CRM

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: KOROSSO J.A, KENTE, J.A And MGONYA J.A^ CRIMINAL APPEAL NO 613 OF 2021 CHRISPIN CHARLES MWAVILUNDO........................................ APPELLANT VERSUS THE REPUBLIC................................................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Monqella, 3 ) dated the 8th day of November 2021 in Criminal Appeal No. 56 of 2021 JUDGMENT OF THE COURT 14th & 28th February, 2025 KENTE J.A,: The appellant, Chrispine Charles Mwavilundo, was in the District Court Songwe at Vwawa, charged with and convicted of rape contrary to sections 130 (1) (2) (a) and 131 (1) of the Penal Code Chapter of the 16 Revised Laws. The particulars of the offence were that, at about 00.30 hrs. on 25th February 2020 at Ilasilo 'A' village within the District and Region of Songwe, he unlawfully had carnal knowledge of an old woman whose name we shall hereinafter conceal and simply refer to as either PW1 or the victim. In a nutshell, the prosecution evidence was as follows; Until the day of occurrence of the alleged offence, the appellant was a tenant of the victim. On the fateful day during right time, the appellant went over to her room while she was fast asleep and knocked on the door asking for food. After hearing the appellant whom she recognised well, PW1 opened the door. PW1 recounted that whenever the appellant needed food, he would go to her to ask her and that she would always share with him the little food she had. After the door was opened, the appellant went in and instead of asking food as was the norm, he surprisingly requested to have sexual intercourse with PW1, who refused. His sexual advances having been turned down, the appellant is alleged to have decided to molest her without her consent. In the course, PW1 screamed for help whereby her alarming voice was heard by PW2 and PW3 who lived in the neighbourhood. In answer to the alarm, PW2 and PW3 quickly went to PW l's home. When they got there, they entered the room, and found her in a bad state. She was bleeding and was contaminated with faeces. PW2 and PW3 only managed to help her by covering her with a kitenge and thereafter they decided to call her daughter Sophia who came and cleaned her mother. It is the prosecution case that when PW2 and PW3 arrived they met the appellant who was leaving the victim's home and that by the time the victim told them it is the appellant who had just molested her, he had already escaped from the scene. On the following day, they took the victim to the Police station where she was further referred to hospital for medical examination. PW4 was on duty at Galula Dispensary when the victim arrived alleging that she had been raped by someone who was familiar to her. After a brief external observation, PW4 noticed bruises on her neck and she was experiencing pain in her private parts. Upon thorough examination, the patient's vagina exhibited bruises and she was bleeding, suggesting a forceful penetration. After completing the medical examination, PW4 filed a medical examination report (PF3.) which he tendered in evidence as Exhibit PI. A preliminary investigation by the Police led to the apprehension of the appellant who was mentioned by the victim. As stated earlier, he was subsequently charged with rape, the charges which he denied in no ambiguous terms. However, upon full trial, he was found guilty as charged and subsequently convicted. His appeal to the High Court was in vain, hence the present appeal which is based on five grounds of complaint. In the first ground, the appellant complains that the identity of the culprit was not properly established due to poor visibility at the victim's home. In the second, third, and fourth grounds, the appellant is generally faulting the learned Judge of the first appellate court for upholding the conviction and sentence imposed on him by the trial court not­ withstanding the fact that the case against him was not proved to the required standard. Another criticism which is key, appears in the fifth ground of appeal wherein the appellant is complaining that the first appellate court ignored his defence. Before us, the appellant appeared in person without any legal representation, while Mr. Joseph Mwakasege, learned State Attorney appeared to represent the respondent/Republic. When the appellant was asked to address the Court, and expound on his ground of appeal, being illiterate and lay, he chose first to hear Mr. Mwakasege's reply submissions to his grounds of appeal, saying that, if necessary, he would echo his grounds of complaint by way of rejoinder. Mr. Mwakasege supported the appellant's conviction and sentence as he strongly opposed this appeal. He started with the evidence of identification. On this he submitted that, the victim used to live with the appellant and she used to give him food. That on the material day, she opened the door for him after she was satisfied that it was himself and nobody else who had knocked. It was Mr. Mwakasege's further submission that, PW2 and PW3 on responding to the victim's alarm, they met the appellant who was then escaping from the crime scene. He contended that, the evidence led by the prosecution witnesses shows that there was light from solar powered tube lights which allowed the prosecution witnesses to clearly see and recognise the appellant. He stressed that, this was a fit case whereby the identification of the appellant was that of recognition. In this regard reliance was placed on our earlier decision in the case of Jumapili Msyete vs. Republic, Criminal Appeal No. 110 of 2014 [2015] TZCA 234 (12 August 2015) [TANZLII]. Responding in respect of the second, third and fourth grounds of appeal, the learned State Attorney argued that, the appellant's conviction was grounded on the testimonies of PW2, PW3, PW4, together with the victim and the medical examination report (exhibit PI). As for the evidence of PW4 who was a doctor, Mr. Mwakasege submitted that, the victim was examined and found with bruises in her private parts showing that indeed she was forcefully penetrated by a blunt object. The learned State Attorney went on submitting that, essentially PW'4 evidence was intended to show that there was penetration and his evidence was merely corroborative of the fact that the victim had been raped. He referred us to the case of Jacob Mayan vs. Republic, Criminal Appeal No. 58 of 2016 [2020] TZCA 1744 (24 August 2020) [TANZLII] in support of his tenor of argument. With regard to the appellant's complaint that the grounds contained in his petition of appeal in the first appellate court was not considered, it was the learned State Attorney's submission that, this was done save that the said grounds were condensed and determined holistically. The High Court Judge then went on evaluating them and finally resolved the issues arising from them. It was Mr. Mwakasege's submission that, of most importance, all the appellant's grounds of appeal were evaluated but found baseless. It was Mr. Mwakasege argument that upon the above circumstances the offence of rape with which the appellant stood charged, was proved to the required standard He pushed the argument further and posited that, for instance the issue of penetration and lack of consent was proved in line with section 130(4) of the Penal Code. He submitted that, the evidence proves that there was no consent from the victim and that, the appellant was the perpetrator. On the complaint that the appellant's defence was not considered, Mr. Mwakasege referred us to page 41 of record of appeal and subsequently argued that, the defence was considered and rejected. He further took us to page 62 onwards of the record of appeal where the High Court Judge concurred with the trial court findings of fact. He thus prayed the appeal to be dismissed. When we invited the appellant to respond to Mr. Mwakasege's submissions, he did not have anything substantial to add. He complained that he was not properly identified as light from solar powered tube lights for home use was not sufficient enough to enable the prosecution witnesses to identify him. He urged us to allow his appeal, quash his conviction and set aside the sentence meted out on him. We have duly considered the submissions made by both the learned Senior State Attorney and the appellant. In as much as this is a second appeal, the practice of this Court is to avoid interfering with the concurrent finding of facts arrived at by the trial and first the appellate courts unless there are good reasons for doing so, for example, where there is a misdirection or misapprehension of evidence (See:- Biloza s/o Robert vs DPP (Criminal Appeal No. 9 of 2019) [2023] TZCA 17632 (21 September 2023)) As it will be noted at once, the prosecution evidence seeking to implicate the appellant was wholly based on the evidence of recognition by the victim and PW2 and PW3. For the sake of exactitude, it was established through the evidence of PW1 that on the material day, the appellant had the carnal knowledge of her in a non-consensual sexual encounter. She recounted the ordeal that, upon opening the door for the appellant, he went in and raped her. In this regard, there is no dispute that the victim was sexually penetrated as orally attested to by Doctor Faraja Bruno Pesa (PW4) a Medical Officer who examined her and confirmed the allegations of her having been raped as to put to rest all the doubts on that aspect. We are cognizant that in view of the inherent nature of the offence of rape where only two persons are usually involved when it is committed, the testimony of the victim of rape is most important and must be examined and judged cautiously. We took this stance in the case of Selemani Makumba v. Republic [2006] TLR 379. Regarding identification of the appellant at the crimescene, Mr. Mwakasege equally submitted that, it rests entirely on the evidence of PW1 and that of her two neighbours i.e. PW2 and PW3 who saw the appellant leaving the house of PW1 as they went to her rescue. Mr. Mwakasege was also alive to what we take to be the settled position of the law that, the identification by way of recognition is more reliable than identification by a stranger. See Jumapili Msyete vs. Republic (supra) where the Court explained the types of identification in the following terms, thus: "For the purpose of analysis and the experience enriched from case taw, cases of identification may be grouped into three broad categories. , Visual identification identification by recognition, and voice identification. In visual identifications usually the victims would have seen the suspects for the first time. In recognition cases, the victims claims that they are familiar with or know the suspects. In the last category the victims would usually claim to be familiar with the voice o f the suspect although they may or may not have seen him. It is akin to identification by recognition." The Court went on to state that: "Of those types of identification, it has been held that identification by recognition is more reliable than that by strangers or by voice." In the case at hand, the victim narrated how she raised the alarm seeking help and PW2 and PW3 went to her rescue. There is no dispute that in this case, the offence was committed at night. PW1, PW2 and PW3 stated that there was solar light at the crime scene and that they knew the appellant very well. PW1 stated that, she was able to identify the appellant from his voice, and when she saw him, he wore a blue short and had put nothing on top. This evidence was corroborated by PW2 who also testified that the appellant was bare chested. With regard to the identity of the appellant, the two lower courts had believed that the prosecution evidence was sufficient and that the appellant was the one who was seen and recognized at the crime scene. On our part, we see no reason to fault those findings of fact as they are well grounded. As regard the question as to whether or not the appellant's grounds of appeal in the first appellate court were considered, with respect this will not detain us much. The High Court had consolidated all grounds in the petition of appeal into one ground thus, whether the prosecution side had proved the case against the appellant to the required standard. In answering the 5th ground in which the appellant complained that there was no eyewitness for instance, the prosecution conceded that indeed there was no eye witness. However, the first appellate court went further to hold that, the evidence of the victim was sufficient to prove the offence of non-consensual sexual intercourse. Next is the complaint by the appellant that his defence evidence was not evaluated. While we are mindful of our earlier decisions regarding the lower court's failure or omission to consider the accused person's defence version in criminal trials, upon reading of the record of appeal, as correctly submitted by Mr. Mwakasege, it is plainly clear to us that the appellant's defence version was duly considered by the lower courts but rejected for the reasons given. It follows therefore that his complaints on that aspect have no basis both in fact and in law. We reject them. The last point to consider and determine is whether or not the case against the appellant was proved to the required standard as to warrant his conviction and sentence. Upon consideration of the evidence led by the prosecution witnesses before the trial court, as the learned Judge of the first appellate court did, we hold that there was ample evidence to justify the appellant's conviction and sentence. Just like the two lower courts, we see no reason to discredit the evidence of PW1 whom we find to have been credible and reliable. The learned first appellate Judge was justified to hold that the case against the appellant had been proved beyond reasonable doubts and we have no reason to fault him. In the ultimate event, this appeal fails and is accordingly dismissed in its entirety. DATED at MBEYA this 28th 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 28th day of February, 2025 in the presence of appellant in person and Mr. Rajabu Msemo, learned State Attorney for the Respondent/Republic through virtual court, is hereby rp rtifip rl p c 3 tri ip rnn\/ n f t-ho nrinin^ l