malimi masunga v republic judgment april 2024 MOST CURRENT 19 april FINAL 88

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA CRIMINAL APPEAL NO. 40896 OF 2023 (Originating from Criminal Case No. 34/2023 from the District Court of Itilima) MALIMI s/o MASUNGA ………………………………………..………….APPELLANT VERSUS REPUBLIC………………………………………………..………….…… RESPONDENT JUDGMENT Date of Last Order 14.03.2024 Date of Judgment: 19.04.2024 MWAKAHESYA, J.: In the District Court of Itilima District at Itilima the appellant, Malimi Masunga, was tried and convicted of three counts: Abduction of a girl under sixteen years c/s 134 of the Penal Code (first count); Rape c/ss 130(1)(2)(e) and 131(1) of the Penal Code (second count); and Soliciting and abetting to marry a school girl c/s 60A(4) of the Education Act (third count). The appellant was convicted as charged and sentenced to imprisonment for a term of six years for the first count, 1 thirty years for the second count and three years for the third count. The sentences were ordered to run concurrently. The factual background which led to the arrest, trial and conviction of the appellant is as follows: On 14.06.2023 the appellant seduced PW1 (name withheld to protect her identity) a girl of fifteen years with the promise of marrying her. After rebuffing the appellant’s advances, the appellant in the company of others, caught and whisked PW1 away. The next day at Mbiti village, the appellant had sexual intercourse with PW1 and stayed with her for three weeks, at the homestead of the appellant’s uncle. On 07.7.2023 the appellant called PW2 (PW1’s father) and informed him that he was with PW1. The appellant was subsequently arrested bringing an end to PW1’s ordeal. Edward Tengo (PW3) the headmaster of Ikindilo Secondary School, where PW1 was enrolled at the time of the incident, testified that PW1 was one of his students and that in July 2023 she did not attend school. Meanwhile, Elizabeth Malunde Manene (PW4), a medical doctor, examined PW1 on 12.07.2023 and concluded that she had sexual intercourse. She duly filled a PF3 to that effect. In his defence, the appellant gave a flat denial to abducting, raping and soliciting PW1 to marry him. 2 Aggrieved with the convictions and sentences, the appellant has preferred this appeal which is buttressed on four grounds that are to the effect: 1. That, the prosecution failed to establish the case beyond reasonable doubt, even the birth certificate of the victim was not brought to court to prove that the victim was under sixteen years; 2. That, the case was framed as no independent witness came to court to prove the allegations; 3. That, the trial court erred in law to hold conviction on weak evidence adduced by the prosecution witnesses; and 4. That, the case was not proved in the eyes of the law. On the date set for hearing of the appeal the appellant appeared in person while the respondent was represented by Ms. Nyamnyaga Magoti, learned State Attorney. The respondent intimated that he was not conversant in Kiswahili. Therefore, with his consent, a court appointed interpreter, Ms. Nkwimba Jotan, was sworn to interpret for him from Kisukuma to Kiswahili and vice versa. Although the appellant opted to argue his appeal first and for the respondent to reply, all that he could muster was to pray for the court to set him free so that he could join his parents. 3 Ms. Magoti having intimated that the respondent was not supporting the appeal and being of the view that the four grounds of appeal were interrelated, advanced that she will argue the same conjointly and at times elaborating on each ground independently if need arise. Submitting on the issue of proof of age of the victim (PW1), Ms. Magoti was of the view that proof of age is not solely done through a birth certificate, but the same can be done through the victim herself, parents, a medical practitioner or a relative. To support this position the learned State Attorney cited the Court of Appeal decision of Isaya Renatus v. Republic, Criminal Appeal No. 542 of 2015 (unreported). The learned State Attorney submitted further that, during trial PW1 testified that she was fifteen (15) years of age and that she was born on 01.07.2007. Her evidence is corroborated by her father (PW2) who also testified that, PW1 was fifteen years of age. The learned State Attorney concluded that, both PW1 and PW2 proved PW1’s age. Submitting on the strength of the prosecution’s case, the learned State Attorney was adamant that, all three offences were proved beyond 4 reasonable doubt through six prosecution witnesses and two exhibits tendered during trial. On the offence of Abduction of a girl under sixteen years, it was submitted that the prosecution was required to prove the following ingredients: That the victim was below sixteen years; that the victim was under the care of her parents and she was taken against her will and the will of her parents; and lastly that the perpetrator was the appellant (erstwhile accused). Ms. Magoti submitted that the issue of age was proved by PW1 and PW2 as previously submitted. Ms. Magoti submitted further that PW1, who was living with her parents, was taken against her will as she testified during trial and her evidence is corroborated by that of PW2 who also testified that he was living with PW1, and that when she was sent to the market on 14.06.2023 she never returned. To this, the learned State Attorney was of the conclusion that it proved that the parents of PW1 did not consent to her being taken by the appellant. On the offence of rape, the learned State Attorney submitted that the prosecution was supposed to prove that: the victim was below eighteen years of age; penetration; and that it was the appellant who 5 committed the offence. The learned State Attorney submitted that PW1 gave evidence that on 15.06.2023 the appellant inserted his penis into her vagina causing her to bleed since it was her first time to have sex and she