CRM

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA fCORAM: KOROSSO, J.A.. KENTE, J.A.. And MGONYA. J.A.T CRIMINAL APPEAL NO. 611 OF 2021 DOTTO SILON SALANDI................................................................. APPELLANT VERSUS THE REPUBLIC............................................................................ RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mbeya) (Karavemaha, J.^ Dated the 15th day of November, 2021 in Criminal Appeal No. 73 of 2021 JUDGMENT OF THE COURT 14th & 24th February, 2025 KOROSSO. JA In this appeal, Dotto Silon Salandi, the appellant, is challenging the decision of the first appellate court, which dismissed his appeal from the decision of the District Court of Chunya (trial court), where he was charged and convicted of rape contrary to section 130 (1) (2) (e) of the Penal Code, Cap 16 (the Penal Code). It was alleged that, on 06/05/2021, at Isangawana Village, Chunya District, Mbeya region, the i appellant had carnal knowledge of a girl aged 17 years, whom, henceforth, shall be referred to as the victim or PW2. For the prosecution, the story of what transpired is unfolded through the evidence of the victim (PW2), Julius Gabriel (PW1)- the victim's father, Genoviva Millian Masilamba (PW3), Dr. Jessam Mnyato (PW4) and Kharim Salum Kirondama (PW5) and G 7934 DC Michael (PW6). There were also two physical exhibits, that is, clothes (exhibit A l) and black mobile phone (exhibit A4), together with documentary exhibits, the PF3 (exhibit A2) and the seizure certificate (exhibit A3). To be noted is the fact that the first appellate court expunged exhibit A3 from the record satisfied that there was contravention of section 38 (1) (2) and (3) of the Criminal Procedure Act, Cap 20 (the CPA). Recounting what he remembered to have transpired, PW2 stated that on 6/5/2021 at around 20.15 hours, while attending remedial studies, her friend one Hamisa, informed her that the appellant wanted her to meet him at the house of Mwalimu Samson (DW2) to receive money from her father. PW2 stated that her father used to send money to her through the appellant's mobile phone, a fact which was also alluded to by the victim's father (PW1). PW2 heeded the call to meet her teacher (the appellant) at the meeting place accompanied by her friends 2 Flora and Salma. Upon arrival at Mwalimu Samson's place, the appellant took PW2 inside the house. Soon after, the appellant undressed her and then himself and they had sexual intercourse. Notably, while this was happening, PW5 and PW6, who had set a trap so as to catch teachers who were alleged to have sexual intercourse with students at Mwalimu Samson's place, while lurking in the bushes nearby, ready to ambush suspected culprits, saw the duo entering the house. PW5 and PW6 bided time for about twenty minutes and then pushed into the house and found the duo inside, still undressed. While PW5 and PW6 concentrated on arresting the appellant, PW2 managed to escape while still undressed and ran to her dormitory. During the rush PW2 left her clothes in the house, the crime scene. Thereafter, efforts to trace the runaway schoolgirl went full swing. PW5 and PW6 reported the incident to PW3 and PW2 was traced. She was interrogated in the staff room in the presence of other students and admitted to being the one to run away from Mwalimu Samson's place. She also identified the clothes found at the crime scene (exhibit A l) to belong to her. PW2 also stated she was raped by the appellant. She was taken to the Police station, where she was given a PF3 (exhibit A2), which enabled her to undergo a medical examination at the hospital before PW4. PW4's evidence was 3 that PW2 had minor bruises on her labia manora together with semen­ like fluid mixed with blood, and the hymen was gone. Thereafter, as explained earlier, the appellant was arraigned before the trial court, where he denied the offence charged against him, which led to the conduct of a trial. At the end of a full trial, the appellant was convicted as charged and sentenced to thirty years imprisonment. He was displeased and thus appealed to the High Court where his appeal was dismissed for lack of merit, upholding his conviction and sentence. Unperturbed, he has appealed to this Court. His appeal is founded on a substantive memorandum of appeal lodged on 11/4/2022 with five grounds of appeal and a supplementary memorandum of appeal filed on 4/2/2025 containing twenty-two grounds of appeal, essentially faulting the first appellate court on the following complaints: 1. Impropriety of the charge against the appellant rendering the conviction faulty. 