JUDGMENT DC CRIMINAL APPEAL NO OF 2024 GABRIEL NKOSI VS REPUBLIC FINAL NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA DC CRIMINAL APPEAL NO. 30903 OF 2024 (Arising from Criminal Case No. 24575 of 2024 of the District Court of Manyoni at Manyoni before Hon. S.J. Kanyiga-2, RM dated 18th September, 2024) GABRIEL S/O NKOSI.......................................................................... APPELLANT VERSUS THE REPUBLIC.................................................................................RESPONDENT JUDGMENT 14th & 22nd November, 2024 KAGOMBA, J The appellant herein was convicted by the District Court of Manyoni (henceforth "the trial court") on two counts of incest by male, contrary to section 158(1)(a) of the Penal Code, [Cap 16 RE 2022]. He was sentenced to serve a thirty-year jail term for each count but the same run concurrently. For the first count, it was alleged before the trial court that the appellant on diverse dates between January 2022 and 21st August 2024, at Kamenyanga Village, Aghondi Ward, within Manyoni District in Singida Region did have prohibited sexual intercourse with one "AB" (real name withheld to protect her dignity) a girl of nine (9) years of age who to his knowledge she is his biological daughter. 1 Similar allegation was made in respect of the second count, whereby the victim was "CD" (again, the real name withheld to protect her dignity too), a girl of Fourteen (14) years old. Despite his denial of the charge in both counts, the trial court was satisfied that the prosecution had proved the case against the appellant beyond reasonable doubt, hence convicted him on both counts and sentenced him as aforesaid. Being aggrieved, the appellant has filed his appeal to this court lamenting as follows: - 1. That, the learned trial Magistrate erred in law and in fact by convicting the appellant and sentence him basing on victims' evidence adduced before the court without analyzing and evaluating the said evidence. 2. That, the learned trial Magistrate erred in law and in fact because the appellant's cautioned statement was not submitted before the court to prove the case beyond reasonable doubt as a supporting document. 3. That, the learned trial Magistrate erred in law and in fact because the appellant did not confess to commit the said offence before a justice of the peace. 2 4. That, the learned trial Magistrate erred in law and in fact by convicting and sentencing the appellant without the prosecution side tendering any exhibit to prove the genuine age of the victims. During the hearing of the appeal, the appellant fended for himself while the respondent was represented by Ms. Mulongo Tenge, learned State Attorney. When called upon to address the court on his appeal, the appellant who is a lay person, submitted that the allegation was fabricated by his wife who, allegedly, told the appellant that she would do anything to jail him to get the land they were disputing about. The appellant further blamed his wife for couching their daughters to state what they stated in their testimonies against him. In the end, he prayed the court to consider his grounds of appeal, afore stated. Ms. Tenge for the respondent, was in disagreement with the appellant on all the grounds of appeal. In her reply, she preferred to address the second and third grounds of appeal jointly, and the rest of the grounds separately. 3 On the first ground of appeal which impeaches the analysis of victims' evidence by the trial court, Ms. Tenge objected it and referred the court to page 2, 3, 4 and 5, of the trial court judgment where, according to her, the learned trial Magistrate analyzed the evidence of both victims. She argued that their testimonies were corroborated by other prosecution witnesses to arrive at the conclusion reached in the judgment. Despite the argument, Ms. Tenge prayed that if this court would find the victims' evidence not properly analyzed, be minded to step into the shoes of the trial Magistrate and do the needful. She maintained, however, that the first ground of appeal was unmerited. As regard the second and third grounds, where the appellant complains about cautioned statement not being tendered during trial and him not being taken to a justice of the peace to record an extrajudicial statement, Ms. Tenge found such evidence uncalled since there was in place sufficient evidence which proved the offence in line with the decision of the Court of Appeal in the famous case of Selemani Makumba vs. Republic, Criminal Appeal No. 94 of 1999 CAT at Mbeya. She clarified that the evidence of PW1 who witnessed some of the events as per her testimony on page 4 4 of the proceedings, rendered cautioned and extra judicial statements unnecessary. As regards the fourth ground of appeal, that questions lack of exhibit to prove the age of the victim, Ms. Tenge