bernad charles ndeanka vs republic 2024 tzhc 121 5 february 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI CRIMINAL APPEAL NO. 66 OF 2023 (Originating from Criminal Case No. 49 of 2022 of Hai District Court at Hai) BERNAD CHARLES @ NDEANKA ………………………… APPELLANT VERSUS REPUBLIC ………………………………………………... RESPONDENT JUDGMENT 15/01/2024 & 05/02/2024 SIMFUKWE, J. Before the District Court of Hai at Hai (the trial court), the appellant Bernad s/o Charles @ Ndeanka stood charged with t h e offence of Rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap 16 R.E 2022 on which he was convicted and sentenced to serve 30 years imprisonment. 1 The particulars of the offence were that on 05/04/2022 at Bomani area within the District of Hai in Kilimanjaro region, the appellant raped one MN, a girl of 11 years old (identity hidden). During the trial, the prosecution case was to the effect that; on the fateful day, the appellant took the victim (PW1) to his home where he raped her while threatening her with a knife. After he had finished raping her, the appellant ordered the victim to get out of his house. Next day, the victim went to school and told teacher Lema what had happened to her. Teacher Sarah and Assenga interviewed the victim and checked her private parts. They discovered that, PW1 had been raped. Teacher Baraka took the victim to the police station where she went to sleep with one Eutropia. Next day, she was taken to hospital where she was examined by the doctor. The victim pointed at the appellant as the person who had raped her. She said that, the appellant had raped her several times when she was in class five. She mentioned him as Ndeanka. PW2 the father of the victim testified inter alia that the appellant is his cousin and they had no grudges. 2 PW3 Dr. Abdul Musa Msuya, his testimony was that he examined the victim and realized that she had no hymen. That, there were no bruises nor spermatozoa which were detected in the private parts of the victim. The victim had informed PW3 that there was a young man who used to have sexual intercourse with her. She said that the last time she was carnally known by the young man was five days before she was taken to hospital. A PF3 was produced before the court as exhibit (exhibit P1). In his defence before the trial court, the appellant said that he knew the victim as the daughter of his neighbour. He denied to had raped her and said that the child spoke lies to the court. He averred that; he was arrested while he was on his way from casual work. When cross examined, he admitted that he had no question to ask the victim when she testified. He alleged that the offence was fabricated against him. DW2 the father of the appellant supported the defence of his son. He told the court that his son could not do such a thing and that the grandmother of the child and the whole village said that the child was not raped. He thought that, the person who had accused his son had grudges with him. 3 The trial court found that the case against the appellant was proved beyond reasonable doubts, convicted the appellant and sentenced him to 30 years imprisonment. The appellant was aggrieved, he appealed to this court on three grounds of appeal: 1. That, the trial court grossly erred in law and in fact by convicting and sentencing the appellant basing on the judgment which is tainted with illegalities. 2. That, the trial court erred in law and in fact in convicting the accused person against the weight and standard required by the law. 3. That, the trial court erred in law and fact by being bias toward the accused and convicting him based on general conclusion which lacks base. The appellant prayed that the decision of the lower court be quashed and sentence be set aside. The hearing of the appeal proceeded viva voce. The appellant was represented by Ms Christina Kawanala and Mr. Tesieli Kikoti, learned 4 counsels while the Republic was represented by Ms. Bora Mfinanga, the learned State Attorney. In his submission in chief in support of the appeal Mr. Tesieli Kikoti submitted among other things that, it is trite law that the court when giving decision, the right to appeal should be explained in the judgment. Right to file notice of appeal must also be explained. That, looking at the judgment of the trial court which was issued on 20/9/2022, that right was contravened. He quoted section 359(1) of the Criminal Procedure Act, cap 20 R.E 2019 which provides that: “ Save as hereinafter provided, any person aggrieved by any finding, sentence or order made or passed by a subordinate court other than a subordinate court exercising its extended powers by virtue of an order made under section 173 of this Act, may appeal to the High Court and the subordinate court shall at the time when such finding sentence or order is made or passed, inform that person of the period of time within which , if he wishes to appeal , he is required to give notice of his intention to appeal and to lodge his petition of appeal.” Mr. Kikoti insisted that, the right is contravened and since it’s the requirement of the law, he prayed this court to acquit the appellant. 