2. Failure to draw adverse inference on the prosecution upon failure to call some material witnesses particularly, Florah and Salma, who allegedly, escorted the victim to the crime scene, Hamisa, who relayed to PW2 a message from the appellant on meeting at Mwalimu Samson's house to be handed money from her father and Gervas Mahela (Ward Executive Officer) who was allegedly aware of the set trap. 3. The prosecution failed to prove the case beyond reasonable doubt, especially upon expunging exhibit A3. 4. Reliance on the incredible evidence of PW5 and PW6 in identifying the victim and the arrest of the appellant at the scene of crime in the absence of an independent witness. 5. Inconsistencies and contradictions in the evidence of PW2, PW5 and PW6 with regard to what transpired at the crime scene, including the appellant's and victim's identification. 6. Failure to properly evaluate and analyse the evidence of PW2 and PW1 regarding the money sent by PW1 to PW2 through the appellant's mobile phone. 7. Relying on the incredible evidence of PW2 on whattranspired prior, during and after the incident at the crime scene. 8. Reliance on incredible evidence of PW4 related to the medical examination of PW2. 9. Impropriety of admitting and relying on exhibits A1 and A4 when the chain of custody was not proved. At the hearing of the appeal, the appellant appeared in person, unrepresented and fended for himself while the respondent Republic was represented by Ms. Caroline Matemu, learned Senior State Attorney, assisted by Mr. Device Msanga and Ms. Julieth Katabaro, learned State Attorneys. The appellant began by adopting the written statement filed on 04/2/2025 and then opted to amplify his complaints starting with what is essentially complaints number four, five and seven, questioning the veracity of the evidence of PW5 and PW6 on the identification of the victim at the scene of the crime and what transpired there. He based his query on the fact that the incident occurred in the hours of the night, about 20.15 hours, the circumstances were not conducive for proper identification and thus left doubts. On his part, the fact that from their testimonies, PW5 and PW6 had to set a trap to catch teachers who were alleged to use the respective house for their illicit sexual entanglements, further emphasized that they did not know the appellant prior to the incident. He thus implored us to satisfy ourselves on whether the conditions for identification set out in the case of Waziri Amani vs Republic [1980] TLR 250 were met as he believed they were not. He further cemented his argument by citing Al Haji Ayubu @ Sumari and 6 2 Others v. Republic, Criminal Appeal No. 136 of 2006 and Masolwa Samwel v. Republic, Criminal Appeal No. 348 of 2016 (both unreported). The appellant also questioned the lack of evidence to show the time and the circumstances surrounding her arrival at her dormitory, particularly, if PW5 and PW6's evidence allege that PW2 had left her clothes at the crime scene. The appellant further questioned the lack of an independent witness arguing that where there is a trap set, such evidence is given more credence when there is other evidence from a person who was not part of the set trap. He thus argued that the absence of independent evidence should render the evidence by PW5 and PW6 unreliable and urged us to find so. He also urged us to fault the first appellate court for relying on such evidence to convict him. The appellant also urged us to consider the evidence of PW2 with caution. He contended that even considering that it is settled law that the best evidence in sexual offences is that from the victim as pronounced in the case of Selemani Makumba v. Republic [2006] TLR 370, this should not mean that such evidence should be free from scrutiny. He beseeched us to carefully consider PW2's evidence since it leaves a lot to be desired and is inconsistent with that of PW5 and PW6 7 on some aspects such as, while PW2 testified that she was pulled into the house by the appellant, PW5 and PW6 stated that the appellant went in first and PW2 followed which meant PW2 was not forced inside. Another aspect queried by the appellant was the evidence by PW2 that she was escorted to the crime scene by her friends Flora and Asma, while PW5 and PW6 did not give any evidence of having seen PW2 with any person upon arrival at Mwalimu Samson's house. The appellant thus implored us to find the inconsistencies to be material thus questioning the cogency of PW2's evidence. Expounding on complaint number two, the appellant was aggrieved by the failure of the trial and the first appellate courts to draw adverse inference on the prosecution side for failure to call material witnesses to prove the prosecution case against him. Additionally, the appellant maintained that failure to call one Hamisa to elaborate on the information she relayed to PW2 allegedly from the appellant was detrimental to the prosecution case. He was of the further view that Florah and Salma, who allegedly escorted PW2 to the scene of the crime, were important witnesses since their evidence would have shown that she went to the crime scene and left no doubt she was the one who PW5 and PW6 allegedly ran from there has been with the appellant. He also urged us to find the prosecution's failure to call the WEO to testify, who was part of the trap to be detrimental to the prosecution case. He thus castigated both the trial and first appellate courts for not drawing adverse inference on the prosecution for not calling the said witnesses and failing to give any reason for its failure and cited the case of Aziz Abdallah v. Republic [1991] TLR 71 to reinforce his stance. The appellant also challenged the assertions that PW2 used to receive money from her father through his mobile phone, arguing it was a fabrication. In complaint number six, he submitted that there was no sufficient cause provided by the prosecution for PW1 to send money to PW2 through his mobile phone especially since there was evidence that PW2 owned a mobile phone. He also doubted the veracity of this evidence upon the prosecution side's failure to tender the alleged mobile phone. He implored us to consider this in finding PW2's evidence to be unreliable. Amplifying complaint number ten, his laments were on exhibits AI and A4 having been improperly admitted and bestowed unjustified value by the trial court when convicting him. The appellant argued that there was no evidence provided on the handling or custody of the exhibits from the time of seizure to when admitted in the trial court and thus the 9 chain of custody was not established. He cited the case of Paulo Maduka and Others v. Republic, Criminal Appeal No. 110 of 2007 and Zainab Nassoro @Zena v. Republic, Criminal Appeal No. 348 of 2015 (both unreported) to cement his contention. He also questioned the fact that PW2 did not provide any description of her clothes prior to identifying them as belonging to her or describe the room where the incident occurred arguing that all these weakened the prosecution evidence and invited doubts in the prosecution evidence. Doubts which should benefit the appellant, he argued. Complaint number three centred on the prosecution's failure to prove the case beyond reasonable doubt, particularly after the first appellate court expunged exhibit A3. He submitted that after the seizure note was expunged, exhibits A1 and A4 had no legs to stand on; thus, it was unthinkable for the first appellate court to continue to give weight to exhibits A1 and A4, an error which he prayed the Court rectifies. On the contention that the trial and appellate courts erroneously relied on the evidence of PW4 related to the examination of PW2, found in complaint number eight, he contended that such evidence was just geared to strive to prove the charge and was baseless. 10 In addition, the appellant questioned the veracity of PW4's evidence that when examining PW2, her clothes were dirty and that he found minor bruises and sperm discharge mixed with blood in PW2's private parts submitting that this was all part of the plan concocted by PW5 and PW6 since when the testimony of PW2 is carefully examined, it remains wanting. He contended that PW4’s evidence essentially does not augur well with that of PW2, who testified that she had a change of clothes before going to the hospital, and, thus, it was not possible for them to be dirty, as stated by PW4. He also queried how the victim's private parts could have blood stains when she had testified to be sexually active for almost two years prior to the alleged incident. He thus implored us to disregard PW4's evidence as part of the fabrication in the instant case. Concerning his complaint that his defence was not considered, he urged us to find that this was a serious misdirection which rendered his conviction unsafe and untenable and cited the case of Lockhart Smith v. United Republic (1965) EA 211, to reinforce his contention. On complaint number one that related to the impropriety of the charge, he alluded that the name of the victim found in the charge sheet in the particulars of the offence differs with the one found in exhibit A2. 