Criminal Appeal 26582 of 2024 Judgment NangelaJ

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA DISTRICT REGISTRY AT SUMBAWANGA CRIMINAL APPEAL NO. 26582 OF 2024 (Originating from the decision of the Resident Magistrate Court of Sumbawanga at Sumbawanga in Criminal Case No. 9100 of 2024) BETWEEN PASCHAL AMBROZ @ NTINDA................................. 1st APPELLANT MOHAMED NASORO @ SEIF................................... 2nd APPELLANT VERSUS THE REPUBLIC............................................................ RESPONDENT Last order: 21ST October 2024 Judgement: 11TH December 2024 JUDGMENT NANGELA, J:, The Appellants, Paschal Ambroz @ Ntinda and Mohamed Nasoro @ Seif were charged with and convicted of the offence of gang rape of a child aged 17 years old. The offence was committed contrary to section 130 (1) (2) (e) and 131A (1) (2) of the Penal Code, Cap 16 RE 2022. The brief facts as per the prosecution’s case are to the effect that, on 21st day of March 2024, at Kisiwani area within Sumbawanga Municipality in Rukwa Region, the appellants, one Page 1 of 20 after the other, did have sexual intercourse with a minor, one MA@M. After a successful trial of the matter, the trial court found the appellant’s guilt. They were both convicted and sentenced to life imprisonment. Aggrieved, the Appellants appealed to this court seeking to overturn the trial court’s decision. Armed with that intent, they raised seven grounds of appeal, to wit, that: 1. That the offence which the appellants were charged with was not proved beyond all reasonable doubts as required law standard. 2. That the trial court erred in law and in fact by sentencing the appellants relying on the prosecution side without taking into consideration that the prosecution side failed to tender a video clip which alleged to be recorded at the scene of the crime also no letter from forensic bureau for the court to satisfy itself [about its authenticity]. 3. That the trial court erred in law and fact by sentencing the appellants based on the extra judicial statements of the appellants without taking into consideration that such were recorded illegally because the justice of peace failed to show exactly where the appellants slept before attending Page 2 of 20 before him, a circumstance that prejudiced the rights of the appellants. 4. That, the trial magistrate totally erred in law and in fact by convicting and sentencing the appellants relying on the weakness of the appellants and not on the strength of the prosecution case given that the prosecution side failed to call one Nyala who was alleged to be a motorcycle driver to prove the allegation against the appellants. 5. That, the trial magistrate erred in law and in fact by convicting and sentencing the appellants while there was a possibility that Pw-2 planted the case against the appellants as she failed to raise alarm at the time the alleged offence was being committed. 6. That the trial magistrate misdirect himself by passing sentence for the appellants relying on the evidence adduced by prosecution side while disregarding that there was no certificate seizure which shows that the phones of the appellants was seized (as Pw-5 testified) but also no chain of custody was tendered to prove where the said phone were kept after being seized from the appellants. 7. That the trial court erred when he both convicted and sentenced the Page 3 of 20 appellants without considering that evidence from the Pw-1 which was to the effect that he found nothing except that the victim had a bruise in her vagina. Further that, Pw-1 failed to note that the bruise could be caused by walking for long time or by riding a bicycle or carrying out heavy duties. Based on such grounds of appeal, the appellants urged this court to quash the conviction and set aside the sentence imposed, thereby setting them free. During the hearing of this appeal the Appellants appeared in persons, unrepresented while Mr. Jerinus, a learned State Attorney, appeared for the Respondent/Republic. In support of his appeal, the 1st Appellant submitted that, the prosecution failed to prove the case to the required standards. He contended that a video alleged to have been recorded, when the alleged rape took place, was not presented in court and, for that matter, the appellants prayed that, their first ground of appeal be considered. In a further support of the appeal, the 2nd Appellant submitted that the prosecution did not bring an eyewitness to testify to the court and, that, after the appellants’ arrest. He Page 4 of 20 submitted that, the appellants’ phones were seized but there was no evidence of chain of custody. He prayed his grounds of appeal be considered. In reply to the submission by the Appellants, Mr. Jerinus opposed the appeal, and he went on submitting on ground three, arguing that the Justice of the Peace (PW-4), whose testimony is on page 27-30 of the proceeding, did tender Extra Judicial Statements (admitted as Exh.PE2 and PE3). According to Mr. Jerinus, Pw-4 did explain how the first appellant came to the court to register Exh.PE-2 and, as for the 2nd appellant, the submitted that the record shows what Pw--4 told the court regarding where the 2nd appellant was when he was brought to register the statement. Mr. Jerinus submitted that nowhere was there any cross examination on the point so far raised by the appellants herein during trial and, hence, their ground of appeal is baseless. As regards the appellants’ sixth ground of appeal, regarding certificate of seizure and chain of custody, Mr. Jerinus submitted that, since the phone was not tendered in court, there was no need for such a certificate. He contended