went on to have sex with the appellant the following night and subsequent days where they lived as husband and wife. Thus, penetration was proved, she submitted. Submitting further on penetration, Ms. Magoti submitted that PW1’s evidence is corroborated by PW4, a medical doctor who examined her, and filled the PF3 that was tendered in court as Exhibit P2 uncontested by the appellant. Submitting on the offence of Soliciting and abetting to marry a schoolgirl, Ms. Magoti was of the view that the prosecution was required to prove that PW1 was a primary school or secondary school student. To this the learned State Attorney submitted that PW1 gave evidence that she was a form one student of Ikindilo Secondary School, and this was corroborated by the evidence of PW2 who testified that PW1 is his daughter who is in secondary school as well as PW3, the headmaster of the secondary school when he testified that PW1 was in form one “C”. PW3 also tendered an attendance register (Exhibit P1). 6 The learned state Attorney cited the case of Selemani Makumba v. Republic [2006] TLR 379 and submitted that PW1 as the victim provided the best evidence as to how she was abducted and subsequently raped by the appellant. Ms. Magoti also pointed out that Banya Mahenga Ludea (PW5) who is the grandmother of the appellant, gave sworn testimony that on 14.06.2023 at nighttime the appellant arrived with a girl whom she (PW5) slept with. Circumstantially this showed that the victim was the girl who was brought by the appellant. Ms. Magoti concluded that all three offences were proved beyond reasonable doubt and the appellant was justly convicted. Submitting on the lack of an independent witness, Ms. Magoti was of the view that the prosecution witnesses were enough and after all section 143 of the Evidence Act states that there is no particular number of witnesses required to prove a fact. Afterall, even PW5, the appellant’s grandmother, testified for the prosecution. Ms. Magoti went on to submit that she was supporting the sentence meted out for the 2nd and 3rd counts since they were in line with the law. However, regarding the 1st count, the 7 appellant was sentenced to six (6) years imprisonment while the statutory limit is five years, thus making the sentence unlawful. She beseeched the court to step into the shoes of the trial court and rectify the anomaly. The learned State Attorney also commented on the order by the trial magistrate that the appellant was to serve imprisonment for a total of thirty-nine years, stating that the same was illegal as it contravened section 168(2) of the Criminal Procedure Act because it amounted to the sentences running consecutively. She prayed for this court to step into the shoes of the trial court and rectify the errors in sentencing. In rejoinder the appellant had nothing to add. Having heard the rival submissions, I am now in the position to determine this appeal. The approach taken will be to determine all four grounds of appeal collectively since they boil down to one issue, that is, whether the case against the appellant was proved beyond reasonable doubt. As submitted by the learned State Attorney, in sexual offences a birth certificate is not the only means of proving age of the victim as it was held in Isaya Renatus vs Republic (supra). The same can be 8 proved by the victim, relative, parent or medical practitioner and in some cases by inference on the authority of section 122 of the Evidence Act, see also Al- Jabir Juma v. Republic, Criminal Appeal No. 463 of 2018, CAT- Mbeya (unreported). In the present appeal, PW1 who is the victim, testified that she was 15 years old and that she was born on 01.07.2007. Her evidence is corroborated by PW2, her father, who also testified as to her age and birth date. Likewise, PW4 (a medical doctor) puts the age of PW1 through Exhibit P2 (a PF3 report) at 15 years. On top of that, the evidence of PW1, PW2 and PW3 is to the effect that PW1 was a Form one student and having and it is common that a Form one student is most likely to be below the age of 18 years. Thus, this court, is of the view that the age of the victim was below 18 years even in the absence of a birth certificate. To prove it’s case, the prosecution brought six witnesses to testify: PW1, the victim; PW2, the father of PW1, PW3 the headmaster of the secondary school PW1 was attending; PW4, the medical doctor who observed PW1; PW5, the appellant’s grandmother; and PW6 the investigator of the case. PW1 narrated on how she was approached by the appellant on 14.06.2023 under the guise that he wanted to marry her and that she 9 refused his advances, only for the appellant to take her forcefully and rape her on diverse dates. PW2 testified on how PW1 went missing since 14.06.2023 and the appellant calling him on 07.07.2023 (after about three weeks) and telling him that he was with PW1. Meanwhile, PW3 testified that PW1 missed school during the month of July 2023. PW4 observed PW1 and concluded that PW1 had sexual intercourse. Lastly, PW6 testified that the appellant had confessed to committing the offences he was charged with. It should be noted that although the purported confession made by the appellant to PW6 was not tendered in during trial, the appellant did not cross examine PW6 and thus going by various authorities that failure to cross examine a witness on an important aspect depicts the acceptance of the truth of that testimony, see Christian Ugbechi v. The Republic, Criminal Appeal No. 274 of 2019, CAT (unreported), this court can only draw inference that the appellant did not deny what PW6 testified towards. It is a settled position that all witnesses are entitled to credence unless there are sound reasons suggesting the contrary, see Goodluck Kyando v. Republic [2006] T.L.R 369 and Christian Ugbechi v. The Republic (supra). Based on that position there is nothing on record to make this court doubt the credence of the prosecution witnesses. As