CRIMINA APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA f CORAM: MKUYE. J.A.. KITU SI, 3.A. And ISSA, J J U CRIMINAL APPEAL NO. 167 OF 2021 MECLINO MICHEL @ MSECHU................................................................ APPELLANT VERSUS THE REPUBLIC..................................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Manvanda, J.^ dated the 14th day of December, 2020 in Criminal Appeal No. 16S of 2020 JUDGMENT OF THE COURT 5* & IQ* August, 2024 ISSA, 3.A.: The appellant, Meclino Michel @ Msechu was tried and convicted by the District Court of Nyamagana (the trial court) at Mwanza for the offence of rape contrary to sections 130 (l)(2)(e) and 131 of the Penal Code, Cap. 16. Upon convicting the appellant, the trial court imposed a sentence of 30 years imprisonment. The arraignment of the appellant before the trial court was a result of an accusation that, on September, 2019 at Kambarage Igogo area within Nyamagana District in Mwanza Region, the appellant had carnal knowledge of a girl aged 11 whom we shall call XY or victim to hide her identity. The prosecution fielded five witnesses to prove the charge. After a full trial the appellant was convicted as charged and sentenced as stated earlier. The brief facts of the case as found by the trial court and confirmed by the first appellate court were that, the appellant and the victim (PW1) were neighbours and the victim used to go to the appellant's house to fetch water from the well. On September, 2019 the appellant called the victim to his house and started molesting her by touching her private parts. He, later, gave her TZS. 500.00 and proceeded to undress her and after undressing himself he had carnal knowledge of her. After satisfying his lust, he threatened the victim that if she told anyone he would make her insane. The victim kept quiet until 25th October, 2019 when Shadrack Mboje, the Ward Executive Officer (WEO)(PW4) saw her playing in the street during school hours. PW4 asked one of his officers to bring the victim to his office. When he interrogated her about why she was not attending school, she narrated the whole story about how the appellant was abusing her when she went to fetch water at his house. In fact, he had raped her several times. PW4 called Fatma Bakari, the mother of the victim (PW2) and informed her the ordeal the victim was experiencing in the hands of the appellant. He advised her to report the matter at Igogo Police Station. PW2 on the same day reported the incident at Igogo Police Station where she was given PF3 (exhibit PI) which she took to Butimba hospital. The victim was examined by Josephat Oseme, a clinical officer (PW5) on 26th October, 2019. His findings on examination, were that the victim was in a normal condition, but the hymen was not intact which confirmed that she had been carnally known. The case was investigated by E 2670 D/Cpl Mustafa (PW3) who arrested the appellant on 28th October, 2019 and then recorded his cautioned statement. He also visited the appellant's house and the Sahara Primary School where the victim was studying. The appellant, in his defence, admitted knowing the victim who was one of his clients who used to fetch water in his house, but he denied having committed the offence. He branded all prosecution evidence false and questioned why he was not taken to hospital for check up to confirm that, he was the one who raped the victim. The trial court found the prosecution evidence was sufficient to sustain the charge. Its findings were supported by the evidence of the victim, XY which was corroborated by the evidence of PW2, PW4 and PW5. It found the said evidence to have proved the case against the appellant beyond reasonable doubt. The appellant lodged an appeal to the High Court of Tanzania at Mwanza (the first appellate court) in Criminal Appeal No. 165 of 2020. The first appellate court sustained the appellant's conviction, sentence and dismissed the appeal. Undaunted, the appellant has instituted the instant appeal. He lodged a memorandum of appeal containing five grounds of appeal which are rephrased and re-arranged as follows: One, that the trial and first appellate court erred in law to convict the appellant based on the testimony of the victim whose evidence was recorded without conducting voire-dire. Two, that there was no evidence adduced to prove that the victim was a primary school student. Three, that the trial and appellate court erred to convict the appellant relying on uncorroborated evidence. Four, that the case was cooked with the aim of defaming the appellant in the society. Five, that the trial and first appellate court erred in law to convict the appellant while the prosecution case was not proved beyond reasonable doubt. When the appeal was