Criminal Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 19501 OF 2024 (Arising from the decision of the District Court of Livvaie atLiwaie in Criminal Case No. 33 of2023) AZIZI RASHIDI MKURUNGA........ ...................... 1ST APPELLANT TAMIMU JUMA MPOTO ............ 2ND APPELLANT VERSUS THE REPUBLIC .............................. RESPONDENT JUDGMENT 28h August & 21st October2024 MPAZE, J.: The victim, a 19-year-old girl from Makinda Village, alleged that on 2n(1 May, 2023, her boyfriend, Aliy Babilo, sent a bodaboda rider to bring her to his house, where they spent the night together, and as lovers, they engaged in sexual intercourse. The following day, her boyfriend reportedly instructed her to go to Mr. Kim bo's house, promising to send someone to pick her up. However, she claimed that she was taken to a different location, where she encountered 13 boys, including her boyfriend and the appellants. She alleged that they forced her inside, threatened her life, and raped her one after another. i After managing to escape in the early hours of 4th May, 2023 the victim went to the Mihumo Primary School football field, where she waited until morning and reported the incident to Mandela Lucas Nandonde (PW3), a Ward Executive Officer. PW3 claimed the victim named the 13 perpetrators, and he took her to the police. Latifa Ismail (PW2), a medical doctor, testified that the victim complained of severe pain in her vagina. Upon examination, PW2 found bruising, swelling in the labia majora, and numerous bacteria in the victim’s vagina, along with sperm, indicating multiple penetrations. The PF3 documenting these findings was admitted as Exhibit Pl. During the investigation D/SGT Ummu (PW4), interrogated the appellants, claiming they admitted to the crime. She recorded the 2nd appellant's caution statement, which was admitted as Exhibit P2. D/CPL Mood (PW5), was assigned to record the 1st appellant's caution statement, in which the 1st appellant allegedly admitted to having sexual intercourse with the victim. This statement was admitted as Exhibit P3. This evidence is what led to the arrest and arraignment of the appellants, who were charged with the offence of gang rape, contrary to 2 sections 130(1), (2)(a) and 131A(1), (2) of the Penal Code, [Cap 16 R.E 2022] (the Penal Code). It was alleged that between the 3rd and 4th May, 2023 during the night hours at Mihumo Village, the appellants had carnal knowledge of the victim without her consent. In his defence, the 1st appellant initially admitted to committing the offence, claiming that he had acted on the advice of Ally Babilo. However, he later changed his account, stating that he did not encounter the woman as instructed by Ally Babilo. The 2nd appellant, on the other hand, refuted the allegations, asserting that PW1 denied knowing him. At the conclusion of the trial, the court was satisfied that the prosecution had proven the charge against the appellants beyond a reasonable doubt Consequently, they were found guilty as charged, convicted, and sentenced to life imprisonment. Aggrieved by the decision, the appellants filed this appeal, presenting 10 grounds of appeal, which are paraphrased as hereunder; 1. That the trial magistrate erred In both law and fact by convicting and sentencing the appellant while prosecution side fainted with the 3 irregularities to wit, the charge was not read during the commencement of the defence case. 2. That the trial magistrate erred in both law and fact by convicting the appellant without considering and evaluating the defence evidence where the appellant certifies that they did not rape the victim. 3. That the trial magistrate erred in both law and fact by convicting the appellant while the prosecution tailed to call Ally Babiio as a witness or one among the suspects. 4. That the trial court erred in both law and fact by convicting the appellant whereas procedures and requirement ofsection 53 of the CPA [Cap 20 RE2022] as the police officer did not introduce before the suspects during the commencement of interview. 5. That the trial court erred in both law arid fact by convicting the appellant where the prosecutor fail to read the charge before the opening of the defence side as requirement of the law. 6. That the trial erred in both law and fact by convicting the appellant while on his Judgment he stated that PW1 was dealing with illegal business as she testified on 2/5/2023 did sexual intercourse to AH 4 Babilo all night and O3/05/2023 Babilo took her to Mr Mchafu's house then to the house of Mr Kimbo but the magistrate failed to construe what she was doing there as she also narrated Ally Babilo called her on the same day at22:00 hrs. 7. The trial magistrate erred by not considering that PW1 admitted to having sexual intercourse with Ally Babilo on 2Pd May, 2023. Additionally, PW2 failed to conduct a DNA test to identify the source of the semen found, leaving doubt about who committed the sexual act. 8. That the trial magistrate erred in both law and fact by convicting the appellants where the prosecution fall to prove case for not submitting the map of the scene. 9. That the trial magistrate erred in both law and fact by convicting the appellants where PW2 fail to testify the kind of bacteria found on the vagina ofPWl where biological the vagina is protected by spread bacteria. 10. That the trial erred in both and fact by convicting the appellants while the prosecutor fail to prove the offence beyond reasonable doubt. 