Criminal Appealno

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (IRINGA SUB-REGISTRY) AT IRINGA CRIMINAL APPEAL NO, 37 OF 2023 IM (Name and Identity withheld)................. APPELLANT VERSUS THE REPUBLIC...... ............................................ ................ RESPONDENT (Appeal from the Judgment of the District Court of Iringa at Iringa) fHon. R, Mavaailo - SRMI dated the 20th day of April 2023 in Criminal Case No. 121 of 2022 JUDGMENT Date of Last Order: 16/08/2024 & Date of Judgment: 30/08/2024 S. M. Kai unde, J.: The appellant, JSL was charged with the offence of incest by male contrary to section 158(l)(a) of the Penal Code [Cap, 16 R,E. 2022] ("the Penal Code"). The allegation contained in the charge sheet were that on the 11th day of October 2022, at Uhominyi Village within the District and Region of Iringa, the appellant did have carnal knowledge of HIM (name and identity withheld) a girl aged ten (13) who, to his knowledge, was his biological daughter. He denied the charges and a full trial ensued. At the end of trial, the trial court was satisfied that the prosecution proved the charges beyond reasonable doubts. He was accordingly convicted, in accordance with section 158(l)(a) of the Penal Code, he was sentenced to thirty (30) years imprisonment. To prove the charges against the appellant, the prosecution paraded three witnesses; the victim, HIM (Pwl); the victim's mother, JM(Pw2); and the doctor Achia Abel Mwenda (Pw3). The victim (Pwl) recounted that on the fateful day she came back from school at around 1700Hrs, she prepared "ugali" for dinner. Then they had dinner together with the appellant. After finishing eating, the appellant told her to go to his bedroom. The victim heeded his father's directives. Whilst in the bedroom, the appellant told her to undress herself. She complied and the appellant undressed himself too. Thereafter, he laid her onto the bed and penetrated her onto her private parts. He finished, went out and came back for the second time. It was during the second time when her mother (Pw.2) came and caught them readyhanded on bed. Pw2 version was that, on the given date she went to the funeral of the appellant’s brother. Later in the evening he returned home. Upon arrival, he went straight to her bedroom. Whilst there she saw her husband having sexual intercourse with their daughter. After witnessing the incident, she went out to call the appellant's brother. The brother interrogated the victim who confessed that the appellant told her to have sex. Afterwards, Pw2 reported the matter to the village welfare officer and later to the village executive officer (VEO). The VEO reported the matter to the police station. The police gave them 2 the PF3 so that the victim may be medically examined. Pwl, Pw.2 and Pw3 went to the hospital where the victim was examined, and the results proved that she was penetrated. The medical examination was carried out at Isimani Health Centre by Pw3. According to her, the examination was conducted at around 0900Hrs. In her testimony, Pw3 recounted that the victim told her it was the sixth time she was being penetrated. The victim added that she informed her mother about being penetrated by her father, but the mother did not take any steps. During her examination, Pw3 observed bruises on the victim’s vagina and labia majora. She also conducted laboratory tests which confirmed that the victim had contracted trichomonas disease. Upon conclusion of the examination, Pw3 gave the victim some medication and prepared a medical examination report (Exhibit Pl) and handed it to the police station. At the end of the prosecution case, the trial court ruled that the prosecution had established a prima facie case against the appellant. He was thus called to enter his defense against the charges. In his defense, the appellant, IM (Dwl), denied the charges. He contended that it was impossible for the incident to happen without being noticed by the victim’s sibling who was studying in the same school as the victim. He wondered why Pw2 did not raise an alarm upon witnessing the incident. Regarding the medical examination, Dwl complained that Pw3 3 did not show his identity card to verify his identity and profession. He also said that even Pw3 admitted that the bruises on the victim's vagina might have been caused by a finger. He also claimed that the absence of semen demonstrated that the victim had not been penetrated. As for his involvement, the appellant alleged that he was not around the house when the incident is alleged to have happened as he was out grazing cattle. In her judgment, the learned trial magistrate was satisfied that the appellant was properly identified by the victim and her mother. She was also mollified that the appellant was no stranger to the victim and her mother, and they could not have failed to recognize him. The learned trial magistrate concluded that the prosecution