called on for hearing, the appellant appeared in person and was fending for himself. Upon inquiry, the appellant adopted his memorandum of appeal and allowed the counsel for the respondent Republic to submit first, and he would reply if there is a need. The respondent Republic was represented by Ms. Dorcas Akyoo, learned Principal State Attorney assisted by Ms. Fortunata Guvette and Mr. Japhet Ngussa, learned State Attorneys. The Republic supported the conviction and sentence imposed on the appellant. Arguing the 1st ground, Ms. Akyoo admitted that voire-dire was not done in the instant case. She argued that it was no longer a requirement following the amendment made on section 127 of the Evidence Act, Cap. 6 (the Evidence Act) by Act No. 4 of 2016. Instead, she said , the victim was required to promise to tell the truth, and on page 9 of the record of appeal she promised to tell the truth. Therefore, the trial court complied with section 127. She buttressed her point by citing the Court's decision in Seleman Moses Sotel @ White v. The Republic (Criminal Appeal No. 385 of 2018) [2020] TZCA 40 (28 February 2020, TANZLII). We agree with the learned State Attorney that, after the amendment made on the Evidence Act by Act No. 4 of 2016 voire-dire was no longer an essential requirement before recording the evidence of a child of tender years. Section 127(2) of the Evidence Act reads: "127(2) A child o f tender age may give evidence without taking an oath or making an affirm ation but shall, before giving evidence, prom ise to te ll the truth to the. Court and not to te ll any lie s." This provision was couched on a permissive term. It allows a child of tender age to take an oath or make an affirmation when he understands the nature of oath, if he does not he may give evidence upon promising to tell the truth and not to tell lies. 5 With respect to the effect of not swearing or affirming, the law is settled thus, the evidence of a witness who does not swear or affirm, and who is not exempted from doing so by section 127(2) of the Evidence Act or any other law, amounts to no evidence in law. For this position, see the decisions in George Amosi v. Republic (Criminal Appeal No. 401 of 2020) [2023] TZCA 17564 (29 August 2023, TANZLII) and Juma Kuyani and Another v. Republic [2016] 1 T.L.R. 411 among others. In the instant case, the victim is a girl of tender age and is, therefore, exempted by section 127(2) of the Evidence Act from taking oath. In Issa Salum Nambaluka v. The Republic (Criminal Appeal No. 272 of 2018) [2020] TZCA 10 (21 February 2020, TANZLII) the Court stated: "From the plain meaning o f the provisions o f subsection (2) o f s. 127 o f the Evidence Act... a child o f tender age m ay give evidence after taking oath or making affirm ation or without oath or affirm ation. This is because the section is couched in perm issive terms as regards the m anner in which a child witness m ay give evidence." Therefore, the 1st ground of appeal is found meritless and we dismiss it. With respect to the 2nd ground of appeal the appellant argued that, the prosecution failed to prove that the victim was a primary school student. In response, Ms. Akyoo argued that this is not a requirement in proving the offence of rape. What is required is for the prosecution to prove the age of the victim, that she is a minor. In the instant case, the age of the victim was proved by PW2 at page 11 of the record of appeal. She added that if the appellant wanted to know if she was a primary school student he could have glanced in the testimony of PW3 on page 14 of the record of appeal where he said the victim was a student. We agree with Ms. Akyoo that in proving the offence of rape, it is not necessary to prove that the victim was a primary school student. What is required to be proved is two things: one, that the age of the victim was below 18 years and two, that there was penetration. In the case at hand, the age was proved by PW2, the mother of the victim and penetration was proved by the victim herself and PW5. Therefore, this ground has no merit and is dismissed. On the third ground of appeal, the appellant faulted the trial court and appellate court for convicting him while the victim's evidence was not corroborated. Ms Akyoo, on the other hand, argued that corroboration is not a requirement of law in sexual offences. Section 127(6) of the Evidence Act provides that the victim's evidence is sufficient to sustain a conviction. In this case, the victim testified that she was raped by the appellant who is their neighbour, and after she was raped the appellant threatened to make her insane if she told anyone. The trial court believed the victim was telling the truth and the first appellate court confirmed that belief. Hence, corroboration