DPP Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA DC CRIMINAL APPEAL NO. 15449 OF 2024 (Original Criminal Case No. 49 of 2023 of the District Court of Chemba at Chemba Before Hon. P. F. Mayumba, SRM) THE DIRECTOR OF PUBLIC PROSECUTIONS……….……………………APPELLANT VS MARUSU MZAMILO HASSAN…………............................................RESPONDENT JUDGMENT Date of last order: 07th October 2024 Date of Judgment: 15th November 2024 E. E. KAKOLAKI, J In this first appeal the Director of Public Prosecutions is challenging the decision of the District Court of Chemba in Criminal Case No. 49 of 2023, handed down on 26/03/2024, acquitting the respondent from the offence of Rape in which he stood charged before the trial Court. His dissatisfaction is expressed in two grounds of appeal through the petition of appeal filed in Court on 27/05/2024 praying this Court to quash the trial Court’s decision 1 that acquitted the respondent and set aside other subsequent orders thereto. The two grounds of appeal are coached in the following words: 1. That, the trial court erred in law and fact when decided the case without evaluating properly prosecution evidence. 2. That, the trial Magistrate misdirected himself in disregarding the evidence of the prosecution witnesses on the notion that there was contradictory statement between PW1 and PW3. Before embarking on determination of the above raised grounds of appeal, I find it prudent to appreciate albeit briefly the factual background of the present appeal as gathered from the record. The respondent and victim (PW2), a child girl of 7 years whom for the purpose of this judgment I will be referring her as victim or PW2 in order to disguise her identity, were residents of Mwakisabe village, Bamada suburb within Chemba District, Dodoma Region, each living with own parents. On the 02/07/2023, morning time around 10.00 hours the victim who was outside their house playing with her siblings after being served with breakfast by their mother (PW1), was called by the respondent who was also their neighbour to assist him handle goat kids. He lured her with Tshs. 100 before the two headed to the respondent’s home where he asked her to enter inside their house, 2 undressed her pants and his trousers too while taking out his penis (dudu) which he inserted into PW2’s private parts (vagina). That, when he had finished, he released her to go home in which she started crying as the respondent has done something bad to him which act she reported to her sister who also quickly passed the information to their mother (PW1) who was on the way back home from buying bites at the nearest area for serving her breakfast. On receiving that shocking news it is claimed, PW1 rushed home and asked PW2 as to what happened and who was responsible and the later mentioned Marusu to be her rapist. PW1 it is further said, took efforts to inspect the victim (PW2) on her private parts where she discovered her vagina was swollen and that, she had sperms smeared on her thighs and clothes before she decided to go straight to the respondent’s home where she found the appellant but the later disclaimed the assertion that he raped PW2. PW1 who has held the appellant by then, asked his brother-in-law to assist him keeping the respondent under arrest while reporting the matter to the hamlet chairman (PW5) who placed him under custody of people’s militia one of them being PW6 but the later managed to escape from their custody until when he was arrested on 16/09/2023 by police officers as 3 confirmed by the village executive officer (PW7) who also recorded his extra judicial statement (exh. P4). On the 03/07/2023, the incident was reported at Mrijo Police post after the victim’s mother had secured an introductory letter from the village chairman where the victim was issued with a PF3 (exhibit P2) and underwent medical examination at Mrijo Health Center where the clinician who attended her (PW3) established that, her vagina was penetrated with blunt object as she had her labia manora swollen (mashavu yake ya ndani yalikuwa yamevimba) before he filled in the PF3 (exh. P2) and prescribed her medicines. On the respondent’s side when arrest was taken to Chemba Police station and recorded his cautioned statement (exh. P5) before a police officer (PW5) admitting responsibility on the accusations of rape placed at his door. He was later taken to court and booked with the charge of Rape, Contrary to sections 130(1), (2)(e) and 131(1) of the Penal Code, [Cap. 16 R.E 2022] whereby the prosecution contended that, on the 02/07/2023 at Mwakisabe village within