ahmadi rashid lionjo vs republic 2023 tzhc 20817 4 august 2023

THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA CRIMINAL APPEAL NO. 70 OF 2022 (Originating from Lindi District Court at Lindi in Criminal Case No, 28 of 2021) AHMADI RASHID LIONJO......................... APPELLANT VERSUS REPUBLIC ................. ,....... RESPONDENT JUDGEMENT Date of last order: 26.06.2023 Date of Judgement: 04.08.2023 EBRAHIM, J.: The appellant, Ahmadi Rashid Lionjo was charged and convicted and sentenced to thirty {30) years imprisonment for the offence of incest by male contrary to Sections 158 (1) (a) and 159 of the Penal Code, [Cap 16 R.E 2019, now R.E. 2022] by the District Court of Lindi at Lindi, It was alleged before the trial court that, on 4ih day Page 1 of 12 of January, 2021 at Kikwelu area within the District and Region of Lindi, the appellant had sexual intercourse with his daughter one MAL whose actual name is reserved, a girl aged 15 years old. In a nutshell, the background of this case can be narrated from the testimony of the victim PWI a 15 years girl and a student of Kikwetu primary school was living with her father [the appellant) at Kikwetu because her mother died on 07.12.2020. On 04.01.2021 when she was at home at night his father went to her room and told her that he wants to have sex with her. She refused and the appellant forced her and told her not to raise alarm and she should not tell anyone. The appellant started raping her by inserting his male organ to her vagina. She reported the incidence to: her father’s divorced wife who promised to tell him to stop. The appellant did not stop until recently in April, 2021 when she reported the incidence to her school teacher. The matter was then reported at Lindi police station and PWI was taken to Sokoine Hospital for examination. When PWI went back home her father (the appellant) forced her to shift with him to Newala. PWI refused and decided to run away to Page 2 of 12 her Aunt at Mtama. In March, 2021 PWl became pregnant but her father (the appellant) supplied her with local medicine for abortion. PW2 who is the aunt of the victim (PWl) testified that she knows the appellant as his brother-in-law and the victim’s biological father, That before the victim was living with the appellant at Kikwetu. On April, 2021 PWl told her that her father is rapping her and treats her as his wife. She even informed her teacher and the village leader whom they reported the incidence to the police. On 29.04.2021 the victim run away from her father’s house to PW2 at Mtama and PW2 said PWl told her the reason being that her father wants her to shift because the police are looking for him and he threatened her that if she tells anyone he would kill her and her family. On the same day the appellant went to PW2’s home and caused chaos until he broke the door. PW3, Teacher of PWl testified that PWl is a student at Kikwetu Primary School. She tendered exhibit PI to that effect. She said sometimes in April, 2021 at Kikwetu Primary School PWl told her that she has something to tell her. PWl started crying and she took PWl to the Head teacher's office. PWl told her that her father has been Page 3 of 12 raping her since January and would do it twice or thrice per week. He threatened her not to tell anyone else he would kill her. PW3 later informed the Head teacher and VEO on the issue and on the next day they went to report the incidence at Lindi police station where they obtained PF3 in order for PW1 to be examined at the hospital. PW4, Doctor testified to have examined PW1 on 21.04.2021 She said PW1 was accompanied with a woman police and her teacher. They had PF3 requiring her to examine PW1 because she was raped. She asked PW1 who told her she was sexually invaded by her father several times and for a long time. She took her for examination and found that PWT had no sexual transmitted diseases, no pregnancy, no bruises, no bleeding or any discharge; but she had lost her hymen which she opined that can be removed by sexual intercourse. Responding to cross examination questions she told the trial court that the examination may not show pregnancy if two weeks have passed after the abortion as the pregnancy hormones would have already dissappeared. She stated further that victim's (PW1) vagina was wide which shows that she was used to sexual acts. Page 4 of12 The appellant was the only witness in defense side where he told the trial court that his daughter (the victim) was living at Mtama with her mother. After the death of her mother in January, 2021, he took PW1 to his home at Kikwetu so as she can proceed with her studies. On 17.02.2021 PW1 reported at school for studies. On 29.04.2021 his daughter (PW1) left to Mtama saying that she had headache but she did not want to go to school. On the next day he went to: Mtama to ask PW1 what made her leave without informing him. Later on, he was apprehended by the police and he was told that he had sexual acts with his child (PW1). He denied the allegations and told them that no one found him doing sexual acts and he had never heard on the issue. The appellant confirmed before the court that his daughter (PWl)has been with him for three months and she has never been in sexual relationship with any man and he denied to be responsible. He said PW1 does not want to go to school. Responding to the Cross-examination questions, he responded that he had no any conflict with PW1 or PW2 who is his sister-in-law and that he did not ask her any questions when PW1 was testifying. He further admitted to have taken PW1 from Mtama on 10.01.2021. Page 5 of 12 Upon hearing the evidences of both sides the trial court was satisfied that the prosecution case was established and proved to the standard required by law i.e., beyond reasonable doubt. Consequently the court convicted the appellant and sentenced him to thirty (30) years imprisonment. Dissatisfied, the appellant lodge the appeal to this court raising six grounds at appeal which can be summarized into one complaint namely: - 1. That, the prosecution's side failed to prove the case beyond reasonable doubt. When the case was called for hearing, the Appellant appeared in person whilst the Republic had the services of Mr. Edson Mwapili and Ms. Farida Kiobya, learned State Attorneys. The Appellant prayed for the court to adopt his grounds of appeal, and he argued that PW4 told the court that PW1 was not a virgin. He argued also that PW1 was living in two different places. He challenged the fact that PW1 said to have told her stepmother about the rape but the step mother was not called to testify. Mr. Mwapili, challenged the appeal. Starting with the 1st ground of Page 6 of12 appeal, he said the appellant was convicted basing on the evidence adduced in the trial court by both parties and the case was proved beyond reasonable doubt. Submitting on the 2rd ground of appeal he contended that the elements of penetration were proved by PWI at page 15 of the typed court proceedings and PW4 at page 22 proved that PWI {the victim) was sexually invaded. Going to the 3rd ground of appeal, Mr. Mwapili argued that the ground had no basis because it is difficult for a daughter to claim to have sexual intercourse with his father. Further to that PWI was not cross examined after her testimony. Submitting on the 4th ground of appeal Mr. Mwapili submitted that PWI at page 5 of the typed court proceedings told the court that she had sexual intercourse with the appellant from 04.01.2021 to April, 2021. Submitting on the 5^ ground of appeal he said the case was proved beyond reasonable doubt as per the evidence adduced by PWI at page 4 to 5 of the typed court proceedings which shows that the appellant had sex with his daughter (PWI). Concluding on the 6th ground of appeal he contended that the appellant was convicted following the strength of the prosecution case as elaborated at Page7ofl2 □age 4 to 23 of the typed court proceedings. He prayed for the eourt to upheld conviction and sentence of the trial court. Mr. Mwapili, State Attorney argued not to have been served with the additional grounds of appeal. He prayed to address the issue of not calling PWl's step mother. He said there is no number of witnesses which are required to prove fact at issue and is the discretion of the prosecution to call witnesses whom they wish. In brief rejoinder, the appellant reiterated that the step mother was an important witness. I have carefully considered the records of the trial court and the submissions by both parties. The issue for consideration by this court is whether the prosecution proved its case beyond reasonable doubt. Two important ingredients of the offence to be proved are the age and whether the appellant did what was prohibited by law to his daughter. PW1 fold the trial Court that her father has been raping her several times until April, 2021 when she went to report the incidence at school and at the police station. After that she decided to run away Page 8 of 12 when her father was forcing her to shift with him to Newala. PW2 testified that PW1 went to her home on 29.04.2021 told her that the appellant has been raping her and mode her his wife. Also, PW4 after medical examination has confirmed that PW1 had no bruises in her vagina, but it showed that she has been doing sexual acts. PW4 sufficiently proved the requirement of Section 130 (4) (a) of the Penal Code [Cap 16 R.E 2022] that penetration however slight is sufficient to constitute the sexual intercourse necessary to the offence. From what I have stated above, PW1 gave a detailed account of how the incident occurred. In view of the evidence on records at the trial court, I am satisfied that PW1 sufficiently proved that there was penetration on her vagina and it was none other than the appellant who had sexual intercourse with her. According to the record, the appellant did not dispute the fact that PW1 is her daughter. In a charge of incest by males prosecution must prove that the accused knew the female as his granddaughter, daughter, sister or mother at the time of sexual intercourse. In the present case, the prosecution sufficiently proved Page 9 of 12 that the appellant had carnal knowledge of PWI while knowing that she is her daughter. Furthermore, the best evidence of commission of sexual offence emanates from the victim, {See Selemani Makumba v. The Republic, [2006] TLR) 379} I find that the trial court was correct in finding that PWl's evidence on penetration was water tight and properly convicted him in line with Section 127 (7) of the Evidence Act, [Cap 6 R E. 2022] on sexual offences. This count has no reason to disbelieve PWI as her evidence was coherent and tally with the testimonies of her aunt (PW2) and her teacher (PW3) who admitted to have been told by PWI about the ordeal see the case of Goodluck Kyando Vs. R [2006] TLR 363. All witnesses including the appellant himself state that PWI spoke about the issue in April, 2021. On the ground that the case was planted, this defence was an afterthought as the appellant did not cross-examine PWI and PW2 on their testimonies which connotes that the witnesses testified the truth. Faced with akin situation in the case of Nyerere Nyague vs Page 10 of 12 Republic (Criminal Appeal Case No. 67 of 2010) [2012] TZCA 103 (21 May 2012), the Court observed that: “As a matter of principle, a party who fails to cross examine a witness on a certain matter is deemed to have accepted that matter and will be estopped from asking the trial court to disbelieve what the witness said." Not only the evidence from the prosecution, but also in his defence, the appellant testified at page 26 of the typed court proceedings as follows: "I confirm before the court my daughter has never been in sexual relationship with any man." I have read the trial court judgement. The learned trial Magistrate considered the defence of the appellant in respect of his relationship with PW1 and that PW1 has never had sexual intercourse with any man. Thus, the trial court made a conclusion that the appellant had sexual intercourse with his daughter. On ground six that the learned trial magistrate convicted the appellant basing on I he weakness of defence evidence instead of the strength of prosecution evidence, it is inaccurate. Page 11 of 12 The appellant complained that his ex-wife was a crucial witness to confirm that PW1 talked with her about the rape. While I agree that her evidence would have added corroborative value, still there is PW2 and PW3 who testified to the same effect. Hence, none colling of such witness does not leave the issue hanging. Besides, as the records reveal, she is no longer the wife of the appellant. This ground of appeal is equally dismissed. From the above analysis of evidence I find that prosecution managed to prove its case beyond reasonable doubt. At the end result, I find this appeal to be unmeritorious and I therefore dismiss it in its entirely. The conviction and sentence by the trial Court are upheld. Accordingly ordered. R.A Ebrahim JUDGE Mtwara 04.08.2023. Page 12 of 12