5 On the second and third grounds of appeal, it was submitted that, looking at the judgment of the trial court, the appellant was convicted below the required standard thus, beyond reasonable doubts. The proceedings and judgment of the trial court show that on 5/4/2022, the victim was at home playing with her fellows. The victim stated that the appellant held her hand and dragged her to his bedroom and raped her. It’s not stated the time when the victim was dragged to the room. It was also stated that the victim was threatened with a knife. That, the facts raise doubts as no one witnessed the incidence. The victim alleged that she could not raise an alarm because she was threatened with a knife. She also stated that, after the incidence, she left. Thus, she could have raised an alarm while leaving as the threat was no longer there. That raised reasonable doubts. Also, it has not been stated whether the offence was committed during the day or at night. Mr. Kikoti went on to submit that, pursuant to the evidence of the victim that she was raped on 5/4/2022 next day she went to school thus, on 6/4/2022 and she told her teachers about the tragedy. On 7/4/2022, the victim was taken to hospital for medical examination. That is pursuant to page 10 of the proceedings. According to the evidence of the victim, the PF3 was issued on 7/4/2022. 6 However, at page 13 of the proceedings, the doctor stated that he attended the victim on 6/4/2022 while the victim alleged that she went to hospital on 7/4/2022. When she was interrogated by the doctor, the victim alleged that the incidence took place five days before going to hospital. Meaning that the tragedy happened on 1/4/2022. Mr. Kikoti observed that, contradiction of the evidence of the doctor and the victim raises reasonable doubts which indicates that this is a framed case. He buttressed his submission with the case of TOYIDOTO KOSIMA V. R, Cr. Appeal No. 525 of 2021, CAT at page 12 where Hon. Sehel J.A quoted the case of Mathias Bundala V. R, Criminal Appeal No. 62 of 2004 and had this to say: “…. In that respect, we fully concur with Ms Silayo that contradictions affected the credibility of the key prosecution witnesses, and therefore, such evidence should not have been acted upon to convict the appellant.” From the cited authority, Mr. Kikoti suggested that, contradictory evidence of the victim and the doctor in this case should be ignored. Apart from that, in the PF3 it has been indicated that the victim had no hymen, there was no bruises in her vagina and no spermatozoa was detected as testified by the doctor at page 14, paragraph 2, 2nd line of the proceedings. That, due to the contradiction between evidence of the victim 7 and the doctor, there could have been additional evidence to corroborate that contradictory evidence. Ms Christina submitted that the appellant was convicted on the fact that the victim had no hymen meaning that there was penetration. She cited the case of SANZAYAMUNGU s/o MTUPEKEE V.R, DC Criminal Appeal No. 31 of 2020, High Court, at page 10 first and third paragraph, where Hon. Matuma, J held that: “I agree with the learned advocate of the appellant that losing virginity has not been evidence of rape in our criminal jurisprudence. It is the manner in which virginity got lost could be established that it resulted from a rape incident....” Ms Christina was of the view that the trial court erred by relying on lack of virginity as evidence of penetration. She prayed this appeal to be allowed and the appellant be set free. Ms Bora Mfinanga- State Attorney replied that, they vehemently oppose the appeal for lack of merit and supported the decision of the trial court as the same was correct. On the issue that the Republic failed to prove its case beyond reasonable doubts, it was contended that, the Republic proved its case beyond reasonable doubts. The appellant was charged and convicted of statutory 8 rape Contrary to section 130 (2) (e) of the Penal Code (supra). According to this section the prosecution was supposed to prove two things. The age of the victim and penetration. In addition, the prosecution had the duty to prove that it was the appellant who had did the said penetration. Ms Bora submitted that the Republic managed to prove all the three ingredients. She supported her submission with the case of Kambarage Mayala V.R, Criminal Appeal No. 208 of 2020, (Tanzlii) in which at page 9 the Court of Appeal stated that: “This provision creates an offence now famously referred to as statutory rape. What are required to be proved are two facts: One, that the accused had sexual intercourse with a girl, with or without her consent. The sexual intercourse is proved by penetration of her vagina, even a slight penetration is sufficient to constitute sexual intercourse. Two, it must be proved that, the girl is under 18 years of age and that, if she is 15 or more years of age, it must be shown that she is not his wife.” She concluded that, the issue of consent is immaterial in this kind of offence. Referring the case at hand, Ms Bora submitted that, at page 9 of the typed proceedings of the trial court, the victim stated that she was a pupil of twelve years old of Kisereni Primary School. During cross examination, the 9 appellant did no challenge the issue of age of the victim. She subscribed to the case of Nyerere Nyague V.R, Criminal Appeal No. 67 