CRM

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA CORAM: KOROSSO, J.A., KENTE. J.A. And MGONYA. J.A CRIMINAL APPEAL NO. 610 OF 2021 SHIDA SIAME....................................................................................APPELLANT VERSUS THE REPUBLIC.............................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Mbeya) f Mbaawa, J.l Dated 29th day of November, 2021 in Criminal Appeal No. 18 of 2021 JUDGMENT OF THE COURT 12th & 25th February, 2025 MGONYA, J.A.: Shida Siame, the appellant, was arraigned in the District Court of Mbozi, at Vwawa in Songwe Region, charged with the offence of rape contrary to sections 130(2)(e) and 131(1) of the Penal Code, Cap. 16, (the Penal Code). The particulars of the offence were that, on 21st day of April, 2016 at about 23.00 hours, at Itentule village within Mbozi District, Songwe Region, the appellant unlawfully had carnal knowledge of a girl aged six years, whom we shall henceforth refer to as "the victim or PW1". The appellant denied the allegations, and as such, the trial ensued. At the trial court, the prosecution case was made by six witnesses and one exhibit, whereas the appellant was a sole defence witness. It was PWl's testimony that, on the date of the incident, the appellant, who is also her uncle, took her to the farm. At the farm, he raped her and left her there until when she was rescued by her parents, who took her to the hospital. PW3, the victim's mother, testified that, on 21/04/2016 during night hours, while returning from the neighboring house, she found her daughter missing at home. In a bid to trace her, while assisted by neighbors, the appellant emerged and told them that his inner demons had informed him where the victim was, so they should stop searching for her. Being led by the appellant, they managed to find the victim, who seemed to have been left alone in the bush. When PW1 inspected her, she found the victim with some blood in her private parts. Upon asking the victim on what had befallen her; she told them it was the appellant who brought her to the bush and raped her. That while they were still interrogating PW1, the appellant disappeared. PW2, a doctor at Vwawa Hospital, in Mbozi District testified to the effect that, on 22nd April 2016, he received the victim in a company of her mother, being a referral case from Itaka Hospital. As directed in the PF3, he examined the victim and found bruises in her private parts and her hymen had broken. PW2 also concluded that, the victim's private parts were badly injured by a blunt object. PW3, Luciana d/o Lucas Siame, the victim's mother, testified to know the appellant as her paternal young brother while the victim to be her daughter. She testified that, after they were led by the appellant to the bush and found the victim deserted, the victim mentioned the victim to have taken her there and raped her. PW3 testified to have reported the matter to the police and later took the victim to hospital where it was confirmed that she was raped. PW4, the victim's grandmother, PW5 the Hamlet chairman and PW6 the PW3's neighbor all testified to have accompanied the victim's mother to the bush where the victim was found after they have been led there by the appellant. All these witnesses testified to the effect that the appellant confessed to have raped the victim as he was drunk. In defence, the appellant admitted that he was the one who led the search team to the farm where the victim was found and had left that place immediately after the victim was found. At the beginning, he denied the charge, although, during cross examination, he contended that it was the demons "mashetani" who deceived and persuaded him to commit the offence. The trial court having believed the prosecution's evidence, found the case against the appellant proven. Consequently, the appellant was convicted and sentenced to serve thirty (30) years' imprisonment. Aggrieved, the appellant unsuccessfully appealed to the High Court in Criminal Appeal No. 18 of 2021. Having heard the appellant's appeal, the High Court Judge found that the grounds of appeal unmerited, and in addition to that, he found the sentence passed by the trial court was contrary to the law. Hence, he substituted the same from 30 years imprisonment to a life imprisonment sentence. Still dissatisfied, the appellant has appealed to this Court by filing two memorandum of appeal containing a total of 15 grounds of complaint. Basically, in all grounds of appeal, the appellant faults the lower court's decision on the following points: one, that there was a violation of section 127(2) of Tanzania Evidence Act Cap. 6 herein to be referred as (the TEA); two, the age of the victim was not proved; three, the petition of appeal was not considered by the first appellate