submitted by the learned State Attorney for the respondent, regarding 10 the offence of rape (statutory rape), penetration was proved by PW1 and PW4. As to the age of PW1, it has been established that she was below the age of eighteen years and in fact she was of the age of fifteen years at the time of the commission of the offence. PW1 also proved that it was the appellant who had sexual intercourse with her. In proving the offence of abduction of a girl under sixteen years, the prosecution had to prove the age of the victim, the act of the appellant taking her from the custody or protection of her parent, against the will of the parent and that the victim was unmarried. The first ingredient which relates to the age of PW1, the victim, has already been determined, that indeed PW1 was fifteen years of age when the appellant abducted her. As for the second ingredient PW1 and PW2 proved the same during trial. PW1 testified that she is residing at Mwamgesha village with her parents and that on 14.06.2023 the appellant solicited to marry her and that she rejected his advances since she was still a student. An extract of the testimony of PW2, father of PW1, found at page 5 of the typewritten proceedings of the trial court reads: 11 “...On 14.06.2023 I was at my home the victim departed at home at around 16:00 hrs to Ikindiro open market (Mnadani) but she did not returned home (sic). On 15.06.2023 morning hours I reported the matter to the village leader, I got a letter to sent at police station at Nanga, I had given report book number to trace my child 07.07.2023 around at evening hours, I got information through new number who told me that, do not find your daughter, I with her, I Malimi Masunga...” It is evident that, both PW1 and PW2’s testimonies are to the effect that PW1 was unmarried, and that she was taken from the custody and protection of her father against his will. Thus, the offence of abduction of a girl under sixteen years was proved beyond reasonable doubt. Concerning the offence of soliciting or abetting to marry a schoolgirl it was the prosecution’s case that the appellant solicited PW1, to marry him. The provision, under the Education Act, creating the offence is reproduced for ease of reference: 60A.-(1) It shall be unlawful under any circumstance for: (a) any person to marry a primary or secondary school girl or a school boy; or (b) a primary or secondary school boy to marry any person. (2) Any person who contravenes any provision of subsection (I) commits an offence and shall, on conviction, be liable to imprisonment for a term of thirty years. 12 (3) N/A (4) Any person who aids, abets or solicits a primary or secondary school girl or a school boy to marry while pursuing primary or secondary education commits an offence and shall, on conviction, be liable to a fine of not less than five million shillings or to imprisonment for a term of five years or to both. (5) N/A (6) N/A (7) N/A (Emphasis supplied). There is nothing on evidence to suggest that the appellant wanted to marry PW1. Perhaps it was PW1’s testimony that the appellant on 14.06.2023 told her that he wanted to marry her, that convinced the trial court to conclude that the appellant had intended to marry PW1. I think this was erroneous on the part of the trial court. The language used by the appellant when trying to woo PW1 on their first encounter (that he wanted to marry her) seems ordinary language that might be used in seduction and does not necessarily infer marriage. Actually, if the appellant was intent on marrying PW1, I would think he would have told PW2 when he called PW2 and told him not to bother to look for his daughter because he was with her. Thus, while I am of the considered 13 view that the first and second counts were proved beyond reasonable doubt, I cannot say the same with regards to the third count. On the issue of the sentence passed by the trial court for the offence of abduction of a girl under sixteen years, the punishment for the offence as is not provided for in the provision creating the offence, so one has to resort to section 35 of the Penal Code which provides for general punishment for offences where penalty is not prescribed, and the same is provided as imprisonment for a term not exceeding five years or with a fine or both. Regarding the confusion as to whether the sentences passed against the appellant are to run concurrently or consecutively, perhaps it is better to quote the relevant part in the judgment of the trial court. It goes: “...this court sentence (sic) the accused for first count, to serve imprisonment for the terms of six (6) years, in second count, the accused is to serve imprisonment for the terms of thirty years and third count, the accused has to serve imprisonment for the terms of three years. The accused has to serve imprisonment total (sic) thirty nine years. All sentence (sic) will run concurrently”. Considering that, the offences were committed in a single transaction and there is no reason assigned by the trial magistrate as to 14 why the sentences are to run consecutively, the totalizing of the prison terms must have happened through inadvertence. In the end, the appeal is partly allowed with regard to the offence of soliciting to marry a schoolgirl whose conviction is quashed, and sentence is set aside. Otherwise, the rest of the appeal is dismissed. The convictions for abduction of a girl under sixteen years old and rape are hereby upheld. The sentence of thirty years imprisonment for the offence of rape is also upheld, meanwhile the sentence of six years imprisonment for the offence of abduction of a girl under sixteen years is substituted with a sentence of a fine of TZS 500,000/= or imprisonment for a term of one year in lieu of fine, this is in consideration of the fact that the appellant is a first time offender. It is so ordered. DATED at SHINYANGA this 19th day of April, 2024 N.L. MWAKAHESYA JUDGE 19/04/2024 15