mohamed makwinja vs republic 2023 tzca 17509 21 august 2023

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA (CORAM: JUMA. C.J., KEREFU, J.A.. And RUMANYIKA, 3.A.) CRIMINAL APPEAL NO. 183 OF 2021 MOHAMED MAKWINJA.............. ....... ...... ..... ........... APPELLANT VERSUS THE REPUBLIC.......... ..... ........ ............. .... ...... .......RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Songea) (Moshi, J.) dated the 10th day of March, 2021 in DC Criminal Appeal No. 32 of 2020 JUDGMENT OF THE COURT 16th & 21st August, 2023 RUMANYIKA, J.A.: On 21/10/2020, the District Court of Mbinga at Mbinga (the trial court), convicted and sentenced Mohamed Makwinja, the appellant to serve a term of thirty years in prison, for rape contrary to sections 130 (1) and (2) (e) and 131(1) of the Penal Code. He appealed against that conviction and sentence to the High Court of Tanzania at Songea where he lost the battle on 10/03/2021. Aggrieved, he has preferred the instant appeal, yet again challenging the conviction and sentence. The background of the appeal is as fairly as follows: the appellant, a peasant of Kipika Street within Mbinga District in Ruvuma Region was alleged to have raped a seventeen-year-old girl, a pupil of Mbambi Secondary School. In order to conceal her modesty, we shall refer to her as "the victim" or "PW2". The prosecution lined up three witnesses, in a bid to prove their case. The victim testified as PW2, that she and the appellant had love affairs for more than three years previously, having sexual intercourse at the former's house. As a result she conceived. Apparently, the said love affairs went unnoticed throughout until such time when she was detected and found to be pregnant. PW1 is the victim's father. He detected the victim to be pregnant on 04/05/2020, after he was notified by the victim's paternal aunt. Upon inquiring with a view to establishing who was responsible for the pregnancy, the victim named the appellant. Then he reported the matter to the local village leader before whom the appellant readily admitted the victim's allegations. Finally, the matter was reported to the police who issued the victim a medical examination form (PF3). At Mbuyula Hospital, Doctor Emilian Ernest Ndunguru (PW3) examined the victim. According to PW3, his medical tests confirmed the victims' pregnancy, but she had no sexually transmitted diseases. On his part, the appellant testified as the sole defence witness. He admitted to have had a regular sexual intercourse with the victim which he found justifiable because she was no longer a school girl, without a plan to continue with any post-secondary school studies. He also said that he undertook to stay with the expecting mother under one roof and take care of her. After hearing the evidence, the trial court believed the prosecution case, convicted the appellant and sentenced him as indicated above. He is appealing to this Court on second appeal, relying on the following grounds of appeal 1. That, first appellate court erroneously held that, the prosecution case was proved beyond reasonable doubt. 2, That, the first appellate court erred in law and in fact for upholding the decision o f the trial court which convicted the appellant and sentenced him while the prosecution evidence left a lot o f doubts. 3 At the hearing of the appeal on 16/08/2023, the appellant appeared in person unrepresented. Mses. Sabina Siiayo and Helien Chuma both learned Senior State Attorneys appeared representing the respondent Republic. At the outset, the appellant adopted the two grounds of appeal. Expounding on the first ground, he had six points. These are: One; that, he was charged under a defective charge, based on a dead law, two; that the evidence of PW3 was recorded in contravention of the provisions of section 210(3) of the Criminal Procedure Act, Cap. 20 (the Act), three; that the trial magistrate led the prosecution witnesses thereby assuming the role of prosecutor, four; PW2's evidence on when and where specifically the alleged offence was committed left a million questions unanswered, five; that PW2's evidence is doubtful as it did not necessarily mean that the appellant raped her, and six; that it is not clear whether the victim is called Olivio daughter of Nyenje as appears in the trial court's proceedings or Walivyo Nyenje as stated in the particulars of the offence, or daughter of Nyenje Msoswe or Nyenje Mohamed as said to be in the trial court's proceedings. He thus urged us to find that, possibly two different girls of different fathers were medically examined by PW3 in the circumstance. Additionally, the appellant stated that the victim's evidence about the age of the pregnancy is at variance with what is indicated in the medical report, which tells it to be of five months. He concluded his submissions by arguing that Exhibit PI has nothing to do with PW2. Replying, Ms. Silayo stoutly opposed the appeal. To start with, she urged the Court to disregard the 2ncJ ground of appeal because the appellant abandoned it at the High Court. She contended that, raising that ground for the first time at this stage it offends the law, because, that ground was not decided by the High Court. She cited to us the Court's decision in the case of Mng'ao Yohana Chacha v. Republic, Criminal Appeal No. 244 of 2020 [2022] TZCA 327 [10 June 2022: TanzLII] to support her position. Regarding the 1st ground of appeal, Ms. Silayo urged the Court to find it to be without merit and hold that the prosecution case was proved beyond reasonable doubt. Expounding the point, she stated two essential ingredients of an offence of statutory rape which were established: one; the appellant and the victim had sexual intercourse, whether she consented or not is immaterial. Ms. Silayo argued that the evidence of the victim proves that she and the appellant had regular sexual intercourse for more than three years, as girlfriend and boyfriend respectively. The appellant did not challenge these 5 facts. She therefore implored us to find the victim to be a witness of truth, credible and reliable. To bolster her point, Ms. Silayo cited the Court's decision in Selemani Makumba v. R. [2006] T.L.R 379. And two; that the victim was a girl aged below eighteen years, whose evidence, she added, was not impeached by the appellant in any way. Since he did not cross examine her and that failure, she argued, presupposed the appellant's admission of the respective allegations. She cited our unreported decision in Haruna Mtasiwa v. Republic, Criminal Appeal No. 206 of 2018 [2020] 77CA 230 (15 May 2020 : TanzLII) to cement her proposition. Further elaborating on the appellant's guilt, Ms. Silayo referred us to the appellant's upfront confession in his evidence in-chief during trial, and he maintained that confession while under cross examination by the Public Prosecutor. With regard to an ingredient of the victim's age, Ms. Silayo argued that, the evidence of the victim's father (PW1), the victim's evidence and that of the appellant showed that, at the material time the victim was seventeen. The appellant justified the said sexual intercourse with the victim based on the fact that, by that time she was no longer a school girl. As for the other issues pointed out by the appellant; on the alleged variance in the names of the victim's father, and the variance of the victim's name in the charge sheet and in the proceedings of the trial court, Ms. Silayo implored us to disregard the complaint because, she said, that variance of names might have been intended only for protecting the victim's modesty. Since the appellant knew what PW1 testified on the same incident, he was not prejudiced any way. If anything, she argued, the irregularity is however curable under section 388 of the Act. To support her point, she cited the Court's unreported decision in Charles Haule v. Republic (Criminal Appeal 250 of 2018) [2021] TZCA 147 (30 April 2021: TanzLII). Finally, it is about the correctness of the age of the victim's pregnane/. Ms. Silayo stated that the alleged variance is immaterial since that complaint was negated by the appellant admitting to have had sexual intercourse with the victim and thus rendered the prosecution case proved beyond reasonable doubt. Upon hearing the rival arguments of the appellant and that of the learned Senior State Attorney, the issue for our consideration is whether the prosecution case was proved beyond reasonable doubt. 7 We begin by agreeing with Ms. Silayo that the second ground of appeal which the appellant raised belatedly should be disregarded. The appellant is precluded from raising it on second appeal because it was not determined by the High Court on first appeal. The Court took that stance when it was confronted with a similar situation in the case of Mng'ao Yohana Chacha (supra), from a batch of authorities in a number of cases previously decided. These include Festo Domician v. R, Criminal Appeal No. 447 of 2016 and Lista Chalo v. R, Criminal Appeal No. 220 of 2017 (both unreported). It is therefore logical that, not only the Court lacks jurisdiction on issues raised before it in disguise but also, a court of law cannot be faulted on a matter which has not been brought before it. As regards the issues of defective charge allegedly preferred under a dead law, and the other one on the alleged violation of the provisions of section 210(3) of the Act, we will start with the first limb on the defectiveness or otherwise of the charge. We have read the charge between the lines but found no defect frankly speaking. For more clarity, we find it necessary to quote the respective statement of offence. It reads as follows: '"RAPE: Contrary to Section 130 (1) and (2) (e) and 131 (1) o f the Pena! Code [Cap. 16 R.E. 2002]". From the excerpt above, we agree with Ms. Silayo's contention that the appellant's complaint that he was charged and convicted on basis of a defective charge sheet is respectfully baseless. With regard to PW3's evidence at pages 13-15 of the record of appeal, it does not come out to us that, in the end of the court recording that evidence it was read over to the appellant before the trial magistrate appended his