JUDGMENT DC CRIMINAL APPEAL NO OF 2024 AYUB PAMAN VS REPUBLIC FINAL NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA DC CRIMINAL APPEAL NO. 30904 OF 2024 (Arising from Criminal Case No. 25047 of 2024 of the District Court of Manyoni at Manyoni before Hon. S.J. Kanyiga-2, RM dated 23rd October, 2024) AYUB S/O PAMAN.........................................................................APPELLANT VERSUS THE REPUBLIC.........................................................................RESPONDENT JUDGMENT 14th & 22nd November, 2024 KAGOMBA, J Ayub S/O Paman (henceforth "the appellant") was convicted by the District Court of Manyoni (henceforth "the trial court") of raping one AA (Real name withheld to protect her dignity), aged 75 years, contrary to section 130(1),(2)(a) of the Penal Code, [Cap 16 RE 2022]. It was alleged before the trial court that the appellant committed that shameful act in the evening of 23rdAugust, 2024 at Msemembo village within Manyoni District in Singida Region. Despite denying the charge, the trial court found the offence proved beyond reasonable doubt, hence convicted the appellant of the same eventually sentenced him to serve a thirty-years' 1 jail term. The trial court further ordered the appellant to pay compensation of TZS 1,000,000/= to the victim, after completion of the jail term. Being aggrieved, the appellant is here before this court challenging both the conviction and the sentence rendered against him. At the hearing, the appellant fended for himself while the respondent was represented by Ms. Mulongo Tenge, learned State Attorney. Addressing the court, the appellant who is a lay person, denied committing the offence and alleged that the same was committed by some other unnamed people, who were drinking with the victim. He thereafter prayed the court to consider his grounds of appeal, which were listed as follows: - 1. That, the trial Magistrate erred in law and in fact by convicting and sentencing the appellant while he did not confess to commit the offence before a justice of the peace. 2. That, the learned trial Magistrate erred in law and fact by PW3 not taking any cautioned statement at Makuru Police Post and for there being no cautioned statement tendered before the trial court to prove the case beyond reasonable doubt. 2 3. That, PW 1 (the victim) in her evidence adduced before the trial court did not elaborate whether the appellant used force to commit the said offence. 4. That, the learned trial Magistrate erred in law and in fact by basing on the prosecution side evidence which was insufficient in the eye of law. In reply, Ms. Tenge for the respondent, opposed the appeal. Arguing against the first and second grounds jointly, the learned State Attorney submitted that, there was no need for the prosecution to tender the appellant's cautioned and extrajudicial statements as the same would not prove anything, since the appellant denied to have committed the offence. She clarified that as a matter of practice, the appellant would have been taken to a justice of the peace to record his extra judicial statement only if he was ready to confess. The learned State Attorney contended further that non-tendering of the cautioned statement and extrajudicial statement had not affected the case as there were sufficient evidence which connected the appellant with the commission of the offence. She prayed the court to dismiss the first and second grounds of appeal for lacking in merits. 3 Replying in respect of the third and fourth grounds jointly, the learned State Attorney opposed the appellant's intrinsic contention that he was convicted without sufficient proof. According to Ms. Tenge, since the appellant was accused of rape c/s 130(1) & (2)(a) of Penal Code, the respondent was to prove two elements of the offence which are; penetration and lack of victim’s consent. According to her, the victim (PW1) was able to prove both elements of the offence as per page 7 of trial court's proceedings. Clarifying, Ms. Tenge submitted that the victim explained how the appellant undressed her and penetrated by using force which led her to sustain injuries to her neck and legs, thereby proving lack of consent too. She added that, the act of the appellant to threaten the victim's life if she were to tell anyone of the incident also proved lack of consent. Citing the case of Selemani Makumba vs Republic, Criminal Appeal No. 94 of 1999, Court of Appeal at DSM, she contended that the evidence of the victim is sufficient to prove the offence of rape. Before winding up her reply submission, Ms. Tenge alerted the Court of an error committed by the trial court in its judgment. She explained that while the trial Magistrate convicted the appellant under section 130(1) & (2) 4 (e) of the Penal Code, the charge that was facing the appellant was for an offence of rape contrary to section 130 (1) & (2) (a). Hence, a mismatch of the provisions of the law leading to improper conviction. However, she was quick to cite the decision of the Court of Appeal in Siaba Mswaki v. Republic, Criminal Appeal No. 401 of 2019, CAT at DSM for a contention that the first appellate court may step into the shoes of the trial court and make necessary corrections. She prayed this Court to do so, arguing that while there was no proper conviction, there is sufficient evidence on record to convict the appellant. She rested her case. Since the appellant had nothing