11 Another difference he argued, emanates from the difference in the provision cited for the offence charged; while, the charge found at page 02 of the record of appeal states that the appellant is charged with rape, contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code found on the first paragraph of the judgment of the first appellate court at page 96 of the record of appeal, it shows that the appellant, was charged for the offence of rape contrary to section 130 (1) (2) (a) and 131 (1) of the Penal Code. He thus contended that the discrepancy is fatal and renders the charge defective because it made him confused on which provision related to the offence he was charged with. To augment this matter, he cited the case of Malimi Peter v. Republic, Criminal Appeal No. 480 of 2020 (unreported). The appellant concluded urging us to find that the case was framed against him, thus find the prosecution failed to prove the charged offence against him to the standard required, allow the appeal, quash the conviction, set aside the imposed sentence and set him at liberty. Mr. Msanga, who took lead in submitting for the respondent Republic, alluded that the appeal was resisted. On the contention that the charge was defective, he contended that it had no merit arguing that 12 there is no discrepancy in the name of the victim in the particulars of the charge and that in exhibit A2. According to him while in the charge, the victim is addressed with three names, in exhibit A2, the name of the victim is provided together with the first name of her father, PW1, whose full name is found at page 6 of the record of appeal, at the start of his testimony, as Julius Gabriel. Regarding the different cited provision for the offence charged, he argued that there is a typographical error in the cited provision on the charge of rape found at the first page of the judgment of the first appellate court. He contended that this is undeniable since the provision of the offence cited in the judgment of the trial court and when convicting the appellant at page 46 and 58 of the record are similar to those in the charge sheet. He thus argued that in light of this, clearly the appellant was not prejudiced because at the trial where he was expected to fully understand the nature of the offence charged to prepare his defence as he did, therefore the provisions he was charged with were properly cited. Hence, the infraction is minor and curable under section 388 of the CPA rendering the complaint unmeritorious, he argued. With regard to the alleged discrepancies and contradictions in the prosecution evidence particularly, that of PW2, PW4, PW5 and PW6 he 13 argued that, if any, they were minor and did not go to the root of the case. He objected to assertions that PW2 and PW4's evidence differed arguing that being sexually active does not mean blood cannot be found in a girl's private parts taking the nature of the offence of rape, which infers the use of force. He also submitted that, since the clothes found at the scene had no connection with the act of rape, the comment by PW4 on the fact that PW2's clothes were dirty should not be connected to the offence charged. The learned State Attorney submitted that the appellant's complaint regarding need for proof that PW2 was lured to meet the appellant with the issue of getting money sent by her father should not be an issue, because PW1, her father extensively narrated how he began sending money to his daughter through the appellant and that the appellant never questioned this fact when cross examining PW1, or questioned PW2 why this was the case when there is evidence she had a mobile phone. He maintained that there was no evidence that PW2 lied to her father on this issue since even the father never complained that the money he sent to his daughter was never accounted for and urged us to dismiss the complaints for being devoid of substance. 14 Responding to the complaint on the prosecution's failure to call some witnesses that the appellant contended were material for their case, including; Salma, Flora and Hamisa, Mr. Msanga argued that the complaint is misconceived, since, the prosecution as the one's responsible to call witnesses necessary to prove the case did not find them to be material witnesses since they were not witnesses to the incident that led to the offence charged. According to him, even if they would have been called, their evidence would not have very much added in proving the case at hand. He argued that it is a well settled position that in sexual offences case, the victim is the most crucial witness to prove such charges. Therefore, since PW2, the victim was called and testified to prove the offence charged, together with the evidence of PW5 and PW6, any other evidence will only be a surplus, as the prosecution side proved the charge to the standard required. Replying to the query on reliance on PW4's evidence related to the medical examination conducted against PW2, the learned State Attorney urged us to find the complaint unfounded as PW4 gave evidence on his qualification and experience and what he observed. PW4 evidence with the regard to clothes did not in any way relate to the offence charged. He argued that PW4's evidence supported PW2's evidence leaving no 15 doubt that there was penetration by a blunt object in her private parts. Also seen by PW4 was the bruises and sperm with blood in PW2's private