was not necessary. Nevertheless, Ms. Akyoo argued that the victim's evidence was corroborated by evidence of PW2, PW3, PW4 and PW5. This ground need not detain us. Section 127 (6) is very clear and it provides: " 127 (6) Notwithstanding the preceding provisions o f this section, where in crim inal proceedings involving sexual offence the only independent evidence is that o f a child o f tender age or o f a victim o f the sexual offence, the court sh all receive the evidence, and may, after assessing the credibility o f the evidence o f the child o f tender years o r as the case m ay be the victim o f sexual offence on its own m erits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceeding, the court is satisfied that the child o f tender age or the victim o f the sexual offence is telling nothing but the truth." Under this provision, corroboration is no longer a necessity. What is required is for the court to assess the credibility of the evidence of the child of tender age and if satisfied that the child is telling the truth, the court may proceed to convict the accused despite that the evidence of the child was not corroborated. In the instant case, the trial court did believe the evidence 8 of the victim and found it to be conclusive. It recorded its reasons on page 38 to 39 of the record of appeal and proceeded to convict the appellant. We are, therefore, satisfied that there was no infraction on section 127(6) and this ground is dismissed for lack of merit. With respect to the fourth ground of appeal, the appellant was lamenting that the evidence adduced at the trial was cooked in order to defame him. Responding to this ground, Ms. Akyoo submitted that the appellant did not raise this issue when he testified in court that he knew the victim and was one of his clients who used to fetch water in his house. He, also, did not mention the existence of ill relation between them. Further, during cross-examination he did not question the victim on the issue of cooking evidence. Ms. Akyoo submitted that when the accused person fails to question a material aspect on the case, it is presumed that he agreed with what was said. She bolstered her argument by citing the Court's decision in Damian Ruhele v. The Republic (Criminal Appeal No. 501 of 2007) [2012] TZCA 160 (2 March 2012, TANZLII). We agree with Ms. Akyoo that there was nothing on the evidence on record suggesting that the evidence were fabricated. Further, when the appellant cross-examined the victim he did not ask any question suggesting there was fabrication. The law is very clear on the consequences of omission to cross-examine on an implicating fact. This position was made clear in various cases including: Damian Ruhele v. The Republic (supra), Athuman Rashid v. the Republic (Criminal Appeal No. 264 of 2016) [2018] TZCA 405 (27 April 2018, TANZLII). In the latter case the Court stated: "It is trite iaw that failure to cross-examine a witness on an Important m atter ordinarily im plies the acceptance o f the truth o f the witness". We find this ground meritless and we dismiss it. The appellant on the last ground of appeal attacked the prosecution case that it was not proved beyond reasonable doubt. Ms. Akyoo, on the other hand, responded by demonstrating that this case involved a statutory rape and what was required to be proved is the age of the victim and penetration which were both proved. She prayed for this appeal to be dismissed. We cannot agree with her more, the prosecution marshalled five witnesses to prove its case. PW1, the victim narrated how the appellant used to rape her when she went to fetch water in his house. He also threatened to make her insane if she ever tells anyone about what he was doing. But when PW1 was confronted by PW4 she could no longer keep quiet. She narrated that she was raped by the appellant several times. PW5, the clinical officer upon medically examining PW1 he confirmed that PW1 had been carnally known. Therefore, the evidence cumulatively proved beyond 10 reasonable doubt that the appellant raped the victim. This ground also lacked merit and we dismiss it. Finally, we are satisfied beyond any shadow of doubts that the prosecution case was proved to the hilt, and that the appellant was properly convicted with the offence charged. Therefore, the appeal is hereby dismissed in its entirety. DATED at MWANZA this 15th day of August, 2024. R. K. MKUYE JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 16th day of August, 2024 in the presence of the Appellant who appeared in person through video conference from Butimba prison, and Ms. Dorcas Akyoo, learned Principal State Attorney for the Respondent/Republic through video conference from Mwanza is hereby certified as a true copy of the original. li