that the prosecution Page 5 of 20 had more evidence to prove the offence other than the phone, which was not even tendered in court. As regards grounds, 1, 2, 4, 5 and 7, the Learned State Attorney submitted that, during trial of the appellants, the offence was proved. He contended that, in an offence as the one for which the appellants were found guilt, convicted and sentenced, three ingredients need to be established, namely: (1) the age of the victim (2) that there was penetration of the male genital organ to the female genital organ of the victim by more than one person and (3) the accused (now appellants) were the culprits who did that act. He contended that all such ingredients were fully proved. Referring this court to pages 14-15 of the proceedings of the trial court, Mr. Jerinus contended that, the testimony of Pw- 1 (the doctor who examined the victim) and Pw-2 (see pages 16-17 of the proceedings), Pw-3 (the mother of the victim) (from page 18) of the proceedings, Pw-4 (from Page 27-30) of the proceedings and as well as the testimony of the last witness (Pw-5) (page 32-34), all support the case for the prosecution. As regards the issue of age, he contended that the victim did establish it. According to Mr. Jerinus, the victim’s testimony was supported by Pw-3. He confidently argued, therefore, that, that issue was fully established. As regards the issue of penetration, it was Mr. Jerinus’ submission that Pw-2 explained how she met the two appellants and where they took her and raped her in alternate. He submitted that, Pw-2’s testimony was fully supported by that of Pw-1, the doctor who examined the victim and established that she was penetrated by a blunt object. In addition, the learned State Attorney referred this court to the PF-3 which was admitted as exhibit PE-1. He contended that, this evidence of the victim was rightly believed by the trial court given that, in law, the best evidence is that of the victim. He urged this court to also believe Pw-2’s testimony. He submitted further that, although pages 16-17 of the proceedings reveal that the incident took place during the night, the fact to consider is that the appellants were well known to the victim. In that regard, it was Mr. Jerinus’ submission that the victim was able to identify the victims well given that where she was sent and raped, there were electricity lights. He maintained, therefore, that the victim was able to recognize the appellants. Page 7 of 20 To further strengthen his submission, it was Mr. Jerinus’ contention that, the victim did even testify how much time the appellants spent with her when they were raping her. According to Mr. Jerinus, the victim underwent the ordeal in the hands of the appellants was for almost four hours, and she explained well who was the first appellant to started and who followed afterwards. Relying further on the extrajudicial statements made before Pw-4 by the appellants, Mr. Jerinus submitted that, such statements do tally well with what Pw-2 stated. Based on such a testimony of Pw-2, it was the submission of Mr. Jerinus that there was sufficient evidence to convict the appellants, and that, this court should accept the testimony of the victim. Mr. Jerinus submitted further that, even if there is a contention that one Nyala s/o ?, who was a Boda-boda operator, was not called as a witness, the fact remains that the evidence on the table was sufficient. He contended that, such a witness could have been useful if the victim was unable to tell what happened to her and who was involved in doing it. Page 8 of 20 Based on that reasoning, he maintained that, not calling Nyala s/o? as witness had nothing material to alter the scales of the prosecution case. Mr. Jerinus submitted that, in their defence, the appellants did admit their offence. Referring this court to pages 39 to 40 of the proceedings, he contended that such a fact is clear to that effect. He thus bolstered his submission by placing reliance on the case of Isaya Athanas vs. Republic, Appeal No. 435 of 2012 (at page 12) concerning the admission or plea of the accused. He contended that, since the accused persons pleaded guilty, they should not be allowed to complain, and this court should proceed to dismiss this appeal without any hesitation. In a brief rejoinder, the first appellant rejoined that, all that has been said by Mr. Jerinus were a lie. He pressed that this court should release him forthwith. His rejoinder submission was supported by the 2nd appellant who also pressed that he be released. Having carefully considered the record of appeal, the grounds of appeal and the parties’ submissions, the only issue before me is whether the case against the Appellants was Page 9 of 20 proved beyond reasonable doubt as required by section 3 (2) (a) of the Evidence Act. However, before I turn to dispose of the first ground of appeal, that the offence was not proved beyond reasonable doubt, I find it apposite to dispose of the rest of the grounds number 2 to 7 first. In their second ground of appeal, the appellants contend that the trial court erred when it sentenced the appellants relying on the prosecution’s evidence but without considering that the prosecution side failed to tender a video clip alleged to have been recorded at the scene of the crime, and without there being a letter from the forensic bureau that examined the same for purposes of authenticity. Essentially, a video clip in evidence will fall under the class of electronic evidence. Under the Law of Evidence Act, Cap 6 RE 2022, such evidence is admissible as documentary evidence. Section 64 (1) of the Evidence Act read together with section 18 of the