submitted, firstly, that the age was proved by PW1, as well as the testimony of both victims. Secondly, she submitted that non- tendering of documentary proof of age did not affect the conviction for a reason that even the appellant, when cross-examined at page 27 of the proceedings, conceded that one of the victims was 9 years and the other was 14 years old. On the contention that proof of age must not be proved by paper documents, the learned State Attorney cited the decision of the Court of Appeal in Mathayo Laurence William Mollel vs. Republic, Criminal Appeal No. 53 of 2020, where, she argued, the Court of Appeal referred to various cases including that of Issaya Renatus vs. Republic which decided that age can be proved by the victim, victim’s relatives or parents. She, again, found no merits in this last ground. In the end, she prayed the Court to dismiss the appeal and uphold the conviction, sentence and other orders made by the trial court. 5 When given opportunity to address the court on rejoinder, the appellant told the court that he had nothing to rejoin. After a careful consideration of the parties' submissions, the grounds of appeal and the law, the issue for determination is; whether the prosecution proved the case against the appellant beyond reasonable doubt. The provision of Section 158(1) (a) of the Penal Code under which the appellant was charged and convicted, provides: - "158--(1) Any male person who has p ro h ib ite d se x u a l in te rco u rse with a fem ale person, who is to h is kn ow led g e his granddaughter, daughter, sister or mother, commits the offence o f incest, and is liable on conviction- (a) i f th e fem ale is o f th e age o f le s s th an eig h tee n years, to im prisonm ent fo r a term o fn o t less than thirty years". [Emphasis added] To succeed in a charge framed under the above provision, the prosecution was expected to prove at least three elements, one; the appellant did have sexual intercourse with the victims. Two; the appellant knew that the victims were either his granddaughters, daughters, sisters or 6 mother. And, three; the said victims were under the age of eighteen. According to the trial court, all these elements were proved beyond reasonable doubts. The appellant disagrees. He is unsatisfied with the matters he has lamented about in his four grounds of appeal, as listed above. For sheer convenience, I shall start disposing the second, third and fourth grounds before tackling the first one. Having considered the appellant's lamentations in his second and third grounds of appeal, it is my early finding that these two grounds have been grossly misconceived by him. The law, as I know it, does not compel the prosecution to tender anyone's cautioned or extrajudicial statement in court. The prosecution has full liberty to choose what they consider appropriate in advancing their cases in a court of law. Therefore, even in the instant matter, the prosecution was under no duty in law to tender the appellant's cautioned statement, especially if they found that the same would add no value to the prosecution's case. Looking at the appellant's concern with a different eye, one may argue that since the said cautioned statement mainly contains what was stated by the appellant during his interrogation by Police, the appellant could have re­ stated the same contents before the trial court for consideration, if he 7 believed that what he had recorded at Police would have exculpated him from his criminal liability. For these reasons, I find the third ground grossly misconceived and devoid of merit. The same is rejected. As regards the appellant's lamentation that he was not taken to a justice of the peace to record his extra judicial statement and non-tendering of the same to disprove his guilt, as per the fourth ground of appeal, I agree with Ms. Tenge that that could not be done because the appellant objected to the allegation. The law would require an accused person to be taken to a justice of the peace if he indicated to Police that he wanted to make a confession. In this case, the appellant has been persistent that he did not commit the offence. Under such circumstances, an extra judicial statement could not be recorded. Having so stated, I find the third ground of appeal misconceived and devoid of merits too. Turning to the fourth ground of appeal, I agree with Ms. Tenge that the age of the victim was proved by way of other evidence despite there being no birth certificates tendered. Indeed, the Court of Appeal has delt with the issue of proof of age in its various decisions. (See: Issaya Renatus vs. Republic (supra); Reji Mafita vs. Republic, Criminal Appeal No. 8 337'B' of 2020 (unreported); Wilson Elisa @Kiungai vs. Republic, Criminal Appeal No. 449 of 2018 (Unreported) and Mathayo Laurence William Mollel