said bakari vs republic 2022 tzca 125 21 march 2022

IN THE COURT OF APPEAL OF TANZANIA AT MTWARA ( CORAM: NPIKA. 3.A.. KEREFU, J.A.. And KENTE, J.A.Y CRIMINAL APPEAL NO. 295 OF 2021 SAID BAKARI..,,........ ............... ...................................APPELLANT VERSUS THE REPUBLIC................. ................. ................. .....RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mtwara) (Mlacha. 3.1 dated the 15thday of November, 2017 in Criminal Appeal No. 75 of 2016 JUDGMENT OF THE COURT 15th & 21st March, 2022 KEREFU, J.A.: In the District Court of Lindi at Lindi, the appellant, Said Bakari, was charged with two counts of unnatural offence and rape contrary to sections 154 (1) (a), 130 (1) (2) (e) and 131 (1) of the Penal Code, [Cap. 16 R.E. 2002], now R.E 2019 (the Penal Code) respectively. In both counts, it was alleged that on diverse dates and months of 2014 and 8th day of December, 2014 at Mikumbi area within the Municipality and Lindi Region, the appellant sodomized and raped a girl child aged twelve (12) years. To conceal the victim's identity and for purposes of protecting her privacy, we i shall henceforth refer to her as 'SS' or simply VPW1' as she so testified before the trial court. The appellant denied the charge laid against him and as a result, the case proceeded to a full trial. To establish its case, the prosecution relied on the evidence of five witnesses and two documentary evidence, to wit, the appellant's cautioned statement (exhibit PI) and the PF3 (exhibit P2). The appellant relied on his own evidence as he did not call any witness. The prosecution case, as obtained from the record of the appeal, can be briefly stated as follows: SS, the victim who testified as PW1 stated that she knew the appellant as Baba Fatuma and one of their neighbours at Mikumbi area. That, the wife of Baba Fatuma lives at the farm (shamba) but comes home periodically. That, when the said wife was at the shamba, the appellant used to call her at his house sodomize and rape her. She said that the appellant had sodomized and raped her four times. On each of those occasions, he gave her money ranging from TZS 500.00 to TZS 1,200.00. However, PW1 could not remember all the dates when she was assaulted by the appellant but she only mentioned the dates of 2nd and 8th December, 2014. Demonstrating on how the appellant sodomized and raped her, PW l explained that the appellant used to bend her and insert his penis into her anus and then into her vagina. In all those occasions, it was not possible for her to raise an alarm as the appellant used to cover her mouth and threaten to slaughter her if she disclosed the ordeal to anyone. As a results, PW1 did not reveal the ordeal to anyone including her mother. PW1 went on to state that, one of those days while playing a game widely known as rede with her friends, the appellant called her to his house and asked her to undress her clothes but PW1 refused. The appellant forcefully undressed her, laid her down and inserted his penis into her vagina and then into her anus. PW1 complained that the appellant's penis was hurting her and this time round, her voice was heard by Fatuma Rashid (PW3) who called Rukia Hamisi (PW2) and they both went to the appellant's house. The appellant chased them away. PW1 stated further that, on that date the appellant gave her TZS 1,200.00 and warned her not to tell anyone lest he would kill her. Upon reaching home, PW3 asked her about the incident but she denied as she said she feared to be slaughtered by the appellant. In the next morning, PW1 was taken to the police station and then to the hospital for medical examination. PWl's account was supported by PW2 and PW3. PW3 added that on 8th December, 2014 during the day time, she passed by the appellant's house and heard a voice of a girl yelling that 1 inauma' 'naumia' literally meaning, 'it is painful'. That, upon hearing the said voice, she rushed to call PW2 and they both went to the appellant's house. Upon entering the said house, PW2 found the appellant wearing shorts and beside him, there was PW1, who was seated on the bed. That, the appellant chased them and they both ran away and went back to their homes. The next morning, PW2 narrated the incident to PWl's mother. The matter was reported to the police and the appellant was arrested on the same date. At the hospital, the medical examination was conducted by Dr. Farida Ally Mwanga (PW5) on 9th December, 2014 who remarked that, there was no element of rape in the PWl's vagina but she found that, PW1 had no hymen. PW4 tendered the PF3 to that effect and the same was admitted in evidence as exhibit P2. G. 1389 Detective Corporal Kajengula (PW4) interviewed the appellant and recorded his cautioned statement. In the said statement, the appellant confessed to have committed the offence. At the trial, the appellant's statement was admitted in evidence as exhibit PI. In his defence, the appellant dissociated himself from the accusations levelled against him, as he contended that he saw PW1 for the first time in 4 court, He also disowned his cautioned statement by alleging that he was forced to sign it. Furthermore, the appellant challenged the evidence of PW1, PW2 and PW3 that they gave an untrue story before the trial court which was contradicted by PW5. He, in particular, asserted that, he was framed up by PWl's mother due to the existing grudges between them, though he did not