Babati for rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap. 16 (the Penal Code). It was alleged that on 23rd March, 2020 at Gedewari Village within Babati District in Manyara Region, the appellant had carnal knowledge of a girl aged 13 years. To conceal the girl's identity, we shall henceforth refer to her as the "complainant" or by her trial codename "PW1". The facts underlying the present appeal are briefly as follows: On 23rd March, 2020, around 17:00 hours the complainant was sent out by her mother to a shop. On the way, she passed by the appellant's house. The appellant called PW1 by her name and she responded and followed him. Suddenly, the appellant grabbed and forced her to enter into his room. That was not all. He undressed her as she was crying for help but the appellant threatened to kill her. He then removed his clothes and proceeded to have sexual intercourse with her. A moment later, after the appellant had fled, the. complainant exited the appellant's house whereupon, she met Closter Petro Cornell' (PW6) who took her to her mother. The complainant, right away reported the ordeal to her mother and on the following day, she was taken to Dareda Hospital for medical examination and treatment. PW6's evidence dovetailed with that of PW1. According to her, on the fateful day, she saw PW1 crying and when she asked what had befallen her, she replied that Bayo had raped her. Thereafter, she took PW1 to her mother's house. PWl's mother and PW6 examined the complainant's vagina and observed what looked like seminal fluid mixed with blood. Leonice Martini (PW3), the complainant's aunt, confirmed the version of PW1, in the sense that on the fateful evening, the complainant delayed returning home after she had sent her to the shop to get a change of Tshs. 2 500/=. A moment later, she saw the complainant crying, while accompanied by their neighbour. PW3 asked PW1 what had befallen her, she responded that Bayo raped her. She then examined the complainant's vagina and noted that she had bruises and what looked like semen. Following the incident, PW3 reported the matter to the Hamlet Chairperson. On the following day, the appellant was arrested. On 24th March, 2020, the complainant was examined at Dareda Hospital, by Pacida Leonce (PW2), a Clinical Officer, who documented his findings in his medical report (PF3 - Exhibit PEI). She observed that there were signs of bruises and redness in the complainant's vagina but he could not say whether there had been any penetration due to the fact that the complainant took bath before she went to the hospital. WP.9630 Detective Corporal Christian (PW4), a police officer stationed at Babati, on 24th March, 2020 examined the complainant's vagina and found that there were bruises and sperm. She interrogated the complainant, who told her that the appellant raped her. Later that day, Martin Petro (PW5) arrested the appellant for the offence of rape. In his testimony on oath, the appellant denied the accusation against him. He claimed that there was no any eyewitness account of the incident of rape. He complained that the case was framed against him due to the existing grudges between him and PW6. He was surprised to be arrested on 23rd March, 2020 for accusation of rape. He was then taken to the police station, where he recorded his statement. The trial court was convinced by the version of the prosecution witnesses. Accordingly, the appellant's defence evidence was rejected leading to his conviction and a sentence of thirty years imprisonment. Dissatisfied, the appellant unsuccessfully appealed to the High Court, hence the instant appeal in which the appellant is desirous of protesting his innocence. The appeal is predicated on five grounds of grievance, which may be paraphrased as follows: One, the case was not proved beyond reasonable doubt. Two, the trial court failed to evaluate the evidence on record. Three, there were grudges between him and PW6. Four, the evidence of PW2, PW4, and PW6 was uncorroborated. Lastly, the testimonies of PW2 and PW4 were contradictory and inconsistent. At the hearing of the appeal, the appellant appeared in person. Besides adopting the grounds of appeal, he urged us to consider his written submission. He contended that, PW2 was not qualified to medically examine the complainant for the reasons that, he holds a diploma in law, the PF3 (exhibit PEI) was signed by Doctor Lorry Joseph, and after its tendering, it was not read over in court. Therefore, he urged the Court to expunge the exhibit PEI from the court record. To support his argument, he cited the case of Robinson Mwanijisi & three others v. Republic [2003] T. L. R 218. It was his further complaint that PW2 in his testimony observed that the complainant's vagina had bruises, surprisingly, he concluded that there was no evidence of penetration. The appellant also complained that the case was not proved beyond reasonable doubt. He pegged his complaint on the fact that the evidence of PW1 and PW3 was riddled with glaring contradictions and inconsistencies, thus, rendering them unworthy of belief. Expounding, he submitted that the complainant testified that it was PW6 who informed her mother that the appellant raped her while the story of PW3 was different, she said that it was the complainant who reported the ordeal to her. The appellant continued to argue that the trial court did not comply with section 127 (2) of the Evidence Act. Expounding, he argued that the complainant was 13 years. Therefore, it was his argument that, the complainant was required to promise to tell the truth, surprisingly, the trial court recorded that PW1 promised to tell the truth. He thus urged us to disregard PW l's evidence. 