CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MUGASHA. 3.A.. MWAMPASHI. J.A. And NGWEMBE. J.A.l CRIMINAL APPEAL NO. 737 OF 2023 SAIMONI PATRICK..................................................................APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Bukoba) (Kilekamaienqa, 3.) dated the 6th day of April, 2023 in Criminal Appeal No. 82 of 2021 JUDGMENT OF THE COURT 17th & 24* March, 2025 MWAMPASHI. J.A.: In the District Court of Muleba at Muleba (the trial court), the appellant herein, Saimoni Patrick, was charged and convicted of the offence of rape contrary to sections 130 (1) (2) (e) and 131(1), both of the Penal Code [ Cap 16 R.E. 2002, now R.E. 2022] (the Penal Code]. The particulars of the offence alleged that on 25.03.2020 at Rubungo Primary School within the District of Muleba in Kagera Region, the appellant had carnal knowledge of a girl aged 11 years whose name is withheld to hide her identity and who will hereinafter be referred to as "the victim" or ""PW1". The appellant denied the charge. However, after a full trial, he was found guilty as charged and was convicted and sentenced to serve a period of thirty years' imprisonment. In addition, the appellant was ordered to pay Tshs. 300,000/= to the victim as compensation. His appeal to the High Court against the trial court's conviction and sentence was dismissed hence, the instant appeal. The prosecution evidence on which the conviction by the trial court was based came from five witnesses namely; the victim (PW1), Athuma Abdallah (PW2), Dr. Albert Bongo (PW3), Hamidu Abdulnoor (PW4) and WP 2696D/Sgt. Erinesta (PW5). The prosecution also relied on three exhibits; the victim's clinic card, a PF3 and the appellant's cautioned statement (Exhibits, PI, P2 and P3 respectively). On his side, the appellant was a sole defence witness. Briefly, the prosecution evidence against the appellant was to the following effect: The victim was a standard five pupil at Rubungo Primary School. On 25.03.2020, during morning hours, she was on her way to Mkalyambwa where her mother was, when she passed at Rubungo Primary School and met the appellant who was working there as a watchman. The appellant approached her and when she tried to run away from him, the appellant grabbed and tightly held her by the neck before he forcefully took her in his room at Rubungo Primary School. Therein, the appellant covered the victim's face with a piece of cloth before he stripped her naked and inserted his penis in the victim's vagina. She screamed but the appellant covered her mouth by his hand. After ejaculating, the appellant released the victim who ran away but she could not get far as she fell down and fainted. She was picked and taken home. Since she was unconscious, she did not know who took her home. The person, who picked the victim and took her home, was PW4. According to his testimony, as he lives close to Rubungo Primary School, on 25.03.2020, at around 08:00 hrs, he was at his house when he heard someone screaming from the school premises. He looked around but he could not see anything. About thirty minutes later, he saw a young girl in shock running from the school premises. The girl fell down and when he approached her, she recognized her as the victim. He picked and carried the victim to her home where there was no one. PW4 had to call the victim's mother (PW2) who came and took the victim to the hospital. According to the victim's mother, PW2, she was at her hotel at Mkalyambwa when PW4 called and asked her to return home because the victim was seriously sick. When she got home, she found a number of people over there and the victim who was unconscious was lying on a mattress. She rushed her to Kaigara Hospital. While at the hospital she decided to examine her by taking out her clothes and that is when she noticed blood on the victim's thighs flowing from her vagina. She passed the information to the doctor who took the victim to the theatre and directed her to report and fetch a PF3 from Muleba Police Station. The victim had to be stitched on her vagina and was admitted. At around 20:00 hrs, the victim, while in semi-conscious state was heard groaning and stating 'mlinzi' ('watchman'). She fell asleep and it was in the following morning when the victim woke up and told her that the watchman at Rubungo Primary School had raped her. Since she knew who was the watchman, she reported the appellant to Muleba Police Station which led to the arrest of the appellant. PW2 did also tell the trial court that the victim was 11 years old having been born on 21.12.2008 and to that effect, she tendered the victim's clinic card which was admitted in evidence as Exhibit PI. PW3 Dr. Albert Bongo, was the doctor who attended the victim at Kaigara Health Centre on 25.03.2020. According to him, the victim was brought to him while in hysteria and semi-conscious state. He examined her and observed that she had been injured in her private part by a blunt object. The victim's vagina had been torn to the extent that she had to be stitched and admitted. His conclusion was that the victim had been raped. A PF3 was to that effect, filled by him and it was tendered in evidence as Exhibit P2. The last prosecution witness was PW5, WP 2696 D/Sgt. Erinesta of Muleba Police Station. According to her, the case file was assigned to her for investigation on 26.03.2020. She