of 2010 at page 5, (C.A.T) where the Court held that failure to cross examine on the issue, is equal to admission of that issue. Ms Bora continued that the second ingredient of rape, that is penetration was proved in two aspects: First, it was the statement of the victim herself at page 10 of the typed proceedings of the trial court. According to section 127 (6) of the Evidence Act the court may rely on evidence of sexual victim even without corroboration. She said, in our case evidence of the victim was corroborated by PW3 a medical doctor at page 13 and 14 of the typed proceedings. He said that, he came into conclusion that the victim was raped as the victim had no hymen. Thus, penetration was proved by PW1 and PW3 including the PF3. Concerning the issue raised by the counsel for the appellant that absence of hymen is not proof of rape, and the cited case law, Ms Bora stated that, the argument lacks merit and is baseless. That, PW1 the victim explained the event by pointing at the appellant as the person who penetrated her on 5/4/2022. Since there was no mistake on identification of the appellant and the appellant did not ask any question that meant that he admitted what 10 was stated by PW1. That, it is conclusive that the Republic was able to prove the case against the appellant beyond reasonable doubts. Regarding issues which were alleged by the learned counsels for the appellant that raised doubt on part of the Republic, for instance that no one saw the appellant dragging the victim; Ms Bora cited section 143 of the Evidence Act, which provides that there is no number of witnesses which is required by the law to prove a fact. She said that, as stated earlier, under section 127 (6) of the Evidence Act, evidence of the victim in this case was enough to prove the offence of statutory rape against the appellant. Concerning the issue whether the event took place during the day or at night, Ms Bora replied that, during the hearing there was no issue of mistaken identity of the appellant before the trial court. PW1 explained that she was playing with her friends Shadrack and Angela. That, she saw the accused twice on that day before he came back to grab her. She also explained how the appellant raped her, slept and explained the event to her teacher, the following day. At page 10 of the typed proceedings, the appellant did not question his identification. That, since all the ingredients of statutory rape were proved, the issue of time was immaterial. 11 On the issue of the victim being threatened, it was replied that, at page 10 of the proceedings the victim stated that the appellant threatened her with a knife. Ms Bora was of the view that, since the victim explained the incidence within twelve hours, it was the earliest possible opportunity. She cited the case of Raphael Ideje Mwanahapa V. DPP, Criminal Appeal No. 230 of 2019 at page 21, where the Court of Appeal stated three tests which can be used to determine credibility of a witness; demeanour, coherence of evidence of a victim and other witnesses and weight of evidence of a victim and other witnesses against evidence of the accused person. Ms Bora was of the opinion that, in our case evidence of PW1 passed all the three tests. That, her evidence was coherent to the extent that even the appellant failed to challenge it. Concerning the issue of contradiction on the date when the victim was taken to hospital, it was stated that PW3 the doctor stated that on 6/4/2022 was the date on which he attended the victim. PW1 also stated that she was taken to hospital on the next day, meaning that there was no contradiction on that part. Ms Bora made reference to section 61 of the Evidence Act (supra) which provides that all facts may be proved by oral evidence. That, in this case evidence of PW1 should carry more weight. 12 She stated further that, the prosecution proved its case beyond reasonable doubts. Thus, the second and third grounds of appeal should be dismissed for lack of merit. On the first ground of appeal, Ms Bora submitted that the judgment which convicted the appellant had no illegality. The illegality that was mentioned that the right of the appellant to appeal and to file notice of appeal was not explained had no merit. That, the counsel for the appellant failed to state how the same prejudiced the appellant. As witnessed, the appellant filed his appeal in time. That, the said mischief can easily be cured under section 388 of the CPA. Thus, the judgment of the trial court met all other requirements of the law which led to the proper conviction of the appellant. She entirely prayed this appeal to be dismissed for lack of merit. In his rejoinder, Mr. Kikoti for the appellant recalled that, the learned State Attorney had submitted that the prosecution proved its case beyond reasonable doubts. He reiterated that, the case against the appellant was not proved beyond reasonable doubts. That, it was stated that the victim was raped on 5/4/2022, on 6/4/2022 the victim went to school and on 7/4/2022 she went to hospital. While being interrogated by the doctor, the victim alleged that she had sexual intercourse with the young man, five 13 days before. That raises doubts as the victim alleged in her evidence that she was raped on 