Electronic Evidence Act, 2015 (as amended) applies to that. But the question to muse is whether such failure affected the case before the trial court. In other words, in the absence of such piece of evidence, was the trial court crippled in its decision making over the fate of the appellants? Page 10 of 20 The simple and candid response will be a no response. I hold it that way because I am in full agreement with learned State Attorney that, in proving the offence which the appellants were charged with, the trial court had the opportunity to consider all other evidence that was laid before it. Whether such was sufficient or not is another issue to be discussed separately afterwards. For the reason, the second issue is a non-starter. As regards the third issue, the issue is whether the extra­ judicial statements of the appellants were recorded illegally. In their arguments, the appellants hold that the Justice of the Peace failed to show where the appellants had spent their previous night before they were brought to him for purposes of recording their extra-judicial statements. As per the record of the trial court, the extrajudicial statements were admitted as Exh.PE-2 and Exh.PE-3, and both were recorded by PW4. As I look at these exhibits, they do show that the appellants slept at Sumbawanga Police Station before being brought to the attention of Pw-4, a Justice of the Peace for purposes of voluntary recording their extra-judicial statements. That would mean that, the alleged failure by the appellant does not exists. Page 11 of 20 From the record of the appeal, my concern is whether the documents in dispute was read out in court after their respective admission. I have taken time to through the entire record of the trial court. There is indeed an indication that the prayer by the Learned State Attorney who appeared before the trial court prayed that the witness be allowed to read out the contents of Exh.PE-2 as well as Exh.PE-3. But as I look at pages 30 and 31 of the typed proceedings nowhere the trial magistrate recorded that the contents of the said exhibits were actually read out in court. Should it be presumed that the requirement to read out such documents was complied with? According to the case of Robinson Mwanjisi and Three Others vs Republic [2003] TLR 218, it is a requirement of the law that after a document has been cleared for admission and granted an exhibit number, there should be the reading out of its contents. In these circumstances of this case, even if I find nothing indicating that the trial court allowed the reading of the documents after admitting them, a presumption does exist that the same were read over following the prayer by the prosecution that the same be read over aloud to the court after they were Page 12 of 20 admitted as exhibits. With such observation, I find the third ground is also without merits. As regard the 4th ground of appeal, that the appellant alleged that the prosecution side failed to call one Nyala s/o ?, a motorcycle rider (Boda-boda) to testify against the appellants. In his submission, the learned State Attorney contended that a person by the name of Nyala was not an important witness to testify and his absence did not alter the scales of justice. I find the submission by Mr. Jerinus, the learned State Attorney to be sound and acceptable. In essence, it is not the number of witnesses that makes out a successful case but the content of their testimonies and the importance of a particular witness. See section 143 of Tanzania Evidence Act, Cap 6 RE 2022. See also the case of Yohanis Msigwa vs Republic [1990] TLR 148. It follows, therefore, that, a witness who is not material witness to the prosecution case can bring no harm to that prosecution case especially where other material witnesses can ably prove that particular case to the requisite standards. That means, that, even a single witness can establish the prosecution Page 13 of 20 case provided that the court finds such a witness to be credible and reliable. Besides, the prosecution side is at the liberty of calling any witness whom they think can prove their case beyond reasonable doubt. It is on that basis; I do not see anything fatal on the part of the prosecution for not calling the said Nyala s/o? as a witness to testify in court. His absence does not affect the prosecution case nor does alter the scales of justice. In mean time, I also find that the fourth ground of appeal has no merit. As regards the fifth ground of appeal, the argument fronted by the appellants is that, at the time the alleged offence was committed the victim failed to raise an alarm, thus there is a possibility that the victim had just framed up the allegations against them. In my view, although Mr. Jerinus, the learned State Attorney, did not specifically address this argument, the testimony of Pw-2 (the victim) does show that when victim testified, she told the trial court that she could not rescued herself as the appellants being two, they were much stronger than her. Further, when crossed examined by second accused (now 2nd appellant) the victim stated that she was threatened by the Appellant. In that Page 14 of 20 regard, it is my firm view that the victim in question could not have raised alarm at the scene of crime after being threatened by the Appellants. The fifth ground is thus unmerited. Concerning the sixth ground of appeal, I would agree to the submission by the learned State Attorney that the non­ tendering of the appellants’ mobile phones in court, as well as a certificate of seizure and chain of custody in court has no impact on the prosecution case. That means, therefore, that, the sixth ground raised by the Appellants is as well devoid of merit. The court had other evidence to rely on. As regards the last ground of appeal, the appellants have contended that Pw-1, a Medical Doctor failed to take note of the fact that the bruises he found in the victim’s virgina could also have been caused by walking for long time or riding a bicycle or carrying out a heavy duty. However, as the record of the trial court reveals, when Pw- 1 was crossed examined by the trial court, he made it clear that Pw-2 was penetrated by a blunt object. For that matter, the argument made by the appellants should as well be dismissed. I now revert to the consideration and analysis of the first ground. The issue regarding this ground of appeal is whether the Page 15 of 20 prosecution case was proved as required in law. In law, it is trite that the burden of proof in criminal cases lies on the prosecution, and they have a duty to discharge on a beyond reasonable doubt standard. It is also trite, as rightly argued by Mr. Jerinus, the learned State Attorney, that, in an alleged statutory offence of gang­ rape, the ingredients that needs to be proved are three: (a) the age of the victim of below 18 years old; (b) that there was penetration of the male genital organ to the female genital organ of the victim (by more than one person); and (c) that, the accused persons (now appellants) were the culprits who did that act. In his submission, Mr. Jerinus contended that all such ingredients were fully proved. The question that follows is whether such elements were established by the prosecution to the required standard set by the law. In my view, the response to the above question is in the affirmative as I will demonstrate here below. Page 16 of 20 First, it is trite law that the best evidence in a sexual offence case comes from the victim (see the case of Seleman Makumba vs Republic, [2006] TLR). In this case at hand, the victim, who testified as Pw-2, did sufficiently proved that the two appellants dragged her to a certain house and raped her one after the other. In essence, her evidence was corroborated by Pw-1 who testified that having examined the victim he found her with bruises in her vagina, signifying that she was penetrated by a blunt object. The issue of penetration was thus proved not just by the victim herself but also Pw-1. Secondly, the age of the victim was proved to be under 18 years, meaning that, the issue of her consenting to the act or not is immaterial. As the record bears, the testimonies of Pw-2 and Pw-3 did fully support the view that, as a victim of gang rape Pw-2 was 17-year-old at the time of the incident. Essentially, as it was stated in the case of Andrea Francis vs. Republic, Criminal Appeal No. 173 of 2014, the Court of Appeal held that this type of rape is referred to a statutory rape; and that, to be proved it must be established first and foremost that the victim was under eighteen years of age. Page 17 of 20 Thirdly, and in connection to the above, the appellants themselves did admit, in their defence, of having had sexual intercourse with the victim. Essentially, in law, where an accused person makes own free admission or plea of guilty and it is resolved that such plea of the accused is unequivocal, he/she should not be entertained afterwards on appeal unless he is challenging the sentence. Instead, what the court, on appeal, should do, once satisfied that the plea was unequivocal, is to proceed to dismiss the appeal without any hesitation. See the case of Isaya Athanas vs. Republic, Appeal No. 435 of 2012. In the upshot of the above analysis, this court is satisfied that the prosecution side was able to prove its case beyond reasonable doubt. In the totality of the matter, therefore, the first ground of appeal is likewise devoid of merit and should crumble. Having dealt with all grounds of appeal, this court is contented by the findings of the trial court that that the offence of gang rape against the Appellants was proved beyond reasonable doubt and confirms that the appellants were rightly convicted and sentenced by the trial court. Page 18 of 20 In passing, I should record my concern on the alarming speed of moral erosion evinced by acts of sodomy, rape, gang rape, and the like among the youth. It seems as if our present society has been invaded and engulfed in a rancorous and monstrous spirit of lasciviousness since a visit to the penitentiary institutions indicates many long sentence serving inmates include those convicted of sexual. The bad and saddening side of it is that many of them are young men in their early 20s to 35 years or so. All this sends a signal that a serious and combined moral-ethical-cum-socio- economic policy consideration needs to be embarked on to term the crippling situation from a family to national levels lest it is too late. Taking legal sanctions is necessary as it is of now but dependence on the legal sanctions alone seems to be challenging. Sad as it might seem to be, still the fact will remain that whatever a man sows that will he reap. The appellants chose to sow on the flesh by failing to tame their insatiable lusts and from there they have reaps such a life-serving sentence at such age as theirs. They, however, still have a chance to appeal to the court of appeal if they so wish but, in this court, I am satisfied Page 19 of 20 that their conviction and sentence was meted out justly and based on the law. With those few remarks I find the appellants appeal is without merit and I hereby dismiss it in its entirety. It is so ordered. DATED AT SUMBAWANGA ON THIS 11TH DAY OF DECEMBER 2024 DEO JOHN NANGELA JUDGE Right of Appeal Fully Explained Page 20 of 20