5 At the hearing, the appellants appeared in person unrepresented whereas the respondent Republic was represented by Ms. Florence, the learned State Attorney. When invited to submit in support of their appeal, the appellants requested the State Attorney to take the floor and submit first while reserving their rights to rejoin, if necessary. In response to the appeal, Ms. Florence firmly opposed it. She addressed the 1st and 5th grounds of appeal conjointly, arguing that both were based on the complaint that the trial court erred by not reminding the appellants of their charge before they presented their defence. The 6th through 10th grounds were also argued together, as she contended they focused on the claim that the prosecution failed to prove the case beyond a reasonable doubt. The 2nd, 3rd, and 4th grounds were addressed separately. Beginning with the complaint that the court erred in convicting the appellants without reminding them of their charge before they made their defence, Ms. Florence urged that this claim is unfounded as there is no law that mandates the accused be reminded of their charge before they give their defence. 6 Referring to pages 1,3,4,1.8,20, and 21 Of the trial court proceedings, Ms. Florence asserted that the trial was properly conducted, starting from when the charge was read to the appellants, who pleaded not guilty, through to the stage where they made their defense. Upon examining their defence, she argued that it is evident the appellants were fully aware of the offence they were facing, as demonstrated by their ability to provide a coherent defence. Responding to the 2nd ground, which claimed that the court erred in convicting the appellants without considering their defence, Ms. Florence refuted this, stating that the claim is unfounded. She referred to pages 10 and 11 of the judgment, which clearly show that the trial magistrate did consider the appellants’ defence. Regarding the 3rd ground, where the appellants argued that the trial court erred in convicting them due to the prosecution's failure to call Ally Babilo as a witness without providing sufficient reasons, Ms. Florence opposed the argument. She contended that there is no legal requirement to call a specific witness to prove a prosecution case. To support her argument, she cited section 143 of the Tanzania Evidence Act [Cap 6 R. E 2022] (the 7 TEA) and the case of Aziz Abdallah v, R [1991] TLR 71, where it was held that; 'The prosecution is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, 3re able to testify to materialfacts. Ifsuch witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution.' In this case, Ms. Florence asserted that all material witnesses were called and provided their testimony. Furthermore, she argued that Ally Babilo was not a material witness; had he been available, he would have also been charged as an offender alongside the appellants. In the 4th ground, the appellants claim that the court erred in convicting them due to non-compliance with section 53 of the Criminal Procedure Act, [Cap 20 R.E 2022] (the CPA), as referenced on’page 12 of the proceedings. Ms. Florence countered this claim, stating that page 12 includes the testimony of PW4, the police officer who recorded the confession statement of the 2nd appellant, outlining the process and informing the appellant of his rights. 8 She emphasized that the appellants had the opportunity to cross- examine PW4 but did not pose any questions/ implying their agreement with his testimony. Ms. Florence contended that the acceptance of the confession statement without objection further suggested their acknowledgment of the evidence. She also noted that not every contravention of the CPA automatically render evidence inadmissible/ citing the case of Nverere Nvague v. Republic (Criminal Appeal No. 67 of 2010) TZCA (21 May 2012). Turning to the complaint regarding the failure to prove the case beyond a reasonable doubt which encompasses grounds 6, lf 8, 9, and 10, Ms. Florence opposed this argument, asserting that the prosecution had successfully met its burden of proof. She emphasized that the sections under which the appellants were charged sections 130(1), 130(2)(a), and 131A(1)(2) of the Penal Code, require the prosecution to establish that the offence of rape was committed. To prove this offence, according to her the prosecution needed to demonstrate that penetration occurred. To illustrate that the prosecution successfully proved the case, she noted that through PW1 and PW2, the element of penetration was established. PW1 described how she was raped by 13 boys, while PW2 confirmed that upon examining PW1, she found evidence of penetration by 9 a blunt object. She referred the court to pages 1 to 5 and 11 of the proceedings. Moving on to the second element, Ms. Florence stated that the prosecution was required to establish that the act was committed without the victim's consent. She noted that this was demonstrated through the victim's testimony, as detailed on page 9 of the proceedings in the second paragraph, where PW1 stated, ' Those boys caught me and took me inside by force' She argued that this statement indicates that PW1 was coerced into the house and did not give her consent, thereby proving the second element. She added that during cross-examination by the 1st appellant, the victim reiterated that he was the one who raped her, while the 2nd appellant did not cross-examine PW1 at all. This lack of cross-examination according to Ms. Florence suggests that the 2nd appellant acquiesced to PWTs account. Finally, Ms. Florence submitted that the prosecution was required to prove that it