signature. Indeed, that omission contravened the provisions of section 210(3) of the Act. Nonetheless, the appellant did not tell us if the said omission caused him to misapprehend the respective evidence or that it prejudiced him anyway. To us, it is an overriding objective that counts most, and that requirement was met in the circumstance. The respective complaint also crumbles. Having said the foregoing, we now embark on the merit part of the appeal. In terms of section 130 (1) and (2) (e) of the Penal Code, a male person is said to have committed rape if he has sexual intercourse with a girl below the age of eighteen years with or without her consent. We agree with Ms. Silayo's submission thus the concurrent findings of the two courts bellow, that the sexuai intercourse was sufficiently demonstrated by the victim (PW2). We are saying so because, nothing has been presented before us to suggest existence of an exception to the general rule that true evidence of rape comes from the victim. Holding so, we are fortified by our decision in the case of Selemani Makumba (supra). Ms. Silayo further contended that PW3, the medical doctor, as alluded to before, who examined the victim and found her to be pregnant, he cemented the victim's evidence, thereby strengthening the prosecution case further. Moreover, although the evidence of PW1 and PW3 implicated the appellant, their evidence did not bother him at all during the trial. He did not cross examine to impeach the victim and her father on the allegations that he is the one who raped the victim and Impregnated her. As the law would have it, it does not need any over emphasis in holding that, accused's failure to cross- examine a witness on such important matter, it ordinarily implies acceptance by that person of all the allegations to be correct. See: our unreported decisions in Bakari Abdallah Masudi v. R, Criminal Appeal No. 126 of 2017 and Damian Ruhere v. R, Criminal Appeal No. 501 of 2007 which the Court referred to in Haruna Mtasiwa (supra). Another piece of evidence which greatly strengthened the prosecution case is that of the appellant which appears at page 16 of the record of appeal. In his defence at the trial, he unequivocally confessed that he had sexual intercourse with the victim and impregnated her. Since he knew that she was no longer a school .girl. For clarity, part of his evidence at page 16 of the record of appeal reads as follows: "...it is true that I had a sexuai relationship with the victim, she finished the school, but her school results were not good and that is why she told me she had no plan to go to school...iater on she informed me that she was pregnant and she agreed to live with me at one roof Later on I was arrested and taken to the police station. The victim is depending on me..." (Emphasis added). Moreover, on being cross examined by the Public Prosecutor, the appellant stated: "The victim was below the age o f eighteen" From the excerpt above therefore, we entertain no doubt that, in no uncertain terms the appellant expressly admitted the commission of the offence charged, that he had carnal knowledge of the victim who was below 11 the age of eighteen years. Whether she consented or did not consent to that act is immaterial. In fact, the appellant's evidence was but a voluntary advancement of the prosecution's case. The law has been articulated in a number of Court's decisions that, the best witness ever in any criminal trial is an accused who orally confesses his guilty, the more so, when he does it freely, as is in the case before us. See- frorn a plethora of authorities, the case of Ibrahimu Ibrahimu Dawa v, R, Criminal Appeal No. 260 of 2016 (unreported) in which the Court referred to Mohamed Haruna Mtupeni And Another v. R, Criminal Appeal No. 259 of 2007 (unreported). It was stated: "The very best o f witnesses in any criminal trial is an accusedperson who freely confesses his guilty". We wish to stress that, an accused's freely made confession to his guilt at his trial, as is the case before us, is final and conclusive. It is a clear indication that he actually knows the case better than the prosecution does, that the respective perpetrator is nobody but himself and he is ready for the consequence. In the upshot, when the appellant's confession, the evidence of the victim and that of her father (PW1) is put together, as narrated above, our 12 conclusion is that the prosecution's evidence was watertight and therefore, its case was proved beyond reasonable doubt that the appellant raped the victim. Consequently, we find no merit in this appeal and dismiss it entirely. DATED at SONGEA this 20th day of August, 2023. I. H. JUMA CHIEF JUSTICE R. J. KEREFU JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL This Judgment delivered this 21st day of August, 2023 in the presence of the Appellant in person and Mr. Edgar Luoga, learned Principal State Attorney assisted by Ms. Sabina Silayo, learned Senior State Attorney for the respondent / Republic, is hereby certified as a true copy of the original. G. H. HERBERT DEPUTY REGISTRAR COURT OF APPEAL 13