to rejoin, it is now incumbent upon this Court to determine the issue(s) arising from the above submissions. It appears to me that the above submissions boil down to one main issue for determination, which is whether the prosecution proved the case against the appellant beyond reasonable doubt. As correctly submitted by Ms. Tenge, the first appellate court has a duty to perform with regard to the findings of the trial court. It was stated by the Supreme Court of Uganda in Gapco (U) Ltd vs. A.S Transporters Ltd., Civil Appeal No. 7 of 2007, that the first appellate court has a duty "to 5 subject the whole evidence on record to a fresh exhaustive scrutiny and to draw its own conclusions o f facts giving allowance to the fact that it has not seen the witnesses testify". The same position was stated by the Court of Appeal in Mapambano Michael @Mayanga vs. Republic [2016] TZCA 310 (25 April 2016, among a plethora of other decisions. A scrutiny of the trial court's proceedings reveal that the appellant was charged with the offence of rape contrary to the provision of section 130(1) (2) (a) as per charge sheet which was inadvertently recorded in the proceedings and Judgement of the trial court as section 130(1), (2) (e) and 131(1) of the Penal Code. Ms. Tenge alerted the court concerning this mismatch of the legal provisions. I shall address her concern after deliberating on the four grounds of appeal filed by the appellant. From the filed grounds of appeal, it is apparent that the appellant's complaints are: One, lack of extra judicial statement to prove that he confessed committing the offence. Two; non-tendering of his cautioned statement. Three; lack of testimony from the victim (PW1) to show whether the said sexual intercourse was forceful or voluntary, and four; the conviction was landed on insufficient evidence. 6 According to the trial proceedings, six people testified during trial. Five of them were prosecution witnesses who are the victim (PW1); the victim's husband one Simon Kinga (PW2); Police investigator one H.1862 CPL Kassim (PW3); a Medical Doctor one Maclean Sefania Mwasampita (PW4) and a Hamlet Chairman one Raphael Gala (PW5). The appellant completes the list of witnesses who adduced evidence. He testified as DW1. PW1 who, like other witnesses, testified under oath, elaborated step by step, how she met with the appellant on her way from a market place ("Mnadani") on that fateful day. Evidence reveals that the victim (PW1) and the appellant know each other very well. In fact, the appellant has described the victim as auntie, and repeated it even before this court. Hence, whether the victim correctly knew that it was the appellant who raped her has never been an issue during trial and even in this appeal. According to the trial proceedings, the victim described her ordeal in simple and straight forward testimony which disclosed, among other things, that the appellant pulled her into his room, undressed her and himself and penetrated her vagina with his male organ using force and threats leading to an unconsented bloody sexual intercourse. 7 In her further testimony, the victim's elaboration of how the appellant's bedroom looked like, the position of the bed in the room, description of the mattress and the animal skin on it, was such meticulous that it defines what credible evidence is. Nowhere in the record of proceedings the appellant substantially disputed such detailed description of the rape incident apart from his general denial. In a very recent decision of the Court of Appeal in Isega Samson Mwanjese vs. Republic, Criminal Appeal No. 492 of 2021, CAT at Mbeya, it was stated, at page 10 of the typed Judgment, thus: "There being no evidence on the record rebutting the proposition that the victim was penetrated, we think the evidence o f PW1 as corroborated by PW4 and PW5 proved the element o fpenetration beyond reasonable doubt. In any event, the evidence o f the victim would suffice to establish the element o f penetration. This is because, as we held in the famous case o f Selemani Makumba vs. Republic [2006] T.L.R 379, such kind o f evidence if credible, is the best one to establish the element o f penetration. It would also, if credible, establish it was the appellant who committed the offence". Hence, as correctly stated by the learned trial Magistrate, utilizing the principle of law stated in Selemani Makumba (supra), the evidence of PW1 8 was sufficient to prove the offence of rape, given that the main elements of the offence were established. It was PWl's further testimony that there were no people around the scene of crime as many of them had gone to "Mnadani". Under such circumstances, to prove that it was the appellant who committed the offence, depends on the credibility of PW1 as a witness. In considering the credibility of PW1, the starting point is the principle of law stated by the Court of Appeal in Goodluck Kyando v.Republic [2006] T.L.R 363 that every witness who is competent to testify is entitled to be believed as a credible and reliable witness. In yet another very recent decision of the Court of Appeal in Sisty Reuben vs. Republic, Criminal Appeal No. 280 of 2022, it was stated that much as there in no rules of thumb in determining the credibility, truthfulness or reliability of a witness, the finding of the trial court as to credibility is usually binding on an appeal court save for circumstances on the record of proceedings which call for reassessment of the credibility.