vs. Republic, (supra). In the latter case, it was held that " The age o f a person m ay be proved by the victim, relative, parent, or where available, the birth certificate". Apparently, the age of the victims was properly proved by their mother PW1 to be 9 years and 14 years. As the appellant did not raise any concern about the correctness of the age of the victims during trial, he is estopped to bring such a non-issue on appeal. The complaint under the fourth ground is therefore without merit and is dismissed. Now, turning up to the first ground, the appellant laments that the evidence of the victims was not analyzed and evaluated by the trial court. Analysis of evidence is done in the judgment of the court. I have perused the judgment of the trial court in relation to the testimonies of the victims. This is what the court recorded as testimonies of the victims, who testified as PW2 and PW3: "PW2 explained that she had sexual intercourse with her father in the bush where they went to cut trees fo r m aking mortars. PW2 subm itted that she had sexual intercourse with her father who after to tackle her down he inserted his penis in her 9 vagina. PW2 stated that her father had sexual intercourse with her after to take o ff his and her clothes. PW2 elaborated that she has been having sexual intercourse fo r many tim es with her father since she was in standard three and sometimes, she has been having sexual intercourse with her father a t home during night tim e when her m other is asleep. PW2 further stated that she has not been reporting the m atter because accused person threatened to k ill her if she reports the m atter to any person. "PW3 elaborated she has been having sexual intercourse with her father from way back. PW3 stated she started having sexual intercourse with her father from when she was in standard one and she was having sexual intercourse with her father in the bush. PW3 explained her father was having sexual intercourse with her in the bush where she went w th him to help to cut trees. PW3 stated she was not reporting the m atter because she was threatened to be killed by her father. PW3 subm itted that her father was lying her down when having sexual intercourse with her after to take o ff his trouser. PW3 explains she was feeling pain when having sexual intercourse with her father. PW3 elaborated that her father was inserting his penis (ume wake) in her vagina (uke wangu) and PW3 further stated p art from feeling pain she was seeing flu id on her vagina (kwenye uke wangu). PW3 stated 10 she reported the m atter to her Headteacher (PW7) who also reported the same to Village Executive officer (PW 4)." Having summarized the said testimonies as above, the learned Trial Magistrate made the following remarks, which is his analysis of the evidence in question: "As it can be directly discerned from evidence adduced by PW1, PW2 and PW3, it is clear that victim s in instant case were having sexual intercourse w th accused person. There is no doubt that victim s in the case a t hand were having sexual intercourse because they categorically stated before the court that accused person was inserting penis in their vaginas. The fact that victim s suffered from the act o f sexual intercourse has been proved by PF3 o f the victim s fille d by PW 5 and PW6 which were adm itted by the court as exhibit PE1 and PE2 respectively. In the context o f that argument, the issue for determination, is whether accused person had unlaw ful sexual intercourse w th victim s and whether the charge against accused is proved to the required standard". From the above excerpts, it is clear that the trial Magistrate analyzed and evaluated the evidence of the victims. However, one may question, to what extent was the analysis done? Was it sufficient to make a finding that prosecution proved their case beyond reasonable doubt? Probably not. 11 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 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 te s tify The same position was stated by the Court of Appeal in Mapambano Michael @Mayanga vs. Republic [2016] TZCA 310 (25 April 2016, among other decisions. According to the impugned judgment, the learned trial Magistrate relied on the evidence of PW1, PW2, PW3, PW5 and PW6 as well as the best evidence rule to convict the appellant. The trial court stated: "In d e te rm in in g a s to w h eth er a ccu se d p e rso n h a d u n la w fu l se x u a l in te rco u rse w ith victim , th is c o u rt d e cid e d to co n sid e r th e evid en ce on reco rd , w h ich w as ad d u ced b y PW 1, PW 2f PW 3, PW 5 a n d PW 6. In sexual related offences evidence o f the victim is o f the param ount im portant in establishing the charge o f rape. This was w ell illustrated by Court o f Appeal in the case o f Selem an M akum ba v. R e p u b lic (2006) TLR 379 where the court stated that best evidence required to prove the offence o f rape is that o f the victim. This means v ictim is re q u ire d to adduce evid en ce w hich is re lia b le a n d e sta b lish e s th e ch arge o f rape". [Em phasis added]. 12 In line with the duty of this court, being the first appellate court, I shall re-examine the evidence relied upon by the trial court to see whether the same was sufficient to land the conviction. Having gone through the entire court proceedings, I have noted that it is only PW1, PW2 and PW3 who could prove that the appellant committed the offence he stood charged. The rest of the testimonies could not. They were peripheral and even hearsay. Now, starting with PW1, Foibe Petro Matonya, she is the wife of the appellant and a mother to the two victims. According to court proceedings, she testified that her husband had prohibited sexual intercourse with the victims. As for the proof of that assertion, she testified as follows: - "Accused person went with victim aged 14 years to the bush a n d I w as fo llo w in g them from th e behind. I sa w a ccu se d p erso n th e re a fte r h o ld in g th e h an d o f victim a g e d 1 4 y e a rs a n d ta ck e d h e r le g s to th e flo o r. A ccu se d p e rso n to o k o ff th e clo th e s o f victim a g ed 1 4 ye a rs a n d th a t a c t le d m e to g o clo se to th e scen e o f crim e. A ccu se d p e rso n upon se e in g m e h e sta te d th a t I h ave to re tu rn b ack. I to ld a ccu se d p erso n th a t th is is w h a t yo u a re d o in g w ith m y daughters. A ccu se d p erso n s a id th a t h e w ill b re a k m y arm s i f I do n o t re tre a t a n d th e re a fte r, I re tu rn e d hom e. Accused person returned home with victim s a t around 11:00 hours in the m orning"/Emphasis added] 13 Nowhere in the above excerpt PW1 saw the appellant having prohibited sexual intercourse with PW2. The worst she witnessed was the removal of the clothes, which made her go closer before she was threatened and returned home. However, in her further testimony, PW1 continued with her narration as follows: "A ccu se d p e rso n h a d se x u a l in te rco u rse w ith victim a g e d 1 4 y e a rs a fte r to ta ke o ff h e r clo th es. I w as sta n d in g ve ry clo se to th e scen e o f crim e w hen a ccu sed p e rso n w as h a vin g se x u a l in te rco u rse w ith victim ag ed 1 4 ye a rs. A t that particular date accused person went with victim age 14 years to the bush w here h e h a d w ith h e r se x u a l in te rco u rse in m y p resen ce. [Emphasis added] From the above two excerpts, one may ask if PW1 went home having been threatened to have her arm broken as per the first excerpt or she stood close and witnessed his husband having sexual intercourse as per the second excerpt? And, which of the two accounts of events of the same witness represented the truth? In yet another part of her testimony, PW1 stated as follows: "A ccu se d p e rso n a lso h a d se x u a l in te rco u rse w ith m y d a u g h te r a g ed 1 4 y e a rs w hen I w as asleep . I w as to ld 14 a b o u t th e s a id a c t b y m y d a u g h te r h e rse lf. M y daughter aged 14 years elaborated to me that she was having sexual intercourse with her father fo r many times". The above piece of testimony is obviously hearsay. However, it was somehow corroborated by the testimony of PW2, the 14 years victim, but with some question marks. PW2 testified in this connection as follows: " I was having sexual intercourse with m y father while m y m other was asleep. I u su a lly sle e p in th a t room to g e th e r w ith m y you n g s is te r a n d M agida. In our room we sleep on m a x [Emphasis added] This testimony raises questions as to whether PW2's roommates were awake during such sexual encounters, or were also asleep. The phrase "I was having sexual intercourse" connotes a tendency of doing so repeatedly. The reason why PW2's roommates didn't notice, if they didn't, becomes a question for anyone to speculate. The rest of PW l's testimony was about how she reported the incident to the village chairperson and her decision to take PW2 to her aunt. From the above analysis, the testimony of PW1, by itself, did not prove the commission of the offence by the appellant. 