5 The appellant further complained that the trial court in its judgment did not consider his defence. He clarified that he testified that, he had grudges with PW6, therefore, he argued that section 312 (1) of the Criminal Procedure Act (the CPA) was not complied with. In conclusion, he urged us to allow the appeal and set him free. Responding on behalf of the respondent was Ms. Mary Lucas, learned Principal State Attorney, who appeared together with Ms. Blandina Msawa, learned Senior State Attorney, and Ms. Mwanaidi Chuma, learned State Attorney. Ms. Lucas opted to argue the first ground that, the case was not proved beyond reasonable doubt conjointly with the remaining grounds of appeal. It was Ms. Lucas' submission that the prosecution case was proved to the hilt through the evidence of PW1. She began by laying out the ingredients of statutory rape the appellant faced which was predicated on sections 130 (1), (2) (e), and 131 (1) of the Penal Code. She clarified that the prosecution had to establish; one, that there was vaginal penetration of the complainant; two, that the complainant's age at the time of the sexual act was below 18 years and three, that the perpetrator of the sexual act was the appellant. 6 The learned Principal State Attorney submitted that based on the prosecution key witness (PW1) and PW2; it was sufficiently proven that penetration took place. Elaborating, she submitted that, PW2 observations proved that there were bruises and the law under the provision of section 130 (4) of the Penal Code clearly states that penetration however slight suffices to prove rape. Ms. Lucas placed more reliance on the complainant's testimony, and said that, during cross-examination, the complainant did not shake, she was consistent. She referred us to the case of Selemani Makumba v. Republic [2006] T. L. R 379 for the proposition that in a sexual molestation case, the complainant's evidence is the best evidence. Upon being probed by the Court on whether the complainant's age had been established to be within the applicable range for statutory rape, the learned Principal State Attorney answered the question in the affirmative. She stated that although the complainant and other prosecution witnesses did not testify to that aspect of the offence, but the age of the complainant was stated in the medical examination report (PF3) - Exhibit PEI that she was 13 years at the time when the incident occurred. Therefore, she was sure that PWl's age was proved. 7 At the Court's prompting, the learned Principal State Attorney stated that although it is on record that PW2 studied law at Sengerema Health Centre, she asserted that PW2's testimony must have been wrongly recorded. She submitted that since PW2 was a Clinical Officer as she introduced herself and signed the PF3 (Exhibit PI) as such, the discrepancy complained of is trifling. Ms. Lucas continued to submit that the appellant's complaint that there were grudges between him and PW6 is an afterthought because the appellant did not challenge the testimony of PW6. Therefore, it is deemed that the appellant was comfortable with the contents of the testimony of PW6. In her conclusion, Ms. Mary implored us to dismiss the appeal in its entirety. On our part, we have dispassionately considered the rival arguments made by the parties. The grounds of appeal shall be determined in the same manner and style adopted by the learned Principal State Attorney in her arguments. The main issue for consideration is whether the prosecution proved the case beyond reasonable doubt. As correctly submitted by Ms. Lucas in proving the offence of statutory rape the appellant faced, predicated on sections 130 (1), (2) (e) and 131 (1), (3) of the Penal Code, the prosecution had to establish the following: one, that there was vaginal penetration of the complainant; two, that the complainant's age indicates her incapacity to consent to sexual intercourse at the time of the sexual act; and three, that the perpetrator of the sexual act was the appellant. Having reviewed the prosecution witnesses1 testimonies and in particular the complainant's evidence, we find that the complainant gave a detailed description of her ordeal in the appellant's hands. As alluded to above, the complainant's evidence was corroborated by PW6 who examined her on the fateful date, and observed that there was seminal fluid in her vagina and also by PW2 who observed that there were signs of bruises and redness in her vagina. It is common cause that in criminal law, rape is defined broadly, to include slight penetration. Section 130 (4) of the CPA provides clearly that penetration however slight is sufficient to constitute sexual intercourse necessary for the offence of rape. See the cases of Masomi Kibusi v. Republic, Criminal Appeal No. 75 of 2005 (unreported) and Godi Kasenegala v. Republic, Criminal Appeal No. 10 of 2008 [2010] TZCA 166 (12 October 2010 TanzLII). In Godi Kasenegala (supra) the Court held that: "In either case, one essential ingredient o f the offence must be proved beyond a reasonable doubt This is the element o f Penetration i.e. the penetration, even to the slightest degree, of the penis into the vagina: see, Masomi Kibusi v. Republic; Criminal Appeal No. 75 o f 2005(unreported)." [Emphasisadded] Being guided by the above provision of the law and authorities, we hold that penetration, even to the slightest degree, of