CRIMINAL APPEAL NO 492 OF 2021 ISEGA SAMSON MWANJESE VS REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA ATMBEYA (CORAM: LEVIRA J.A.. MAIGE. 3.A. And MASOUD. J.A.^ CRIMINAL APPEAL NO. 492 OF 2021 ISEGA SAMSON MWANJESE ........................................................APPELLANT VERSUS THE REPUBLIC...........................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, Mbeya District Registry at Mbeya) (Monqella, 3) dated 24th day of August 2021 Criminal Appeal No. 180 of 2020 JUDGMENT OF THE COURT 4th & 7th November, 2024 MAIGE, J.A.: The victim (PW1) was, on 22nd day of March 2020 when the incident under discussion allegedly occurred, just a nine years old girl. She was living with her aunt one Vumilia Elias Vumi (PW5) and her uncle one Bariki Edward Msongole (PW2) as tenants in a house at Migombani area within Tunduma Township in Momba District, Songwe Region belonging to the appellant. On the material date, the victim was left alone at home as PW5 had gone to her neighbor one Edina Milioni (PW4) to wash clothes. When she came back home a meanwhile later, she found i the victim absent. However, as she was searching for her, she met with the appellant's daughter who revealed to her that the victim was with the appellant in his room. Therefore, PW5 proceeded to the appellant's room and asked if the victim was there, but the appellant denied. Afterwards, it would appear, a child called Safila saw the victim coming from the appellant's room and informed PW5 accordingly and that is when the secret became open. For, when PW5 asked the victim what went on in the appellant's room, she said, she had been raped by the appellant. PW5 conveyed the information to her neighbors (PW4 )and Eva Mgalla (PW6) as well as UWT ward leader, Mary Mwafongo (PW7) and a ten cell leader one Edward Mwanguku (PW8) who thereafter gathered at the scene of the crime. The victim was inspected by PW4 and found with sperms in her vagina. Eventually, the matter was reported to the police where the appellant was interrogated by F 8448 DC Abel (PW9), and admitted as per exhibit P2 to have committed the offence. He was again taken to Leonard Modestus Kazimzuri (PW3), a justice of peace and confessed by way of extra-judicial statement (exhibit P3) to have committed the offence. The 2 victim was medically examined by Frank Andrew (PW10) and the result was, as per exhibit P4 that, she had been penetrated. On the basis of the facts as afore stated, the appellant was, at the Resident Magistrate Court of Songwe, henceforth, "the trial court", charged with the offence of rape contrary to sections 130(1) and (2) , (e) and 131 (1) of the Penal Code. In his defense, the appellant denied committing the offence. He said, on the material date, during morning hours, was in the church attending prayers until at 13:00 hours when he came back. Afterwards, he remained at home memorizing what he learnt at the church until at about 17:00 hours when he was arrested by the police in connection to the offence at issue. Having examined the evidence, the trial court found that the prosecution evidence indubitably proved the case to the required standard and, therefore, convicted the appellant therewith and sentenced him to life imprisonment. His attempt to have his conviction reversed by the High Court on appeal failed, and hence the current appeal. Initially, the appellant filed a memorandum of appeal which contained grounds that: first, the proceedings of the trial court were 3 illegal as the appellant's plea of objection as to the admissibility of exhibits PI, P3 and P4 was not recorded; second, material contradictions in the prosecution evidence was not resolved by the two courts below in line with the appellant's defence; third, the appellant's rejoinder submission at page 69 of the record of appeal was not considered; fourth, the appellant objected to the admissibility of the confessional statements but the trial court did not record; and fifth, the appellant was treated by the two courts below unjustly. Subsequently, the appellant filed a supplementary memorandum of appeal containing three grounds. One, the extrajudicial statement in exhibit P3 was violative of the Chief Justice Rules in that: PW3 recorded the same without being so requested, in writing, by the police officer in charge of the police station where the appellant was incarcerated; the appellant was not asked where he had slept one night before being produced to PW3; exhibit P3 was silent on the time of the arrest of the appellant; and the respective exhibit was silent on where the appellant was taken to, after his extra judicial statement has been taken. Two, the cautioned statement was read out before being cleared for admission. Three, exhibit P3 was not read out after being cleared for admission. 