successfully established the charges against the appellant. She convicted and sentenced the appellant as earlier indicated. The appellant is aggrieved by his conviction and sentence and hence the present appeal. His: memorandum of appeal contains five grounds of appeal which verbatim read as follows: "1. ^UThat, the learned trial magistrate erred in law and fact to convict and sentence the appellant relying on contradictory evidence adduced by PW1 before the court of law and statement adduced at police station; 2, That, the learned trial magistrate erred in law and fact to convict and sentence the appellant by relying on PW2 evidence who failed to inform the matter at the VEO before goes to the police station due the fact the act was so unusual to the society; 4 3. That, the learned trial magistrate erred in law and facts to convict and sentence the appellant relying on untrue and weak evidence adduced and declared by PW2 that the evidence was irrelevant throughout in a cross examination made by appellant; 4. That, the learned trial magistrate erred in law and facts to convict and sentence the appellant relying on PW3 evidence (a doctor) who failed to show his identity card which declared if is a real doctor before the court of law, due that the evidence of PW3 become weak to make a conviction to the appellant; 5. That, the learned trial magistrate erred In law and fact to convict and sentence the appellant based on PW3 evidence by testifying that on his examination the bruises and penetration observed at a vagina without take into account that "Kidole" can cause the same to the vagina when on cross examination declared that "Kidole" which used to examine he can make penetration and remove a hymen tod; 6. That, the learned trial magistrate erred in law and fact to convict and sentence the appellant without considering his defense which is relevant to the charge; and 7. That, the prosecution side failed totally to prove the case proved beyond reasonable doubt." In light of the above grounds, the appellant urged the court to: allow his appeal and thereby quash his conviction and set aside the sentence meted on him by the trial court. He has also prayed for his immediate release from prison. .5 To argue the appeal, the appellant appeared in person unrepresented, while the respondent Republic was represented by Mr. Simon Nashon, learned State Attorney. In his submission in chief, the appellant adopted his grounds of appeal. Upon adoption, he invited the court to consider the said grounds and thereby allow the appeal. He then invited the prosecution to reply to his grounds of appeal while reserving the right to rejoin. The respondent, Republic resisted the appeal. In respect of the complaint in the first ground of appeal, that there were contradictions between the victims testimony at the police station, Mr. Nashon submitted that the appellants criticisms were baseless for two reasons; firstly, Mr. Nashon argued that the victim's statement at the police station was not part of the records of the trial court and there is no evidence that it was admitted at any stage by the trial proceedings. Secondly, even assuming the said statement was part of the record, it depended on the interview conducted by the police on duty. In the learned state attorney's opinion, the police interview might have been different to the victim's experience and her evidence in court. Regarding the failure to report the matter to the VEO before reporting it to the police station, Mr. Nashon submitted the complaint was without merits. He argued that it was not a requirement of law that the victim or any person witnessing a rape incident should report the matter to the VEO before reporting the same to the police. The learned counsel added 6 that, in the instant case, Pw2 narrated that she reported the matter to the social welfare officer and subsequently reported the matter to the police station. In his view, there was no need to report the matter to the VEO. Submitting for the third ground of appeal, Mr. Nashon submitted that the trial court was justified in placing reliance on the testimony of Pw2 because she was an eyewitness who saw the appellant raping the victim. The learned counsel submitted that Pw2 arrived at her house and saw the appellant on top of her daughter. The learned counsel added that the witness testified on oath and was not controverted and therefore the court had reasons to believe her testimony. She also informed the court why she had not reported previous incidents of rape. Having said that, the learned state counsel concluded that the witness was trustworthy. In response to the fourth and fifth grounds of appeal, Mr. Nashon was brief. As for the fourth ground, Mr. Nashon submitted that there was no need for Pw3 to tender herlD Card because she was before the court to testify about what she examined on the victim. The counsel contended that the witness was not before the