observed that the victim had been raped and as the appellant was named by the victim to be the one who has raped her, the appellant who was a watchman at Rubungo Primary School, was arrested and when cautioned he admitted to have raped the victim. PW5 tendered in evidence the appellant's cautioned statement which was admitted without objection as Exhibit P3. The appellant had a very brief sworn defence. He just stated that he was arrested at Rubungo Primary School on 25.03.2020 at around 1:00 hrs by four men and one woman and was taken to the police station on accusation that he had raped the victim which he denied. He also contended that he neither knew the victim nor did he rape her but that he was framed. At the end of the trial, having believed the prosecution evidence to be true, the trial court convicted and sentenced the appellant in the manner we have alluded to earlier. The appellant's first appeal to the High Court was unsuccessful. Still aggrieved, the appellant has knocked the doors of the Court seeking to challenge the conviction and the sentence imposed on him. According to the memorandum of appeal, the appellant has raised 6 grounds which can be condensed into 4 points of grievances paraphrased as hereunder: 1. The charge was fabricated due to the land conflict the appellant had with PW2. 2. The cautioned statement (Exhibit P3) was improperly admitted in evidence. 3. The prosecution evidence was incredible, contradictory, hearsay and uncorroborated. 4. The case against the appellant was not proved beyond reasonable doubt At the hearing of the appeal, the appellant who appeared in person unrepresented adopted his grounds of appeal and urged us to consider them and allow the appeal. The respondent Republic was represented by Ms. Chema Maswi, learned Senior State Attorney, and Mr. Dickson E. Makoro, learned State Attorney. At the outset, Mr. Makoro expressed his stance that the Republic was resisting the appeal. Having opted to respond to the grounds of appeal under a single general ground that the case against the appellant was not proved beyond reasonable doubt, he argued that the offence of rape with which the appellant was charged is statutory rape. It was submitted by Mr. Makoro that, the ingredients of the offence of statutory rape which must be proved beyond reasonable doubt are, the age of the victim, penetration and that it was the accused person who penetrated the victim. Beginning with proof of age, it was contended by Mr. Makoro that the victim's mother (PW2) proved that the victim was 11 years old. He added that the age was also proved by the victim's clinic card which was tendered and admitted in evidence as Exhibit PI. Regarding penetration, it was submitted by Mr. Makoro that the evidence by the victim (PW1) sufficiently established that she was penetrated. He argued that the victim explained how the appellant inserted his penis in her vagina. Further, the evidence by the doctor (PW3) and the PF3 (Exhibit P2) which was to the effect that the victim's vagina was torn to the extent of being stitched, corroborated the evidence by the victim that there was penetration. As for who penetrated the victim, Mr. Makoro referred us to the evidence by the victim and argued that as the rape in question was committed in daytime, the victim positively recognised the appellant who was not a stranger to her. Mr. Makoro further submitted that the case against the appellant was proved beyond reasonable doubt and the defence evidence raised no doubt in the prosecution strong evidence. Placing reliance on the decision of the Court in George Jonas Lesilwa v. Republic (Criminal Appeal No. 374 of 2020) [2024] TZCA 269 (16 April 2024;TanzUI)/ Mr. Makoro argued that the best evidence came from the victim who was not cross-examined by the appellant on any material fact. In conclusion, it was argued by Mr. Makoro that ground 1 has to be disregarded by the Court because it is factual and was not raised and decided by the High Court. He insisted that the Court has no jurisdiction to entertain it. As on ground 2 in regard to the cautioned statement, it was argued by him that the ground is misconceived because the cautioned statement was expunged by the High Cort. Mr. Makoro thus, implored on us to dismiss the appeal for being baseless. The appellant briefly argued in rejoinder that, he did not rape the victim and further that the case against him was not proved to the hilt. He thus, reiterated his prayer for the appeal to be allowed and for him to be set free. It is our considered view, as rightly contended by Mr. Makoro, that the disposition of this appeal hinges on the point whether the case against the appellant was proved to the required standard, that is, beyond reasonable doubt. This point addresses ground 4 of the appellant's complaint. In the determination of this appeal, the focus will thus, be on the above pointed out issue. However, before embarking into the determination of the above stated issue, we should first dispose ground 1 which is to the effect that, the charge was fabricated due to the land conflict the appellant had with PW2. As rightly argued by Mr. Makoro, this ground is on factual issue and it was never raised and decided by the High Court. According to the petition of the appeal which is found at page 51 of the record of appeal, the appellant raised three grounds in support of his