JACKSON VENANCE MBAGA ANOTHER V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI DC CRIMINAL APPEAL NO. 15567 OF 2024 (Originating from Criminal Case No. 86 of 2023 of Mwanga District Court) 1. JACKSON VENANCE MBAGA ……………………… APPELLANT 2. JOSEPH VENANCE ANTONY………………………. APPELLANT VERSUS REPUBLIC …………………………………………........ RESPONDENT JUDGMENT 08/10/2024 & 23/10/2024 SIMFUKWE, J. The appellants herein Jackson Venance Mbaga and Joseph Venance Antony were charged before the District Court of Mwanga (trial court) with the offence of Gang rape contrary to section 131A (1) and (2) of the Penal Code, Cap 16 R.E 2022. It was alleged before the trial court that on 22nd day of July 2023 at 19:00 hrs the appellants together with 1 one Halfan Hassan met with the victim at Ngujini village. They caught the victim and took her to the house of Halfan where they compelled the victim to have sexual intercourse with them without her consent. The victim raised an alarm which was responded by the hamlet chairperson and civilians who managed to arrest the appellants herein, while Halfan Hassan managed to escape. The prosecution called five witnesses while the appellants defended themselves. They denied to had committed the offence. The trial court found the appellants guilty of the offence charged and sentenced them to life imprisonment. The appellants were aggrieved with the conviction and sentence. They preferred the instant appeal on five grounds: 1. That, the trial court Magistrate erred in law and facts to convict and sentence the appellants while prosecution side failed to prove its case beyond reasonable doubt. 2. That, the trial Magistrate erred in law and facts to convict and sentence the appellants by relying on contradictory evidence adduced by the prosecution witnesses. 3. That, the trial Magistrate grossly erred in law and facts on relying on insufficient evidence adduced by prosecution side. 2 4. That, the trial court erred in law and facts in convicting and sentencing the appellants and failure to summon important witness (sic). 5. That, the trial Magistrate erred in law and facts to convict and sentence the appellants without considering the defence of the appellants. The appellants prayed this court to allow this appeal, quash the conviction and set aside the sentence of life imprisonment. The appeal was ordered to be argued by way of written submissions. The appellants had no representation while the respondent was represented by Ms. Julieth Komba learned State Attorney. On the first and third grounds of appeal, the appellants submitted that it is clear that the prosecution side failed to prove their case beyond reasonable doubts as required under section 110 (2) of the Law of Evidence Act, Cap 6 R.E 2022. They based their argument on the fact that the offence was said to have been committed at 19:00 hrs. Thus, it was difficult for the victim to identify the culprits. The appellants were of the opinion that it was the duty of the prosecution side to conduct identification parade as required under section 60 of the Criminal Procedure Act, Cap 20 R.E 2022. 3 The appellants raised another doubt to the effect that PW4 testified that when they broke the door, they found the victim sleeping with one Halfan and not the appellants who were found outside the house. They averred that the offence was fabricated against them. On the second ground of appeal, the appellants submitted that PW4 stated that there was an agreement of sleeping with Halfan Hassan and the victim went with him to his premises. At the same time, PW4 testified that the appellants and Halfan pulled the victim from the road which is five metres from Halfan’s house. The appellants were of the view that the above facts create doubts and cannot render conviction. Another contradiction was in respect of time, that the victim alleged that the incidence occurred at 04:00 hrs and 19:00 hrs which is contradictory. That, the victim alleged that she was from her brother Namdawa, at the same time she said that she was from her friend Samwel. It was suggested that it seems the victim could not identify the culprits due to alcohol, drunk at her brother Namdawa. On the fourth ground of appeal, the prosecution was faulted for their failure to summon Namdawa and Samwel as material witnesses. Hence, the appellants should benefit from that doubt. 