was the appellants, and no one else, who committed the crime. She argued that this was clearly established through the testimony of PW1, who explicitly identified the 1st appellant, as seen on page 9 in the first io paragraph of the proceedings. Moreover, she pointed to the testimony of PW5, the police officer who recorded the 1st appellant's caution statement, which is detailed on pages 14 to 16 of the proceedings. Ms. Florence asserted that the I51 appellant confessed to raping the victim, and his confession statement was admitted as exhibit without objection. She emphasized that even after the confession statement was read aloud, the 1st appellant did not contest the evidence or the exhibit presented, further confirming his involvement in the rape of PW1 beyond any reasonable doubt. She then pointed to the testimony of PW4, detailed on pages 12 to 14 of the proceedings, where PW4 explained that he recorded the 2nd appellant's confession statement, in which he also admitted to raping PW1. This confession was likewise admitted without objection. During cross- examination on page 14, the 2nd appellant asked no questions of PW4, which further validated PW4's testimony. Ms. Florence noted that a confession statement from the appellant is one of the strongest forms of evidence. Based on these admissions, she confidently maintained that the prosecution proved the case against both appellants beyond any reasonable doubt. ii Furthermore, Ms. Florence rejected the argument that the prosecution failed to tender a sketch map, bacterial evidence, or DNA analysis of the semen found on PW1, as well as the claims regarding PWl's alleged involvement in illegal activities stated by the trial court. She maintained that these arguments were without merit and urged the court to uphold the trial court's decision and dismiss the appeal. When given the opportunity to respond to the respondent's submission, both appellants had nothing further to add. The appellant requested the court to consider and accept his grounds of appeal, while the 2nd appellant simply asked to be released so that he could contribute to nation building. Having heard both parties it is worth noting that this is the first appeal. It is a settled position of law that, the first appellate court has the power to revisit and re-evaluate the entire evidence in an objective manner and come up with its own finding of facts, if necessary. See the case of Juma Kilimo v, R (Criminal Appeal 70 of 2012) [2012] TZCA 194 (9 July 2012) and Bdnifas Fidelis @ Abel v. R (Criminal Appeal No. 301 of 2014) [2015] TZCA 307 (8 October 2015). 12 I have carefully considered the submissions of the State Attorney, the grounds of appeal, and the trial court's record. I am now in a position to resolve this appeal. In doing so, I will address the appeal in the same manner as adopted by the State Attorney, with the exception of the 6th ground of appeal, which I will determine separately. Starting with the 1st and 5th grounds of appeal, the appellants argue that the trial court erred by not reminding them of their charge before they presented their defence. As correctly submitted by the State Attorney, this complaint lacks merit. There is no law which requires the trial magistrate to remind the accused of the charge and retake their plea before they begin their defence. What the law requires under section 231 (1)(2)(3) of the CPA, is that once the prosecution closes its case, and if the court finds that a case has been made against the accused sufficiently to require a defence, the court must explain the substance of the charge to the accused and inform them of their rights. However, the provision does not specify that the charge must be explained immediately before the accused begins their defence. If the law intended for that, it would have explicitly stated so. 13 In the case of Aman Ally @ Joka v. R (Criminal Appeal 353 of 2019) [2021] TZCA 170 (4 May 2021), the Court of Appeal while responding to a similar complaint emphasized that; Admittedly, we are aware of a practice, mostly among the magistracy, for reminding accused persons of the charges against them before they take the witness stand but we hasten to stress that it is not a legal requirement'. [Emphasis added] Regarding the 2nd ground of appeal, the appellants complain about the failure of the trial magistrate to consider their defence. Upon my perusal of the trial court judgment, as rightly stated by the State Attorney, the appellant's defence was considered but it was ultimately rejected. Consequently, this complaint is without merit. Regarding the 3rd ground of appeal, the appellants contend that the trial court erred in convicting them due to the prosecution's failure to call Aliy Babilo as a material witness without providing sufficient reasons, As correctly pointed out by the State Attorney and as evidenced by the trial court record, Ally Babilo fled after the commission of the offence. Therefore, had he been located, he would not have served as a witness for the 14 prosecution; instead, he would have been one of the accused and not a material witness. Thus, this complaint is baseless. On the 4th ground of appeal, the appellants complain that the court erred in convicting them while section 53 of the CPA was not complied with as the police officers did not introduce themselves before the commencement of the interview. Section 53 of the CPA establishes the guidelines that must be followed by police officers when interviewing a suspect. The section states; ' Where a person is under restraint, a