court to establish whether she was a doctor. According to Mr. Nashon, if the appellant did not believe that Pw3 was a doctor, he could have presented his evidence to support the claim. Turning to the fifth complaint, Mr. Nashon submitted that, in his testimony, Pw3 narrated that she examined the victim's vagina and noted some bruises. The 7 evidence of the doctor corroborated the testimony of Pwl who testified that she was penetrated by the appellant. The state counsel argued that evidence of Pwl, Pw2, and Pw3, viewed together, confirmed that the bruises on the victims' vagina were a result of penetration and not fingernails. Having said that, the learned counsel urged the court to dismiss the fourth and fifth grounds of appeal. Concerning failure to consider the defense case, Mr. Nashon submitted that the trial court, at pages 6 and 7 considered the appellants defense and was satisfied that the same did not water down the compelling case adduced by prosecution witnesses. In his opinion, the complaint is also without merits. On whether the charges against the appellant were proved, Mr, Nashon submitted that the prosecution established all the essential ingredients of the offence. The counsel submitted that to establish incest the prosecution was expected to prove; one, the relationship between the appellant and the victim; this was established through the testimony of Pwl, Pw2 and the appellant himself during preliminary hearing. Two, the victim's age, established through the testimony of Pwl and Pw2. Pw2, the mother stated that the victim was born in 2009. Three, proof that the appellant penetrated the victim. This was proved by the testimony of the victim (Pwl) and the mother (Pw2). Pwl narrated clearly how the incident happened on page 8 of typed proceedings. The learned counsel argued that the same 8 type of testimony was also used to convict an appellant in the case of Hassan Kamunyu vs Republic (Criminal Appeal No. 277 of 2016) [2018] TZCA 259 (21 August 2018) TANZLII at page 13. The counsel added that it was on record that Pw2 witnessed the incident herself. In light of these circumstances, the learned counsel claimed that that all the ingredients of the offence were established. Haying said that, the learned state counsel urged the court to dismiss the appeal for being devoid of merits. The learned state attorney advised the court to uphold the conviction and sentenced pronounced by the trial court. Rejoining on the respondents' submissions, the appellant argued that the republic failed to appreciate the first ground appeal because they have not read and understood the contents of the facts which were read before the court during preliminary hearing (page 3 and 4). He contended that if the republic had read the facts, they would deny that there were contradictions between the statement recorded at the police station and evidence in court. In respect of the second ground of appeal, the appellant contended that, in her testimony Pw2 said he had penetrated the victim several times, but she did not report the matter to any person including the VEO. The appellant thought, given the nature of the incident, it was impossible that Pw2 would not report the matter to the VEO. The appellant also questioned why the VEO and social welfare officer to whom the matter was 9 reported were not brought to court to verify the prosecution version. The appellant questioned the credibility of Pw2 on the ground that in the memorandum of agreed facts, Pw2 testified that she reported the matter to the police. However, during cross-examining, the witness said she has told lies before the court many times. In the appellant's opinion, this meant the witness was telling lies before the court. As for the testimony of the doctor, Pw3, the appellant referred to page 18 for a proposition that the witness did not tender his ID cards in evidence. The same page was also referred for evidence that a finger was used to inspect the victim and thus there were possibilities that the bruises onto the victim's vagina and lack of hymen was caused by the doctor's nails and finger. Regarding his defense, the appellant complained that the trial learned magistrate just mentioned his defense, but she did not critically evaluate the same and make her own findings. The appellant concluded that, considering the above discrepancies in the prosecution case, it was clear that the prosecution failed to prove the case beyond reasonable doubts. He added that, since the prosecution failed to prove the case beyond reasonable doubts, the court should accept his grounds of appeal and thereby allow the appeal and set him free. io Having carefully considered the records of appeal and submissions made by the parties, I gather that it is now my duty to re-appraise and re-evaluate the evidence on record and draw my own conclusions and inferences on whether the appellant was properly convicted and sentenced; while