(See at page 16 of the typed Judgment). My perusal of the record of the proceedings and even the judgment, shows that the trial Magistrate found PW1 to be a credible witness. I have no reason to fault his finding, especially when considering the coherence of 9 her testimony, and the cross-admission by both PW1 and the appellant that none of them had grudges against the other. Both stated under oath that they had no quarrels against each other. Hence, there is no ground on record to doubt PWl's credibility. I would add that at the age of 75 years, the victim would not be expected to frame up a case against the appellant. Therefore, based on the above deliberation, I agree with Ms. Tenge that non- tendering of extra judicial and cautioned statements of the appellant did not, in my opinion, affect the conviction in any way. There was before the trail court reliable evidence of PW1, which was duly corroborated by PW2, PW3, PW4 and PW5, and was sufficient to land the conviction. Besides, the respondent was under no legal obligation to tender in court any evidence that would add no value to the determination of the case. If the appellant had stated anything of substance in the cautioned statement to exculpate him from liability or if he were to state any such thing before the justice of the peace, obviously he could have restated the same thing in court during defence hearing. In my opinion, there was no necessity for the appellant to press for tendering of his very own cautioned statement. Obviously, since the appellant had denied commission of the offence, his cautioned statement would have no value to add to prosecution case, and 10 neither would it be proper to record an extrajudicial statement under such circumstances. For all the above reasons, the first and second grounds of appeal are rejected for being devoid of merits. In the third ground of appeal, the appellant impeaches the testimony of the victim for not describing whether the sexual intercourse was forceful or voluntary. I have read between the lines the evidence adduced by the victim. It is as clear as day follows the night, that she did not consent to that sexual encounter. This is manifested in her complaint against the use of force which saw her injured on her neck and thigh to the point of bleeding. She testified that the appellant closed her mouth in the course of dragging her into his house and he used threats. All these elements constitute a clear manifestation of unconsented sexual intercourse. For this reason, the third ground of appeal is equally devoid of merits. It is therefore rejected. In the fourth and last ground of appeal, the appellant laments that the conviction was based on insufficient evidence in the eyes of law. Since the appellant did not elaborate anything on this ground, the court can only speculate as to why the appellant thinks that the prosecution evidence was insufficient. In so speculating, and I am not amused to do so, two aspects 11 came into my mind concerning the evidence adduced in trial. One, that there was no any other eye witness apart from the victim and two; the appellant's cautioned statement was not tendered. It will be recalled that according to the wording of the second ground of appeal, the appellant is of the view that tendering of the said statement would "prove the case beyond reasonable doubt". If the above is what the appellant had in mind, my opinion is as follows. Firstly, in the eyes of law, it is upon the prosecution to choose whom to call as a witness. It is equally the position of the law that in proving a case, it is not about the number of witnesses that matters but weight of the evidence adduced. Section 143 of the Evidence Act, [Cap 6 R.E 2022] provides: "143. Subject to the provisions o fany other written law, no particular number o f witnesses shall in any case be required for the proof o f any fact. The trial Magistrate applied the best evidence rule, as stated in Selemani Makumba Vs. Republic (supra) and the same was duly corroborated by other prosecution witnesses. Upon review of such evidence, I have formed my independent opinion that the same was sufficient to land conviction. 12 The evidence reveals that PW1 was hijacked on her way home by the appellant who forcefully took her to his room, undressed her and himself and penetrated his male sexual organ into her vagina. PW1 was injured in that fracas and was bleeding. PW3 testified, among other things, that he interrogated the appellant and found blood stains on his trousers, as well as at his bed when he went to arrest him. PW5, the Hamlet chairperson also testified that he saw blood on the appellant's bed, and when asked about the source of the blood by PW3 the appellant could not explain. Such a coherent evidence when examined in light of the finding of PW4, the Medical Doctor, irresistibly lead to one conclusion that the victim was raped by none other than the appellant. In holding as above, I have also considered the caution sounded by the Court of Appeal in Mohamed Said vs. Republic [2019] TZCA 252 (23 August 2023) that the evidence of the victim should not be taken as Gospel truth. In that case, the Court guided that such evidence should pass the test of truthfulness, credibility and must be probable. In the instant matter, it is not only the testimony of the victim that has been considered but also the corroborating evidence of PW2, PW3, PW4 and PW5 as a whole. As already stated above, PW2 who is the victim's husband, witnessed bruises in his 13 wife's vagina; PW4 the medical doctor also found bruises in the victim's vagina and indicated that she was penetrated, PW3 Police investigator saw blood on appellant's trousers as well as on his mattress, and the same blood was also witnessed by PW5 the Hamlet leader. All these testimonies corroborated the evidence of the victim that she was forced into an unconsented sexual intercourse with the appellant, in the course of which she was injured and was bleeding. The logical conclusion is that it is the appellant who raped the victim. With this finding, the fourth ground is also devoid of merit. Before winding up, let me now address the issue raised by Ms. Tenge, concerning the mismatch between the provisions of the law preferred in the charge sheet and those used in convicting the appellant. In concluding his judgment, the trial Magistrate wrote: "In upshot, this court finds the accused person guilty to the offence o f rape contrary to section 130 (1) (2) (e) and 131 (1) o f Penal Code [Cap. 16 R.E2022]". [Emphasis added] I have perused the charge sheet, trial proceedings and the judgment of the trial court. It is true that there is a mismatch between the provisions 14 of the law stated in the charge that was read before the trial court and the provisions of the law recorded in the proceedings and the judgement. In the charge sheet, the prosecution correctly cited provision of the law applicable for rape cases involving adult female victims. The relevant part of the charge sheet reads as follows: "AYUBU S/O PAMANI @IFANDA CHARGE STATEMENT OF OFFENCE RAPE; Contrary to sections 130(1), (2)(a) and 131(1) o f the Penal Code [CAP 16 R.E2022] PARTICULAS OF OFFENCE AYUBU S/O PAMANI on 23d day o f August, 2024 during evening hours, at Msemembo village within Manyoni District in Singida Region, did have sexual intercourse with one AMELYA D/O A THUMANI, aged 75yrs, without her consent." The cited provisions of section 130(1), (2) (a) of the Penal Code state as follows: "130. -(1) It is an offence for a male person to rape a girl or a woman. (2) A male person commits the offence o f rape if he has sexual intercourse with a girl or a woman under circumstances falling under any o f the following descriptions: 15 (a) not being his wife, or being his wife who is separated from him without her consenting to it at the time o f the sexual intercourse. [Emphasis added] Apparently, the charge sheet correctly stated the provisions of the law for the offence of rape which the appellant was facing before the trial court. However, it appears to me that the learned trial Magistrate inadvertently, and repeatedly so, wrote down the provision of section 130(1), (2) "(e)" of the Penal Code that applies to the offence of rape committed to females who are under eighteen years, for whom rape is established whether the sexual intercourse is done with or without consent. The provision states: "(e) with or without her consent when she is under eighteen years o f age, unless the woman is his wife who is fifteen or more years o f age and is not separated from the man". [Emphasis added]. Now, since the charge cited the correct provisions of the law, which is section 130 (1), (2) (a) and not section 130(1), (2) (e), as inadvertently recorded in the proceedings and judgement; and since the correct charge was read out in court as required by law, it follows that; 16 One; what was read out to the appellant in court is what is contained in the charge sheet and not what was inadvertently recorded by the trial Magistrate in the proceedings and Judgment. Two; the appellant was able to know under which of the descriptions (a) to (e) the offence he was facing felled and prepared his defence accordingly. And, therefore the appellant was not prejudiced by the error in recording of the said section of the law. This is evidenced by the fact that the appellant knew from both the statement of the offence and the particulars of the offence that he was charged for allegation of raping an adult female person aged 75 years without her consent. Even in his notice of appeal the appellant states that he was charged under section 130(1), (2) (a) and 131(1) of the Penal Code. In Simba Nyangura vs. Republic, Criminal Appeal No. 144 of 2008 (Unreported) which was referred to in Felix Patrice vs. Republic, Criminal Appeal No. 18 of 2012 (unreported), the Court of Appeal delt with a situation in which the charge of rape only cited sections 130(1) and 131 of the Penal Code, without citing either of the specific descriptions (a) to (e). The Court 17 found such lack of particulars unduly prejudiced the appellant in his defence. It observed thus; "....in a charge o f rape an accused person must know under which o f the descriptions (a) to (e) the offence he faces falls so that he can be prepared for his defence." The above situation is obviously distinguishable from the instant matter where the charge described the offence provision in full. Since, the error made by the trial Magistrate in the proceedings and judgment did not occasion any miscarriage of justice, the best I can do is to treat is an inconsequential clerical error. In the end, the appeal is devoid of merit and is accordingly dismissed. Dated at Dodoma this 22nd day of November, 2024. ABDI S. KAGOMBA JUDGE 18