CRIMINAL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 2858 OF 2024 (Arising from the Judgement of the District Court of Kinondoni (Hon. E.R. Rwehumbiza, PRM) dated 19th October 2023 in Criminal Case No. 194 of 2022) _____________________________ YAHAYA SALUM @ YAHATULE……………...………..……….. APPELLANT VERSUS REPUBLIC……………………………………..…..…….………...RESPONDENT JUDGEMENT Date of last order: 10th October 2024 Date of Judgement: 22nd October 2024 MTEMBWA, J.: In the District Court of Kinondoni, the Appellant was arraigned for the offense of rape contrary to sections 130(1) and (2) (e) and 131 (3) of the Penal Code, Cap 16, R.E 2022, in two counts. It was alleged that on diverse dates in September 2021, at Kigogo Luhanga area within Kinondoni District in Dar es Salaam Region, unlawfully, the Appellant had carnal knowledge of XY and XZ, respectively aged six (6) and five (4) years old (names withheld). For purposes of this Appeal, I shall refer to the victimized girls as “PW2” or “XY” and “PW3” or “XZ” and or, where necessary, “the Victims”. 1 The Appellant pleaded not guilty to the charge. Consequently, prosecution paraded six (6) witnesses and tendered two (2) exhibits. The Appellant relied on his affirmed testimonies and tendered no exhibit. Having evaluated the evidence adduced during hearing, the learned trial Magistrate was satisfied that the offense the Appellant was charged with was proved beyond reasonable doubt. As such, he proceeded to convict the Appellant and sentenced him to serve life imprisonment on both counts. Dissatisfied, the Appellant has laid before this Court the following grounds of appeal traceable from the original Petition and supplementary petition of Appeal; Original Petition of Appeal: 1. That, the learned trial Magistrate erred in law and fact in Convicting the appellant based on the evidence of PW2 and PW3 (victims) whose testimonies was illegally and/or unprocedurally received in Court the omission which renders their evidence worthless. 2. That, the learned trial Magistrate erred in law and in fact in Convicting the appellant based on a mere fabrication evidence against the appellant as there was no strong reason to show why the appellant was not arrested and charged with the alleged offences from 2021 to 2022 the omission which cast doubt in the prosecution case. 3. That, the learned trial Magistrate erred in law and fact in convicting the appellant based on the prosecution evidence which was barely incredible, insufficient, improbable and unreliable to warrant the appellant's Conviction beyond all reasonable doubt doubts. 4. That, the learned trial Magistrate erred in law and fact in Convicting the appellant without considering and determining the appellant's defence evidence which raised a reasonable doubt in the Prosecution case the 2 omission which resulted to a serious misdirection amounting miscarriage of justice and Constituted a mistrial. 5. That, the learned trial Magistrate erred in law and fact in convicting the appellant in a case which was not proved to the hilt by the prosecution against the appellant as required by law. Supplementary Petition of Appeal: 1. That, the learned trial PRM erred in law and fact in convicting the appellant without directing his mind to the perjury of PW4 in respect of the date of birth of PW3 (Caren) 2. 2. That, the learned trial PRM erred in law and fact in convicting the appellant on the basis of Exhibit “P1” without addressing his mind to the fact that the name it bears is at variance with the name on record. 3. That, the learned trial PRM erred in law and fact in convicting the appellant based on Exhibit ‘P2” (PF3 of PW2 and PW4) that is self - contradictory. 4. That the learned trial PRM erred in law and fact in convicting the appellant based on the evidence of PW2 whose age, though of paramount importance in proving statutory rape, yet is not established. 5. That, the learned trial PRM erred in law and fact for accordingly convicting the appellant, though of first offender with excessive sentence. When the matter came for orders on 26th August 2024, Mr. Cathbert Mbilingi, the learned state attorney, represented the Respondent while the Appellant appeared in person. By consent, the parties agreed to argue this Appeal by way of written submissions. Having reviewed the records, I am satisfied that the parties adhered to the agreed schedule, which I recommend. I will thus look in the 3 submissions, albeit briefly, for and against the grounds of appeal. At the outset, however, having passed through the submissions in chief, I noted that the Appellant argued only one ground, leaving the rest of the grounds of appeal unargued. In his submissions, the Appellant faulted the trial Magistrate for failing to abide by the provisions of section 210(3) of the Criminal Procedure Act, which provides that the magistrate shall inform each witness that he/she is