police officer shall notask him any questions^ or ask him to do anything, for a purpose connected with the investigation ofan offence, unless (a) the police officer has told him his name and rank; (b) the person has been informed by a police officer, in a language in which he is fluent, in writing and, ifpracticable, orally, of the fact that he is under restraint and of the offence in respect of which he is under restraint; and (c) the person has been cautioned by a police officer in the following manner, namely, by informing him, or causing him to be informed, in a language in which he is fluent, in writing in accordance with the prescribed form and, ifpracticable, orally— 15 (i) that he is not obliged to answer any question asked ofhim by a police officer other than a question seeking particulars ofhis name and address; and (ii) that, subject to this Act, he may communicate with a lawyer, relative, or friend.' Based on the provision above, the appellants' complaint primarily focuses on section 53(a), alleging that the police officers did not introduce themselves before commencing the interview. Contrary to the appellants' allegations, the caution statements of both appellants indicate that the police officers who recorded the statements introduced themselves before starting the interviews. This signifies compliance with section 53(a) of the CPA. Furthermore, the police officers who recorded the caution statements testified that they informed the appellants of their rights before the interviews began. As rightly pointed out by the State Attorney, the appellants had the opportunity to cross-examine PW4 and PW5 but chose not to question them. It is trite law that failure to cross-examine a witness at ail or on a particular point is tantamount to acceptance of the unchallenged evidence as accurate. See the case of Issa Hassani Uki v. R (Criminal 16 Appeal No. 129 of 2017) [2018] TZCA 361 (10 May 2018) and) and Hassan Mohamedi Ngova v, R (Criminal Appeal No. 134 of 2012) [2013] TZCA 307 (25 September 2013). Having said that, I find this complaint baseless. On the 6th ground of appeal, the appellants complain that the trial magistrate held that the victim was dealing with an illegal business but he failed to construe what was the victim doing in Mr Kim bo's house. Upon my perusal of the trial court judgment, as rightly stated by the appellants, on page 11, the trial magistrate said that; 'But before to conclude let this court say the following: - That in consideration of the whole story of PW1 from the point she was taken from home until she was raped it is conclude that she is a gid of bad character and hooligan. But the weak behavior of PW1 was not a ticket for the accused persons to have sexual intercourse with her without agreement.' From the above excerpt, I understood that the trial magistrate, after analyzing the evidence from both sides, concluded that the victim was not a girl of good character. However, it was emphasized that her lack of good character did not justify the heinous act committed against her. Therefore, I find this complaint to be without merit. 17 On the 7th, 8th, 9th, and 10th grounds of appeal, the appellants criticize the trial court for convicting and sentencing them based on a case that was not proven beyond a reasonable doubt. This complaint was refuted by Ms. Florence. In this case, the appellants were charged with the offence of gang rape, as found under section 130A of the Penal Code. The section reads; '131A.- (1) Where the offence ofrape is committed by one or more persons in a group of persons, each person in the group committing or abetting the commission of the offence is deemed to have committed gang rape. (2) Subject to provision of subsection (3), every person who is convicted to gang rape shaft be sentenced to imprisonment for life, regardless of the actual role he played in the rape. (3) Where the commission or abetting the commission of a gang rape involves a person of or under the age of eighteen years the court shaft, iniieu of sentence of imprisonment, impose a sentence of corporal punishment based on the actual role he played in the rape' 18 In the case of Imani Charles Chimamngo v, R (Criminal Appeal No. 382 of 2016) [2019] TZCA 30 (21 February 2019) The Court of Appeal while interpreting the above section held that; 'From the above provisions, there is no doubt at all that the offence of "gang rape" is an aggravated specie of the offence ofrape. The phrase "Where the offence of rape is committed" appearing at the very beginning ofsub-section (1) ofsection 131A pre-suppose that in gang cape, the prosecution must aiso prove that offence of rape in any of its various descriptions under section 130 has been committed. Uniike the offence of rape under section 130, the phrase: "is committed by one or more persons in a group of , persons, each person in the group committing or abetting the commission of the offence' appearing in sub-section (1) of section 131A aggravates the committed offence of rape to that of gang rape like what pertains in the offence of rape under section 130 where the prosecution must establish both lack of consent and penetration; lack of consent and penetration must similarly be proved in gang rape under section 131A. In gang rape, evidence must in addition prove the role of another person or other persons abetting or assisting in the commission of the rape. Again, the prosecution need not prove that each member of the group achieved any penetration for the offence to be committed. Penetration by one member of the group, facilitated by another or others, will be sufficient to ground a conviction.' 