Chemba District in Dodoma Region he unlawfully had carnal knowledge of the victim, a girl of 7 years old. However, when called to answer his charges the respondent returned a plea of not guilty to charge 4 and his defence was so brief that, he did not commit the offence charged with. And during cross examined he claimed that, the case was fabricated against him as on the 02/07/2023 he was at home and the victim (PW2) was asked by her parents to testify lies against him since he was treating her as her young sister. Upon weighing the evidence adduced by both sides, the trial magistrate entertained doubt on the evidence adduced by prosecution witnesses in particular PW1 and PW3 terming it to be contradictory, that while PW1 testified to have found PW2 with smeared sperms on her thighs when inspected her, the doctor (PW3) who examined her did not find them. And further that, the nature of complaint written in the PF3 (exh. P2) is sexual assault while in fact the offence facing the respondent is Rape hence doubtful as to whether the PF3 was intended and actually proved the offence of Rape and not sexual assault. Basing on those alleged contradictions, the trial court concluded that the prosecution had failed to prove its case beyond reasonable doubt against the respondent hence acquitted him. It is that decision of acquitting the respondent that irritated the DPP hence the present appeal. At the hearing of the matter the appellant appeared represented by Ms. 5 Magreth Fyumagwa, learned State Attorney while the respondent proceeding on his own unrepresented. In support of the appeal the learned State Attorney submitted on both grounds starting with the first ground contending that, the trial court failed to evaluate properly prosecution evidence adduced through eight (8) witnesses who proved beyond reasonable doubt the charge facing the respondent, the same being a statutory rape. According to her, for the prosecution to prove statutory Rape was duty bound to establish three elements, one, victim’s age, second, penetration and third, accused’s identity, the duty which she insisted was discharged religiously. The element of age she contended, was established by victim’s mother (PW1) who also tendered her birth certificate exhibit P1 proving that the victim PW2 was seven (7) years old when raped. PW1’s evidence she added, is corroborated by the victim herself (PW2) who confirmed to be 7 years old, given position of the law as pronounced in the case of Issaya Renatus Vs. R, Criminal Appeal No. 542 of 2015 (CAT) Tanzlii that, age can be established by victim, parent, guardian, close relative, medical doctor or birth certificate if any. Additionally, she argued, PW3 cemented that evidence when said age of the patient he attended was 7 years as it is also reflected in the PF3 (exhibit P2). With that evidence she 6 submitted the victim's age was proved to the required standard. As to the proof of penetration Ms. Fyumagwa informed the Court that, victim’s version in PW2 being the best evidence sufficiently explained on how the respondent used his penis to insert into her vagina hence proof of penetration. She relied on the case of George Seif Amir Vs. R, Criminal Appeal 38 of 2022 (CAT) when cited the case of Seleman Makumba Vs. R, [2006] TLR 379 observing that, the best evidence in sexual offences comes from the victim. This fact in her submission, is corroborated by evidence of clinician (PW3) at page 14 of the proceedings and the PF3 (exhibit PE2) where the later confirmed that PW2 was penetrated into her vagina as she had bruised labia minora and vagina. On identity of the perpetrator to the offence the learned State Attorney noted and argued that, the prosecution successfully established that, it is was the appellant who committed the said offence through evidence of PW2 as the latter was known to the victim before the incident and the offence was committed in the morning. She said, it is also in record that the victim reported the incident soon after its commission to her mother (PW1) before initiation of criminal proceedings as when his arrest was attempted, he escaped from the village until when he was arrested some days later and taken to police station where he confessed to have committed 7 the offence when recording his caution statement (exhibit P5). It was her submission that, had the trial magistrate considered all that evidence in wholesome, he would have found that the appellant had committed the said offence, hence proceed to convict him, instead he based on contradictions of witnesses which according to her did not