FLORIAN JOEL VS THE REPUBLIC CRIMINAL APPEAL NO 384 OF 2023

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MUGASHA, J.A., MWAMPASHI. J.A.. And NGWEMBE. J.A.^ CRIMINAL APPEAL NO. 384 OF 2023 FLORIAN JO EL......................................................................... APPELLANT VERSUS THE REPUBLIC......................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Bukoba) f Mwipppo, J.) dated the 4th day of March, 2022 in HC Criminal Sessions Case No. 100 of 2021 JUDGMENT OF THE COURT 18th& 2Cfh March, 2025 MUGASHA. J.A.: In the District Court of Biharamulo at Biharamulo, the appellant was arraigned as hereunder: "STATEMENT OF THE OFFENCE Rape C/S 130 (1), (2) (e) and 131 (1) o f the Penal Code Cap 16 o f the Law [ R.E. 2019] PARTICULARS OF THE OFFENCE FLORIAN S/O JOEL charged on 2 Jd day o f March, 2021 at about 21:00hrs at Biharamulo town within Biharamulo District in Kagera Region; did have sexual intercourse with W.M a girl aged at lly rs old". When the charge was read over he did not plead guilty. After a full trial, the appellant was convicted as charged and sentenced to a jail term of thirty (30) years. In addition, he was ordered to compensate the victim a sum of TZS. 500,000/=. Undaunted, the appellant unsuccessfully appealed to the High Court, hence the present appeal. Prior to determining this appeal it is crucial to narrate a brief factual account underlying the arraignment and conviction of the appellant. The victim, her mother Yascintha Protas, PW1 and the appellant, a step father to the victim all happened to reside in the same homestead. The victim who testified as PW2, besides testifying that on the fateful day she was raped by the appellant, she told the trial court to have been previously raped by the appellant on several occasions. Recalling what had transpired on the fateful day, the victim testified that while sleeping at their residence when her mother was not around, she was followed by the appellant who asked her to have sexual intercourse with him and in return she would be given money. She declined and the appellant forcefully removed her underpants and raped her. When the mother returned home, the appellant hurriedly dressed up and pretended to be asleep. Since the appellant had warned the victim not to reveal about the shameful incident, the victim did not disclose to her mother what befell her. The victim's account was flanked by Veronica Jacob, PW3 who witnessed the appellant raping the victim. According to PW3, prior to the fateful day, she was disturbed by regular cries of the victim while inside their residence and decided to make a follow up to know what underlies regular cries of the victim. She discreetly went at the scene and found the door open but covered by a curtain. She removed the curtain and saw the appellant raping the victim. She added that, although it was night time the place was sufficiently lit by electricity and she managed to see the appellant lying on top of the victim having sexual intercourse. The victim's mother was not aware about the ordeal of the victim until on 25/3/2021 when two ladies including Veronica Jacob, PW3 followed her at the business stall and broke the news. When PW1 interrogated the victim, she admitted to have been raped by the appellant not only on the fateful day but on several occasions and that he had warned her not to spill the beans on the shameful incident. Upon being cross-examined by the appellant the victim, PW1 and PW3 each maintained earlier stance on the occurrence of the rape incident. PW1 reported to the police, the PF3 was issued and the victim was taken to the hospital. The victim was examined by a Clinical Officer, Petro Leornard Madala who testified as PW4 who found that she had no virginity. Also, she had whitish smelling discharge from the vagina which was a sign of fungus indicative that she had sexual intercourse with a person who was infected with fungus. The incident was investigated by PW5 WP 7458 DC Anitha who interrogated the victim, PW1 and PW3. PW5, In her testimony she recalled that whereas the victim narrated how she was raped by the appellant on the fateful day and previously on several occasions, PW3 revealed to have seen the appellant raping the victim on the fateful day. The investigator as well arrested the appellant who denied to have raped the victim. The appellant who gave his testimony on oath, was a sole defence witness. Besides, denying allegations levelled by the prosecution, he stated that the charge was fabricated and was prompted by a conflict he had with PW3 who had taken away his chicken without payment and that, the matter was reported to the hamlet chair person. At the end of the trial, believing the prosecution account to be true, the trial court convicted and sentenced the appellant accordingly. Having lost the first appeal, the appellant has knocked the doors of the Court seeking to impugn the conviction and sentence. In the memorandum of appeal, the appellant has raised nine (9) points of grievance as hereunder paraphrased: 1. That, the appellate court erred in law and fact to uphold the conviction and sentence based on a defective charge sheet. 