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. 20230 OF 2024 (Arising from the Judgement of the District Court of Kinondoni (Hon. V. M. Kaseko, SRM) dated 13th May 2024 in Criminal Case No. 113 of 2023) _____________________________ MIRAJI SALIM MSAGATI……………………...………..……….. APPELLANT VERSUS REPUBLIC……………………………………..…..…….………...RESPONDENT JUDGEMENT Date of last order: 26th August 2024 Date of Judgement: 31st 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 the first count. In the second count, he was arraigned for unnatural offense contrary to section 154 (1) (a) and (2) of the Penal Code (supra). It was alleged in the first count that on unknown dates and months between January 2019 and March 2023, at Kunduchi area within Kinondoni District in Dar es Salaam Region, unlawfully, the Appellant had sexual intercourse with a girl aged fifteen (15) years old (name withheld). In the second count, it was alleged that within the same place and time, 1 the Appellant had carnal knowledge of the girl aged fifteen (15) years (name withheld) against the order of nature. For purposes of this Appeal, I shall refer to the victimized girl as “PW1” and or, where necessary, “the Victim”. The Appellant pleaded not guilty to the charge. Consequently, prosecution paraded five (5) witnesses and tendered two (2) exhibits. The Respondent defended himself, brought one more witness (his mother) and tendered no exhibit. Having evaluated the evidence adduced during hearing, the learned trial Magistrate was satisfied that the offenses the Appellant was charged with were proved beyond reasonable doubt. As such, she proceeded to convict the Appellant and sentenced him to serve thirty (30) years imprisonment on the first Count and life imprisonment on the second count. The sentences were to run concurrently. Dissatisfied, the Appellant has laid before this Court the following grounds of appeal and I quote in verbatim; 1. That, the learned trial magistrate grossly erred in both law and fact by convicting the appellant while there was variance in the particulars of the offence and the evidence of prosecution witnesses which rendered the charge sheet to be defective. 2. That, the learned trial magistrate grossly erred in both law and fact by convicting the appellant based on Exh PE1 (caution statement) which was procured and tendered in court contrary to law. 3. That, the learned trial magistrate grossly erred in both law and 2 fact by convicting the appellant based on incredible, tenuous, contradictory and uncorroborated evidence of prosecution witnesses. 4. That, the learned trial magistrate grossly erred in both law and fact by convicting the appellant based on a case that was not proved to the hilt. On 26th August 2024, when the matter came for orders, 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. Consequently, an order was entered to that effect. However, on 15th October 2024, in the presence of both parties and for the interest of justice, I vacated my scheduling orders dated 26th August 2024. Parties were then directed to adhere to the new filing schedule. Having reviewed the records, I am satisfied that parties adhered to the new filing schedule. Therefore, I will look briefly into the submissions for and against the Appeal. At the outset, in his written submissions in chief, the Appellant innovated a new additional ground of appeal and listed it as the first ground of appeal that the learned trial magistrate grossly erred in both law and fact to convict the Appellant contrary to section 214 of Criminal Procedure Act. Since it was raised without leave of this Court, 3 I will not consider it. I will, therefore, consider the grounds of appeal as sequenced in the Petition of Appeal. Arguing in the first ground of appeal, the Appellant complained that the learned trial magistrate grossly erred in law and fact by convicting him while there was variance in the particulars of the offense and the prosecution evidence, which rendered the charge defective. He referred to the testimonies of PW1 and PW3 in respect to the age of the victim. While the victim testified that she was 13 years old, PW3 (her mother) testified that the victim was 14 years old. In the same way, in the Judgment, the trial Magistrate considers the victim to be 15 years old. Since in sexual offenses, the age of the victim is material, discrepancies shown render the charge unproved. He cited the cases of Charles Makapi vs. Republic, Criminal Appeal No. 85 of 2012 (unreported) and Masasi Mathias vs. Republic, Criminal Appeal No. 274 of 2009. On the second ground of appeal, the Appellant argued that the learned trial magistrate grossly erred in law and fact by convicting the appellant based on Exhibit PE 1 (Caution Statement), which was procured and tendered in Court contrary to the law. He argued further that prosecution failed to lead PW4 to testify from what section of the law she recorded the caution statement. He also added that the Court admitted 4 Exhibit PE1 on 4th August 2023 while the Court seated on 4th September 2023. He implored this Court to resolve the discrepancies noted in his favor. Regarding the third ground of Appeal, the Appellant argued that the learned trial magistrate grossly erred in law and fact by convicting the appellant based on the incredible, tenuous, contradictory, and uncorroborated evidence of prosecution witnesses. He added further that, as a matter of law, the credibility of each witness in a case ought to be dispassionately assessed by testing it against the whole evidence. It was submitted that it is unacceptable to pick out the evidence of a particular witness or witnesses and accept it as true without first testing its accuracy. He referred this Court to Maloda William & Another vs. Republic, Criminal Appeal No. 256 of 2006 (unreported). The appellant argued further that the prosecution evidence adduced against him was fictitious and incredible because the prosecution witnesses had never mentioned the date of the incident. He referred this Court to the evidence of PW1, PW2, PW3 and PW5. He implored this Court to find out that there is merit on the third ground of appeal. Arguing on the fourth ground of appeal, the Appellant complained that the learned trial Magistrate grossly erred in law and fact by convicting the Appellant based on a case not proved to the required 5 standards. He cited the case of Jonas Nkize vs. Republic (1992) TLR 213 (HC), where it was observed that the onus of proving a charge against the accused beyond reasonable doubt lies on the prosecution. He reiterated that the prosecution failed to prove the case to the acceptable standards of the law. He also pointed out a contradiction in the victim's age between the victim herself (PW1), her mother (PW3), and the Charge. He beseeched this Court to allow the fourth ground of appeal. In his final analysis, the Appellant implored this Court to allow the Appeal, quash the conviction, set aside the sentence meted against him, and set him free. In response to the first ground of appeal, the learned state attorney argued that the variance in evidence between PW1 and PW3 regarding the victim’s age was not fatal as both mentioned that the victim was born on the 31st day of December 2009 and thus, she was 14 years old. He added that a person can still be 13 years old, provided the date of birth is yet to arrive. Agreeably, given the evidence of PW1 and PW3, the learned state attorney added that the victim, in any way, was under the age of 18 years. He considered the variance to be very minimal and of no effect. He entirely agreed with the Appellant that there is a remarkable variation between what is testified and what appears in the judgment concerning the age of the victim. 6 The learned state attorney noted further that the variance between the judgment and evidence in this case is not fatal. Be it thirteen, fourteen, or fifteen years, still the victim is below eighteen years, and that cannot defeat the import and essence of sections 130 (1), (2), (e), and 154 (1) (a) and (2) of the Penal Code. He cited the case of Raphael Majalisi Kalembwe vs. Republic, Criminal Appeal No. 107 of 2022. He implored this Court to dismiss the first ground of appeal. Regarding the second ground of appeal, the learned state attorney argued that there is no record that Exhibit PE1 was admitted on 4th August 2019. He added that Exhibit “PE1” was tendered and admitted on 4th September 2023. He thus considered the second ground of appeal devoid of merit. Arguing on the third ground appeal, the learned state attorney argued that, based on the evidence of the victim, the Appellant used to rape and sodomize her from sometime in 2019 when she was in standard two up to 2023. He referred to this Court page 6 of the Court proceedings. It was added further that it was difficult for the victim to remember the exact dates when the Appellant raped and or sodomized her. The fact that the prosecution witnesses did not mention the date of the incident has no merit, the learned state attorney observed. It was reiterated further that the variance in evidence between PW1 and PW3 was not fatal as both 7 testified that the victim was born on the 31st day of December 2009 and thus, she was 14 years old. A person can still be 13 years old, provided the date of birth has yet to arrive. As such, the victim was correct in answering that she was 13 years old on the 28th day of August 2023 because the 31st of December was yet to arrive. He beseeched this Court to find the third ground of appeal worthless. In reply to the fourth ground appeal, the learned state attorney observed that it is a cardinal principle of law that, in criminal cases, the prosecution has to prove the charge against the accused beyond all reasonable doubt. He cited the cases of Christian Benard vs. Republic (1992) TLR 302 and Aidan Mwakalinga vs. Republic, Criminal Appeal No. 207 of 2006, Court of Appeal of Tanzania at Dodoma (Unreported). He referred this Court to the testimonies of PW1, PW2, PW3, PW4 and PW5, who he considered credible witnesses. He supported the conviction and sentence meted out against the Appellant. In his final analysis, the learned state attorney implored this Court to dismiss the entire appeal. It was very unfortunate that the Appellant never rejoined. Having dispassionately considered the arguments by both parties, the question would be whether the offense of rape contrary to sections 130(1) and (2) (e) and 131 (3) and unnatural offense contrary to 8 section 154 (1) (a) and (2) of the Penal Code (supra) were 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 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). 