disclose the nature of the alleged dispute. At the end of it all, the learned trial Magistrate found that the charge against the appellant was not proved to the required standard. It was his finding that the evidence of PW1 was contradicted by the evidence of PW5 and the PF3, thus failed to prove penetration. It was the further finding of the learned trial Magistrate that, even the appellant's cautioned statement could not be relied upon because it was a repudiated confession. Finally, the appellant was acquitted on both counts. Aggrieved, the Director of Public Prosecutions successfully appealed to the High Court on two grounds of appeal mainly faulting the trial court for failure to consider the evidence of PW1 (the best evidence) and find that it proved penetration and that, it was corroborated by PW2 and the appellant's cautioned statement proved the case beyond reasonable doubt. 5 It is noteworthy that, after his acquittal, the appellant could not be served through his known address. Therefore, the service was effected through substituted service by way of publication in three issues of Mtanzania Newspaper dated 6th October, 2017, 10th October, 2017 and 13th October, 2017. However, the appellant defaulted appearance, hence the hearing of the appeal proceeded ex parte under section 381 (2) of the Criminal Procedure Act, Cap. 20 R.E 2019 (the CPA). Having heard the appeal ex parte and re-evaluated the evidence on record, the first appellate court found that the learned trial Magistrate misapprehended the evidence on record. It was satisfied that the prosecution case against the appellant was proven beyond reasonable doubts because PW1, the victim and the best witness in cases of this nature, clearly narrated how she was sodomized and raped by the appellant four times at different dates. It was the further finding of the first appellate court that the evidence of PW1 was well corroborated by PW5 who medically examined PWl's private parts and found that she had no hymen. In addition, the first appellate court found that the evidence of PW1 was also corroborated by the evidence of PW2 and PW3. In his own words, found at pages 71 and 72 of the record of appeal, the learned High Court Judge observed that: - "Looking at the evidence, in my view, there is nothing suggesting that the evidence o f the doctor contradicted that o f the victim. I f anything, may be the words he used. PW1 said that she was raped four times at different dates. I f PW1 was raped 4 times at different dates, and if the doctor did not see her on 18/10/2014, there was no way in which the doctor, in my view, could see the usual signs o f rape like bruises and sperms. The doctor could not observe bruises because the victim was familiar to sex and that she must ha ve taken bath by the time she saw her. The fact that PW1 was seen without hymen suggested that it was not her first time to do so, not that she had not been raped... The evidence o f the doctor was therefore corroborative rather than being contradictory. Finally, there is submission that the cautioned statement o f the respondent had no strong weight because it was repudiated later. I agree with that point But even in its absence, there were other pieces o f evidence which were material and strong as shown above. The evidence o f PW1, PW2 and PW3 was very strong. It could be the base o f a conviction even without the repudiated confession." Consequently, the learned High Court Judge set aside the order of acquittal issued by the trial court and proceeded to convict the appellant and sentenced him to serve thirty years' imprisonment on each count. The said sentences were ordered to run concurrently from the date of the appellant's arrest. Aggrieved, the appellant has preferred the present appeal. In the memorandum of appeal, he indicated six grounds of appeal which raise the following complaints: One, that he was denied his fundamental right to be heard before the first appellate court as the respondent's appeal was heard and determined ex parte) two, that exhibits PI and P2 were unprocedurally tendered and admitted in evidence; three, that the age of the victim was not proved as required by the law; four, that it was improper for the first appellate court to rely on the testimonies of PW1, PW2 and PW3 who were incredible and unreliable witnesses; five, that the prosecution case was not proved beyond reasonable doubt; and finally, that the defence evidence was not considered. At the hearing of the appeal, the appellant appeared in person without legal representation whereas the respondent Republic was represented by Ms. Ajuaye Bilishanga Zegeli, learned Principal State Attorney. 