4 2. That, the appellate court erred in law and fact to uphold the conviction and sentencethe appellant having relied on the weakness of his defence thus fatal. 3. That, the appellate court erred in law and fact to uphold the conviction and sentence by relying on penetration signs in the PF3 (Exh PI) which does not prove the offence as required to the law. 4. That, the appellant's defence evidence was not summarized nor evaluated which inevitably leads to a wrong based conclusion. 5. That, the appellate court erred in law and fact to uphold the conviction and sentence without considering the incredibile evidence of PW1, PW2, PW3, PW4 and PW5 before the trial court. 6. That, the conviction was wrongly grounded and sustained on account of improper identification. 7. That, the requirements of law under section 312(1) and (2) of the Criminal Procedure Act cap 20 R.E 2022 were contravened. 8. That, the circumstances that led the appellant conviction did not irresistibly point to the appellant's guilt as required by the law. 9. That, the appellant was convicted on basis of uncorroborated evidence. 10. That, the charge was not proved against the appellant at the required standard. At the hearing, the appellant appeared in person, unrepresented. He adopted the grounds of appeal, urged the Court to consider them, allow the appeal and set him at liberty. The appeal was opposed by the respondent Republic which had the services of Ms. Chema Maswi, learned Senior State Attorney who co-appeared with Mr. Dickson Makoro, learned State Attorney. Ms. Maswi who addressed the Court submitted that, the prosecution case was proved at the required standard against the appellant. On this, she stated that, since the charged offence is statutory rape, the elements of the offence were all proved. Commencing with the age of the victim, she submitted that, both the victim's mother and the medical doctor stated that the victim was 11 years. In addition, she said the proof of penetration came from the evidence of the victim who narrated how she was raped by the appellant as witnessed by PW3 and cemented by the evidence of the medical doctor, PW4 who examined the victim and established that she was raped. Regarding the procedural irregularities in relation to the manner of composing the judgment, Ms. Maswi, opposed the same arguing that the judgment was in compliance with section 312 of the CPA. With this 6 submission Ms. Maswi rested her submission by urging us to dismiss the appeal and sustain the conviction and the sentence. In rejoinder, apart from reiterating his earlier submissions, the appellant asked the Court to reconsider what appears at page 9 of the record which shows that it is Veronica PW3 who found to be raped by him. Ultimately, the appellant urged the Court to allow the appeal and set him at liberty. We begin with the concern raised by the appellant that at page 9 of the record of appeal the person seen by Veronica to be raped by the appellant was Veronica. This, in our considered view, was a slip of the pen because Veronica who was outside and witnessed the appellant could not at the same time be inside the room being raped by the appellant. In the premises, the slip of the pen did not occasion any injustice and neither was the appellant in any way prejudiced. We now turn to the grounds of complaint raised by the appellant. We begin with the 6th, 8th and 9th grounds of appeal whereby the appellant is faulting the courts below to base the conviction on improper evidence on visual identification, circumstances not irresistibly pointing to his guilt and uncorroborated evidence. It is settled law that, as a matter of general principle this Court will only look into matters which came up in the lower court and were decided; not matters which were 7 neither raised nor decided by neither the trial court nor the High Court on appeal. See: ABDUL ATHUMANI VS REPUBLIC [2004] T.L.R 151 and JUMA MANJANO VS THE DPP, Criminal Appeal No. 211 of 2009 and HASSAN BUNDALA @ SWAGA VS REPUBLIC, Criminal Appeal No. 386 of 2015 (both unreported). Thus, on account of lack of jurisdiction we shall not determine the three grounds which are hereby discarded. The remaining grounds of appeal can conveniently be clustered into; one, procedural irregulates which flawed the trial which addresses the 1st, 4th and 7th grounds; and two, whether the charge of rape was proved against the appellant which addresses, the 2nd, 3rd and 5th grounds. Regarding the procedural irregularities, the appellant is faulting the courts below to have failed to evaluate the evidence and compose judgment as per the dictates of Section 312 (1) of the CPA. This need not detain us. Having scrutinized the decisions of the courts below we are satisfied that, the evidence was re-evaluated by the first appellate court and the judgments of the two courts below were composed in accordance with the dictated of the law as prescribed under section 312 (1) of the CPA. We also found the charge to have been drawn in accordance with section 132 of the CPA which stipulates as follows: 8 "Every charge or information shall contain, and shall be sufficient if it contains a statement o f