9 Arguing on the first ground of appeal, the Appellant pointed out the contractions between the Charge, the evidence of PW1 (Victim), and PW3 (Victim’s mother) regarding the victim's age. He argued that PW1 testified that she was 13 years old, contrary to her mother (PW3), who testified that the victim was 14 years old. He also referred this Court to the charge and the typed script of the Judgment, which indicates that the victim was 15 years old. The learned state considered the variance not fatal as long as PW1 and PW3 mentioned the date of birth. He added that whether she was thirteen, fourteen, or fifteen, the victim was under the age of eighteen years and thus did not affect the sentence meted out against the Appellant. Indeed, according to the Charge, the victim was 15 years old. I agree with the Appellant that during the hearing, the victim testified to be 13 years old having been born on 31st December 2009. PW3 (her mother) testified that her daughter (the victim) was 14 years old having been born on 31st December 2009. PW5 (medical doctor) testified that the victim was approximately 15 years old. I agree with the Appellant that there was contradiction on the victim's age between the charge and the evidence adduced during hearing. The question would be whether the contradiction rendered the charge unproved. It is a cardinal principle that age is of great essence in sexual 10 offenses where the victim is under the age of 18 years. This is because, in rape cases, having sexual intercourse with a woman under the age of 18 years with or without her consent attracts a sentence of thirty years imprisonment or life imprisonment where the victim is under the age of ten years. Similarly, a person who commits an offense against the order of nature with a child under 18 years is likely to face a sentence of life imprisonment (see also Charles Hombo vs. Republic, Criminal Appeal No. 220 of 2006, Court of Appeal of Tanzania at Tanga). To effectively apply the required and lawful sentence, the victim's age is the most essential midpoint, which a jury should consider before concluding. In Salum Said alias Shalua Kiula vs. Republic, Criminal Appeal No. 263 of 2011, Court if Appeal if Tanzania at Dodoma, the Court said; In an offense of statutory rape, the prosecution must has a duty to adduce evidence as to the age of the victim, proof of age is said to be under the age of ten years in which the proper sentence to be imposed is life imprisonment but where the age of the victim is not stated the proper sentence to be imposed is 30 years in imprisonment. In this case, although I agree with the Appellant that there is variance between the Charge and the evidence regarding the victim's age, in my opinion, such discrepancy was cured by the evidence of PW1 (the 11 victim) and PW3 (the parent). Both of them testified that the victim was born on 31st December 2009. Since she testified on 24th July 2023, mathematically, she was 13 years old because she was to turn 14 years old on 31st December 2023. In this respect, the question of the victim's age was perfectly settled by prosecution evidence through PW1 and PW3. In any case, the Appellant was not prejudiced because, the contradiction did not affect the sentence imposed to him. In Isaya Renatus vs. Republic, Criminal Appeal No. 542 of 2015 (2016) TZCA 218 (8 April 2016) the Court said; Age is essential element to be proven in establishing the offense of statutory rape under section 130 (1) (2) (e) of the Penal Code (Cap. 16) where the victim must be under the age of eighteen. …. It is necessary the evidence as to proof of age must be given by the victim, relative, parent, medical practitioner or, where available, the production of a birth certificate. However, there can be cases where the court may infer the existence any fact including the age of the victim on the authority of section122 of the Evidence Act (Cap 6). (emphasis mine) Having so observed, I find the first ground of appeal devoid of merit and dismiss it. Regarding the second ground of appeal, the Appellant argued that the learned trial Magistrate grossly erred in law and fact by convicting the Appellant based on Exhibit PE 1 (Caution Statement), which was procured 12 and tendered in Court contrary to the law. He argued further that prosecution failed to lead PW4 to testify from what section of the law she recorded the caution statement. On the contrary, he argued that the Court admitted Exhibit PE1 on 4th August 2023 while the Court seated on 4th September 2023. Indeed, on 4th September 2023, the trial Court noted as follows; COURT: Particulars contained in Exh PE1 are read over by PW4 in open Court in the presence of the accused person and in the presence of public prosecutor this 4th day of August 2023. Signed: PRM 4/9/2023 From the quoted passage, at the outset, I find the argument pegged on the difference between the date of admission and the date of hearing when the said exhibit was tendered a mere slip of the pen that did not prejudice the Appellant. It is from the records that the Court seated on 4th September 2023 when PW4 one WP6424 D/CPL Vumilia tendered Exhibit PE1. The Appellant was present and did not object to its admissibility, nor did he cross-examine on its contents. The slip of the pen by writing August instead of September did not occasion injustice to the Appellant. According to PW4, the Appellant was arrested on 18th March 2023 13 at 23:45 at night by D/C Joseph, D/SGT John and herself. Having been arrested, he was taken to Kawe Police Station and arrived there at 00:30 hours at night. At 02:25 hours at night, the Appellant was warned and affixed his thumb accordingly. PW4 recorded the Appellant’s Caution Statement from 02:26 to 03:03 hours at night. Having so recorded, he gave the same to the Appellant, and having been satisfied with the contents, he signed it by affixing his thumb. I looked at Exhibit PE1 and noted that the same complied with the requirements of the law. I don’t see anything in controversy. As said before, the Appellant did not object to the admissibility of Exhibit PE1 in evidence. He did not even cross- examine on its contents. The complaint, therefore, that it was illegally procured and tendered in Court is devoid of merit, and I find the second ground of appeal devoid of merit. Regarding the third ground of Appeal, the Appellant complained that the learned trial Magistrate grossly erred in law and fact by convicting the Appellant based on the incredible, tenuous, contradictory, and uncorroborated evidence of prosecution witnesses. He added further that, as a matter of law, the credibility of each witness in a case ought to be dispassionately assessed by testing it against the whole evidence. It was submitted that it is unacceptable to pick out the evidence of a particular witness or witnesses and accept it as true without first testing its accuracy. 14 He referred this Court to Maloda William & Another vs. Republic, Criminal Appeal No. 256 of 2006 (unreported). On the other hand, the Appellant argued that none of the prosecution witnesses mentioned the date of the incident. On his part, the learned state attorney argued that based on the evidence of the victim, the Appellant used to rape and sodomize her from sometime in 2019 when she was in standard two up to 2023. He referred to this Court page 6 of the Court proceedings. It was added further that it was difficult for the victim to remember the exact dates when the Appellant raped and or sodomized her. As resolved above, the evidence of PW1 and PW3 resolved the contraction on the victim’s age by mentioning the date of birth. On 24th July 2023, when PW1 testified, the victim was 13 years old. Similarly, on 10th August 2023, when PW3 testified, the victim was yet to turn 14 years old. Since there was no contradiction on the date of birth, I find that there was an arithmetic error on the part of PW3, which did not prejudice the Appellant. As alluded to by the learned state attorney, be it may, the victim was under 18 years old, and thus, the contradiction, if any, did not mitigate the sentence meted out against the Appellant. Indeed, credibility involves the issue of whether the witness appears to be telling the truth as he believes it to be. In essence, this entails 15 reliability, worthiness and or accuracy of the information given during hearing. The information given can be acted upon after assessing the trustworthiness, demeanor, and/or credibility of the witness. In Salum Ally Vs Republic, Criminal Appeal No. 106 of 2013 (unreported) the Court stated that: on whether or not, any particular evidence is reliable, depends on its credibility and the weight to be attached to such evidence. We are aware that at its most basic, credibility involves the issue whether the witness appears to be telling the truth as he believes it to be. In essence, this entails the ability to assess whether the witness's testimony is plausible or is in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in the circumstances particularly in a particular case. The test for any credible evidence is supposed to pass, were best summarized in the case of Abbdalla Teje @ Ma lima Mabula Vs Republic, Criminal Appeal No. 195 of 2005 (unreported), to be: (i) Whether it was legally obtained; (ii) Whether it was credible and accurate; (iii) Whether it was relevant, material and competent; (iv) Whether it meets the standard of proof