patrick steven kilanga vs republic 2024 tzhc 141 31 january 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CRIMINAL APPEAL NO. 76 OF 2023 ((Arising from Criminal Case No. 30/2022 of Ilemela District Court) PATRICK S/O STEVEN KILANGA……………………………………..…APPELLANT VERSUS THE REPUBLIC………………………………………………..…………. RESPONDENT JUDGEMENT 16th October 2023 & 31st January, 2024 ITEMBA, J The appellant above, was convicted and sentenced to serve 20 years’ imprisonment by the District Court of Ilemela for an offence of Grave Sexual Abuse contrary to section 138C (1) (a) and 2(b) of the Penal Code Cap 16 R.E. 2019 (Now R.E. 2022). Allegedly, the appellant on unknown date of January 2022 at Kiseke area, within Ilemela District in Mwanza Region, for sexual gratification inserted his fingers to the vagina of the victim, a girl aged 5 years. The appellant was dissatisfied with the conviction and sentence. He preferred this appeal. Four grounds of appeal are for determination that, the trial court erred in convicting the appellant of the offence which was not proved on required standards; the trial court erred for failing to critically and correctly evaluate the evidence on record; in convicting and sentencing the appellant against the weight of evidence on record and by shifting the burden of proof to the appellant. 1 When the matter was scheduled for hearing Mr. Elias Hezron Advocate, represented the appellant while Mr. Evance Kaiza, State Attorney represented the respondent. Mr. Hezron conjunctively argued the first three grounds of appeal that the case was not proved beyond reasonable doubt because the appellant was not clearly identified by the victim. That, at page 8 of proceedings PW1 said ‘yule kaka wa chini wa mama kilanga anaitwa Party’ a statement which cannot prove that it is the appellant who is being referred to. Secondly, that, at page 9 of the typed proceedings, when PW1 was testifying, she said the offence occurred on a day when the victim was wearing a T-shirt written ‘I love you’ but there is no evidence if the victim knew how to read. PW1 stated that she noted the abuse on 13/1/2022 and that, she guessed the same to have happened on 12/2/2022. That, PW2 testified to have always bathed but no evidence as to why on 12/1/2022 she did not bath. Further, at page 13 PW2 said her mother always bathed her including on the incidence day. He insisted that if PW1 really bathed the victim, she should have noted the pain and, that being the 1st day the bruise would have been fresh. That, at page 19, PW3 testified the incidence to have occurred on 14/1/2022 while PW1 says it was on 12/01/2022. Therefore, there are doubts on whether the victim was abused and if the abuse was done by 2 the appellant. The appellant’s counsel also challenged the dock identification made by the victim that, the victim stated that Patrick is the one who is sitting behind her but proceedings do not show how many people were seated behind PW2. Mr. Hezron further reaffirmed that, the victim’s evidence is best evidence but in Majaliwa Iheno v. R. Criminal Appeal 197/2020 (unreported) at page 9 the court insisted that, credibility and reliability of the victim’s testimony need be considered and tested against the rest of prosecution evidence. To him, testing the victim’s testimony, there are material contradictions. Regarding the 4th ground, he submitted that, the appellant raised a defence of alibi which was rejected by the trial court. That, it was not proper for the court to require the appellant to prove beyond reasonable doubt that he was on a safari. That, if the appellant’s cautioned statement was contradictory it would have been tendered before the court. That, there is no legal requirement for the bus tickets to be electronic as stated by the court. That, the court should have checked only the validity of the tickets. That, the court did not give weight to the defence of alibi. He thus prayed for the appeal to be allowed. 3 In Reply Mr. Kaiza opposed the appeal. He argued that, as per the records of memorandum of agreed facts it is not in dispute that parties knew each other. Further, at page 33 the appellant admits to have known the victim as a neighbour for a long time. That, when the appellant was given right to cross examine the appellant he did not ask about identification. Likewise, no question was asked as to why PW1 did not bath PW2 on material date and whether the victim knew how to read. He stressed that, the prosecution only needed to prove the appellant to have used any part of his body for sexual gratification. He referred to the case of Hando Dawido v. R. Criminal Appeal No. 107/2018 (unreported) which interpreted section 138 C (1) (a) and 2(b) of Penal Code (supra). That, at page 12 of proceedings, the victim herself explained