4 The appellant appeared in person without being represented, during hearing. He outrightly adopted his grounds of appeal in both the initial memorandum and supplementary memorandum of appeal and urged us to allow the appeal while reserving his right to rejoin where appropriate. Ms. Prosista Paul, learned Senior State Attorney represented the respondent and was clear right from the outset that, she was prepared to oppose the appeal. She started her submission by attacking the relevance of the complaints in the first and fourth grounds in the initial memorandum of appeal maintaining, correctly in our view that, they do not fit for a second appeal as they were not raised in the first appeal despite being merely factual. Having scanned the record, we have observed that it is true, as submitted for the respondent that, the respective grounds despite being factual, were not raised in the first appeal. In line with the principle in Hassan Bundala v. R, Criminal Appeal No. 416 of 2013 (unreported), therefore, we strike them off the record. In address of the second ground in the initial memorandum of appeal, Ms. Paul submitted that there is no any material contradictions in the prosecution evidence capable of affecting the credibility of the 5 prosecution evidence. Equally, she submitted, contrary to the appellant's bare complaint, his defence was duly considered and dismissed by the first appellate court. On the complaint in the third ground that the trial court omitted to consider the appellant's rejoinder submission, Ms. Paul submitted, making reference to page 81-82 of the record that, the respective submission was considered and found to be baseless. Likewise, she did not agree with the appellant's contention in his fifth ground of appeal that, the matter was unfairly dealt with by the trial court. In her contention, the appellant was given all his rights, including the right to cross examine the prosecution witnesses. In relation to the first ground in the supplementary record of appeal, while she conceded that the prosecution did not tender a letter from the police requesting PW3 to extract extra-judicial statement of the appellant, it was her submission that the omission was not prejudicial to the appellant which is why he did not object to admissibility of the same. She did not agree with the appellant's claim that he was not asked as to where he had slept the night before being produced to PW3 as such information is apparent in clause 8 of the respective exhibit. She also denied the claim that the date of the appellant's arrest is not disclosed in the respective exhibit as that was made clear in clause 7 of the same. Besides, while she admitted that exhibit P3 is silent on where the appellant was taken after the recording of his statement, she submitted that, that was not a legal requirement. On the second and third grounds in the supplementary memorandum of appeal, Ms. Paul conceded that, in so far as it was not read out after being cleared for admission, exhibit P2 was irregularly admitted into evidence and should be expunged from the record. She submitted, however that, despite expunging such an exhibit, the testimonial evidence on the record is capable of proving the case beyond reasonable doubt. She urged us to so hold and dismiss the appeal. When asked if exhibit P3 was read out after being cleared for admission, she said, it was implicitly read out, making reference to pages 15 and 16 of the record. In the alternative, she submitted, even if such evidence was to be expunged, the oral evidence of the victim as corroborated by other witnesses would be capable of proving the case beyond reasonable doubt. In his rejoinder, the appellant had nothing material to submit rather than reiterating his grounds of appeal. 7 We shall start our deliberation with the first three grounds on the admissibility of the confessional statements in exhibits P2 and P3. We have scanned the record and we agree with Ms. Paul that exhibit P2 was not read out after being cleared out for admission. We have also examined the record and, contrary to the submission for the respondent, there is nothing in the evidence of PW3 on which we can imply that exhibit P3 was read out after being cleared for admission. Besides, we have noted that even the PF3 in exhibits P4 and the victim's birth certificate and clinic card in exhibits Pl(a) and (b), were not read out after being cleared for admission. Therefore, in line with the principle in Robinson Mwanjis and Others v. R [2006] TLR 2006, we expunge the respective exhibits from the record. Ms. Paul submitted, in all forces that, even if the said exhibits are expunged from the record, the testimonial evidence of the victim as corroborated by other independent witnesses is sufficient to prove the charge beyond reasonable doubt. We shall hereinafter, consider the said contention as we address the 2nd, 3rd and 5th