entitled to have his/her evidence read over to him. If a witness asks that his evidence be read over to him, the magistrate shall record any comments the witness may make concerning his evidence. He added that this requirement ensures that every testimony is recorded correctly to avoid distortion, perversion and suppression of evidence. He cited the case of DPP vs. Hans Aingaya Macha, Criminal Appeal No. 449 of 2026 (Unreported). He was of the view that the cited provisions of the law impose a mandatory duty for the learned trial Magistrate to indicate that the said section had been complied with. On the other hand, the Appellant faulted the learned trial Magistrate for failing to comply with section 127(2) of the Evidence Act Cap, Cap 6 RE 2019. He contended that the evidences of PW2 and PW3, being witnesses of tender age, were received improperly. He added that 4 sub-section (4) provides that a child of tender age may give evidence without taking an oath or affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell lies. The Appellant referred this Court to the testimonies of PW2 and PW3, where the trial Court did not seem to have asked questions to ascertain whether they knew the meaning of telling the truth. He cited the case of Godfrey Wilson vs. Republic, Criminal Appeal No. 168 of 2018. In his further argument, the Appellant submitted that the victims gave evidence without promising to tell the truth, and in the absence of such promise, their testimonies were received improperly in evidence. To fortify, he cited the cases of Issa Salum Nambaluka vs. Republic, Criminal Appeal No. 272 of 2018 and Masanja Makunga vs. Republic, Criminal Appeal No. 378 of 2018. He implored his Court to expunge the evidence of PW2 and PW3. The Appellant argued further that having expunged from the record the evidence of PW2 and PW3, the question would be whether there is other independent evidence to support the prosecution case. He was of the view that the remaining prosecution witnesses were not eyewitnesses, and thus, their evidence cannot be considered in the isolation of the evidence of PW2 and PW3. He considered the evidence of PW1, PW4 and 5 PW5 to be hearsay because PW2 and PW3 informed them. The evidence cannot be considered to sustain the conviction under section 131 (1) (2) (e) and (3) (1) of the Penal Code (supra), the Appellant added. Based on the foregoing, the Appellant considered the charge to have been not proved beyond reasonable doubt. He implored this Court to quash the conviction and sentence meted against him and set him free from the accusations. In response to the first ground of appeal, the learned state attorney gave a brief purpose of oath. He submitted that the purpose of taking an oath is to ensure that witnesses understand the importance of telling the truth in legal proceedings. It is thus an act of reminding the witnesses of the consequences of not telling the truth. He contended further that the purpose of having a child witness promise to speak the truth is to ensure that he or she understands the importance of being honest in his or her testimony. This process helps the Court to determine if the child is competent to testify. The learned state attorney continued to note that even though it is important to have such a promise, the credibility of the witness, despite the oath taken or promise made, must be tested through cross- examination and observing the demeanor at the time the evidence is 6 taken. As such, failure to promise the truth by a child of tender age is not fatal, the learned counsel observed. He cited the case of Wambura Kiginga vs. Republic, Criminal Appeal No. 180 of 2017, Court of Appeal of Tanzania at Mwanza. Submitting on the import of section 127(6) of the Evidence Act, the learned counsel argued that where in criminal proceedings involving sexual offense, the only independent evidence is that of a child of tender age or a victim of the sexual offense, the Court shall receive the evidence, and may, after assessing the credibility of the evidence of the child of tender years as the case may be the victim of a sexual offense on its own merits, notwithstanding that such evidence is not corroborated, proceed to convict for reasons to be recorded in the proceedings provided that the Court is satisfied that the child or the victim of the sexual offense is telling nothing but the truth. Based on that, it was observed that the evidence can be considered notwithstanding noncompliance with subsection (2) of section 127 of the Act. Thus, the argument of the day was that the testimonies of PW1 and PW2 are original, genuine, true and authentic despite noncompliance with the law. Equally, the trial Magistrate correctly grounded the conviction based on their testimonies. 