parts all of which remain undisputed, he asserted. Confronting the complaint on failure of the trial and first appellate courts to carefully assess the credibility of prosecution witnesses particularly, PW2, PW5 and PW6, he urged us to take into account that credence should be accorded to the evidence of each witness who testifies unless there are good and cogent reasons for not believing a witness, and referred us to the principle emphasized in the case of Goodluck Kyando v. Republic [2006] T.L.R. 363. The learned State Attorney emphasized the fact that the appellant was found at the crime scene with the victim and all the issues he complains in the appeal were not prompted by him when cross- examining the said prosecution witnesses' and thus he should be estopped from now wanting the Court to discuss his concerns and find them unreliable and cited the case of Paulo Anthony v. Republic, Criminal Appeal No. 189 of 2014 (unreported) to bolster his contention. He urged us to find the ground unmeritorious since the appellant failed to provide cogent reasons to discredit the said witnesses. Given his submission, the learned State Attorney implored us to find the grounds 16 of appeal fronted by the appellant to have no merit and dismiss the appeal. The appellant's rejoinder was brief. He reiterated his submission in chief and prayers and emphasized the contention that the case was framed against him for reason known to those who planned his downfall. We have carefully considered the rival submissions and the authorities to augment the parties' positions together with the record of appeal. In determining this appeal, while considering and delving into the complaints fronted by the appellant, we shall basically address whether the prosecution did prove the charge against the appellant to the standard required. On the complaint regarding propriety of the charge, this need not take much of our time. We agree with the learned State Attorney that there is no material defect in the charge against the appellant and the appellant's complaint is misconceived. While its true that the name Anyesi D/O Julius Gabriel is the name found in the particular of the charge as the victim and that in exhibit A2 the victim's name is Anyes D/O Julius at pages 01 and 42 of the record of appeal, since there is no dispute that PW1 is the father of the victim and at page 6 of the record 17 his name is recorded as Julius Gabriel, we find no discrepancy or inconsistence. Furthermore, while it is true that in citing the provision for the offence charged in the judgment of the first appeal court at page 96 of the record it cites offence of rape contrary to section 130 (1), (2) (a) and 131 (1) of the Penal Code while the charge sheet cites contravention of section 130 (1), (2) (e) and 131 (1) of the Penal Code, scrutinizing the same, there is no doubt the first appellate court citation of the provision is a typographical error. This is because, the trial court which tried, convicted and sentenced the appellant cites section 130 (1), (2) (a) and 131 (1) of the Penal Code as what is in the charge sheet. The charge sheet is what initiates charges against an accused person. Taking into account that there is nowhere where the trial or first appellate courts discusses or moves to substitute the charge. Together with the fact that there is no record at the trial or thereafter where the appellant complained of not being aware of the nature of the charge he faced to enable him prepare a defence, we are of the view that the error is minor and was not prejudicial and is therefore curable under section 388 of the CPA. The complaint fails. 18 Addressing complaints number two, four, five, six, seven and eight related to failure to properly identify the appellant, inconsistencies and discrepancies in the evidence of PW2, PW4, PW5 and PW6 and relying on their incredible and unreliable evidence which was not sufficiently analyzed and evaluated and failure to call material witnesses, we are constrained to delve into the record of appeal. On the issue of whether the appellant was properly identified since the incident occurred at night, we are of the firm view that in light of the evidence before us, as amply discussed by the first appellate court, the identification of the appellant was not in contention as he was arrested at the scene of crime by PW5 and PW6. The victim also narrated the fact that when ambushed she was with the appellant and they had sexual intercourse before the said ambush and escaping from the scene. The fact that the appellant was a teacher at the school was not controverted nor that the victim was one of the students there. The Court has previously laid out the position on this, in Ibrahim Ally Mwadau v. Republic, Criminal Appeal No. 11 of 2018 (unreported) we held: "Where