appeal before the High Court. Firstly, he complained about the propriety of the admission of the cautioned statement in evidence. Secondly, it was on the appellant's complaint that he was arraigned before the trial court beyond 24 hours and the thirdly, it was the appellant's complaint that after being admitted in evidence, Exhibits PI, P2 and P3 were not read out. Looking at those grounds which were raised before the High Court, it thus, becomes crystal clear that ground 1 is a new ground which was not raised and decided by the High Court. It is a settled principle of law that this Court will deal only with matters which were raised and decided by the lower court. The Court has no jurisdiction over issues which were nether raised nor decided by the 1st appellate court unless such issues are on points of law. See- Abdul Athumani v. Republic [2004] T.L.R. 151, Hassan Bundala @ Swaga v. Republic (Criminal Appeal No. 386 of 2015) and Juma Manjano v. Republic (Criminal Appeal No. 211 of 2009). As ground 1 is a new ground which is not on a point of law, the same is accordingly discarded. The Court has no jurisdiction to deal with it. Regarding ground 2 on the complaint that the cautioned statement (Exhibit P3) was improperly admitted in evidence, we firstly note that while it was Mr. Makoro's argument that the said exhibit was expunged by the High Court and therefore that the ground is misconceived, the record of appeal shows that the exhibit was not expunged. Our examination of the record of appeal, particularly the High Court judgment, reveals that, although the High Court found that the statement was recorded beyond the prescribed period of four hours and was thus supposed not to be admitted in evidence by the trial court, the High Court did not expunge it. After holding that the exhibit was supposed not to be admitted in evidence by the trial court, the High Court briefly discussed the position taken by the Court in Jeremiah Murimi & 3 Others v. Republic (Criminal Appeal No. 551 of 2015) whereby though the cautioned statements in question were recorded beyond the prescribed period of four hours, the same were not expunged from the record on account of high public interest, complications in the investigation of the case and as the failure to record the cautioned statements within a period of four hours did not prejudice the appellant. In that regard, since, in the instant case, the cautioned statement (Exhibit P3) was not expunged by the High Court, then the complaint that the same was improperly admitted in evidence stands. The ground of complaint is not misconceived as it was argued by Mr, Makoro, and has to be determined by this Court. We also note that before the High Court, the appellant's complaint regarding the said cautioned statement was that the same was recorded beyond the prescribed period of four hours. That being the case, the determination of ground 2 entails us to revisit the evidence on record to find out whether the said cautioned statement was recorded within the prescribed period or not. In other words, the question is when was the appellant arrested and the cautioned statement recorded? According to PW2, it was on 26.03.2020 after the victim had awaken, regained her consciousness and after she had named the appellant as the rapist and further after the victim had been discharged from the hospital, when PW2 reported the appellant to the police resulting into the arrest of the appellant. So, to PW2 the appellant was arrested on 26.03.2020. This, was supported by PW5 who testified that the appellant was arrested on 26.03.2020 which is the date the case file li was assigned to her for investigations. Both PW2 and PW5 did not tell at what time the victim was discharged from the hospital or when the appellant was arrested. Contrary to what was testified by PW2 and PW5, in regard to the date the appellant was arrested, the appellant, in his defence evidence, claimed that he was arrested on 25.03.2020 at around 01:00 pm. Having considered the circumstances of the case and basing on the evidence by PW2 that the appellant was named by the victim on 26.03.2020 and also from the testimony of PW5, we find that the date the appellant was arrested was 26.03.2026 and not 25.03.2020 as claimed by the appellant. As regards the time the cautioned statement was recorded, the only evidence to that effect is from the cautioned statement itself in which it is indicated that it was recorded at 15:00 hrs on 26.03.2020. In that statement, which was admitted in evidence at the trial without objection and which was readout after its admission, the appellant, contrary to what he stated in his defence, is on record stating that he was arrested on 26.03.2020 at around 14:00 hrs while on duty at Rubungo Primary School. Based on the appellant's own statement that he was arrested at around 14:00 hrs on 26.03.2020 and as his statement was recorded at 15:00 hrs on the same date, the statement was then recorded within the prescribed period of four hours as required by section 50 (1) (a) of the Criminal Procedure Act [Cap. 20 R.E. 2022]. It is thus, our finding that the High Court misapprehended the evidence and erroneously came to the finding that the appellant was arrested on 25.03.2020 hence, concluding that the cautioned statement was recorded beyond the prescribed period of four hours. Fortunately, as we have