at the same time assessing the weight and consequence of the appellants complaints. I shall start to address the grounds of appeal seriatim. To begin with the first ground of appeal, I have carefully perused through the records, and I could find any record of the victim's statement when she reported the matter at the police station. I could also not find any reference to such a statement in the records of the preliminary hearing of her testimony. Again, I agree with Mr. Nashon that the said statement was not tendered in evidence and even if it were tendered or admitted such a statement would be based on the police interview and not necessarily the prosecutrix's experience. In find no merit in this complaint. in the second and third grounds of appeal the appellant raised issues intended to question the credibility of Pw2. He contends that it was unusual for a mother to fail to report an incident involving her daughter being penetrated. He also alleges that her evidence was untrue and weak. It is a cherished principle of law that every witness is entitled to credence more so when a witness's testimony goes unimpeached. See Goodluck Kyando vs Republic [2006] TLR 1.1 263. In the present case, Pw2 testified that she saw the appellant readyhanded raping their own daughter. Thereafter, she reported the matter to the social welfare officer and VEO. Her evidence on these aspects was not controverted by the appellant during cross-examination. The trial court believed that Pw2 was a witness of truth. Equally, I do not see why Pw2 should not be believed. It should also be rioted that Pw2 was the wife to the appellant and the mother to the victim. Though this is not relevant to her evidence, there was no reason why she would fabricate evidence against her own husband. Pw2 is also recorded to have testified that, as a result of the incident, the victim was transferred to Makambako. This piece of evidence was also supported by the evidence of the victim. I have carefully examined the factual circumstances surrounding the credibility of Pwl and Pw2 in the context of the present case and could not find any indication that the two might have connived to imprecate the appellant for the alleged offence. There was noth in g: raised during trial or in the appellants submissions that would dent their credibility. To begin with, I see no reason why the evidence of a mother and child against the father and husband should be viewed suspiciously. More so when there is no evidence pointing to collusion or incredibility. I find it more improbable than probable that the victim and the mother would concoct the case against the appellant. The appellants complaint in the second and third grounds of appeal is thus not merited. 1.2 Turning to the testimony of the doctor, Pw3. I outrightly agree with the learned state attorney that, before the trial court, the substance of Pw3 testimony was to establish the results of her examination and not her expertise. However, even if that was to be the case, Pw3 testified on oath that she was a doctor stationed at Isimani Health Centre, The witness described her academic qualifications as well as her work experience. The appellant did not cross-examine or raise any question on the qualification of Pw2. Having failed to cross-examine the witness, the appellant cannot be heard complaining at this stage. The fourth complaint is also dismissed for lack of merit. In her testimony, Pw3 clearly stated that she examined the victim and noted bruises on her labia minora. She also noticed that the victim had no hymen. The results of her examination was reflected in the medical examination report which was properly admitted in evidence. The report also shows that the doctor saw "bruises in labia minora also no hymen and was tenderness On examination."These observations are consistent with the victim's story that she was penetrated by the appellant. During cross-examination, Pw3 said she used tools and hands to examine the victim. However, there was no evidence or indication that the bruises and lack of hymen were a result of Pw3 hands or anything other than the penetration from the appellant. The fifth ground of appeal is also without merits. Turning to the sixth ground of appeal, it is true that it is one thing to summarize the evidence for both sides separately and another thing to subject the entire evidence to an objective 1,3 evaluation in order to separate the chaff from the grain. It is also one thing to consider evidence and then disregard it after proper scrutiny or evaluation and another thing not to consider the evidence at all in the evaluation or analysis. See Leonard Mwanashoka vs Republic [2015] TZCA 294 (TANZL.II). In the present case, the learned trial magistrate barely evaluated: the appellant’s defense. She did hot make any findings on whether the defense raised doubts in the prosecution. My duty is to re­ evaluate the appellants defense and make