court; four, exhibit PEI (the PF3) was not read out during trial; five, the issue of visual identification was not considered by the lower courts; six, that there was a variance of the name of the victim's mother on the PF3 and the one who testified before the trial court; and seven, the case was not proved beyond reasonable doubt as there was no evidence from the Police Force. When the appeal was called on for hearing, the appellant appeared in person, unrepresented, whereas Ms. Rosemary Mgenyi, learned Senior State Attorney, appeared for the respondent, Republic. It was the learned Senior State Attorney who submitted first, as the appellant reserved his right to rejoin. Responding to the complaint that there was a violation of section 127 (2) of the TEA, Ms. Mgenyi submitted that, PW1 being a child aged 6 years, promised to tell the truth. Hence, section 127(2) of TEA was complied with. On the second ground that the age of the victim was not proved, Ms. Mgenyi referred us to page 45 of the record of appeal, where the High Court Judge rejected the complaint of proof of age on the ground that the appellant did not cross examine on that point during trial. When probed on whether there was proof of age by any of the prosecution witnesses, she concurred with the appellant that the victim's age was not proved. However, by referring us to section 122 of TEA, she urged us to draw an inference from some necessary facts, including the application of section 127(2) of TEA, which implies that the witness was a child of tender age. The learned State Attorney further submitted that, in the event the Court found that the victim's age was not proved, the appellant's sentence be reduced from life imprisonment to 30 years' imprisonment. On the third ground that the petition of appeal was not considered, Ms. Mgenyi partly concurred with the appellant. She contended that there was one ground that was not considered by the first appellate court. She referred us to pages 31 and 42 of the record of appeal and argued that the 1st ground on page 31 and the 6th ground on page 42, where the appellant complained that the conviction was based on weak evidence, was not considered. Submitting on the fourth ground that the PF3 (exhibit PEI) was not read out, it was IMs. Mgenyi's submission that this ground of complaint was considered by the first appellate court, which expunged exhibit PEI from the record. Turning to the fifth ground that the lower courts erred by relying on visual identification, the learned Senior State Attorney concurred with the appellant that, indeed, the victim did not state the source of light when the incident occurred. However, having considered the facts that PW1 knew the appellant well and further that it was the appellant who took PW3 and other people to the bush where PW1 was, those facts established that there was no mistake in identifying the appellant as a perpetrator. Regarding the complaint that there was a variance of names of the victim's mother on the PF3 when she was giving her testimony before the court, Ms. Mgenyi contended that, as the said PF3 has already been expunged by the first appellate court, the ground of complaint has no merit. Finally, on the complaint that the prosecution did not prove the case beyond a reasonable doubt, the learned Senior State Attorney contended that the case was proved to the required standard. She submitted that it was the PWl's testimony that she was raped and it was the appellant who raped her. That PWl's testimony was corroborated by PW2 (a doctor), who testified to the effect that, upon examination, he found the victim with bruises on her private parts, and her hymen perforated. It is the learned Senior State Attorney's contention that, those facts proved that there was penetration, which is the most significant ingredient to prove the offence of rape as provided under section 130(4) of the Penal Code. Ms. Mgenyi further insisted that, the fact that the victim mentioned the appellant at the earliest time is proof that she knew well who raped her. That her testimony was corroborated by the appellant's act of leading the search team to the bush where the victim was found and his oral confession before saying that he was misled by demons "mashetani" to rape the victim. Regarding the age of the victim, based on her submission on the second ground, Ms. Mgenyi contended that, since the evidence revealed that the victim was below 14 years of age, it was her stance that the charge was proved to the standard required. Therefore, the complaint has no merit. In his rejoinder, the appellant stressed that, since the offence was committed during night hours, no one saw him committing the offence. He thus prayed the Court to allow his appeal and set him at liberty. Having considered the appellant's