grounds in the initial memorandum of appeal. In so doing, we shall have, in our mind, the principle in Director of Public Prosecution v. Jaffari Mfaume Kawawa [1981] TLR 149 that, in a second appeal like the one at hand, 8 the Court would only disturb the concurrent factual finding of the two courts below if there was either misapprehension of the evidence or misdirection or non-direction on essential principle of law. The offence involved in this case is statutory rape. It is proved if a male adult penetrates his male organ in the vagina of a girl below 18 years old with or without consent. In this case, the evidence of PW1 on whether she was penetrated is very clear. She testified, as per page 10 of the record as follows: "Isega dosed his door he undressed me, he put me fla t on his chair and inserted his penis into my vagina, he did so after taking away my underwear. " The above evidence was further corroborated by the evidence of PW4, PW5 and PW6 who stated categorically that, after the victim had been seen coming from the appellant's room, they inspected her private parts and found male sperms therein. PW4 was cross examined by the appellant in that respect and stated as per page 17 of the record as follows: 7 am an aged woman. I know what m ale sperm s look like. They came to me with Vumi because 9 they consider me as their neighbor and m other to them though we are not related in any way. When I saw the sperms, I began crying and entered the house and didn't want to witness anym ore." There being no evidence on the record rebutting the proposition that the victim was penetrated, we think, the evidence of PW1 as corroborated by PW4 and PW5 proved the element of penetration beyond reasonable doubt. In any event, the evidence of the victim would suffice to establish the element of penetration. This is because, as we held in the famous case of Selemani Makumba vs. Republic [2006] T.L.R 379, such kind of evidence if credible, is the best one to establish the element of penetration. It would also, if credible, establish that it was the appellant who committed the offence. We proceed, therefore, to consider, if the evidence of the victim on recognition of the appellant as the one who committed the offence is credible. To start with, there has not, since the trial court, been any dispute that the appellant and the victim were well known to each other as the appellant was irrefutably her landlord. Equally, there has not been any dispute that, the appellant was, at the material time herein mentioned, at home with her daughter as narrated in the victim's 10 evidence as supported by PW5. On that, DW1 testified as per page 33 of the record that, "I did not go for evening prayers with m y wife, I rem ained home with my daughter [xx.)" [Name of the daughter withheld due to her age). In accordance with the evidence of PW5, it is the appellant's own daughter [xx] who revealed to her that the victim was with the appellant in his room. That was followed by the event of the victim being seen soon thereafter running from the same room and later disclosing to PW5 that she was, while in the said room, raped by the appellant. As that was not enough, she was, a moment after, inspected by PW4 and found with sperms in her vagina. Yet the evidence of PW7 at page 22 of the record suggests that, after the victim had informed them that she was raped by the appellant, she, together with PW4, PW5 and PW6, took the victim to the appellant's room and showed him the sperms in her private parts. When he was asked about that, the appellant admitted to have committed the offence and asked for forgiveness. He further promised to give them TZS 1,000,000.00 if they did not disclose the incident. Verifying on that, PW6 testified as per page 21 of the record as follows: "Mary questioned him, the accused replied and said 'kama mnaona n i kw eii mumuangaiie. '[ if you li se e th a t it is tru e in sp e ct h e r] Mary undressed Irene infront o f the accused and showed the accused sperm s on Irene's private parts, that is when the accused said, "Basi naombeni m nisam ehe' naomba yaishe mnisamehe, msiposema nitawapa m iiioni m oja." [P le a se fo rg iv e m e, ie t it be over, if yo u do n o t d isclo se , I w ill g iv e you TZS 1,000,000.00]. [ Annotated English translation is added] Commenting on that, the trial magistrate (Mkwawa, RM) observed, at page 53 of the record that: "The evidence in this case is capable o f b elief independent o f the confession in the cautioned statem ent and the extrajudicial statem ent" As can be seen at page 79 of the record, like the trial court, the first appellate court observed that the victim's evidence as duly corroborated by the evidence of other prosecution witnesses was, in the absence of material contradictions, capable of proving the case beyond reasonable doubt. We entirely