8 When given an opportunity to argue his appeal, the appellant adopted his grounds of appeal and preferred to let the learned Principal State Attorney to respond first but he reserved his right to rejoin, if need to do so would arise. We respected his choice and we thus invited Ms. Zegeli to respond to the grounds of appeal. In her response, Ms. Zegeli from the outset, declared her stance that she was opposing the appeal. She, however, at the same time, referred us to the first ground of appeal and submitted that she partly supports that ground because the appellant was denied his fundamental right to be heard as the procedure prescribed under section 381 (2) of the CPA was not complied with. When probed by the Court and upon perusal of the original record and found three copies of Mtanzania Newspaper dated 6th October, 2017, 10th October, 2017 and 13th October, 2017 as proof that the appellant was served by way of substituted service, three times, after failure to serve him through his known address, she submitted that the appellant was duly served. In his rejoinder on this ground, the appellant admitted that he could not be served in his known address because, immediately after his acquittal, he relocated and went to live at a different place. As, regards the substituted service, the appellant submitted that he was not aware of the said newspaper, as he cannot read and write. Having perused the record of appeal and considered the submissions made by the parties on this issue, with respect, we agree with the learned Principal State Attorney that the conditions of issuance of service to the respondent stipulated under section 381 (2) of the CPA were duly complied with. For easy of reference, the said section provides that: - "Where notice o f time, place and hearing cannot be served on the respondent because he cannot be found through the address obtained by the court under sections 228 and 275, the notice shall be brought to his attention through publication in a newspaper three times, and at the end o f that servicef the court shall proceed with the appeal in the absence o f the respondent" It is clear from the wording of the above provision that, the court is empowered, after several attempts of effecting service on the respondent through his known address without success, to serve him through substituted service by way of publication in three issues of a widely circulated newspaper. In this case, and as intimated above, the first 10 appellate court fully complied with the above requirement, as after its failure to serve the respondent through his known address, it resorted to a substituted service by way of publication in three issues of Mtanzania Newspaper as reflected at pages 49 to 50 of the record of appeal. In his own words before this Court, the appellant also admitted that, he couid not be served in his known address because, immediately after his acquittal, he relocated to a different place. Since the procedure of service stipulated under the above provision was adhered to, we are satisfied that the appellant was properly served. In the event and without much ado, we find the appellant's complaint under the first ground of appeal to have no merit. The second ground of appeal is straightforward and should not detain us. Ms. Zegeli had since conceded that the appellant's statement (exhibits PI) and the PF3 (exhibit P2) have no evidential value as they were unprocedurally admitted in evidence and that the same deserves to be expunged from the record, as we hereby do. We, however need to observe that, as eloquently argued by Ms. Zegeli, even without exhibit P2, the testimony of PW5 is quite sufficient to cover the contents of the PF3 as PW5 explained in detail what was contained in that document. Likewise, the evidence adduced by other witnesses such as, PW1, PW2 and PW3 is 11 sufficient to sustain the conviction against the appellant. This is so because, in cases of this nature, a PF3 is not the only evidence to prove that the offence was committed, other evidence on the record can as well do so. See for instance the case of Ally Mohamed Mkupa v. Republic, Criminal Appeal No. 2 of 2008 (unreported). In the third ground of appeal, the appellant faulted the first appellate court for convicting him of statutory rape while the age of the victim was not proved. In response, although, Ms. Zegeli conceded that the age of the victim did not come out clearly in the evidence of PW1 and PW2, but she argued that the same was deducible from other evidence. To support her submission, she referred us to our previous decision in Karim Seif @ Slim v. Republic, Criminal Appeal No. 161 of 2017 (unreported) and urged us to deduce the age of PV\/1 from the evidence on record. Having revisited the evidence on record, we agree with her that, although the age of PW1 does not come out clearly from the evidence of prosecution witnesses, the particulars of the offence in the charge sheet mentioned the victim as a girl child of twelve (12) years. Again, when PW1 testified before the trial court, she was recorded as a witness of twelve (12) years old and her evidence was taken after a voire dire test was conducted. 12 The said voire dire test and her evidence, both clearly indicated that she was a standard four pupil at Stadium Primary School. All these, in our considered view, presupposes that PW1 was a child of a tender age. In Issaya Renatus v. Republic, Criminal Appeal No. 542 of 2015 (unreported) when we were faced with an akin situation, we stated that: - "In the case under our consideration there was evidence to the effect that, at the time o f testimony the victim was a class five pupil at Twabagondozi Primary School. Furthermore, PW1 was introduced into the witness box as a child o f tender age, following which the trial court conducted a voire dire test Thus, given the circumstances o f this case, it is, in the least, deductble that the victim was within the ambit o f a person under the age o f eighteen. To this end, we find the first ground o f appeal to be devoid o f any merits." Being guided by the above authority and considering the available evidence on record as intimated above, we agree with the submission of Ms. Zegeli and we