go to the root of the case for being minor as it was held in a number of cases including the case of George Seif Amir (Supra). In view of the above evidence she submitted, prosecution case was so strong to warrant appellant’s conviction for proving the case beyond reasonable doubt, thus prayed this Court to rehear the case and come up with its own findings. Next in argument was the second ground of appeal where she contended that, the trial magistrate misdirected himself when disregarded prosecution witnesses on the ground that there was contradiction between prosecution witnesses PW1 and PW3, when reasoned in the judgment that, while PW1 was saying she noted swollen parts in PW2's vagina and some sperms smeared on her thighs and clothes, PW3 did not say anything concerning presence of the alleged sperms instead testified to have found bruises in her vagina. Countering trial magistrates reasoning Ms. Fyumagwa contended that, it is in record that the incident occurred on 02/07/2023. And that, after 8 the report was made by victim to her mother (PW1) the later started tracing the appellant who managed to escape and that, the introductory letter from the village for the incident to be reported at police was secured on 03/07/2023, the date when the matter was reported, PW2 issued with the PF3 and attended by PW3. Under the circumstances she explained, absence or presence of sperms in her vagina could not have created contradiction given the fact that long time had passed already for the clinician (PW3) to find the said sperms on victim’s thigh. It was her stance that, position of the law is that contradictions which do not go to the roots of the case must be ignored by the court as held in the case of George Seif Amir (supra). The second contradiction according to the trial magistrate, she noted, is on the offence of Sexual Assault as indicated in the PF3 in which the medical practitioner was requested to examine PW2 that appeared to be contrary to the charge of Rape in which the PF3 (exh.P2) sought to prove. This contradiction she argued, does not go to the root of the case since the doctor (PW3) who examined the victim made it clear in part VI of the PF3 that nature of complaint reported to him before recording down his observation concerning the patient (PW2) whom he examined was Raping of a Child and not Sexual Assault. Further to that she averred, the said PF3 was read in 9 court loudly for the accused to hear and understand the nature of the offence in which the medical examination intended, hence the claimed contradiction if any was cleared. It was therefore her prayer that, this Court be pleased to re-evaluate the evidence and find the respondent is guilty of the offence charged with, convict and sentence him accordingly. On the respondent’s side when invited to counter appellant’s submission, he had nothing to say apart from pleading this Court to re-evaluate the evidence and find no merit on it before dismissing the appeal by upholding the trial court's decision. On the appellant’s side Ms. Fyumagwa had no rejoinder to make apart from maintaining her submission in chief and prayers thereto. I have dispassionately considered the submission from both parties and took considerable time to peruse the evidence adduced by the prosecution in a bid to prove charge against the respondent as well as the defence entered by him. It is common principle of law that this being the first appeal this Court is reserved with powers to re-evaluate the evidence adduced in an objective manner and come up with its own findings. See the case of Siza 10 Patrice Vs. R, Criminal Appeal No. 19 of 2010 and Kaimu Said Vs. R, Criminal Appeal No. 391 of 2019 (both CAT-unreported). It was categorically stated in the case of Kaimu Said (supra) that: "We understand that it is settled law that a first appeal is in the form of a rehearing. As such, the first appellate court has a duty to re-evaluate the entire evidence in an objective manner and arrive at its own finding of fact, if necessary." Before venturing in such noble duty, I find it apposite to revisit the law related to proof of criminal cases. It is a common law under section 110(1) and (2) and 112 of the Evidence Act, [Cap. 06 R.E 2022] that, whoever alleges existence of any fact and requires the Court to enter judgment in his favour has to prove existence of that particular fact as the burden of so proving lies on him. Further to that section 3(2)(a) of the Evidence Act sets the standard of proof in criminal matters to be that of beyond reasonable doubt. The law is settled that, burden of