4 On the fifth ground of appeal, the appellants continued to fault the trial court for its failure to consider their defences. It was reiterated that on the material date they were found outside the house while Halfan was sleeping with his girlfriend inside the house. In his reply, Ms Julieth Komba grouped the grounds of appeal into two clusters. The first, second and third grounds of appeal were argued jointly while the fourth and fifth grounds of appeal were replied together as the second cluster. On the first cluster, Ms Komba replied inter alia that according to the evidence on record it is clear that the victim was carnally known by force by the appellants. She referred evidence of PW1 at page 6 of the typed proceedings where the victim stated that she decided to raise an alarm because she was not willing to be carnally known by both appellants. The learned State Attorney noted two important ingredients of gang rape: penetration and lack of consent. She said that the victim stated that the appellants pulled her, took off her clothes and raped her while threatening her not to raise an alarm or else they would break her neck. Ms Komba subscribed to the general principle of law that in sexual offences, the best evidence comes from the victim as it was held in the case of Selemani Makumba v. Republic (Criminal Appeal No. 94 of 5 1999) [2006] TZCA 96. It was explained that the logic behind the principle is that most of these offences are done in secret, hence it is hard to have eye witnesses. It is the victim only who is in a good position to give evidence as to what transpired. It was insisted that, the prosecution proved its case beyond reasonable doubts through the evidence of PW1, PW2 and PW3. On the issue of identification of the appellants, Ms Komba explained that PW1 stated that the appellants started to rape her at 19:00 hrs until 02:00 hrs at midnight when she got help from PW4. Therefore, although the victim said that she knew the appellants prior to the incidence, the incident took almost seven hours and the victim had conversation with the appellants. The fact that the victim was able to name the appellants soon after the commission of offence, there is no doubt that PW1 was able to identify the appellants as her ravishers. The learned State Attorney cemented her submission with the case of Wilson Elisa @ Kiungai v. Republic (Criminal Appeal No. 449 of 2018). Ms Komba continued to submit that the prosecution called an expert witness who testified that the victim’s vagina had bruises, was reddish in colour, there were sperms and fresh blood from injuries. The learned State Attorney was of the view that expert evidence corroborated 6 evidence of the victim that she was gang raped. That, the prosecution managed to prove the 4Ws: the victim named the persons who raped her, stated when was she raped, the place where the offence was committed and what the appellants did to her. Ms Komba cited the case of Crospery Ntagalinda Koro v. Republic (Criminal Appeal No. 312 of 2015) CAT at Bukoba in which it was held that: “Every witness is entitled to credence and his testimony believed unless there are good and sufficient reasons for not believing the witness.” On the second cluster of grounds of appeal; Ms Komba noted that section 143 of the Evidence Act (supra) provides that: “No particular number of witnesses shall in any case be required for the proof of any fact.” She continued to submit that the prosecution side paraded five witnesses who were enough to prove the offence charged against the appellants. That, the law is clear in sexual offences that the best evidence comes from the victim who in our scenario is PW1. PW1’s evidence was corroborated by PW3 a medical practitioner who examined the victim and proved the element of penetration. That, PW2 and PW4 also corroborated the victim’s evidence by stating that PW1 succeeded to name the 7 appellants at the earliest stage. Thus, failure to summon one Namdawa and Samwel did neither render prosecution case not proved beyond reasonable doubt nor did it render injustice to the appellants as the two people were not important in proving any fact that was crucial or that covers the elements of rape. According to our scenario the elements of rape are penetration and consent. Ms Komba was of the view that the fourth ground of appeal has no merit. On the fifth ground of appeal which faults the trial court for composing judgment without considering the defence of the appellants; Ms Komba referred to page 6, 2nd paragraph of the judgment of the trial court where the Hon. trial Magistrate stated that: “All the accused persons denied committing the said offence since they were outside of the house.” (sic) Also, at the same page 5th paragraph the Hon. trial Magistrate stated that: “On their side, both the 1st and 2nd accused denied committing the said offence and said that they were found outside of the said house.” 8 It was concluded that the judgment of the trial court was in accordance with section 312 of the Criminal Procedure Act (supra) as it contains points of determination, decision and reasons for the said decision. Having considered submissions of both parties, the grounds of appeal and the trial court’s record, the issue is whether the charge against the appellants before the trial court was proved beyond reasonable doubts. Guided by the submissions for and against the appeal, I have considered the doubts raised in the grounds of appeal. That is, the contradiction in prosecution evidence, purported insufficiency of prosecution evidence, failure to summon material witnesses and failure to consider the defence of the appellants. Starting with the issue of contradictory evidence; I have carefully examined evidence of PW1 in order to verify the raised contradictions. With all due respect to the appellants, evidence of PW1 was straight forward and I could not trace any of the raised contradictions. The victim did not say that she had an agreement to sleep with the said Halfan. I wish to quote part of evidence of PW1, specifically on relevant part of evidence. At page 6 first paragraph of the trial court, PW1 said among other things that: 9 “….. I arrived there and stayed till 04: 00p.m. I started to go back home and I phoned to bodaboda rider to come to pick me at Ngujini, then the 1st and 2nd accused met me there and asked me “unasubiri nini” I replied that I waited bodaboda to home and pick me then started to pull me. I tried to make noise but there was no neighbour to that area. Upon reached to their house the 1st accused told me “atanivunja shingo” if I would continue to make noise then they started to rape me……” (sic) During cross examination, PW1 stated inter alia that: “…. After left Namdawa place I went to Samwel and I stayed till 19:00 hrs then I phoned to my bodaboda.” From the quoted pieces of evidence, it is crystal clear that the victim had no agreement with the 1st appellant, nor did she contradict herself in respect of time and where she came from. Concerning evidence of PW4, the record shows that the appellants were found at the front door while Halfan continued to rape the victim. When asked what they were doing, the appellants replied that they were doing their thing and refused to open the door. Thus, it is not true that the appellants were found outside the house innocently. 10 On the issue of insufficient evidence, I agree with the learned State attorney that the prosecution adduced sufficient evidence to prove key ingredients of the offence of Gang rape. The complaint of the appellants that the offence was fabricated against them is unfounded and does not match with the records. Also, it was not necessary for the commission of offence to be witnessed by other persons. I support the cited case law of Selemani Makumba v. R (supra). The next issue for determination is whether one Namdawa and Samwel were material witnesses. It is trite law that failure to call material witnesses draws an adverse inference against the party who has failed to call such witnesses. In the case of Aziz Abdallah v. R [1991] T.L.R 71 it was held that: “…the general and well-known rule is that the prosecutor is under a prima facie duty to call those witnesses who form their connection with the transaction in question, are able to testify on material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution.” In another recent case of Martin Jacob A.S. Mlila v. Republic, Criminal Appeal No. 434 of 2021 [2024] TZCA 447 (11 June 2024) Tanzlii at page 11 18, the Court held that failure to call a material witness should draw adverse inference against the party who has failed to call that material witness. On the strength of the above cited authority, I am of considered opinion that the said Namdawa and Samwel were not material witnesses at all. As rightly submitted by the learned State Attorney, the paraded prosecution witnesses sufficiently proved the ingredients of the offence of Gang rape. Namdawa and Samwel did not witness anything apart from being mentioned by PW1. On the issue of failure to consider the defences of the appellants, on the outset I agree with the learned State Attorney that the defences of the appellants were considered by the trial Court in its decision. I have gone through the impugned judgment and found out that the quoted excerpts of the decision are exactly the same. In the upshot, having resolved the raised issued against the appellants, the first ground of appeal lacks merit as the prosecution proved its case beyond reasonable doubts as required by the law. That being the case, conviction against the appellants is hereby confirmed and life imprisonment sentence meted by the trial court against the 12 appellants is the prescribed minimum sentence for the offence of Gang rape. Appeal dismissed. Dated and delivered at Moshi this 23rd day of October 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 23/10/2024 13