how the appellant inserted his fingers in her private part. This evidence is corroborated by PW1 her mother and PW4 (medical doctor) who examined the victim. Regarding the 4th ground, he submitted that, the bus tickets (exhibit D1) were not read after being admitted. He thus prayed for the exhibit to be expunged. He added that, there were no grudges between the victim and the appellant as per evidence therefore, there was no motive to incriminate him. That at page 14 of the judgment, the notice of alibi 4 was considered and found weak. The case of Kubezya John v. R, Criminal Appeal No. 488 of 2018 (unreported) was cited to the effect that the accused has a duty to demonstrate his alibi on balance of probability. He pointed the contradiction that, D1 does not mention to have travelled with anyone but DW4 mentioned to have traveled with the appellant. Lastly, to him the contradiction of date of incidence between PW1 and PW4 is minor and do not go to the root of the case. Therefore, he prayed for the appeal to be dismissed. In rejoinder, it was submitted that the date of incidence is key and it is not a minor contradiction. That, the issue of bathing the victim was cross examined by the appellant at page 13. That, failure to read exhibit D1 after admission was not the appellant’s fault, the court cannot simply expunge his evidence. That, the respondents were not prejudiced because they had the documents before trial. That, the case of Hando Dawido v. R is distinguished because the duty of respondent was not just to prove the offence but to link the accused with the offence. I have keenly considered the submissions of both parties. I will now consider the grounds of appeal in line with the submissions with the aim of answering one major question as to whether the offence was proved beyond reasonable doubt. To the appellant, the offence was not proved 5 because the appellant was not clearly identified; there was no proof as to whether the victim knew how to read the words in a cloth she was wearing on material date; there was contradiction regarding whether the victim was bathed on 12/1/2022; and while PW3 testified the incidence to have occurred on 14/1/2022, PW1 testified the same to have occurred on 12/1/2022. On the part of the respondent the offence was proved against the appellant. That, in the memorandum of agreed fact there was no dispute that the appellant was known to the victim who testified that the appellant inserted his figures in her private part. That, the evidence of the victim was corroborated with the evidence of PW4 (the Medical Doctor). That, the appellant himself confirmed that he is known to the victim. And that the appellant never cross examined in respect of identification, whether the victim was bathed on 12/1/2022 or whether the victim knew how to read. Starting with identification of the appellant, it was the evidence of the victim that he knows ‘Party’ since he is the one inserted his figure in her female organ. That Patrick took her to unfinished house, removed his cloth and begun to do the act while he was sitting on bricks. He then went with her to look for her lost money. The victim further named the 6 appellant in court and there was no question regarding improper naming in courtroom. Further, the appellant in his testimony, he does not dispute knowing the victim. At page 33 of the proceedings, he testified to have lived with the victim as his neighbour for long time. Therefore, in my view, identification of the appellant is not at issue as the appellant was well known to the victim. The prosecution’s evidence was certain and un- contradictory as to recognition of the respondents. Basically, in law, recognition is more reliable than identification. See the case of DPP v Daniel Wasonga, Crim. Application No. 64 of 2018, Byamtonzi John @Buyoya and another vs Republic, Criminal appeal No. 289 of 2019; Mussa Saguda vs Republic, Criminal Appeal No 440 of 2017; Tulizo Kahulo vs Republic, Criminal Appeal No. 338 of 2017 (all unreported). It was also submitted by Mr. Hezron that PW1 did not tell why she did not bath the victim on 12/1/2012. My perusal to the evidence on record, PW1 testified nothing as to whether she bathed the victim on that material date and the appellant did not cross examine PW1 in that aspect. The issue of when did PW1 bather PW2 was cleared in re-examination of PW2 when she said “on the fateful day of incident, my mother did not wash me. She washed me on the next day.” Further, due to this situation, even the charge sheet does not tell the exact date of the incidence. It says on unknown date of January 2022. It is noted that, according to 7 Exhibit P1 (the PF3) the informant (PW1) notified the Doctor (PW4) that the victim was sexually assaulted on the date of