memoranda of appeal, the rival submissions made by the parties, and the record of this appeal, in disposing this appeal, we opt to address the grounds of appeal in the sequence they appear above by clustering those with similar complaints as preferably crafted by the learned Senior State Attorney. The first complaint by the appellant is on violation of section 127(2) of the TEA. We agree to this ground of complaint as the proceeding of the trial court on page 11 of the record of appeal is very clear that PW1 promised to tell the truth and not lies. For ease of reference, PW1 stated: 7 w ill only speak the truth; I w ill never He. I prom ise to ju st te ll the court the truth." From the above abstract, it is clear that making a promise, to tell the truth and not lies is a condition precedent before recording the evidence of a child of tender age. A child of tender age may testify without oath or affirmation provided that he or she promised to tell the truth and not lies. See Godfrey Wilson v. Republic (Criminal Appeal No. 168 of 2018) [2019] TZCA 109 (16 May 2019); TANZLII and Issa Salum Nambaluka v. Republic (Criminal Appeal No. 272 of 2018) [2020] TZCA 10(21 February 2020); TANZLII. Having the above position in mind, we do not agree with the appellant's complaint that there was a violation of section 127(2) of TEA, as it is on record of this appeal that there was a promise made by the victim, to tell the truth and not lies before she testified. Hence, we find the ground of appeal unmerited, and we dismiss it. On the second ground that the age of the victim was not proved; it is settled that the age of the victim is of great essence in proving the offence of statutory rape under section 130(2)(e) of the Penal Code. The Court has reiterated in its various decisions on who can prove the age of the victim. For instance, in Issaya Renatus v. Republic (Criminal Appeal No. 542 of 2015) [2016] TZCA 218 (29 April 2016); TANZLII, it was held that evidence as to proof of age may be given by the victim, relative, parent, medical practitioner or by reproduction of birth certificate. In the case of Rutoyo Richard v. Republic (Criminal Appeal No. 114 of 2017) [2020] TZCA 298 (16 June 2020); TANZLII, the Court extended to a close friend and a teacher as reliable witnesses in proving the age of the victim. The Court said: "We reiterate that cogent evidence relating to age from the victim, parent, dose relative, dose friend, teacher in which she was schooling or any person who knew w ell the victim was required." In the instant appeal, it is on record that apart from the victim's preliminaries, where she stated that she was 6 years old, none among the six prosecution witnesses proved the age of the victim during the trial. It is settled that preliminary answers and particulars given before giving evidence are not part of the evidence. See George Claud Kasanda v. The DPP (Criminal Appeal No. 376 of 2017) [2020] TZCA 76 (27 March 2020); TANZLII and Nalogwa John v. Republic (Criminal Appeal No. 588 of 2015) [2016] TZCA 950 (15 April 2016); TANZLII. Therefore, as rightly argued by the parties, we also find that the age of the victim was not proved by the prosecution, who had a burden to discharge this duty. Therefore, this ground of appeal has merit. The third ground where the appellant faulted the High Court's decision to dismiss his appeal while the petition of appeal was not considered, the learned State Attorney to some extent conceded to this complaint. The question is what should be done by this Court in a second appeal? It was established by this Court that the second appellate court may step into the shoes of the first appellate court and do what it did not do. See - Mzee Ally Mwinyimkuu @ Babu Seya v. Republic (Criminal Appeal No. 499 of 2017) [2020] TZCA 1776 (17 September 2020); TANZLII. It was the learned Senior State Attorney's submission that the first appellate court did not address the first ground in the petition of appeal that the conviction was based on weak evidence of prosecution witnesses. After stepping into the shoes of the first appellate court, we found the complaint had no merit. It is on record that the appellant's conviction was based on the victim's evidence, which was corroborated by PW2 and the appellant's confession. Therefore, we dismiss the third ground of appeal for being unmerited. The fourth ground of complaint concerns exhibit PEI (PF3), not having being read out during trial. This ground will not detain us as the same was dealt with by the first appellate court by expunging it from the record. On the fifth ground of complaint, the appellant challenged the visual identification made by the victim regarding his recognition. It is the position of the law that identification by recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the