the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature o f the offence charged". At the beginning of this judgment we reproduced the charge preferred against the appellant which in our considered view, had sufficient particular which enabled the appellant to understand the nature of the charge he faced and was placed in position of making a rational defence. In the premises, grounds 1, 4 and 7 lack merit and we dismiss them. We now turn to the determination of grounds faulting the conviction and sentence relying on incredible prosecution evidence and failure to consider the evidence of the defence. We are aware about the settled position of the law that, on second appeal, the Court will not readily disturb concurrent findings of facts by the trial Court and first appellate Court unless it can be shown that they are perverse, demonstrably wrong or clearly unreasonable or are a result of a complete misapprehension of the substance, nature and quality of the evidence; misdirection or non-direction on the evidence; a violation of some principle of law or procedure or have occasioned a miscarriage of justice. See: SEIF MOHAMED E.L ABADAN vs REPUBLIC, Criminal Appeal No. 320 of 2009 WANKURU MWITA VS REPUBLIC, Criminal Appeal No. 219 of 2012 (both unreported). We shall accordingly be guided in determining the present appeal. In the case under scrutiny, it is not in dispute that the victim who was 11 years old was raped. However, the contentious issue here is whether it is the appellant who raped the victim. It is settled law that in sexual offences the victim's account is the best and that every witness is entitled to credence and must be believed and his/her testimony accepted unless there are good and cogent reasons not believing a witness. See: account, in g o o d lu c k kyando v s r e p u b lic , [2006] TLR 363 and m athias b u n d a la v s re p u b lic , Criminal Appeal No. 62 of 2004 (unreported). In the latter case, the Court stated that, good reasons for not believing a witness include the fact that the witness has given improbable or implausible evidence, or the evidence has been materially contradicted by another witness or witnesses. This takes us to the testimony of the victim which is reflected at page 13 of the record of appeal as hereunder: "On 23/03/20211 was at home with my young brother who is called Emmanuel Paulo. We were sleeping. Father used to come home and find me sleeping. That day when father came, I was sleeping. When my father arrived, he woke me up and told me that if he sleeps with me he will give me money (aliniamsha akaniambia ani/a/e atanipa hela.) I said no. I understood that his statement meant he wanted to rape me (nilielewa kuwa anataka anibake) My father forced me he took o ff my under pants which are skin tight and underwear (chupi). I remained naked. My father came on top o f me and he was naked and he inserted his male organ at my private parts and started to have sex I felt bad. My mother was still at her work place. Later my mother came back. My father dressed quickly and pretended that he was sleeping. I didn't tell my mother anything because my father told me that if I tell my mother he will beat me. It was not the first time my father did that act to me. He did that several times". The victim gave a coherent and consistent narration on how she was raped by the appellant on the fateful day. This was supported by PW3 who gave a direct account as to how she saw the appellant raping the victim. The importance of direct evidence was stated in COMMONWEALTH VS WEBSTER 1850 Vol. 50 MAS 255 where Shaw G stated: "The advantage o f positive evidence is that it is direct testimony o f witness o f a fact to be proved who if speaks the truth so it done. The only question is whether he is entitled to belief". Like the two courts below, we have no reason to doubt the credible account of PW3 who was a whistleblower having learnt on what befell the victim, acted responsibly and informed PW1 on the ordeal of the victim who was regularly raped by the appellant. Lastly, is the complaint on failure to consider the defence evidence. Apparently, this was not addressed by the learned Senior State Attorney. The appellant's complaint hinges on the alleged conflict between him and PW3. The appellant's defence was considered and it was correctly dismissed on ground that, the appellant did not cross-examine the prosecution witness. That apart, even if we are to do away with the evidence of PW3, the remaining account of the victim, PW1 and PW4 suffice to prove the charge of rape to the hilt against the appellant. Thus, grounds 3, 5 and 10 are not merited. In the premises in the wake of credible account adduced by the victim, her mother (PW1) and PW3, we are satisfied that the charge was proved to the hilt against the appellant and we find no cogent reason to fault the concurrent decisions of the courts below. Consequently, the appeal is dismissed in its entirety and we sustain the conviction and sentence. DATED at BUKOBA this 20th 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 20th day of March, 2025 in the presence of the appellant in person and Mr. Dickson Makoro, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL