Judgement DC

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI CRIMINAL APPEAL NO. 17977 OF 2024 (C/F Criminal Case No. 148 of 2023 in the District Court of Rombo at Mkuu) EXUPERY AKWILINI MUSHI…...…………….............................APPELLANT VERSUS REPUBLIC....………………………………………………….….RESPONDENT JUDGEMENT 25th November & 17th December 2024 MONGELLA, J. The Appellant was arraigned at the District Court of Rombo at Mkuu (henceforth, the trial Court) on two counts being: unnatural offence under Section 154 (1)(a) and (2) and rape under Section 130 (1), (2) (e) and 131 (1) both under the Penal Code [Cap 16 R.E 2022)]. The Particulars of the Offence were that: on 26.08.2023 at Mrao Mengeni Chini Village area within Rombo District and Kilimanjaro Region, the Appellant had carnal knowledge of a 07-year-old girl (the victim or PW1, hereinafter) and against order of nature. The appellant denied the charges levelled against him causing the case to proceed to trial. To prove the case, the prosecution paraded four witnesses. Its account was as follows: Page 1 of 19 The Appellant and PW1, the victim in this case, are father and daughter. PW1 resides with her grandmother (PW2), grandfather, young sister and two cousins. The Appellant visits them once in a while and on such times, he shared a bed with the victim and her young sister who normally slept between them. On 26.08.2023 the Appellant came home drunk and told the victim to sleep at the centre. He then told her to undress and put his penis into her vagina and anus. After he was done, he told her to switch the light on and she put on clothes. As she cried from the pain, PW2 inquired on why she was crying, but the Appellant replied that there was nothing. A few days later, PW1 reported to PW2 that she felt pains in her private parts “chuchu’ and could not sit properly. PW2 told her to bring her phone so that she could observe her bladder well as the electricity was off. Upon observing her, she found some discharge and her vagina hole was wide. PW2 inquired on who had caused such mischief and the victim informed her that it was her father, the Appellant. PW2 then informed the Appellant’s siblings and reported the incidence to the police. To prove the victim’s age, PW2 tendered her birth certificate which was admitted as Exhibit PE1. On 31.08.2023 the victim was taken to Huruma Hospital for medical examination conducted by PW3. Upon examining her female organ, PW3 found bruises and dried up blood. However, the hymen was however intact. Upon observing her anus PW3 found that the sphincter muscles loose. He thus concluded that a blunt object had penetrated her forcefully, but did not succeed to break the hymen hence the bruises around the female organ. In addition, he Page 2 of 19 concluded that the victim’s anus was found to have been penetrated by a blunt object. PW3 then filled the PF3, which was admitted as Exhibit PE2. On the same date of 31.08.2023, the Appellant was arrested. PW4 received the case file for investigation. The Appellant was eventually arraigned before the trial Court on 06.09.2023. The appellant’s evidence was to effect that: on 22.07.2023 he found out that his mother (PW2) had not paid his children’s school fees despite having given the same to her. He said that PW2 explained to him that she had invested the money in SACCOS as she was expecting to harvest crops and sell them to refund the money. Showing that he was not in good terms with PW2, he further defended that PW2 did not want his pregnant wife to come to her home and that he sold iron sheets following his father’s consent to get money for his wife after she had delivered their child, but PW2 reported them stolen to the Hamlet Chairman. He added that, there were some of the household items and nails that his mother had taken from his house. That the hamlet chairman had them resolve their dispute by him apologising, but PW2 was not happy about it and on 24.08.2023 PW2 separated the grandchildren and sent his children to sleep with him. He continued to explain that on 31.08.2023 at around 22:00hrs the police broke his door, arrested him and sent to the police. On 02.09.2023 around 10:00hrs, he was called and required to give his statement whereby he denied having done the acts he was Page 3 of 19 accused of. He further testified that PW2 had instructed the victim on what to say. He pointed out that since PW2 stated that she had dressed the victim on 27.08.2023, 28.08.2023, 29.08.2023 and 30.08.2023, if the incidence really happened, then she would have noticed on the very first instance and not after being informed by the victim on 30.08.2023. in his stance, PW2’s testimony was a lie. He insisted that he was the pillar of his family which depends on him and further faulted the evidence of PW3 alleging that he had not disclosed his observations upon medically examining the victim. On the ground that there was no any independent witness, he averred that the evidence by PW3 was fabricated. The Appellant further called the hamlet Chairman (DW2) to testify in his favour. DW2 who had resolved the dispute between the Appellant, PW2 and his father testified in regard to having resolved the alleged dispute. He also stated how the Appellant accused PW2 for taking some household items from the Appellants home. His testimony was on the conflict he resolved, but not the offence at hand. Upon hearing both parties, the trial Court found the charges against the Appellant proved beyond reasonable doubt and convicted him of both offences. He was sentenced to serve life imprisonment term for the count of unnatural offence and 30years imprisonment term for the offence of rape. Aggrieved, he has preferred this appeal on the following grounds: Page 4 of 19 1. That, the learned trial Magistrate grossly erred both in law and fact in failing to note that there were variances between the charge sheet and the evidence on record. 