find it safe to deduce that PW1, the victim herein, was a child of tender age. We are certain that this deduction does not prejudice the appellant who, given the particulars in the charge and the evidence stated above, was aware that he was accused of unnatural offence and 13 rape of a child of a tender age. We thus also find that the third ground of appeal is devoid of merit. Responding to the sixth ground of appeal on the appellant's complaint that the first appellate court did not consider his defence, Ms. Zegeli, who was very brief and direct to the point, referred us to page 57 of the record of appeal and argued that the defence evidence was properly considered by the first appellate court and found unable to cast doubt on the prosecution case. We entirely agree with her that the appellant's complaint in this ground is baseless and is not supported by the record. In this case, the record of appeal, at page 57, bears out that the first appellate Judge adequately considered the defence evidence and found that it was weak and unable to shake the prosecution case. The appellant's complaint in the fourth and fifth grounds is to the effect that the prosecution case was not proved to the required standard. He contended that the evidence of PWl, PW2 and PW3 was tainted with contradictions thus, they were not credible and reliable witnesses. On this, Ms. Zegeli argued that, the pointed-out contradictions are minor defects which do not go to the root of the matter as properly decided upon by the first appellate court. She insisted that, since the appellant was caught in his house with PW1, the said contradictions are immaterial and cannot water down the prosecution case, She elaborated further that, the first appellate court properly re-evaluated the evidence adduced by the prosecution witnesses and was satisfied that the evidence of PW1, the victim which is the best evidence in cases of this nature was corroborated by PW2, PW3 and PW5, As for the contradictions on the name of the appellant that PW1 and PW2 referred to him as Baba Fatuma, Ms. Zegeli aiso dismissed that complaint by referring us to page 11 of the record of appeal and argued that, during the preliminary hearing and signing of the memorandum of undisputed matter, the appellant accepted that name that he was also known as Baba Fatuma. In addition, Ms. Zegeli referred us to page 25 of the same record and argued that, in his own evidence before the trial court, the appellant testified that he is also known as Baba Fatuma because he has a child called by that name. Based on her submission, she argued that the prosecution case was proved beyond reasonable doubt and urged us to dismiss the entire appeal for lack of merit. When probed by the Court to comment on the propriety or otherwise of the sentence imposed on the appellant in respect of the first count, Ms. 15 Zegeli responded that the proper sentence for that offence is life imprisonment. She, however, preferred to leave the matter into the wisdom of the Court. In a brief rejoinder on these grounds, the appellant did not have much to say other than urging us to consider his grounds of appeal and set him at liberty. Having carefully considered the submissions made by the parties on these grounds and scanned the entire record of appeal, we agree with Ms. Zegeli that the first appellate court properly re-evaluated the evidence and was satisfied that the case against the appellant was proved beyond reasonable doubts. We have specifically revisited the testimonies of PWl, PW2 and PW3, and there is no doubt that they clearly explained the incident. PWl in particular at page 14 of the record of appeal narrated how the appellant sodomized and raped her four times in his house when his wife was away. She clearly demonstrated how the appellant used to bend her and insert his penis into her anus and then into her vagina. That, she did not raise an alarm because the appellant used to cover her mouth and threatened to slaughter her if she disclosed the ordeal to anyone. Likewise, PW3 at page 18 of the same record, testified how on 8th December, 2014 16 during day time, she passed nearby the appellant's house and heard a voice of PW1 lamenting that the appellant's penis was hurting her. That, PW3 called PW2 and they both went to the appellant's house and upon entering inside, PW2 found the appellant putting on a short trouser with PW1 seated on the bed. In addition, PW5 testified on how she medically examined PW1 and found that she had no hymen. As rightly submitted by Ms. Zegeli, in cases involving sexual offences the best evidence is that of the victim, The sole evidence of the victim can be safely relied upon by the court to sustain a conviction. See for instance the cases of Selemani Makumba v. Republic [2006] T.L.R. 379, Hamis Mkumbo v Republic, Criminal Appeal No. 124 of 2007 and Rashidi Abdallah Mtungwa v. Republic, Criminal Appeal No. 91 of 2011 (both unreported), among others. In this case, as correctly found by the first appellate court, PW1 evidence was corroborated by PW2, PW3 and PW5. We are also mindful that under these grounds, the other appellant's complaint is to the effect that the prosecution witnesses PW1, PW2, PW3 and PW5 were not credible witnesses as their evidence is tainted with contradictions and inconsistences. Having revisited the testimonies of these witnesses and considered the contradictions and discrepancies complained 17 of, we do