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© THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA DC. CRIMINAL APPEAL NO. 000010162 OF 2024 ALAN RAPHAEL COMPLAINANT/ APPELLANT/ APPLICANT VERSUS REPUBLIC RESPONDENT I DEFENDANT JUDGMENT A. K. RWIZILE, J The appellant was arraigned before the district court of Kibondo charged of rape contrary to section 130(1 )(2)(e) of the Penal Code [Cap 16. R.E 2022]. It was alleged that on 15th April 2023 at Migombani in Kibondo district, the victim a girl of 15 years in terms of the charge sheet was in the street selling charcoal. A stranger person, now the appellant asked her to take charcoal to his home. On arrival, at his house, the appellant pulled her in his house and raped her. Although the victim shouted for help, her noise fell in deaf ears. After the appellant quenched her sexual thirsty, she let her free. She went home crying. On the way, it was stated, she met two people who asked her what the matter was. She told them that sad story. She also led the way to his house, where the appellant was not found. The door was locked. They reported the matter to the police station. The appellant was later arrested, tried and finally found guilty of rape as charged. He was henceforth sentenced to serve thirty years imprisonment. Aggrieved by both conviction and sentence, he has filed this appeal with the following three grounds of appeal: - 1. That, the trial magistrate erred in law and in facts by basing his judgment and conviction on weakness of prosecution side and not strength of defence side whereby the age of the victim was not proved. 2. That, the trial magistrate erred in facts and law as the prosecution side did not prove his case beyond reasonable doubt as none bf the prosecution witnesses witnessed the appellant committing the offence. 3. That the trial magistrate erred in facts and law as the prosecution side did not prove his case beyond reasonable doubt as required by law. The appellant appeared in person while the respondent, was represented by Ms. Edina Makala, learned senior state attorney. The appellant without representation did not have much to argue in respect of the appeal. He argued the first ground, first and the rest of the grounds were argued together. It was his oral submission that the prosecution did not prove the case beyond reasonable doubt. There was a difficult in tracing age of the victim. According to him, there was material contradictions on the age of the victim. ls it 15 years as stated in the charge or 13 years as testified by Pw4 in exhibit Pl?. He asked the court to hold, the charge was not proved. Page. I Hon. AUGUSTINE RWIZILE Dealing with other grounds, it was argued that the victim was alone when rape was committed, and there was no independent witness. The case was not proved beyond reasonable, he added. It was said, the victim was a pupil, but no evidence was procured to that effect. He further said, after the alleged rape and when on the way, she met a woman. That woman was not called to testify. This court was therefore asked to allow this appeal. Ms Edna Makala state attorney for the respondent, contested the appeal and argued all grounds together that; the charge of statutory rape, was proved beyond reasonable doubt. She commented, the age of the victim, penetration and that it was done by the appellant, are the proved elements of the offence. According to the learned attorney, the age of the victim was proved by her evidence and her father, who said was born in 2007. Penetration as an element of the offence, she said, was proved by the victim who stated clearly that the offence was committed against her by the appellant. When she tried to shout, she could not, because she was threatened. As she was taken to the hospital, it was it was proved, she was penetrated by a blunt object. The case was proved beyond reasonable doubt. She further said, the appellant was properly identified by the victim. Above all, the victim made dock identification. The offence charged is rape and it matters less if the victim is the pupil or not. She said further that, the victim was alone with the appellant, therefore there was no other witnesses. Ms Edna held the view that, this court has consistently said, in rape cases, the evidence of the victim is the best. The victim was believed by trial court, she added. The offence was proved and therefore the appeal must be dismissed. To start, I will deal with all grounds together because they hinge on if the case was proved. I have to say, the appellant was arraigned with the offence of statutory rape. In proving statutory rape, age is one among the key factors to be considered, as held in the case of George Claud Kasanda v. The DPP, (CAT), Criminal Appeal No. 376 of 2017, at page 10, is that; - " ... an offence now famously referred to as statutory rape. It is termed so for a simple reason that, it is an offence to have carnal knowledge of a girl who is below 18 years whether or not there is consent. In that sense age is of great essence in proving such an offence. The prosecution is duty bound to establish among other ingredients, that the victim is under the age of eighteen so as to secure a conviction". It is elementary criminal law, that in criminal trials, evidence must follow the charge. The charge sheet in certain terms stated, the victim of rape is 15 years old. The victim testified and said was 15 years old. Pw3, father of the victim said, his daughter was born in 2007 and was therefore 15 years old. The different evidence is stated in the PF-3, exhibit Pl which shows, the estimated age of the victim is 13 years. This court has consistently held that age of the child can be proved by parents, guardians or the child, in this case the victim. Jt has been stated by her father that the victim was 15 years because she was born in 2007. According to the chargesheet, the offence was committed on 15th April 2023. The appellant was arraigned on 20th April 2023. The victim was examined by Pw4 on the day the offence was committed. Pw2, handed Pwl to the police station, few hours after commission of the offence. Pw3 was called at the police station shortly thereafter. The point here is who told the police about the age of the victim, it must be the victim herself or her father who were issued with the exhibit Pl saying the victim's age is 13 years old on estimate. Pwl testified on 27th April 2023 while her father testified on 4th May 2023. Pw3 said, her daughter was born on 2007 and so was 15 years. Taking a normal counting, a person born in 2007 ought to be 16 years. Page. 2 Hon. AUGUSTINE RWIZILE From the foregoing, there is a conflict of evidence on age of the victim in term s of records, that is, 13 years, in terms of exhibit Pl, a PF-3, 15 years in terms of the charge sheet and the victim and her parent. Still, there is a difference on when was she exactly born, if in 2007, then she must have been 16 years. It is clear to me that age of the victim has not clearly been proved. It was held in the case of Hamis Chuma @ Hando Mhoja vs The Republic, (CAT), Criminal Appeal No. 36 of 2018, at page 31 " ... it is settled law that the age of a child can be proved by himself or a parent, birth certificate or a doctor. " Going by presumption, the victim may be between 13 years to 16 years which is still below the age of majority. I hold, the first element of statutory rape was proved. She was below 18 years. The second element of the offence, which is perhaps central to rape, is penetration. There is no doubt that based on the evidence of the victim and Pyv4 who tendered exhibit Pl, upon examining her on the fateful day, few hours after rape. The finding is clear that she had all signs of being penetrated by a blunt object. It is therefore plain that the second element was proved as well. Last, is, did the prosecution prove, it is the appellant who committed the offence of rape. It is now settled that the best evidence in sexual offences comes from the victim. It should be added; the victim's evidence may single handedly be used to convict. The only safeguard to this thinking is that the court should be satisfied based on all circumstances of the case, that the victim was telling nothing but the truth. That is to say, she should be believed. There are many ways, the trial court may apply to believe the evidence of the victim. Inter alia, the witness' demeanor and consistency in his statement may be a good tool to that effect. It was stated by the victim that the appellant was a strange person to him, he asked her to take charcoal to her house because she was selling charcoal in the streets. Upon arriving at his accommodation, she was pushed in, raped, threatened and let to go. On the way crying, she met two people, also strangers, she narrated the incidence and led them to the house of the appellant. The same person was not there by that time. That means, these two people did not see the appellant. Pw2 is one between the two persons who were led to the house of the appellant by Pw 1. Pw2 did not say, he saw him or even know his name. None of the two persons knew the appellant's name and whether that was indeed his house. The victim as well did not know his name. The appellant on his part, denied conunission of the offence. He alleged was arrested on 17th May 2023. His witness, Dwl said, the appellant went to him on 17th April 2023 and told him, he had committed adultery, and, on that day, he was arrested. Dw3, the other witness for the appellant also disputed all facts stated about the appellant. The appellant had said, Dw3 called her on that day. There is material contradiction in the defence itself. One would say, his defence is very weak and self-contradictory. In the case ofMiraji ldd Waziri@ Simwana & another vs R. (CAT), Criminal '}ppeal No. 14 of 2018, on page 17 it was held that: - "It is an elementary principle of law that an accused person has no duty to prove his innocence, but there are times when lies by such an accused may be resolved against him". In my considered opinion, in order to apply the ratio in the case ofMiraji Idd Waziri@ Simwana(supra), at least, there must be plausible evidence, linking the appellant with the offence. Such evidence must be prima facie Page. 3 Hon. AUGUSTINE RWIZILE showing, in the cause of doing things, the appellant may have indeed committed the offence. In this case, I hasten to hold, such evidence is there. My doubt is based on the fact that there no evidence of how the appellant was arrested. How was he identified by the arresting officer and when exactly was he arrested. Pwl did not tell the court, apart from seeing the appellant for the first when the incidence happened, if she saw him before. This is important because, when she went with Pw2 to the alleged house, he was not found. It is not known whether the house she led them to, was indeed the appellants accommodation. Since the offence was committed during the day, there must be evidence on why in all two incidences when the victim went there was not witnessed by any person. The prosecution ought to prove, the house belonged to the appellant or was in any way connected to that house. It is from the evidence of Dw2 who said, the appellant went and told him, had committed adultery. There ought to be evidence on the description of the appellant to the police, if indeed it was made. Such are material things that convincingly would lead to the proper identification of the appellant. I am therefore at par with the appellant that the charge was not proved beyond reasonable doubt. The appeal has merit. It is allowed. The conviction is quashed and sentenced set aside. The appellant be release from prison unless otherwise held for a lawful cause. Dated at KIGOMA ZONE this 1st of October 2024. A. K. RWlZILE, J JUDGE OF THE HIGH COURT Page.4 Hon. AUGUSTINE RWIZILE