2. That, the learned trial Magistrate grossly erred both in law and fact in failing to note that, the PW1 and PW2 were self- confessed liars whose evidence was supposed to be approached with great caution as it demonstrated a manifest intention or desire to lie in order to achieve or attain a certain end. 3. That, the learned trial Magistrate grossly erred both in law and fact when failed to consider and determine the strong, unchallenged and well supported defense evidence put up by the Appellant and make a reference of it in his judgment which is contrary to natural justice and unsettles the judgment. 4. ⁠That, the learned trial Magistrate grossly erred both in law and fact in using weak, tenuous, contradictory, inconsistent, uncorroborated, incredible and wholly unreliable prosecution evidence as a basis of the appellant's conviction. 5. That, the learned trial Magistrate grossly erred both in law and fact in convicting and sentencing the Appellant despite the charge being not proved beyond reasonable doubt Page 5 of 19 against the Appellant and to the required standard by the law. The schedule to dispose this matter vide written submissions was duly fixed, but the Appellant could not comply. Instead, he prayed to file additional grounds of appeal and requested for all his grounds to be adopted as his submission in chief. The request was unopposed and this Court granted the same. His additional grounds were as follows: 1. That, the appellant was convicted and sentenced on a defective charge. 2. That, the trial magistrate erred in law and fact to convict him by relying on sign of blunt object in the PF3 which does not prove the offences of UNNATURAL OFFENCE and RAPE as required to the law. (sic) 3. That, there was no penetration of the male penis into the victim's vagina. It was utmost important to lead evidence of penetration and not simple to give a general statement alleging that RAPE was committed without elaborating what actually took place. 4. That, apart from the fact this was a contravention of the law. (sic) Page 6 of 19 5. That, the trial magistrate erred in law and in fact to convict and sentence the appellant where failure to recognize the incredibility of prosecution witnesses their wobbly evidence adduced (see page 4,5,7,11,13 and 14 of the typing proceedings). (sic) 6. That, the trial magistrate grossly erred in law and in fact for failure to evaluate the evidence on the record in order to separate the chaff from the grain and later convict the appellant on unreliable evidence, incredible witnesses and contradictory evidence. 7. That, the prosecution evidence which adduced in the trial court had fatal discrepancies to prove the offence of UNNATURAL and RAPE. (sic) 8. That, the trial magistrate erred in law and in fact by convicting and sentencing the appellant in the base of a planted case on the appellant. (sic) The Respondent under representation of Ms. Edith C. Msenga, learned State Attorney, filed her written submissions in reply to the grounds. Ms. Msenga consolidated the 1st ground of appeal with the 1st additional ground of appeal. She contended that there was no variance between the charge and evidence on record as the elements of the offence as displayed on the charge were all Page 7 of 19 proved by the prosecution beyond reasonable doubt. She averred that the prosecution paraded the victim herself as a witness who by virtue of Section 127(6) of the Evidence Act is the best witness in these offences. She pointed that the victim testified that she resides with the Appellant, her grandmother and two of her siblings and she used to sleep on one bed with the Appellant. On 23.08.2023, the Appellant came back, told her to undress and inserted his penis into her vagina and anus. Cementing on the credibility of the victim’s evidence, the learned State Attorney contended that PW1’s testimony was corroborated by that of PW2 who lives with her. She explained that PW2 heard the victim crying on the night of 26.08.2023 when she was sleeping with the appellant and when she inquired on what was wrong, the Appellant replied that there was no problem. She further explained that the victim narrated to PW2 that the Appellant had inserted his penis into her vagina and anus. Regarding the victim’s age, she contended that the PW2 presented the birthdate of the victim being on 13.11.2015 which meant that the victim was 7 years old as stated in the charge. In the premises, Ms. Msenga had the firm view that the charge was proved. Ms. Msenga further banked on the medical record of the victim. She pointed out that PW3 examined PW1 on 31.08.2023 at Huruma Hospital whereby he reported to have found the victim’s vagina with bruises and dried up blood, which was a result of a blunt object forced to penetrate, but did not succeed rendering her hymen to remain intact. She further argued that there was however full Page 8 of 19 penetration of the anus as the victim’s sphincter muscles were found loose. Referring to Bariki Israel vs. Republic (Criminal Appeal 444 of 2007) [2011] TZCA 33 (18 February 