proof never shifts unless otherwise provided by statute or any other written law. It is so since suspicion alone is insufficient evidence to prove accused’s guilty, more so in serious offence such as murder and I would add, statutory offence that attract heavy punishment of life imprisonment. See also the cases of Mohamed Said Matula Vs. R [1995] T.L.R. 3 (CA) and Nathaniel Alphonce Mapunda 11 and Another (supra). It is it also trite law that, the accused person is under no duty to prove his innocence but rather raise doubts on the prosecution case. See the case of Aburaham Daniel Vs. R, Criminal Appeal No. 6 of 2007, (CAT-unreported). It is so as conviction will never base on weakness of defence case but rather strength of prosecution case. See the cases of Mohamed Haruna @ Mtupeni and Another, Criminal Appeal No. 259 of 2007 (CAT-unreported). Having navigated through the law related to proof of criminal cases, it is now opportune to address the grounds of appeal as raised by the appellant starting with the first ground in which the complaint is that, the trail court erred in law and fact when failed to evaluate properly the prosecution case hence arrived to the decision of acquitting the respondent. Glancing at the impugned decision I endorse appellant’s complaint that the trial court failed to properly evaluate prosecution evidence. I so do as there is no dispute that the provisions of sections 130(1), (2)(e) and 131(1) of the Penal Code, in which the charge of Rape against the respondent was preferred under provides for statutory rape when committed to the child below the age of 18 years. In this case the respondent is accused to have raped the victim (PW2) the girl of 7 years old on the 02/07/2023 at Mwakisabe village within Chemba 12 District, Dodoma region. The respondent’s accusation falling under statutory rape, the prosecution was enjoined to establish three ingredients of the offence as correctly submitted by Ms. Fyumagwa namely, victim’s age, penetration and accused’s identity. Starting with the first element I agree with Ms. Fyumagwa’s submission that, evidence of PW1 that the victim (PW2) was born 25/09/2016 corroborated with the evidence of victim herself (PW2) and her birth certificate (exhibit P1), sufficiently established victim’s age to be 7 years as appearing in the charge sheet. I find as age can be proved through evidence of the victim, parent, close relative, guardian, medical practitioner and birth certificate if available. See also the cases of Issaya Renatus (supra) Adrea Francis Vs. R, Criminal Appeal No. 173 of 2014 and Mohamed Jumanne Vs. R, Criminal Appeal No. 569 of 2021 (both CAT-unreported) Tanzlii. On the second element of penetration the settled law as dictated under section 130 (4) of the Penal Code is that, for the purpose of proving the offence of rape, penetration, however slight is sufficient to constitute the sexual intercourse necessary for the offence. See the cases of Ex B. 9690 SGT Daniel Mshambala Vs. R, Criminal Appeal No. 183 of 2004 and Mathayo Ngalya @ Shabani V R, Criminal Appeal No. 170 of 2006 (both CAT-unreported). Now in establishing whether 13 penetration however slight it is exists in sexual offences such as rape and unnatural offences, victim’s evidence is in most cases treated as the best evidence as it has been held in numerous cases the cerebrated one being Seleman Makumba (supra). See also the cases of Hamis Halfan Dauda Vs. R, Criminal Appeal No. 231 of 2019 and Fahadi Khalifa Vs. R, Criminal Appeal No. of 2020 (both CAT) Tanzlii. In the present case as correctly submitted by the learned State Attorney, the victim (PW2) informed the trial court on how the respondent whom she identified and mentioned as Marusu lured her with Tshs. 100 when playing outside her home with siblings while asking her to follow him at their home so that she could assist him to handle the goat kids, where he took her inside the house undressed her underpants and removed his trousers before he took out his penis which PW2 referred it as dudu and inserted it into her private parts (vagina). It was in further evidence of PW2 that, after satisfying his sexual lust he released her whereby she went straight home while crying and informed her sister who passed the information to her mother (PW1) who by then had gone out to fetch bites for her breakfast. And that, she was inspected on her private parts by her mother and later on taken to police, issued with the PF3 and treated at the hospital. Further to that this witness 14 also mentioned the respondent to her mother (PW1) as the person who