7 By consolidating the third and fifth grounds, the learned counsel referred this Court to the three essential elements of assessing the credibility of the witnesses: One is that the trial Court is always in the best position to determine the credibility and demeanor of the witness. He cited the cases of Seif Mohamed EEL. Abadan vs. Republic, Criminal Appeal No. 320 of 2009; Aloyce Maridadi vs. Republic, Criminal Appeal No. 208 of 2016 and Ayubu Andimile@ Mwakipesile vs. Republic, Criminal Appeal No. 503 of 2017 (all unreported). Two that in sexual offenses, the best evidence comes from the victim. He cited the case of Selemani Makumba vs. Republic, (2006) TLR 379, read together with section 127(6) of the Evidence Act. Three, every witness is entitled to credence and be believed in his/her evidence unless there are good and cogent reasons to hold otherwise. He cited the case of Goodluck Kyando vs. Republic (2006) TLR 363. Based on the foregoing, the learned counsel argued that in all categories of rape, the essential ingredient for the prosecution to prove is the penetration of the female genitals by the male sex organ without consent or with or without consent when the victim is underage. The trial Court believed the evidence of PW2 and PW3, as such, the argument by 8 the Appellant lacked merit. In reply to the second grounds of appeal, the learned state attorney considered the Appellant’s argument that the incident was too late to be reported worthless. He referred to the testimonies of PW2 and PW3, who testified that the appellant threatened them in case the secret was divulged. Considering the age of PW2 and PW3, it was impossible to report the incident as soon as possible. He implored this Court to dismiss the second ground of appeal. Arguing the fourth ground of appeal, the learned counsel observed that the trial Court considered the Appellant’s defense. He referred this Court to page 6 of the typed script of the Judgment. Thus, he considered the fourth ground of Appeal worthless and deserving of dismissal. The learned state attorney opted not to argue on the new ground of appeal raised regarding noncompliance with section 210(3) of the Criminal Procedure Act as it was not among the grounds of appeal in the Petition of Appeal. Lastly, he implored this Court to dismiss the Petition of Appeal. In rejoinder, the Appellant insisted that the case was not proved beyond reasonable doubt owing to noncompliance with the provisions of section 127 (1) (4) and (7) of the Evidence Act. He also cited the 9 cases of Hamis Issa vs. Republic, Criminal Appeal No. 274 of 2018, Twaha Ally Hassan vs. Republic, Criminal Appeal No. 127 of 2019 and Mussa Ali Ramadhani vs. DPP, Criminal Appeal No. 426 of 2021 (unreported). He referred to this Court to pages 9 and 12 of the record where PW2 and PW3 seem to have not promised to tell the truth. Since the evidence of the victims was received improperly, the charge is considered to have not been proved to the required standards, which is beyond reasonable doubt. The Appellant also reiterated his submission on noncompliance with section 210 (3) of the Criminal Procedure Act and added further that the irregularities are incurable. Lastly, he implored this Court to allow the Appeal, quash the conviction, and set aside the sentence meted against him. Having considered the rival arguments by both parties, the question would be whether the offense of rape in both counts contrary to sections 130(1) and (2) (e) and 131 (3) of the Penal Code (supra) was proved to the required standards of the law, that is, beyond reasonable doubt. In Ahmad Omari vs. Republic, Criminal Appeal No. 154 of 2005, Court of Appeal of Tanzania at Mtwara (unreported), the Court observed that, in a criminal case, the burden of proof is on the 10 prosecution and the standard of proof is beyond reasonable doubt. This everlasting principle of law also finds refuge under Section 3(2) (a) of the Evidence Act, Cap 6 RE 2019. In the famous case of John Makolobela Kulwa Makolobela & Another alias Tanganyika vs. Republic (2002) TLR 296, the Court observed that a person is not guilty of a criminal offense simply because his defense is not believed; rather, a person is found guilty and convicted of a criminal offence because of the strength of the prosecution evidence against him, which established his guilt beyond reasonable doubts. Being the first appellate Court, it has a duty to re-evaluate the evidence on records and put it under critical scrutiny and come out with its conclusion. In the course of discharging such noble duty, it may concur with or depart from the findings of the trial Court. However, the issues related to the witness's demeanor will always remain within the exclusive domain of the trial Court (see Mapambano Michael @ Mayanga vs. Republic, Criminal Appeal No. 258 of 2015). Looking at the submissions in chief, the Appellant has raised one new ground of Appeal that was not included in the original or supplementary Petition of Appeal. It suffices