my own findings. In his defense, the appellant alleged that it was impossible for the incident to take place without being noticed by the victim's sibling who was studying in the same school as the victim. However, in her testimony Pwl stated that there was no One at home when the incident happened; and yes, obviously the appellant would not commit the heinous crime in the presence of another person. The appellant also questioned why Pw2 did not raise an alarm upon witnessing the incident. However, as observed above, when she witnessed the incident Pw2 reported the matter to the welfare officer and later to the VEO. Failure to raise an alarm did not have any impact on the fact that the appellant raped the victim. The point here is that he was seen, and the matter was reported to respective authorities. Evidence was also presented before the trial court to establish the charges against him. I have also resolved above that the Pw3 established her expertise and was not controverted. Her observations on the victim were also consistent with what the 14 victim stated. Failure to tender the identity card did not affect the appellant's liability in any way. There was also no cogent evidence that the bruises on the victim's vagina were caused by a finger or nails. In the end, my re-evaluation of the appellant's defense leads me to a conclusion that, weighed in consideration of the available evidence cumulatively, the appellant's defense was insufficient to dent the prosecution case. It is not disputed that the appellant was charged and convicted under 158(l)(a) of the Penal Code. The respective section reads: "158. - (1) Any male person who has prohibited sexual intercourse with a female person, who is to his knowledge his granddaughter, daughter, sister or mother, commits the offence of incest, and is liable on conviction - (a) if the female is of the age of less than eighteen years, to imprisonment for a term of not less than thirty years; (b) if the female is of the age of eighteen years or more, to imprisonment for a term of not less than twenty years. (2) It is immaterial that the sexual intercourse was had with the consent of the woman. (3) A male person who attempts to commit an offence under this section is guilty of an offence.'■ [Emphasis is mine] 15 It is trite that the intention of the offence of incest by male, under the above quoted section, is to prohibit sexual relationships between people of the same blood even if they consent. The offence is therefore established where there is proof of; one, penetration; and two, blood relationship between the victim and the accused person. See Chora s/o Samson @ Kiberiti vs Republic (Criminal Appeal No. 516 of 2019) [2021] TZCA 628 (1 November 2021) TANZLII; and Paulo Machandi vs Republic (Criminal Appeal No. 244 of 2019) [2022] TZCA 430 (15 July 2022) TANZLII. In the present case, proof of penetration came from the victim herself. She testified that the appellant forcefully undressed her, undressed himself, dragged her onto the bed and inserted his pennis into her vagina. The victim added that she felt pain when she was being penetrated. He testimony in Kiswahili read: "Akanipiga ngwara nikaanguka akaanza kunivua nguo zangu. Aka sc ma niiale kitandani sikulala akatoa nguo zake zote kama alivyokuwa amezaliwa. Tukawa tunaangaliana ana kwa ana akaninyanyua na kunila/isha kitandani na yeye akaja juu na kuniwekea mdudu wake sehemu zangu za sin, niiijisikia vibaya. " From the above evidence, the victim clearly narrated in succinct terms how the incident happened. She stated what unfolded when she came back from school, in that she prepared food. Thereafter, they ate later the appellant forced to have sexual intercourse. It is trite that is sexual offences best 16 evidence must come from the victim; and that the evidence of the victim needed no corroboration. See Jirani Maarufu vs Republic (Criminal Appeal 193 of 2011) [2012] TZCA 188 (25 June 2012) TANZLII and Charles Yona vs Republic (Criminal Appeal 79 of 2019) [2021] TZCA 339 (2 August 2021) TANZLII. In this case, the victim's evidence was sufficient to ground conviction without corroboration. However, if corroboration was required the evidence of Pw2 who caught the appellant readyhanded was sufficient to lend corroboration. The evidence of Pwl and Pw2 is also supported by the testimony of Pw3 and Exh. Pl. The prosecution case was therefore proved beyond reasonable doubts. The seventh ground of appeal lacks merit. For the foregoing reasons, I am satisfied that the totality of prosecution evidence before the trial court was watertight leading to no other conclusion than that of the appellants guilty. Thus, having dismissed all the grounds of appeal, there is no gainsaying that the present appeal is devoid of merits. The same is dismissed in its entirety. The appeal is disposed in aforestated terms. DATED at IRINGA this 30™ day of AUGUST, 2024. s.mJkalunde JUDGE 17