requisite in a given case, otherwise referred to as the weight of evidence or strength or believability. Given the authority cited, I find it apposite to borrow a leaf from the victim’s testimony during examination in chief; Baba Mkubwa used to call me and ask me to undress, and if I 16 refused, he had a knife (sime). He used to pick it up and threatened to cut me with it. Baba Mkubwa used to ask me to undress me and also he sex with me through my vagina and my anus. Most of the time, it was evening times and night times in his room. Accused used to send me to but cigarettes and then go to his room. When I bring him Cigarette, he would close the door and rape me. Sometimes, he would stay out and tell me, “Hiyo sigara niwekee ndani” and then he would follow me and lock me in his room and rape me. I got used to it, but I always protested. In most cases, the accused was drunk, and he would give me Tsh. 500/ to go buy sweets. The quoted passage signifies the Appellant's act of undressing the victim and inserting his penis into her vagina and anus. The trial Court observed the victim’s demeanor and credibility and was satisfied that she was telling the truth. Similarly, I have no flick of doubt that the victim (PW1) was a credible witness. Her testimony was corroborated by the evidence of PW5 (medical doctor) and Exhibit PE2 (PF3). 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. 17 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. 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. In this case, PW1 (the victim) did not seem to have been telling lies. As such, I am satisfied that PW1 was credible and was accordingly believed by the trial Court. In that stance, I find the allegation that the conviction was rooted on the incredible prosecution evidence devoid of merits. The Appellant also complained that none of the witnesses mentioned the dates of the incident. The learned state attorney argued that based on the evidence of the victim, the Appellant used to rape and sodomize her from sometime in 2019 when she was in standard two up to 2023. He referred to this Court page 6 of the Court proceedings. It was added further that it was difficult for the victim to remember the exact dates when the Appellant raped and or sodomized her. 18 I disagree with the Appellant that none of the prosecution witnesses mentioned the date of the incident. According to PW1 (the victim), up to the day she gave evidence, she was in standard six at Mshikamano Primary School. The Appellant used to rape her when she was in standard two. Initially, she testified that she stayed with the Appellant and her grandmother (DW2) between January 2019 to March 2023. The Appellant used to rape her many times. In such circumstances, I agree with the learned state attorney that, considering her age, it was difficult to memorize and mention the exact date of the incident because the Appellant used to rape and sodomize her many times between January 2019 and March 2023. In that stance, I find the argument devoid of merit, and I proceed to disregard it. That said, I dismiss the third ground of appeal. Arguing on the fourth ground of appeal, the Appellant complained that the learned trial Magistrate grossly erred in law and fact by convicting the appellant based on a case that was not proved to the required standards of the law. He also pointed out the contradictions in the victim's age between the victim herself (PW1), her mother (PW3) and the Charge. He beseeched this Court to allow the fourth ground of appeal. The learned state attorney referred this Court to the testimonies of PW1, PW2, PW3, PW4, and PW5, who he considered credible witnesses. He 19 supported the conviction and sentence meted out against the Appellant. As said before, 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. In this case, PW1 (the victim) did not seem to have been telling lies. Her evidence was supported by PW2, PW3, PW4 and PW5 and Exhibits PE1 (caution statement) and PE2 (PF3). Given that the best proof of rape (or any other sexual offense) comes from the complainant or victim, the complainant's credibility becomes the most important matter for consideration. The credibility of PW1 (victim) was highly unquestionable. The defense evidence did not cast any doubt. In the premises, I find the argument worthless and dismiss it. While, down to the end, I will not discuss the question of contradictions between the charge and the evidence regarding the age of the victim anymore. This is because the same was resolved when I addressed the first ground of the Appeal. In the same vein, I find the argument meritless and I dismiss it. In the final analysis, I find the grounds of appeal in the Petition of Appeal devoid of merit. I thus dismiss them accordingly. From what I have indevoured herein above, I wholesomely endorse and agree with the learned trial Magistrate that the offenses to which the 20 Appellant was charged were 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 31st October 2024. H.S. MTEMBWA JUDGE 21