not, with respect, consider them to be material to the extent of affecting their credibility and reliability. It is indeed on record that, although PW1, PW2 and PW3 testified that PW1 was sodomized and raped by the appellant on 8th December, 2014, PW5 in her evidence testified that on 9th December, 2014 when she examined PWl's private parts, she did not see any sign of her being raped but only found that PWl had no hymen. We have however noted that, the said discrepancies were addressed by the first appellate court and ruled out that they are minor discrepancies which do not go to the root of the matter and dispute that the appellant was found in a compromising posture with the victim in his bedroom. In the circumstances, we, like the first appellate court, are of the considered view that, the testimonies of PWl, PW2, PW3 and PW5 cannot be affected by minute discrepancies complained of. In Dickson Elia Nsamba Shapwata and Another v. Republic, Criminal Appeal No. 92 of 2007 (upreported) when considering similar discrepancies in witnesses’ testimonies, we quoted with approval, at page 7 of the decision, a passage of the learned authors of Sarkar, The Law of Evidence 16th Edition, 2007 which provides that: - ''Normal discrepancies in evidence are those which are due to normal errors o f observation, normal errors o f memory due to lapse o f time, due to mental disposition such as shock and horror at the time o f the occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected o f a norma! person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility o f a parties' case, material discrepancies do'"[Emphasis supplied]. Therefore, since in this case we have already observed and labelled the pointed discrepancies to be trifling and minor, the same cannot corrode the evidence adduced and shake the version of the prosecution case. The testimony of PW1, the best evidence in this case, that she was sodomized and raped by the appellant four times was well corroborated by the testimony of PW5 who medically examined PWl's private parts and found that she had no hymen. It is also on record that testimonies of PW2 and PW3 gave a detailed account on how they found the appellant in his house with PW1. All these witnesses, in our considered view, proved the 19 prosecution case and thus, the fifth and sixth grounds of appeal are devoid of merit. Moreover, it is our considered view that the appellant's assertion that the case was framed up against him due to the existing dispute between him and PWl's mother was highly improbable in the circumstances of this case. It is on record that, the appellant did not cross examine PW1 and PW2 on that aspect. It is trite law that, a party who fails to cross examine a witness on a certain matter is deemed to have accepted it and will be estopped from asking the court to disbelieve what the witness said, as the silence is tantamount to accepting its truth, We find support in our previous decisions in Cyprian Athanas Kibogoyo v. Republic, Criminal Appeal No. 88 of 1992 and Hassan Mohamed Ngoya v. Republic, Criminal Appeal No. 134 of 2012 (both unreported). In the circumstances, we see no reason to differ with the finding of the first appellate court. In totality, we are satisfied that the first appellate court adequately evaluated the evidence on record and arrived at a fair and sound decision. We now turn to determine the legality of the sentence of thirty years' imprisonment imposed on the appellant in respect of the first count. It is on record that on the first count, the appellant was charged with the offence of 20 unnatural offence contrary to sections 154 (1) (a) of the Penal Code. Since the said offence was committed on PW1, a girl of below eighteen years old, we agree with Ms. Zegeli that the imposed sentence of 30 years' imprisonment was illegal. Unfortunately, this went unnoticed by the learned High Court Judge. Pursuant to section 154 (2) of the Penal Code as amended by section 185 of the Law of Child Act, Cap. 13 R.E. 2019, the proper punishment that was supposed to be imposed on the appellant is life imprisonment. In Johnson Charles v, Republic, Criminal Appeal No. 53 of 2018 (unreported) when faced with a similar situation, the Court relied on its previous decision in Marwa Mahende v. Republic [1998] TLR 249 where it emphasized that the superior courts have additional duty of ensuring that the laws are properly applied by the courts below including substituting improper sentences with the correct ones. On the basis of the foregoing and having sustained the conviction, we invoke our revisional powers bestowed on us under section 4 (2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2019 (the AJA) and set aside the illegal sentence of 30 years imprisonment imposed on the appellant on the first count. We instead, substitute it with the mandatory sentence of life imprisonment in accordance with the provision of section 154 (2) of the Penal Code. In the event, we find the appeal devoid of merit and it is hereby dismissed in its entirety. DATED at MTWARA this 19th day of March, 2022. G. A. M. NDIKA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEA P. M. KENTE JUSTICE OF APPEAL The Judgment delivered this 21st day of March, 2022 in the presence of the Appellants in person, unrepresented and Ms. Mr. Abdulrahman Msham, Senior State Attorney learned counsel for the respondent/Republic is hereby certified as a true copy of original. 22