2011) TANZLII, she contended that the slight penetration of the vagina was still proof of rape. She insisted that the two counts were proved by the prosecution. Submitting on the 4th ground, which she consolidated with the 3rd, 4th and 5th additional grounds; Ms. Msenga averred that there were no major contradictions going to the root of the matter or those raising doubts on the prosecution evidence on any other elements of the offence. In her view, all prosecution witnesses’ testimony matched regarding to the date, time, place of incidence, offences committed, how they were committed and by who. Concluding on these grounds, she contended that any contradictions not touching the root of the case are curable as under Section 388 of the Criminal Procedure Act. On the 6th additional ground Ms. Msenga averred that the appellant failed to convince the trial Court that PW2, his mother, had fabricated the case against him due to the alleged issues between them. She added that DW2 testified on the said issues being resolved and the trial Court found no connection between the conflict between the Appellant, PW2 and the charges levelled against the Appellant. She insisted that the victim was the Appellant’s daughter and her evidence is the best evidence to prove the offences against her father. Page 9 of 19 Addressing the 2nd additional ground, the learned State Attorney contended that the victim proved that the Appellant inserted his penis into her vagina and anus. She added that the PF3, as evidence by a medical expert, was merely persuasive and meant to corroborate key witnesses’ testimonies and evidence. In her stance, the trial Court did not solely depend on the PF3 to prove penetration, but rather the PF3 was a mere medical opinion not binding to the trial Court as well observed by the trial Court in its judgement. Ms. Msenga thus urged this Court to ignore the argument that the PF3 did not prove penetration as PW3 explained there being bruises in the victim’s vagina and that despite the presence of the hymen, still a blunt object had been forced to penetrate without success. In her view, such findings show that there was slight penetration which is sufficient to prove rape. She referred the case of Bariki Israel (supra) to bolster her stance. As to the 3rd ground, she averred that the trial Court considered the Appellant’s testimony when making its decision. She challenged the Appellant’s testimony for failure to raise any doubt on the prosecution case. Arguing further, she contended that the trial Court summarized the defence evidence at page 7 to 11 of its Judgement and considered the same at page 12, but found no merit in the defence. Replying on the 5th ground, Ms. Msenga insisted that the case against the Appellant was proved beyond reasonable doubt as Page 10 of 19 required under Section 110 (1) and (2) of the Evidence Act. She averred that the prosecution was required to prove penetration of both the vagina and the anus by the Appellant and that the victim was below 18 years of age. She insisted that penetration was proved by the victim (PW1) herself whose testimony was corroborated by that of PW2 and the medical opinion of PW3. Arguing further, Ms. Msenga contended that the victim recognized her father as he came home drunk and switched on the lights, told her to undress and inserted his penis into her vagina and anus. As to the victim’s age, she argued that PW2 testified that the victim was born on 13.11.2015 and tendered the birth certificate which was admitted as exhibit PE1. In that regard, Ms. Msenga urged the Court to be bound by the legal principle that age can be proved by birth certificate as settled in Abdul Akwilina Mramba & Others vs. Republic (Criminal Appeal No. 342 of 2021) [2024] TZCA 704 (9 August 2024) TANZLII. Ms. Msenga finalized her submissions by praying for the Court to dismiss the appeal and uphold the trial Court’s decision and sentence meted against the Appellant. I have objectively considered all grounds of appeal as well as the opposing submissions by Ms. Msenga. I have as well gone thoroughly through the trial Court record. Upon observing the grounds of appeal, I found that save for the 1st additional ground and 3rd ground of appeal, the rest are on matters regarding evidence. I will therefore resolve the 1st additional ground and the 3rd ground of appeal separately and consolidate the rest. Page 11 of 19 With respect to the 1st additional ground, the Appellant alleged that the charge was defective. However, as he never submitted on his grounds of appeal, the alleged defect was never pinpointed. Ms. Msenga took this ground to relate to the 1st ground of appeal as to variance between the charge and evidence. Defectiveness of a charge may include the same missing necessary crucial details such as the date the offence took place, location, name of assailant. It also includes the failure to disclose an offence known to law. The importance of a charge was well emphasized in the case of Francis Fabian @ Emmanuel vs. Republic (Criminal Appeal No. 261 of 2021) [2023] TZCA 17936 (12 December 2023) TANZLII, where the Court of Appeal stated: “We presuppose, it is an elementary knowledge of criminal justice that, the cornerstone of any criminal trial is the charge sheet. The charge sheet is the heart, brain and blood of criminal justice and fair trial. It plays a duo role of informing the accused person on the nature of his accusation and allow him to prepare his proper defense. Apart from that, the charge sheet notifies the trial court on the subject matter with a view to determining its jurisdiction and prepare the proper procedure to be applied during trial. Therefore, the charge sheet is the most important document in any criminal trial.” Section 132 and 135 of the Criminal Procedure Act [Cap 20 RE 2022] provides details on what a charge should contain. Section 132 of the Criminal Procedure Act states: Page 12 of 19 “132. Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” Upon viewing the charge, I found that the requirements set were well observed. The charge contained two counts and a statement of both offences was well provided in each count disclosing unnatural offence on the 1st count and rape on the 2nd count. The particulars of each offence were well articulated to show the vital ingredients of the two offences as per the provisions the Appellant was charged under. The details included the date of the incidence, place and name of the Appellant as well as the victim and her age. In that regard, the allegations on the form of the charge being defective cannot stand. As on the 1st ground, the Appellant challenged the charge for being in variance with evidence, I will resolve this ground along with the consolidated grounds which challenge on whether the offence was proved beyond reasonable doubt. As I indicated at the beginning of this judgement, the particulars of the offence disclose that the incidence took place on 26.08.2023 at Mrao Mengeni Village area within Rombo District. There was no conflict as to where the incidence took place. The Appellant herein faced two counts being; unnatural offence and rape. The elements of unnatural offence include penetration of the anus by a male Page 13 of 19 member. Consent is immaterial. This was well explained in Joel s/o Ngailo vs. Republic (Criminal Appeal 344 of 2017) [2019] TZCA 314 (29 August 2019) TANZLII, where the Court of Appeal stated: “Penetration, however slight into the anus, with or without consent; is an essential ingredient of unnatural offence under section 154 (1) (a) of the Penal Code. Proof of penetration is the main ingredient that makes this offence complete.” As to the offence of rape, the key ingredient thereto is penetration of the male member into a vagina. As the victim in this case is a child under 18 years old, the offence disclosed in the provisions under which the Appellant is charged is commonly known as statutory rape as consent of the victim is immaterial. Explaining statutory rape, the Court of Appeal in Mussa Sebastiani vs. Republic (Criminal Appeal 406 of 2018) 2021 TZCA 119 (15 April 2021) (1), stated: “The general rule is that, sexual intercourse is categorized as lawful or unlawful depending on whether or not there is consent from the female complainant. However, statutory rape under section 130 (2) (e) of the Penal Code with which the appellant was charged is an exception, in that it is considered to be rape whether or not the victim consents to the sexual intercourse.” See also: Issaya Renatus vs. Republic (Criminal Appeal 542 of 2015) [2016] TZCA 218 (26 April 2016) TANZLII. In this case, the two offences were committed under the same transaction. PW1, the victim, testified that on 26.08.2023, her father, Page 14 of 19 the Appellant came back home at night and entered the room which she shared with him and her young sister. It was then that he told her to undress, undressed himself and inserted his penis into her vagina and then her anus. She herself stated: “Akachukua kidudu chake akaniingizia mbele na nyuma. Mbele ninapokojolea na nyuma ninaponyea kidudu cha baba kipo mbele anapokojolea” The record shows that after the said acts, the Appellant ordered the victim to turn on the light and dress up and afterwards switched the lights off to sleep. The victim cried after the ordeal. PW2 heard her crying on the material day, but after inquiring on why she was crying, the Appellant assured her that there was no problem. After several days as she felt pains in her private parts, she decided to eventually inform PW2 of the pains she suffered. It was then that PW2 inquired further on the issue as far as to note that this was not a simple issue of an infection as the victim could not sit properly as a result of the pains she felt. Having observed her private parts, she found them in an abnormal state as her vagina was open. PW2 thus inquired on what had happened and the victim immediately mentioned the Appellant as her assailant. It was after the incident that PW1 was sent to the police and eventually the hospital whereby PW3 examined her and found bruises in her labia majora, dry blood spots around her female organ, while her hymen was still intact. PW3 further found, loose sphincter muscles and faecal matters around her anus. Such facts Page 15 of 19 were well documented in the PF3 admitted by the trial Court as exhibit PE2. Testifying on the said observations, PW3 stated that the weakened sphincter muscles served as proof of penetration of the anus by a blunt object while the hymen showed there was no total penetration of the vagina. All these details prove that PW1’s vagina and anus were penetrated. The fact that the hymen was intact does not render the offence of rape unproved. It is settled that penetration however slight amounts to rape. Facing akin situation in Bariki Israel (supra) the apex Court stated: “Under section 130(4) (a) penetration however slight is sufficient to constitute the sexual