the penis into the vagina would suffice in a charge of rape. Therefore, we do not agree with the appellant that penetration was not proved. In addition, the complainant also proved that the perpetrator of the sexual act was the appellant in exclusion of other persons. We are alive to the principle that the best evidence in sexual offences cases comes from the victim, this was the standing of the Court in the celebrated case of Selemani Makumba (supra). The principle was reiterated in the case of Mohamed Haji AN v. Director of Public Prosecution, Criminal Appeal No. 225 of 2018 [2018] TZCA 332 (13 December 2018) TanzLII). It is our view that the lower courts made a thorough assessment of the credibility of the prosecution witnesses. We, therefore, reject the arguments by the appellant on this point. Concerning the age of the complainant, we are at one with the learned Principal State Attorney that, the complainant and other 10 prosecution witnesses did not testify to that aspect of the offence, but in the PF3 - Exhibit PEI at page 35 of the record of appeal, the complainant's age is stated as thirteen years on the date she was examined at the hospital. Furthermore, we do not agree with the appellant's complaint that PW1 did not promise to tell the truth. For ease of reference, we reproduce the relevant part of PWl's testimony hereunder: Witness: I study at Gidewariprimary school. I did attend church in every Sunday. I am yet to have holy communion. I know what is sin. I came here to the court to state the truth.... Court: The victim promised this honourable court that she will give the truth evidence." Deducing from the above excerpt, it is clear that the trial magistrate tested the complainant whether she understood the meaning of telling the truth, and the complainant complied with the requirement of promising to tell the truth and not lies. Upon satisfaction to that effect the trial court recorded what was stated by the complainant. Therefore, we find this complaint wanting in substance and dismiss it. Regarding the complaint that the testimonies of PW2, PW4, and PW6 were not corroborated, we think this will not detain us. As can be discerned from the record of appeal on page 30, PW6 inspected the 11 complainant on 23rd March, 2020 and found what seemed to be sperms in her private parts. PW2 examined the complainant on 24th March, 2020 and observed that the complainant had bruises on her vagina which was also reddish. Both PW2 and PW4 claim to have inspected the complainant on the same day. However, their narration on what they discovered after the examination differs. Having considered the discrepancies complained of, we do not consider them to be material to the extent of affecting the credibility of the prosecution witnesses. Apart from the testimonies of PW2, PW4, and PW6, we have noted that the complainant stood steadfast on the essential aspects of her evidence against the appellant. It is our considered view that PW4 and PW6 testimonies corroborated the complainant's testimony and therefore, the complainant, PW2, PW4 and PW4 are credible and reliable witnesses. As such their testimonies cannot be affected by discrepancies complained of. Turning to another complaint by the appellant that PW2 was not a qualified clinical officer to medically examine the complainant, we are at one with the appellant that, the record of appeal reveals that PW2 said that he holds a diploma in law. However, as rightly argued by Ms. Lucas, we think that this might have been occasioned by a slip of pen. The 12 question that arises is whether PW2 was a qualified clinical officer to examine the complainant. We have considered this evidence. We think this discrepancy is trivial and does not go to the root of the matter as rightly submitted by Ms. Lucas, PW2's testimony sufficed to prove that she was a clinical officer. In addition, PW2 examined the complainant and observed that she had bruises and redness in her vagina. Her observations were supported by her supervisor, Doctor Joseph Lorry, who counter­ signed the PF3 which implies that the complainant was examined by a qualified clinical officer. This ground has no merit and we dismiss it. The appellant's reliance on the complaint that there were grudges between him and PW6 is an afterthought. The record is clear that the appellant did not challenge the testimony of PW6 on this damning evidence against him. We are aware that a person should not cross- examine if he/she cannot contradict. But it is also trite law that failure to cross-examine a witness on a relevant matter ordinarily connotes acceptance of the veracity of the testimony. This connotes that he was comfortable with the contents of the testimony of the witness. See the cases of Cyprian Athanas Kibogoyo v. Republic, Criminal Appeal No. 88 of 1992 (unreported), Damian Ruhele v. Republic, Criminal Appeal No. 501 of 2007 [2012] TZCA 160 (2 March 2012 TanzLII), Nyerere Nyague v. Republic, Criminal Appeal No. 67 of 2010 [2012] TZCA 103 13 (21 May 2012 TanzLII) and George Maili Kemboge v. Republic, Criminal Appeal No. 327 of 2013 [2014] TZCA 203 (30 October 2014 TanzLII). We, therefore, reject the argument by the appellant on this point. In the end, we find the appeal devoid of merit and hereby dismiss it in its entirety. DATED at ARUSHA this 12thday of August, 2024. G. A. M. NDIKA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 14th day of August, 2024 in the presence of the Appellant in person and Mr. Philbert Msuya, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the oriqinaL 14