5/4/2022. Concerning the cited section 127(6) of the Evidence Act, Mr. Kikoti submitted that the same applies where there is no lacuna. On the issue of proof of penetration, Mr. Kikoti referred at page 14 of the proceedings, where PW3 stated at paragraph 2, his findings which revealed that there was no proof of penetration. Regarding the cited case of Raphael Ideje, (supra) Mr. Kikoti said that he doubted credibility of PW1 as there was variance of the date when the offence was committed. Thus, the court should not act on that evidence. On the last ground which concerns illegality under section 359(1) of the CPA, Mr. Kikoti reiterated his submission in chief and stressed that the illegality is incurable. In addition to what was rejoined by Mr. Kikoti, Ms Christina asserted that on the issue of penetration, it was obvious that evidence of the victim cannot prove penetration as stated in the case of Toyidoto (supra) at page 12, third paragraph. Also, she reiterated the cited case of Sanzayamungu at page 9, 4th paragraph, where the Court stated how penetration can be proved. 14 Having considered the rival submissions of both parties, according to the second and third grounds of appeal, the main issue for consideration in this appeal is whether evidence tendered by the prosecution before the trial court proved the offence charged against the appellant beyond reasonable doubts as required by the law. The learned counsels for the appellant were of the view that penetration was not proved and that there was contradiction in respect of the date of commission of the offence. The learned State Attorney stated that penetration was proved and that there was no contradiction as the victim said that she was taken to hospital next day. I wish to start with the issue of contradiction of the date of commission of the offence. The law is now settled as to which contradictions affects the prosecution case and those which do not. In the case of Alex Ndendya v. R [2020] T.L.R 79, the Court noted that: “The law on the point is as put out by the learned State Attorney; the Court will only take into consideration contradictions which are not minor and go to the root of the matter- see: Mohamed Said Matula v. Republic [1995] T.L.R 3 and .......” In another former case of Lutter Symphorian Nelson v. AG and Another [2000] T.L.R 419 C.A it was held that: 15 “..... It must be remembered that there are discrepancies of truth as well as falsehood. It is the broad facts of a case and not the little details that are to be considered in the weighing of evidence.” In the case at hand, PW1 (victim) stated that she was raped on 05/04/2022. That, next day (06/04/2022) when she was taken to the police station by her teacher, she went to sleep with Eutropia. Next day (07/04/2022) she was taken to hospital. PW3 the doctor who attended the victim stated inter alia that he attended the victim on 06/04/2022. He also said that the victim told him that last time she had sexual intercourse with the young man was five days before she was taken to hospital. In the PF3, it was indicated that the last episode of sex was five days prior to 06/04/2022. From the evidence of PW3 and the PF3, the victim might have been raped on 01/04/2022. That is a difference of almost five days. I am of settled mind that the difference goes to the root of the case. I could have been of different opinion if it was a difference of one day or two days. The testimony of the victim if considered broadly, it raises some reasonable doubts which shakes even the fact that the appellant had raped the victim on the material date. Unfortunately, evidence of PW3 did not prove that the victim was penetrated recently. At page 6 of her judgment, the learned trial Magistrate stated that the only evidence for scrutinization in order to resolve the issue 16 whether the accused raped the victim was that of the victim only. With due respect, I see the victim as an unreliable witness. Worse enough, even the teachers who examined the victim for the first time, were not called to testify before the trial court. I am of the opinion that, their testimonies could have more corroborative value than the testimony of PW2 the father of the victim which was purely hearsay. It is a considered opinion of this court that the noted contradiction in this case dismantle the prosecution case due to the fact that the same goes to the root of the case. The date of the commission of the offence is very essential in order to establish actus reus beyond reasonable doubt. In the circumstances, I am convinced that the prosecution failed to prove that it was the appellant who had penetrated the victim as charged. Back to the first ground of appeal whether failure to inform the appellant of his right to file notice of appeal and appeal; on the outset I concur with the learned State Attorney that the same was not fatal as the appellant was not prejudiced as he filed his notice and appealed within the prescribed time. That said, I allow this appeal in its entirety for being merited. The appellant should be set free immediately unless held for other lawful reasons. 17 It is so ordered. Dated and delivered at Moshi this 05th day of February 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 05/02/2024 18 19