15 PW2, (The 14 -years victim) is obviously the most reliable witness alongside her co-victim PW3 (The 9-year victim). According to the trial proceedings, PW2 testified that she had sexual intercourse with the appellant on that fateful date in the bush. However, the entire evidence of PW1 and PW2 is silent about whether PW2 saw her mother at the scene of crime in the bush or not. In both testimonies of PW1 and PW2 nothing was testified about the reaction of PW1 towards her daughter upon seeing her undressed. One may wonder whether it was natural for PW1 to shout at her husband or utter some bitter words towards him but was completely passive to her daughter, even in the heat of the moment. According to the evidence on record, PW2 should have noticed that her mother was around because PW1, the mother, had an argument with her husband before she was threatened by him and went back home. The evidence of PW1 and PW2 is silent as to why PW2 didn't react in a shock of being found in that state by her suspecting mother. The reaction of PW1 towards PW2 and vice versa is, in my view very pertinent, in light of the evidence that it was the first time PW1 saw for herself that PW2 was being subjected to the prohibited sexual intercourse. It is to be noted that neither PW1 nor PW2 testified that in the course of 16 committing sexual intercourse the appellant was holding a weapon. If this is true, one would question whether the reaction of PW2 of being passive, without doing any attempt to run away, was natural. PW1 testified that the two came back from the bush at around 11,00am signifying that they spent their time despite caught by PW1? Obviously, PW2 wouldn't be expected to remain in the bush untied. Her reaction, therefore, leaves much to be desired, and the trial court was expected to look at it critically. The last of the crucial evidence is that of PW3 or CD, the 9-year victim. She testified, among other things, that she had been having sexual intercourse with her father since she was in standard one. The same occurred in the bush where she accompanied the appellant to cut trees. Like her sister AB, PW3 testified that she did not report the matter because of the threat to be killed by her father if she did so. According to the trial court judgment, it is PW3 who reported the matter to her Headteacher (PW7) who also reported the same to Village Executive officer (PW4). Contradictions abound. From the testimony of PW1, PW3 reported the incident to her aunt, one Janete, who in turn reported the incident to Head Teacher (PW7). However, PW7 Yotham Enock Mghiyangwe, testified that 17 the incident was narrated to him by a standard IV pupil on the day PW2 visited the school to notify her classmates of her plans to stop schooling. Apart from inconsistencies and the questionability of prosecution evidence, there are also exaggerations in some of the testimonies. For example, PW8 WP 6909 D/ CPL Maria, testified that on 22/8/2024, PW2 was taken to hospital for examination by A/Insp. Hanifa. She went on testifying; " A fter to be exam ined by doctor, examination results provided that victim aged 14 years was raped a n d w ho ra p e d h e r is h e r fa th e r". Obviously, there is exaggeration here because the type of medical examination conducted by PW6 Noel Bela Peter was neither aimed at, nor capable of revealing who raped PW2. The doctor's main finding was that AB was having sex many times because she did not have any bruises. Back to where I started, the above analysis reveals that while the prosecution evidence could be said to have proved the appellant's guilt, it is obviously short of proving so beyond reasonable doubts. It is even conspicuous that questions which could be posed as to why AB and CD never reported those unspeakable allegations, have been assigned one stereophonic answer: "Fear of the threats to kill, made by the appellant". 18 This answer leaves much to be desired, as for example, one may wonder why the allegations eventually reached one Janete and the school Head Master without the -much -feared- threats being withdrawn? So, there are reasonable doubts surrounding the prosecution evidence which were to be scrutinized in favour of the accused person. On the other hand, it has to be confessed that the defence evidence was also weak. The testimony of DW1, the appellant, and his friend DW2 was far from convincing. DW1 resorted to a defence of alibi, without giving prior a notice to rely on it as required by section 194(4) of the Criminal Procedure Act, [Cap 20 R.E 2022]. No doubt the same was ignored by the trial court in terms of sub-section (4) of section 194. DW2 also fumbled. He was unaware why he was called to testify. However, despite the weakness in defence case, it is trite law that an accused person shall be convicted based on the strength of prosecution evidence and not weaknesses in his defence. That being the case, and in view of the weaknesses I have pointed out in the prosecution evidence, I am of humble opinion that it is unsafe to uphold the conviction rendered by the trial court. 19 In the end, the appeal is allowed. Accordingly, the conviction against the appellant is quashed and the jail sentence of 30 years imposed by the trial court is hereby set aside. The appellant is to be released from custody forthwith unless he is withheld for another lawful cause. Dated at Dodoma this 22nd day of November, 2024. ABDI S. KAGOMBA JUDGE 20