an accused is arrested at the scene o f crim e his assertion that he was not sufficiently identified should be rejected." On the concerns related to there being inconsistencies and contradictions in the evidence of the prosecution witnesses mentioned above, we are of the view that this contention is not supported by the evidence on record. While it is true that where there is a trap set, it is desirable to have an independent witness called, in the absence of such evidence, the court has the duty to weigh such evidence with the other evidence and have regard to the circumstances obtaining in the case under scrutiny. In the instant case, there is a concurrent finding by the trial and first appellate courts on the credibility and reliability of the evidence of PW2, PW5 and PW6 especially on the evidence that related to what transpired at the scene of crime, the arrest of the appellant and the fact as stated by PW5, the presence of the victim prior to her escape from there. At page 56 of the record of appeal, in finding that it is the appellant who raped the victim, the trial court which had an opportunity of assessing them when testifying in court stated: "Having found out that PW2, PW3, PW5 and PW6 were truthful witnesses coupled with undisputed fact that the accused was the victim 's teacher...” The first appellate court also agreed with the said finding, thus we on the second appeal, cannot vary it unless we find that both courts misapprehended the substance, nature and quality of evidence or, 20 applied some wrong principle of the law as emphasized in the case of Issaya Renatus v. Republic, Criminal Appeal No. 542 of 2015 (unreported). We have not found any such shortcoming in the evaluation of the evidence of the mentioned witnesses and thus refrain from departing from the findings on their credibility. Moreover, we agree with the learned State Attorney that the prosecution side deciding not to call Florah, Salma, Hamisa and the WEO was not detrimental to the prosecution case to warrant us to draw adverse inference against the prosecution. Undoubtedly, their presence would have added more flavour in expounding the story leading to the offence charged, but it was not material to prove the offence charged against the appellant. The essential ingredients in proving the offence charged, were proof of penetration, age of the victim and whether it was the appellant who committed the act. As found in the record, PW2 narrated what transpired in the house after meeting the appellant that, they had sexual intercourse. This fact was supported by the evidence of PW4, who examined her and found bruises, sperms smeared with blood and the fact that a blunt object had entered the victim's private parts as also expounded in exhibit A2. Therefore, we agree with the concurrent 21 findings of the lower courts that penetration of the victim was proved. Notably, in dealing with this concern, we have also essentially determined the appellant's complaint number three. Having determined that the prosecution managed to prove penetration, on the age of the victim, this is clearly drawn from the evidence of PW2 and PW1 that she was born on 6/5/2004, and that she was a form three student at Isangawana Secondary School and thus was aged 17 years at the time when the atrocious incident occurred. This was not challenged by the appellant since he did not cross examine PW1 and PW2 on the issue of age of the victim. The third element, which the prosecution had to prove, is whether it is the appellant who committed the offence, as explained above, apart from PW2 herself who narrated the incident and named the appellant as the perpetrator, there is the evidence of PW5 and PW6 who apprehended the appellant at the crime scene. We are thus in tandem with the concurrent findings of the trial and first appellate courts that it is the appellant who had carnal knowledge of the victim as per the charge against him. Suffice to say it, with our findings above, we find no reason to delve further into complaint number nine alleging there was no chain of 22 custody on exhibits A1 and A4. Having perused through the judgment of the first appellate court, we find that in reaching its finding, the said exhibits were not relied upon to uphold the conviction, therefore addressing the complaint will not serve any useful purpose in this appeal. In the event, on the foregoing, we find no merit in the appeal. We uphold the conviction and sentence. Accordingly, the appeal stands dismissed. DATED at MBEYA this 24th day of February, 2025. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 24th day of February, 2025 in presence of Appellant in person and Mr. Rajabu Msemo, learned State Attorney for the Respondent/Republic through virtual court, is hereby certified as a true copy of the original.