here to note that parties are bound by their pleadings, which they exchanged. As such, since it was 11 introduced through written submissions without leave of this Court, I will not consider it in determining this Appeal. Considering the petition of Appeal and a supplementary thereof, the Appellant has only argued one ground of appeal, leaving other grounds unargued. In my considered opinion, he has abandoned all other grounds of appeal. To avoid losing focus, I will only determine the grounds of appeal as argued by the Appellant viz the submission fronted by the Respondent. The Appellant faulted the learned trial Magistrate for failing to comply with section 127(2) of the Evidence Act (supra). He contended that the evidence of PW2 and PW3, being witnesses of tender age, was received improperly as they did not promise to tell the truth and not lies. He referred this Court to the testimonies of PW2 and PW3, where the trial Court seemed to have not asked questions to ascertain whether they knew the meaning of telling the truth. On his part, the leaned state attorney readily conceded to the Appellant's submission but added further that the trial Court considered PW1 and PW2 the witnesses of truth and credible. He implored this Court to find the argument worthless. The procedure for taking the evidence of a child of tender age is provided for under section 127 (2) of the Evidence Act. For easy reference, I reproduce the section hereunder: 12 A child of tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell lies. As explained in the case of Issa Salum Nambaluka vs. Republic, Criminal Appeal No. 195 of 2018 (unreported), the plain meaning of the provisions of subsection (2) of section 127 of the Evidence Act reproduced above, a child of tender age may give evidence on oath or affirmation or without oath or affirmation. Where a child of tender age is to give evidence without oath or affirmation, he or she must promise to tell the truth and undertake not to tell lies. Looking at the record, the trial Magistrate recorded that PW2 and PW3 promised to tell the truth. The question posed to them earlier cannot be traced from the records. Even if the questions are not traceable, the Court was satisfied that PW2 and PW3 promised to tell the truth. I don’t see any problem with that. In my opinion, simplified or test questions were unnecessary in this case because the witnesses did not testify on oath or affirmation. In Mathayo Laurance William Mollel vs. Republic (Criminal Appeal No. 53 of 2020) [2023] TZCA 52 (20 February 2023) the Court said; We are unable to agree with the appellant that the trial court ought to have conducted a test to verify whether the child witnesses knew and understood the meaning of oath or 13 affirmation. In our considered view, that requirement would only be necessary if the child witnesses testified on oath or affirmation. We respectfully think that if a child of tender age is not to testify on oath or affirmation, a preliminary test on whether he knew and understands the meaning of oath may be dispensed with. (Emphasis mine) From what I have tried to endeavor herein above, I entertain no doubt that the evidence of PW2 and PW3 was taken in compliance with section 127 (2) of the Evidence Act, even if no simplified or test questions are traceable on records. However, it must be noted that, even if there was something wrong, still the anomaly would have been cured by section 127(7) of the Evidence Act (supra) as amended by the Legal Sector Laws (Miscellaneous Amendments) Act, 2023. For easy reference, I shall reproduce the section; Notwithstanding any other law to the contrary, failure by a child of tender age to meet the provisions of subsection (2) shall not render the evidence of such child inadmissible. In my opinion, the cited section above rendered the requirement that a child of tender age must promise to tell the truth and not to tell lies impotent. The strict interpretation of the cited law renders such requirements cosmetic because even if the evidence of a child of tender age is received improperly, nothing will render it inadmissible. In fact, the 14 evidence adduced by the victims (PW2 and PW3) left no stone unturned. In sexual offenses, the victim’s credibility becomes an essential matter for consideration. If the victim is coherent, consistent, and credible, the Court may proceed to convict, notwithstanding other corroborative evidence. The conviction becomes even quicker if a child of tender age gives such evidence. In this case, PW2 and PW3 (victims) did not seem to have been telling lies. Their evidence was corroborated closely by PW1, PW5, PW6 and Exhibit P2 collectively. The Court of Appeal of Tanzania in Mohemed Said vs. Republic, Criminal Appeal No. 145 of 2017, having quoted the decision of the Supreme Court of Philippines in the case of PEOPLE OF THE PHILIPPINES vs. BENJAMIN