court should always be aware that mistakes in recognition of close relatives and friends are sometimes made. See, for instance, Emmanuel Chigoji v. The Republic (Criminal Appeal No. 355 of 2018) [2019] TZCA 327 (25 September 2019); TANZLII, and Hekima Madawa Mbunda & Another v. The Republic (Criminal Appeal No. 566 of 2019) [2022] TZCA 138 (24 March 2022; TANZLII). It is on record of this appeal that the victim and the appellant are relatives, that the victim is the appellant's niece. As testified by PW3, who is the victim's mother, that the appellant is her younger brother. Therefore, it is undisputed that the victim and the appellant were well known to each other. As the law says, mistakes in identification may occur even to close relatives. However, we find that the circumstance of this appeal did not accommodate possibility of any mistaken identification by the victim as against the appellant but rather, it was recognition since the appellant was well known to the victim. Further, we hold that due to the unique facts of this appeal, the appellant, apart from being named by the victim as a perpetrator, his conduct after the offence implicated him to be the offender rather than any other person. It is on record that the appellant was the person who led the victim's parents and other people to the bush where the victim was found. Similarly, after showing them where the victim was, he ran away until when he was arrested on the next day. Further, his confession on commission of the offence eliminates the doubts that he could have been mistakenly identified. Therefore, we find this ground of appeal to have no merit, and we dismiss it. The sixth complaint, is on variance in the names of the victim's mother in the PF3 and the one who testified during trial. As the PF3 has been expunged, we see no reason to deal with this ground. The last ground of complaint is that the charge was not proved beyond reasonable doubt. It is undisputed that the appellant was charged with the offence of rape contrary to section 130(2)(e) and 131(1) of the Penal Code. Section 130(2)(e) provides: "130(2) A male person commits the offence o f rape if he has sexual intercourse with a g irl or a woman under circum stances falling under any o f the follow ing descriptions: (e) with or without her consent when she is under eighteen years o f age unless the woman is his wife who is fifteen or more years o f age and is not separated from the man". Reading from the above provisions of the law, the mandatory requisites that were to be proved by the prosecution in this case are: one, that the victim was penetrated, two, it must be proved that the girl is under 18 years of age. See - Damian Manyika @ Babu Tanga v. Republic (Criminal Appeal No. 306 of 2022) [2024] TZCA 451(13 June 2024); TANZLII and Edward Waison Mzolopa v. Republic, (Criminal Appeal No. 631 of 2020) [2024] TZCA 26 (12 February 2024); TANZLII; and three, that it is the accused who had sexual intercourse with a girl (victim) with or without her consent. In the appeal at hand, it was the victim's evidence that it was the appellant who took her to the farm and raped her. PW2, a doctor testified that he examined and found that the victim's private parts had bruises and she had no hymen, which means that she was penetrated. On the issue of age, having inferred the existence of other facts like the application of section 127(2) of TEA when recording the victim's testimony, where the trial court found her to be a child of tender age, it is undisputed that, she was below the age of 14 years. Finally, on who raped her, apart from the evidence that the victim named the appellant at the earliest stage, it is on record that the appellant also confessed to committing the offence. Therefore, it is our firm view that the prosecution discharged its burden to prove the charge against the appellant beyond any reasonable doubt. Therefore, this ground of complaint is equally destitute of merit, and we dismiss it. Premising on the discussion above, it is our considered view that the case against the appellant was proved beyond reasonable doubt. Therefore, we find no reason to fault his conviction. However, as we allowed the second ground of appeal on the issue of age, where we found that the victim was below 14 years, but there was no proof that she was below 10 years, in the circumstance, we set aside the sentence of life imprisonment and substitute it with thirty years' imprisonment, counting from the date he was sentenced by the trial court. The appeal is allowed only to the extent explained above. DATED at MBEYA this 25th 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 25th 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 nr\n\n*\ W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL