CRIMINAL APPEAL NO 17 OF 2022 HIMID SANGWA VERSUS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA. ( CORAM: KEREFU. 3.A„ MGONYA, J.A And MLACHA, J.A.^ CRIMINAL APPEAL NO. 17 OF 2022 HIMID SANGWA,.,.......... ................ ......... ............... ......APPELLANT VERSUS THE REPUBLIC....................... .....................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Iringa) (Mlvambina. J.) dated the 10th day of December/ 2021 in Criminal Appeal No. 70 of 2020 JUDGMENT OF THE COURT 17th & 27thMarch; 2025 MLACHA. 3.A.: The appellant Himid Sangwa was arraigned of rape contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code, [Gap 16 R. E. 2002] (now R. E. 2019) at the District Court: of Mufindi, at Mafinga, in Criminal Case No. 192 of 2019. It was alleged that, on 13th August, 2019 at Kibengu village, Mufindi District, Iringa Region/ the appellant had carnal knowledge of a girl aged 6 years old whom, for the purpose of concealing her identity, shall be refereed as "MK" or the victim. He pleaded not guilty to the charge but, following a full trial, he was found guilty, convicted and sentenced to the mandatory sentence of life imprisonment. His first appeal to the High Court of Tanzania at Iringa, in (DC) Criminal Appeal No. 70 of 2020, could not be successful, hence the appeal now before the Court. The facts leading to the conviction of the appellant are not complicated. MK a child aged 6 years (PW1), stated that as she was moving to the nursery school, where she studies, on 13/8/2019 at 7:00 a.m., she met the appellant who called her. She knew him because he lived nearby. The appellant took her inside the bush. He undressed her underpants and his trousers. He then inserted his penis into her vagina and had sexual intercourse with her. MK felt serious pains. When he finished, MK saw blood coming from her vagina. The appellant warned her not to tell anybody and moved away. MK had pains but managed to go back home. Ponsiano Kilyanyi (PW2) and Anjelina Msigwa (PW3), the father and mother of MK respectively, were not at home when MK came back. They had gone to the farm. They returned home later and went to a local bar for a drink. Both testified that, they returned home at around 7:00 pm. It was the evidence of PW2 that he noticed something unusual with MK, because she was walking with difficulties, He called her and asked what Gould be her problem. MK told her that she had been raped by the appellant. PW3 appeared at this moment and heard the story. Both stated that, they examined the victim's private parts and saw bruises and blood. Mk repeated that, she had been raped by the appellant. They reported the matter to the village office and the police station where they got a PF3. Both PW1 and PW2 stated that they sent the child to hospital. Dr. Lilian Sanga (PW4) (AMO) of Mafinga government hospital, stated that she received MK on 14/8/2019 in the company of her mother who complained that MK had been raped. PW4 examined her and filed her findings in the PF3, exhibit PI. She told the trial court that she found no bruises in the vagina but it had no hymen. She concluded that there was evidence of an old penetration with a blunt object. The appellant (DWlj) dissociated himself with the commission of the offence. He stated that this was a false and planted case against him. He told the trial court that he was not present at the village on 13/8/2019, the date when the offence is alleged to have been committed. He was at Pamelini Village where he had gone to fetch maize seeds. He could not return up to 14/8/2019. He questioned the reason as to why he could not be arrested from 14/8/2019 until 16/8/2019. His wife, Mary Makinya (DW2), corroborated the alibi. She stated that her husband was not present at the village on 13/8/2019. He had gone to look for seeds as hinted above. The trial court was impressed by the evidence of PW1, PW2, PW3, and PW4. It rejected the defence of alibi lodged by the appellant. It also rejected the defence that this is a false and planted case. It convicted and sentenced the appellant as intimated above. This position was upheld by the High Gourt. Undaunted, the appellant has come to this Court on a second appeal. The appellant filed a memorandum of appeal with five (5) grounds of appeal. For reasons to be known soon, we will not reproduce the grounds of appeal at this stage. Mr. Joshua Erasto Chussy, learned advocate, appeared for the appellant, whereas the respondent Republic was represented by Ms. Radhia Njovu, learned Senior State Attorney, assisted by Mr. Yahaya Misango, learned Senior State Attorney and Ms. Winifrida Mpiwa, learned Senior State Attorney. At the outset, Mr. Chussy abandonment ground 2 and 3. He remained with grounds 1, 4 and 5 which are paraphrased and re arranged as follows: 1. That, there was no evidence to prove that, the victim was raped by the appellant on the date o f crime. 2. That, there were contradictions, ambiguities and uncertainties in the prosecution case. 3. That, the case against the appeilant was not proved beyond reasonable doubts. Submitting on ground one, Mr. Chussy contended that it is not clear if MK was raped by the appellant on 13/8/2019 given the gap of time between the time she was raped and when she was found to have been raped. MK said she was raped in the morning at 7:00 am as she was moving to school. PW2 and PW3 stated that, they noticed that she had been raped at 19:00 hours (7:00 pm). Mr. Chussy questioned this gap of time between when she claimed to have been raped was raped and when she was noticed by PW2 and PW3 to walk with dificulties. He invited the Court to discredit PW2 and PW3 because they spoke lies. He cited to us the case of Mohamed Saidi V. Republic (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (22 August, 2019); TANZLII, to support his stance. In reply to ground one, Ms. Njovu contended that there was evidence from the victim who said clearly what was done to her as appearing at pages 9 to 10 of the record of appeal. Her evidence was supported by PW2 and PW3 who saw her moving unusually. They also saw bruises and blood in her private parts. The evidence of PW2 and PW3 was also corrorated by PW4. Before resolving the controversy between the parties, we find it pertinent to state that, in a second appeal like this one, the Court will not disturb concurrent finding of facts of the lower courts unless where there is a misapprehension of evidence or miscarriage of justice or violation of some principle of law or practice. See Samwel Daud And Mwita Matiko V. Republic, Criminal Appeal Nos. 177 and 178 of 2011 (unreported) where we stated: "This court has established through case law that in a second appeal such as this one, we can interfere with the findings o f fact by the courts beiow if we are satisfied that the findings o f facts were based on a disregard o f an established principle o f practice, misapprension o f evidence, omissions to consider available evidence, a misapprension o f applicable law and/or misdirection or none directions on the evidence. We can also interfere on being convinced that the appellants were not given a fair hearing by the courts beiow. (See, for instance Emilian Aidani Fungo @ Alex and Another V.R, CriminalAppeal No. 278 o f2008 (CAT unreported)." See also Nyerere Nyague V. Republic, (Criminal Appeal No.67 of 2010) [2012] TZCA 362 (19 May, 2012); TANZLII and John Mkunya v. Republic (Criminal Appeal No. 62 of 2022) [2022] TZCA (12 May, 2022); TANZLII to mention a few. We shall be guided by this principle in the course of deliberation on issues arising from this appeal. The gist of the complaint in ground one is that it is not clear if the victim was raped by the appellant on 13/8/2019 given the gap between the time when she was raped and when it was discovered. The counsel for the appellant questions the reason as to why she could not be noticed at an early stage. To him, it brings doubts whether she was really raped by the appellant given the gap of time and the remark of the doctor. He discredited PW2 and PW3 and invited the Court to find them to be liars. On the other hand, the Senior State attorney contended that there is good evidence from PW1 who said exactly what happened to her on the material day which is supported by PW2 and PW3 who saw bruises and blood in her private parts. He added that, this evidence is corroborated by PW4 who could not see the hymen. Having considered the matter critically, we find that there is evidence from PW1, PW2, PW3 and PW4 showing that MK was raped but no explanation was given on why the rape could not be noticed at an early stage given her age, the nature of injury and the agony she went through. We expected an earlier report to any adult, not necessarily her parents. This evidence is missing. Further, it is not known why PW2 did not inquire on the whereabout of the victim when she came back from the farm. This does not appear to be the regular practices of mothers particularly in a situation like this where the victim is still a child. There is also a problem with the description of PW4 who described it as an old penetration. We wonder if a child of 6 years may be penetrated by an adult and heal in a matter of a day, so as to attain the status of having no blood or bruises and a vagina which suggest an old penetration. In ground two, the complaint is that the prosecution case had contractions and ambiguities. The counsel for the appellant challenged the evidence of PW4 on two areas; one that he could not desribe the victim and two, that he tendered a PF3 which is not stamped. The Senior State Attorney declined to submit on this ground saying it is a new ground. He referred the Court to page 36 - 38 of the record of appeal and urged the Court to reject it We have perused the record at pages 36 to 38 and saw the grounds of appeal which were submitted to the High Court for consideration. We could not see a ground similar to ground 2. Neither did we find a place in the judgment of the High Court where it was raised and decided. Neither does it raise a point of Jaw. What was raised is a factual issue which cannot be entertained by the Court without first having been raised and decided by the lower court. See Simon Godson Macha (Administrator of The Estate of the Late Godson Macha) v. Mary Kimambo (Administratrix of the Estate of the Late Kesia Zebedayo Tenga) (Civil Appeal No. 393 of 2019) [2020] TZCA 36 (28 February, 2020); TANZLII where we stated: "At the very outset, we would like to agree with Mr. Raufencio that apparently, all seven grounds o f appeal raised by the appellant herein are on new issues which were neither raised nor discussed in the first appellate court. There is a long chain o f authorities which have taken the stance that matters not canvassed by the lower courts cannot be raised in this Court. See for instance cases o f Juma Manjano v. Republic, Criminal AppealNo. 211 o f 2009f Sadick Marwa Kisase v. Republic, Criminal Appeal No. 83 o f 2012 and George Mwanyingifi v. Republic, CriminalAppeal No. 335 o f 2016 (all unreported). In Juma Manjano (supra) the Court held that:"As a second appellate court we cannot adjudicate on a matter which was not raised as a ground o f appeal in the first appellate court."... matters not raised at the first appellate court cannot be raised in a second appellate court. " [Emphasis added] See also Godfrey Wilson v. Republic (Criminal Appeal No. 168 of 2018) [2019] TZCA 109 (6 May 2019); TANZLII. With this finding we decline to consider the said ground of appeal. In ground 3, the complaint is that the case was not proved beyond reasonable doubts, Mr. Chussy argued the ground under two limbs. One, that, the procedure of receiving the evidence of the child was not followed; and two, there is contradiction in evidence of PWl, PW2, PW3 and PW4. Amplifying on the first limb, he contended that PWl promised to speak the truth as appearing at page 8 of the record of appeal but the record does not show the procedure which was followed up to that end. When he was probed by the Court he submitted that he expected the record to show the questions and answers in the record but they are missing. He cited to us our decision made in Ramso Peter Ondile v. The Republic, (Criminal Appeal No. 84 of 2021) [2022] TZCA 608 (6 October, 2022); TANZLII to support his stance. The response of Ms. Njovu on the first limb was that given the current position of the law, there was no need to record the questions and answers. What was important was to record the promise to speak the truth and not lies, which was dully given by PW1. We had time to perused the record and consider the submission of the learned counsel. We think that this should not detain us. Section 127 (1) and (2) of the Evidence Act, Cap 6 R. E. 2019, as amended by Act No. 4 of 2016 reads as follows: "127 (1) Every person shall be competent to testify unless the court considers that he is incapable o f understanding the questions put to him or o f giving rational answers to those questions by reasons o f tender age, extreme old age, disease (whetherbodily or mind) or any other similar cause. (2) A child o f tender age may give evidence without taking an oath or making an affirmation but shall before giving evidence\ promise to tell the truth to the court and not to tell lies" The position of the law, as indicated above, has one key condition; that the child must promise to tell the truth and not lies. Once the court is satisfied that the child does not understand the meaning and nature of an oath, in which case, the witness will give his evidence without oath or affirmation, the next step is to lead him or her to make the li promise. The magistrate may record the question and answers given or simply remark to have done so in the record, as was done in this case at page 8 of the record of appeal which reads as follows: "Court: Upon an ora! examination, I conducted to the victim I discovered she possess sufficient inteiiigence to testify and she promised this court that; Witness: I promise to teii the truth." The emphasis here is the promise of the child not the procedure adopted by the trial court to get it. In Ramso Peter Ondile (supra) the facts were different from the facts of this appeal because in that appeal the Magistrate did not satisfy himself as to whether the child understood the nature and meaning of an oath. Therefore we find this complaint to be baseless and it is dismissed. Next is contradictions in the prosecution case which is the subject of the second limb. This complaint is based on the condition of the victim as described by PWl, PW2, PW3 and PW4 and the date of commission of the crime. Mr. Chussy contended that, whereas PW1, PW2 and PW3 stated that the victim had blood and bruises, PW4 did not see the blood or bruises. He only found the victim with no hymen and concluded that she had an old penetration. He contended further that, whereas PW1 said that, she was sent to the hospital on the same day, i.e. on 13/8/2019, PW4 stated that she received her on 14/8/2019 which was the next day. We had time to examine the record and consider the submission of the learned counsel for the parties. We think we should start by pointing out a typo error appearing at page 17 of the record of appeal. PW4 is recorded saying that she received the victim on 14/8/2020. Our perusal of the original record did not show this date. It showed that she received her on 14/8/2019. We think what is on record is a typing error. We will thus take, as put forward by the learned counsel for the parties that, PW4 received her on 14/8/2019. We will now move to examine the contradictions. We agree with the counsel for the appellant that the prosecution case has two contradictions; one, the contradiction between the evidence of PW1, PW2 and PW3 who saw blood and bruises and the evidence of PW4 who did not see them. PW4 just saw an open vagina with no hymen, and formed the opinion that it was an oid penetration, suggesting that, the victim was raped at an earlier date contrary to what was said by PW1, PW2 and PW3. Two, the contradiction on when the victim was sent to hospital. Whereas PW1 stated that she was sent to the hospital on the same day, PW4 stated that she received her on the next day. 13 Further, PW2 and PW3 did not say when they sent the victim to hospital. Based on these contradictions, the Court is invited to find that there was no evidence to prove the case beyond doubts and give the appellant the benefit of doubts. We are alive with the settled principle that in rape cases, the best evidence comes from the victim meaning that the court should be guided by what was said by the victim and see if it is worth of belief, and if so it can enter a conviction without other pieces of evidence. See Burundi Deo V. The Republic, Criminal Appeal No.33 of 2010 (unreported)which followed our earlier decisions in Selemani Makumba V R (Criminal Appeal No. 94 of 1999) [2006] TZCA 96 (21 August, 2006); TANZLII, Saidi Ally Mkong'oto V. R (Criminal Appeal No. 133 Of 2009) [2010] TZCA 292 (17 March, 2010); TANZLII and Hakizimana Silvester V R (Criminal Appeal No. 181 of 2007) [2010] TZCA 201 (18 October, 2010); TANZLII. That is the position of the law but we do not think that that, rule goes to negate what is said by other prosecution witnesses particularly where it goes against what was said by the victim. It is only relevant where there is no other evidence, let's say where we don't have medical evidence. In principle ail prosecution witnesses must speak the same language and where there are contradictions, they must be resolved in favour of the appellant. Faced with an akin situation, the Court had this to say in Mohamed Said Matula v Republic [1995] TLR 3 where we stated: "Where the testimonies by witnesses contain inconsistencies and contradictions, the Court has a duty to address the inconsistencies and try to resolve them where possible, else the Court has to decide whether the inconsistencies and contradictions are oniy minorr or whether they go to the root of the matter." (Emphasis added) See also Dikson Elia Nsamba Shapwata & Another v Republic, (Criminal Appeal No. 92 of 2007) [2008] TZCA 17 (30 May,2008); TANZLII. If contradictions go to the root of the case, they have the effect of destroying the prosecution case for, in the end, the case must be proved beyond reasonable doubts. We had time to consider the contradictions. We do not find them to be minor. They cast serious doubts on whether MK was raped on 13/8/2019 as indicated in the charge sheet or at an earlier date. They also go to discredit prosecution witnesses. They go to the root of the prosecution case. We think, if the lower courts had examined the evidence the way we have done, they could not have arrived at the finding and decisions which they made. In view of what we have demonstrated above, we quash the conviction of the appellant and set aside the sentence of life imprisonment imposed on him. He shall be set free unless he is held on some other lawful cause. Appeal allowed. DATED at IRINGA this 27th day of March, 2025. R. J. KEREFU JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 27thday of March, 2025 in the presence of the appellant in person with the learned counsel Mr. Joshua Chussy, and Ms. Anastazia Buhaga, learned State Attorney for the Respondent/Republic; i )y of the original. J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL