criminal decision 2024 12 23 16 13 39

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA DC. CRIMINAL APPEAL NO. 000018805 OF 2024 DESIRE S/O ZEPHANIA .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS DIRECTOR OF PUBLIC PROSECUTIONS .............................. RESPONDENT / DEFENDANT JUDGMENT RWIZILE, J This appeal arises from the decision of the District court of Kigoma in criminal case No.121 of 2023. The appellant was arraigned on two counts of rape and unnatural offence contrary to sections 130(1)(2)(e) and 131(1) of the Penal Code and section 154 (1)(a) and (2) of Penal Code [CAP 16 R.E. 2022], respectively. Briefly, facts state that the appellant on 17th August 2023, found the victim Pw4, a girl of 9 years, and Pw5 taking bath in the stream/river. The appellant asked them to go and assist him in carrying his luggage. As they arrived at the crime scene, the appellant instructed Pw5 to take a tomato and hide it at a distant place. It is alleged further that when Pw5 left, the appellant who stayed with the victim took advantage of her, undressed her, raped and sodomized her. When the appellant had quenched his sexual thirsty, he left her. The victim went home and reported the matter to the parents. The appellant was ultimately arrested and arraigned. The appellant pleaded not guilty to all counts. After the trial, he was found guilty and ironically, sentenced to a concurrent sentence of life imprisonment on both counts and six strokes. Aggrieved, this appeal was filed with the following grounds of appeal: - 1. That, the trial resident magistrate erred in law and facts in convicting the appellant without considering there was no cogent evidence adduced by the prosecution side which has not proved the charge beyond any reasonable doubt. 2. That, the resident magistrate erred in law and facts in convicting the appellant while there was no caution statement tendered before the law. 3. That, the trial court erred in law and fact in convicting the appellant without considering that the appellant was detained at the central police for so long without being prosecuted to the court of law. 4. That, the trial magistrate erred in law and fact in disregarding the appellant defence case and on failure to consider the principle that the appellant cannot be convicted on the weakness of his/her defence but on the strength of the prosecution evidence adduced and proved against the appellant. Page. 1 Hon. AUGUSTINE RWIZILE When on oral hearing of this appeal, the appellant was unrepresented, while the respondent was under the services of Ms. Edna Makala learned state attorney. The appellant did not have viable point to make in respect of his appeal. It was the state attorney, when contested the appeal, who argued that the charge was proved beyond reasonable doubt. She argued that age of the victim as an element of the offence was proved by the victim and her mother Pw1. She said, penetration, as another element of the offence was proved that the victim was raped. The evidence of the victim according to her was supported by Pw2 who found her crying and upon checking her was with blood and fluid in her private parts. Pw8 as well, did a medical examination and was of the opinion that she was raped. The learned prosecutor added that the best evidence comes from the victim and therefore the case was proved. It was her submission further that, the appellant was arrested on 17th August 2023, charged on 12th September 2023, which is more than 26 days, but that cannot vitiate the proceedings. It was her last argument that the trial court evaluated the evidence of the appellant but was not convinced that it had substance to shake the prosecution case. This court was therefore asked to have this appeal dismissed. After the submissions by the state attorney, the appellant was of the view that a child of the age of the victim cannot be raped and sodomized and yet manage to run away. The appellant added, the case was fake, no proof of age, the doctor said a victim is 8 years while her mother said, she is 9 years old. It was the view of the appellant that no proof of age was established. He prayed, this appeal be allowed. Having heard the arguments of the parties, the issue for determination is whether the prosecution proved its case beyond reasonable doubt which is the first ground of appeal. As shown before, the appellant was charged of rape and unnatural offence of a girl of 9 years, in which consent is immaterial. The prosecution ought to prove the charge by proving penetration, age of the victim, and that it is the accused who committed the offence. Pw4, the victim said, was 9 years old. In support was her mother Pw1 who said, she was born on 17.8.2014. I have no doubt, age was proved, since, it is trite that age of the victim may be proved by her or her parent. This was the position in Leonard Sakata vs The Director of Public Prosecutions, (CAT). Criminal Appeal No. 235 of 2019. Pw4 and Pw8, on the other hand, proved penetration into both the vagina and the anus. While Pw4 said the appellant inserted his penis into her vagina and anus, where blood and bruises were visible, the doctor, Pw8, upon examination, found bruises in the victim’s anus, signifying that she was sexually assaulted. The story was supported by Pw2, who said, was taking bath at the river where the victim came said to have been raped by the appellant. Pw1 washed the victim, who was with blood and mucus in her private parts. The PF-3, exhibit P2, shows undoubtedly, the victim was sexually abused. Pw4, said was called by the appellant to assist him carry his luggage. She was with Pw5. Upon arriving at the appellant's farm, Pw5 was asked to take the tomato and hide it at distance. She left the victim with the appellant. Pw4 and Pw5 are and were not strangers to the appellant. Although Pw5 did not witness, but she was clear that she left the appellant with the victim. The chain of events is joined by Pw2, who was at the river taking bath. The victim came to her with fear and narrated to her how she was raped by the appellant. She was with blood and mucus on her private parts. Pw2 communicated with the parents of the victim. Her mother took her for further steps. Page. 2 Hon. AUGUSTINE RWIZILE The appellant claimed that the prosecution case was built on hearsay evidence. He challenged the evidence of the doctor that the examination of the victim was done in absence of the relatives of the appellant. He also argued that there were material contradictions of the prosecution witnesses, some saying the victim was found on a stone, while other said, she was found in the river. Passing through his evidence, no doubt was raised against the prosecution case. The above, in my view sufficiently determines the first and the second grounds of appeal. The third ground of appeal is crucial to deal with. Under section 32(1) of the Criminal Procedure Act, it is clear, when a suspect is arrested has to be either admitted to bail or arraigned within 24 hours house following his arrest. The appellant said was in remand for more than 20 days since he was arrested on 17th August but charged on 11th September. This is against the law and indeed this practice is the worst of all. It should be discouraged by all means. Based on the seriousness of the offence, which has a capital punishment, failure to observe the provision as per section 32(1), as shown cannot therefore vitiate the proceedings as opined by the learned state attorney. I therefore find no merit in this ground as well. Lastly, the fourth ground. It is true that the trial court did not give weight to the defence case, but it analyzed the defence case. The duty of the trial court is to consider the evidence of both sides. More so, the trial court looked at whether the prosecution proved its case. I think, the trial court discharged its duty since, indeed, there was overwhelming evidence proving that the case was proved beyond reasonable doubt. This is ground has no merit either. In the final analysis, this court finds no merit in this appeal. It is dismissed in its entirety. Dated at KIGOMA this 25th of October 2024 . A. K RWIZILE JUDGE OF THE HIGH COURT Page. 3 Hon. AUGUSTINE RWIZILE