examination which was 13/1/2022 around 12:20HRS. The PF3 reads; “GENERAL INFORMATION (i) Nature of complaints: sexually assaulted today at around 12:20HRs (ii) N/A (iii) N/A (iv) General Medical History (including details relevant to the offence): she was sexually assaulted today…” This sounds as a doubt, nevertheless, to vitiate conviction, the doubt must be reasonable. In the case of Miller v Minister of Pensions [1972]2 All ER 372, it was stated that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt. It is also the law that proving the exact date when the offence was committed is important when the exact date was mentioned in a charge sheet. See the case of Salum Rashid Chitende v. Republic, Criminal Appeal No. 204 of 2015; Ryoba Mariba @ Mungare v. The Republic, Criminal Appeal No. 74 of 2003; Christopher. R. Maingu v. The Republic, Criminal Appeal No. 222 of 2004 and Mathias s/o Samwel v. The Republic, Criminal Appeal, No. 271 of 2009 (all unreported) 8 which were referred in the case of Kassim Arimu @Mbawala vs Republic, Criminal Appeal No. 607 of 2021 (also unreported). In this matter at hand, as I have stated hereinabove, the exact date was not stated in the charge sheet. The date mentioned therein is unknown date of January, 2022. Therefore, in my view the doubt as to when the offence was committed is not reasonable. The prosecution only has burden to prove that the offence was committed in January. For this reason, I will also undermine the argument regarding the victim’s capability to read the words written in her trouser. The evidence of PW2 is very clear that the appellant inserted a finger on her private part. As correctly submitted by the counsel for the appellant, the best evidence of sexual offence comes from the victim see the case of Victory Mgenzi @Mlowe v R, Criminal Appeal No. 354/2019; Vedastus Emmanuel @Nkwaya v R, Criminal Appeal No. 519/2017 (both unreported); and Majaliwa Iheno v. R (supra). This is because the offence is committed in secrecy. Further, the victim of sexual offences finds it difficult to narrate the misfortune to others. According to PW1 the victim was afraid to tell the truth unless her mother promise that she will not beat her. In my view the evidence of PW2 the victim was watertight and was left unchallenged by cross examination. Therefore, the 1st to 3rd grounds of appeal lacks merit. 9 Regarding the fourth ground of appeal. It was the submission for the appellant that the trial court disregarded the defence of alibi without reason. That, it was the duty of prosecution to prove that the appellant was at the scene of the crime. I agree with the appellant that the burden to prove the offence does not shift to the accused even if he raises the defence of alibi. The defence of alibi is governed by section 194 (4) (5) and (6) of the Criminal Procedure Act, Cap 20 R.E 2022. The accused need only to give notice or particulars of the subject of his defence to the court and prosecution before hearing/closure of prosecution case, as circumstances would dictate. By the notice, the prosecution will have chance of disproving the accused’s alibi as they discharge their burden of proving his guiltiness. According to the case of Kibale v Uganda [1999] 1 EA 148, a genuine alibi is, expected to be revealed to the police investigating the case or to the prosecution before trial. See also, Masanja Lupilya v R, Criminal Appeal No. 444 of 2017; Masamba Musiba @Musiba Masai Masamba v R, Criminal Appeal No. 138 of 2019; and Hamis Bakari Lambani v R, Criminal Appeal No. 108 of 2012 (all unreported). In this matter at hand, the defence of alibi was filed on 12/4/2022 that is after the evidence of the victim and her mother. Therefore, in my 10 view the alibi was raised as an afterthought. Further, as I have stated herein above. The victim proved beyond reasonable doubt that the accused inserted finger on her private party. The date remained uncertain as the victim did not specify or cross examined on the exact date when the offence was committed. The victim proved that the appellant was responsible. Therefore, I am also convinced that the defence of alibi in this case was weak to vitiate conviction. The 4th ground of appeal lacks merit too. In the upshot, the appeal lacks merit, it stands dismissed. I found no justification to alter conviction and sentence of the trial court. It is so ordered. Right of Appeal full explained to the parties. DATED at MWANZA this 31st day of January, 2024. L. J. ITEMBA JUDGE 11 Judgment delivered this 31st Day of January 2024, under my hand and seal of the court, in the presence of the accused person, Ms. Martha Mbusuli learned counsel for the accused person, Mr. Evans Kaiza, learned state attorney for Republic and Ms. Glady Mnjari, RMA. L. J. ITEMBA JUDGE 12