19 Therefore, as rightly stated by the State Attorney the prosecution needed to prove three important ingredients, which are penetration, lack of consent and whether the appellants committed the offence. I am aware that in offences of this nature, the most reliable evidence is that of the victim, as illustrated in the cases of Selemani Makumba v. R [2006] T.L.R. 379 and Alex Ndendva vs. Republic (Criminal Appeal No. 207 of 2018) [2020] TZCA 202 (6 May 2020). Having this understanding in mind, I am now in a position to determine whether PW1 was penetrated. I began by examining her testimony, in which she stated; 'They undressed me, took off my underpants, and lifted my skiff then started to have sexual intercourse one after another. Magoii was the first one to undress me, and he also wanted to sodomize me. These individuals took their penises andpenetrated my vagina one after another/ This testimony was corroborated by PW2, who medically examined the victim and documented her findings in Exhibit Pl, confirming that she was penetrated in her vagina by more than one man or several times with a blunt object. 20 The appellants raised a complaint that Exhibit Pl was not properly admitted; however, the record shows otherwise. Before the admission, the appellants were given the opportunity to raise any objections, but they had nothing to say. Subsequently, PF3 was admitted and read aloud before the trial court, rendering the complaint unjustified. Based on this evidence, penetration was clearly proven. As to the lack of consent, the victim stated that she had no agreement to have sexual intercourse with the appellants and other boys rather they forced her and when she tried to raise an alarm they threatened to kill her which signifies she did not consent to such an evil act. Regarding whether the appellants committed the offence, the crucial question that needs to be addressed is whether the victim identified the appellants among the 13 boys who raped her. According to her testimony, the incident occurred at night; however, she was able to identify the appellants because there was a solar light in the room where the incident took place, and she recognized them since she occasionally visited Mihumo village. Thus, the identification of the appellants was based on recognition, as they were not strangers to the victim. 21 In the case of Mussa Saguda v. R (Criminal Appeal 440 of 2017) [2021] TZCA 434 (27 August 2021), the Court of Appeal quoted with approval the case of Nicholaus Jame Urio v, R, Criminal Appeal No. 244 of 2010 (unreported), which took aspiration from the decision of the Court of Appeal of Kenya in Kenga Chea Thova v, R, Criminal Appeal No. 375 of 2006 (unreported), where it was stated that; 'On our own evaluation ofthe evidence, we find this to be a straight forward case in which the appellant was recognized by witness PW1 who knew him. This was clearly a case of recognition rather than identification. It has been observed severally by this court, recognition is more satisfactory more assuring and more reliable than that identification ofa stranger.' See also, the case of Jumaoili Msvete v. R (Criminal Appeal 110 of 2014) [2015] TZCA 234 (12 August 2015). Not only that, but after the incident, the victim reported the matter to PW3 as soon as possible and named the rapists, including the appellants. All of this confirms that the victim identified the appellants. See the case of Marwa Wanqiti Mwita and Another v, R [2002] T.L.R. 39, which discusses the ability of a witness to name the suspect at the earliest opportunity assures his reliability. 22 Therefore, the fact that the victim named those who committed this act against her promptly upon reaching PW3 ensures her reliability. In addition, while the appellants denied committing the offence, the 2nd appellant, when given the opportunity to cross-examine the victim, had no questions for her, indicating his acceptance of her testimony. Furthermore, the appellants confessed to commit the offence in their caution statements (Exhibit P2 and P3). The record shows that both Exhibit P2 and P3 were admitted without objection from the appellants, who also did not pose any questions to PW4 and PW5, the witnesses who tendered these exhibits. As the trial magistrate rightly decided, I find that the caution statements corroborate the victim's account. The appellants raised concerns that PW2 did not provide testimony regarding the source of the semen found on PWl's vagina and clothes, did not conduct a ONA test to identify the perpetrator, and failed to specify the type of bacteria found in the victim's vagina. They also pointed out the absence of a sketch map. However, these complaints lack merit, as they do not undermine the established evidence of the offence. The prosecution's case does not hinge on the identification of the semen's source or the 23 specifics of the bacterial analysis; rather, the testimony of PW1, corroborated by other evidence, sufficiently establishes the commission of the offence charged. In light of the above discussion, I conclude that the prosecution successfully proved the offence beyond a reasonable doubt against the appellants. Consequently, I find no compelling reasons to fault the finding of the trial court. Hence, this appeal is dismissed in its entirety. It is so ordered. Court: Judgment is delivered today in the presence of Ms. Florence Mbamba learned state attorney for the Republic and the appellant. M. B. Mpaze Judge 21/10/2024