A. ELMANCIL, G. R. No. 234951, dated March, 2019 had this to say; In reviewing rape cases, this Court has constantly been guided by three principles, to wit: (1) on accusation of rape can be make with facility; difficult to prove but more difficult for the person accused though innocent to disprove; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits and cannot draw strength from the weakness of the evidence for the defence. And as a result of these guiding principles, credibility of the complainant becomes the single most important issue. If the testimony of the 15 victim is credible, convincing and consistent with human nature and the normal course of things the accused may be convicted solely on the basis thereof. In Onesmo Laurent @ Salikoki Vs. Republic, Criminal Appeal No. 458 of 2018, Court of Appeal at Moshi, the Court observed at page 12, this; ….. we are cognizant that in view of the inherent nature of the offence of rape or any other sexual offence where only two persons are usually involved when it is committed, the testimony of the complainant is very crucial and must be examined and judged cautiously. Indeed, in this context, we held, for instance, in Selemani Makumba (supra), that the best proof of rape (or any other sexual offence) must come from the complainant. Consequently, the complainant's credibility becomes the most important matter for consideration. The Court continued to note at pages 12 and 13, thus; If the evidence of the complainant is credible, convincing and consistent with human nature as well as the ordinary course of things, it can be acted upon singly as the basis of conviction - see section 127 (6) of the Evidence Act. As said before, PW2 and PW3 were direct, coherent, consistent, and credible witnesses. I don’t find anything in controversy. Since the Appellant was a neighbor who usually passed through the victims’ houses several times, I find no room for mistaken identity. It was a question of recognition. I thus join hands with the learned trial Magistrate to hold that 16 the offense of rape in both counts was proved beyond reasonable doubt. I went through the judgment of the trial Court and noted that the Appellant's defense was not considered at all. I find this to be an irregularity which, however, is curable by this Court. Where the trial Court fails to consider the defense, the first appeal Court may do that. In Msanja Maria Sanga vs. Republic, Criminal Appeal No. 328 of 2021, Court of Appeal of Tanzania at Dodoma, the Court said; We agree that where the trial court or the first appellate court does not consider a party's defence, it is an irregularity but the same is curable. The first appellate court has to consider the defence as a remedy and if it does not, the second appellate court has a duty to consider the defence and make a decision. I Guided by the above decision, I am constrained to consider the Appellant’s defense. In this case, the Appellant testified he was impotent and implored the trial Court to conduct a medical examination to prove his erectile dysfunction state. Indirectly, he denied having committed the offense because he was impotent. In my considered opinion, since the fact that he was impotent or not was with his personal knowledge, the anus of proof rested on him. The Prosecution has no duty to prove that he was impotent. In Nyamasheki Malima @ Mengi vs. Republic, Criminal Appeal No. 177 of 2020, Court of Appeal of Tanzania at Musoma, the Court said; 17 Given that the appellant in the instant case did not produce any proof of his alleged erectile dysfunction and that the prosecution had no burden to prove that he was not impotent and given that the medical evidence on record in support of the victims' accusation against the appellant was found credible and reliable, we are inclined to uphold the concurrent finding by the courts below that the claimed impotence was most probably a lie. We thus hold that the appellant's defence was justifiably rejected. Considering the fact that the evidence on record is watertight, pointing fingers to the Appellant to be the one who committed the offense against PW2 and PW3, in the absence of proof of erectile dysfunction state, the defense casted no doubt on the prosecution evidence. Even for the sake of the argument that he did not commit the offense, the Appellant did not testify as to whether he knew the victims or not. On the strength of the prosecution evidence, I find the Appellant’s defense to be a lie and disregard it. From what I have indevoured herein above, I wholesomely endorse and agree with the learned trial Magistrate that the offense to which the Appellant was charged on both counts was proved beyond reasonable doubt. To that end, the Judgement of the trial Court is hereby upheld. I order accordingly. Right of appeal fully explained. DATED at DAR ES SALAAM this 22nd October 2024. 18 H.S. MTEMBWA JUDGE 19