alluded to above, the cautioned statement in question was not expunged by the High Court. As demonstrated above, it is thus, our firm finding that the caution statement (Exhibit P3) was recorded within the prescribed period of time and the same was properly admitted in evidence. Having disposed of grounds 1 and 2 as such, we now turn to the main point as to whether the case against the appellant was proved beyond reasonable doubt which also comprises the complaint on ground 3 that, the prosecution evidence was incredible, contradictory and uncorroborated. First of all, it is our considered view that the facts that the victim was raped and was 11 years old are not in dispute. The evidence by the victims herself that she was 11 years old and also that a penis was inserted into her vagina was credible and reliable as it was concurrently found by the two lower courts. Being a second appellate court, we have no reason at all to interfere with such concurrent findings. See- DPP v. Jaffar Mfaume Kawawa [1981] T.L.R. 149 and Alphonce Bisage Mwasandube (Criminal Appeal No. 630 of 2020) [2014] TZCA 28 (12 Februaty 2014;TanzLII). The age of the victim that she was 11 years old and therefore below 18 years of age, was also proved by the victim's mother PW2 and the victim's clinic card (Exhibit PI). As for the fact that the victim was raped, her evidence to that effect, was corroborated by the evidence from PW3 Dr. Albert Bongo whose evidence was that the victim's vagina was badly torn to the extent that it had to be stitched and further that the victim had to be admitted to the hospital. As corroborative evidence, there was also the PF3 (Exhibit P2). It is thus, our firm finding that, as it was found by the two lower courts, the victim was 11 years old and was raped. The only burning issue is on who raped the victim. In other words, the issue is whether it was proved beyond reasonable doubt that the rapist was the appellant. In her evidence, the victim recounted that when on her way to Mkalyambwa where her mother PW2 was, she passed at Rubungo Primary School where she met the appellant who was well known to her as the watchman at the school. The appellant grabbed and held her by the neck before he forcefully took her in his room within the school premises, wherein he raped her. The evidence by PW4 who saw the victim running from school premises and who picked and carried her home is to the effect that the victim was unconscious as it was also testified by the victim's mother who rushed her to the hospital. Furthermore, PW3 who received the victim at the hospital recounted that the victim was in hysteric and semi-conscious state. According to PW2's evidence, the victim remained unconscious until in the morning when she named the appellant as the one who had raped her the previous day. In this regard, the victim named the appellant at the earliest possible opportunity. It is a settled principle of the law that, the ability of a witness to name a suspect at the earliest opportunity has been recognized as an all-important assurance of the reliability of the witness. See- Chacha Jeremiah Murimi & Others v. Republic (Criminal Appeal No. 551 of 2015) [2019] TZCA 52 (4 April 2019;TanzLII), Marwa Wangiti Mwita & Another v. Republic [2002] T.L.R. 39, Nebson Tete v. Republic (Criminal Appeal No. 419 of 2013) [2015] TZCA 518 (27 August 2015;TanzLII) and Amos Sita @ Ngili v. Republic (Criminal Appeal No. 438 of 2021) [2023] TZCA 17697 (3 October 2023;TanzUI). In the former case the Court stated that: "In addition to the above, the second appellant was mentioned and described as the culprit to the police at the very earliest opportunity. The ability o f PW1 to mention and describe the second appellant at the earliest possible moment is an assurance o f her reliability". It is also settled that, in sexual offences, the victim's evidence is the best and that every witness is entitled to credence and must be believed unless there are good and cogent reasons not to believe such a witness. See- Goodluck Kyando v Republic [2006] T.L.R. 362, Mathias Bundala v. Republic (Criminal Appeal No. 62 of 2004) [2007] TZCA 16 (16 March 2007;TanzLII) and Florian Joel v. Republic (Criminal Appeal No. 384) [2025] TZCA 253 (20 March 2025;TanzLII). Based on the above and having revisited the evidence of the victim, we are in agreement with the lower courts that the evidence by the victim which was coherent and consistent was, in that respect, the best. There was sufficient evidence beyond reasonable doubt that it was the appellant who raped the victim. In addition, in the cautioned statement (Exhibit P3), the appellant admitted to have raped the victim at Rubungo Primary School where he was working as a watchman and in the room given to him by the school headteacher in which he used to live. Finally, we find that the case against the appellant was proved beyond any reasonable doubt. It was sufficiently established that the victim was 11 years old and that she was raped by none other than the appellant. That being the case, the appeal is devoid of merit and it is hereby dismissed in its entirety. DATED at BUKOBA this 24th day of March, 2025. S. E. A. MUGASHA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 24th day of March, 2025 in the presence of the appellant in person and Ms. Mgeni Mdee, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.