agree with her in view of what we have demonstrated herein above. We note, however that, in the second ground of appeal, the appellant complains that the prosecution evidence was contradictory in 12 material respect and his defence was not considered. We have taken time to read between lines the prosecution evidence. We could not see, and indeed even the appellant was unable to show, any element of material contradictions. On top of that, as rightly submitted for the respondent, the issue of the evidence of the prosecution being contradictory, was not even raised in the first appeal. Thus, there being no such element of contradiction, we dismiss the complaint. We have also inquired into the appellant's contention that his defence was not considered. We note that, during the trial, his evidence was not considered. The first appellate court, however, considered the same in details in line with the prosecution evidence as can be seen at pages 81-84 of the record and, concluded that, it did not rebut the evidence of the victim as corroborated by the evidence of other witnesses. From the testimonial evidence of PW1 afore discussed and as cemented by the independent evidence of PW4, PW5, PW6 and PW7 as to what they observed soon before and after the incident, and what they heard from the victim and the appellant soon after the incident, we find ourselves unable to do without concurring with the two courts below that; the prosecution evidence was credible and watertight and that, the 13 appellant's evidence in defence which was nothing else other than a mere general denial, was incapable of rebutting the proposition in the said evidence that, the appellant was the one who raped the victim. We have not forgotten the appellant's claim in the third ground that his rejoinder submission was not considered by the first appellate court. The substance of the said submission is two-fold. The first one which has been rendered irrelevant upon exhibits P3 being expunged from the record is that, the appellant was not taken to the justice of peace. The second one which may be relevant in this appeal, comes from his remarks at page 69 of the record that; 7 am surprised that 10 years child could not have bruises if penetrated by an adult. The doctor said the child was not found with diseases, while I am sick with HIV." We note that, the issue of the victim being found with no bruises in her private parts, was discussed at page 80 of the record, and, the High Court Judge observed that the same was immaterial as the principle of law as stated in Nyeka Kou v. R, Criminal Appeal No. 39 of 2005 (unreported) is such that, penetration, however slight may be, is sufficient to constitute the element of offence of rape. We entirely agree with her and add that, in view of the victim's evidence that the appellant had 14 previously sexual intercourse with her several times, whether there was bruises in her private parts or not was irrelevant. As to the issue of the victim not being found with HIV in the same way as the appellant allegedly had, the High Court Judge observed at page 81 of the record as follows: 7 have gone through the proceedings and nowhere the appellant raised this issue. The same can thus not be entertained a t this stage: See Fes to D om ician v. R, Crim inal Appeal No. 447 o f 2016 (C A T , unreported). Besides, even if the appellant had raised the issue in the tria l court, I am o f the opinion that the same would s till be im m aterial as it is not necessary that one m ust contract sexual diseases upon being raped." Again, we have examined the record and established, like the High Court Judge that, the respective claim was not raised by the appellant in his evidence at the trial court. We further agree with her that, for that reason, the issue could not in law be raised on appeal. We would add that, the issue being purely factual, could not be, as it was, raised by mere submission. This is because, submissions are a mere arguments with no evidential value capable of proving a fact. On that account, therefore, the said claim is devoid of any merit and it is hereby dismissed. We further do not agree with the appellant in his complaint in the fifth 15 ground that, he was unfairly treated by the two courts below. Like the learned State Attorney, we find that both the two courts below dealt with the matter fairly and in accordance with the law and due process. In the final result and for the foregoing reasons, therefore, we find the appeal devoid of any merit and is hereby dismissed. DATED at MBEYA this 7th day of November, 2024. M. C. LEVIRA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL Judgment delivered this 7th day of November, 2024 in the presence of the Appellant in person and Ms. Upendo Lyimo, the learned State Attorney for the Respondent/Republic, is hereby certified as a true copy 16