intercourse necessary for the offence of rape. Both PW1 and PW2 said that PW3 said the appellant put his penis in her vagina. As PW1 followed the appellant in his room, he found him holding his trousers down on the knees and his penis was erected. The mere fact that the victim's hymen was not ruptured does not mean that the offence of rape was not committed. According to the ingredient of the offence of rape, no matter how slight the penetration is, it constitutes the offence of rape.” As to the age of the victim, the same was proved by her own testimony and that of PW2 who also tendered PW1’s birth certificate (exhibit PE1), which shows that she was born on 13.11.2015. The testimony of the two witnesses and the exhibit sufficed to prove her age. This is because the age of the victim can be proved by the victim, parents, relative/guardian or through birth certificate. See Issaya Renatus (supra); Abdul Akwilina Mramba & Others (supra) and; Mustafa Ally vs. Republic (Criminal Page 16 of 19 Appeal No 103 of 2021) 2024 TZCA 550 (12 July 2024) TANZLII. In Issaya Renatus (supra)the Court stated: “We are keenly conscious of the fact that age is of great essence in establishing the offence of statutory rape under section 130 (1) (2) (e), the more so as, under the provision, it is a requirement that the victim must be under the age of eighteen. That being so, it is most desirable that the evidence as to proof of age be given by the victim, relative, parent, medical practitioner or, where available, by the production of a birth certificate.” It is imperative to note that the concern on the age of the victim was never raised at any point by the Appellant who is the biological father of the victim. The age of the victim was thus proved to be 7 years. As to the credibility of prosecution witnesses, I found no alarming details to suggest fabrication of the case. PW1, the victim, and whose evidence is the best herein as stated in in Selemani Makumba vs. Republic, [2006] TLR 379, had a very detailed account on what transpired on the material. This included the fact that her younger sibling slept at the middle before she was told to move to such position and the fact that the Appellant told her to dress and later required her to turn on the light to dress up. Even as the Appellant tried to show that he was not the assailant, the victim kept on giving details of the material night and how she could identify the Appellant whom at the end of the incidence stayed with her in the room and the same bed. During re-examination, Page 17 of 19 the victim insisted that it was the Appellant and not anyone else who did such acts to her. She stated: “My father told me to undress clothes. After I undressed the clothes, my father inserted his manhood in me, no any other person has inserted his manhood in me at the room the bulb was on, my father told me to switch it on.” From such observation, I find it clear that there was no room for mistaken identity as the Appellant tried to suggest when cross examining the victim (PW1) and during his own cross examination. Although details on the sitting room bulb being missing or otherwise were used to suggest that PW1 was being untruthful. I find her explanation on there being an opening on the roof allowing light to penetrate the room and her testimony on being told to switch on the light serves to prove that she indeed knew her assailant. In addition, the victim as well had a conversation with the Appellant prior to the incident and proceeded to share a bed with him after the incident. Her cry after the incident was also heard by PW2 who inquired on why she was crying, but the Appellant assured her she was okay. This proves that even PW2 recognized the Appellant’s voice. Another contradiction is seen in the evidence of PW4 who alleged the offences to have been committed on 30.08.2023. Still, since she was not a core witness, and appears to have only taken part in the investigation of the case on 02.09.2023 after most of the processes had been completed, I find that her varying details do not discredit the evidence of PW1 and PW2 who are key witnesses in the case. Page 18 of 19 The appellant contended that his defense was not considered. Upon observing the trial Court Judgement, I found the defence case being summarized at page 7, 8 and 9 of the Judgement. The trial Court further considered the defence evidence in its findings as found on page12 of the Judgement. There was in fact not much for the trial Court to focus on as the entire defence evidence was based on the alleged conflicts between the Appellant and PW2, his mother. This conflict seemed to be based on the notion that PW2 did not like his wife and how PW2 allegedly spent the victim’s and her young sister’s school fees and even squandered his household goods. Despite such issues, PW2 assured the trial Court that the conflict had nothing to do with the matter before the Court. She even tried to defend his character in her testimony. In essence, there were no doubts raised by the Appellant in defence as to suggest fabrication of the case against him. Considering my observation hereinabove, I find, just as the trial Court, that the prosecution proved both counts beyond reasonable doubt. I therefore find no merit in this appeal. The conviction and sentence by the trial Court are hereby sustained. The appeal stands dismissed. Dated and delivered at Moshi on this 17th day of December, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 19 of 19