raped her whereby PW1 pursued him so that he could be arrested. She finally identified him in court as the person who was known to her before since they were living closer. Her evidence on penetration is corroborated by PW1 who averred that on inspecting her she noted her labia minora was swollen and had her thighs smeared with sperms as well as her clothes. Additionally, there is evidence of the clinician (PW3) who examined her on 03/07/2023 and established her labia minora was swollen hence concluded that she was penetrated with blunt object before filled in the PF3 (exhibit P2) with the same results, the evidence which also is corroborated PW2 evidence. In view of the above analyzed evidence this Court is satisfied that penetration in PW2’s vagina was proved by the prosecution beyond reasonable doubt. It is so as this Court was unable to find any contradictions between the evidence of PW1 and PW3 regarding presence of sperms on PW2’s thighs and clothes as found by the trial magistrate. The reason I am so saying is no not farfetched as the trial magistrate entertained doubts on PW1’s evidence who noticed the said sperms on PW2’s thighs on 02/07/2023 in disregard of the fact that PW3 examined her on next day 03/07/2023. The fact that PW2 was examine on 03/07/2023 is also corroborated by PW4 the police officer who 15 received the complaint from PW2’s mother (PW1) over rape incident whereby a PF3 was issued on the same day for PW2 to be examined at Mrijo Health Centre. As correctly submitted by Ms. Fyumagwa the submission which I endorse, had the trial magistrate taken note of that plain fact he would have appreciated that there was no possibility to PW3 seeing sperm on PW2’s thighs after lapse of one day, hence no contradiction in evidence of PW1 and PW3. Equally the request by police officer to examine the victim on the suspected offence sexual assault, in my considered view did not in any way create confusion or contradiction regarding the nature of offence reported at police against the one that faced the respondent since part IV of the PF3 (exhibit P2) as correctly submitted by Ms. Fyumagwa, specified the nature of sexual assault case to be Raping of the child, in which the respondent stood charged. I therefore find the trial magistrate misdirected himself when found that, the reported complaint in part II of the PF3 referring to medical details of the alleged case as sexual assault amounted to contradiction on the offence facing the respondent. The last element is identity of the accused person in which after revisiting PW2’s evidence this Court is endorsing Ms. Fyumagwa’s submission in that, she sufficiently identified the respondent by the name of Marusu as the 16 person who raped her. My finding is fortified on the fact that, the respondent was not stranger to PW2 as the two were living in the neighbourhood and his identification was done in the broad day light hence unmistaken identity. As if that was not enough PW2’s act of mentioning the said respondent to her mother (PW1) at the earliest possible time rendered assurance and reliability on her evidence regarding the respondent’s identification. I find solace in that finding from the case of Marwa Wangiti and Another Vs. R [2002] T.L.R 43 and Kenga Chea Thoya (supra) as quoted in Nicholaus Jame Urio (supra). It was observed in Marwa Wangiti and Another (supra) on reliability of a witness who names her assailant at the earliest possible time that: ’’The ability of a witness to name a suspect at the earliest opportunity is an assurance of his reliability, in the same way as unexplained delay or complete failure to do so should put a prudent court to enquiry.’’ (Emphasis added) In his defence the respondent tried to impress upon the Court that, the case was framed against him as PW2 was directed by her parents to testify lies against him. And that, on the 02/07/2023 he was at home and did not meet 17 PW2. Having weighed his defence against the evidence adduced by the prosecution, I find it wanting in merit for failure to dent any reasonable doubt. I will explain why? The assertion by the respondent that the case was fabricated against him by PW2’s parents in my conviction is an afterthought for not being supported by any evidence. If at all was framed up it was expected of him to cross examine both PW1 and PW2 on such important fact. However, no question was put to PW1 concerning that fact when cross examined leave alone the fact that he failed to cross examine at all the victim (PW2). It is a principle of law that, failure of the party to cross examine a witness connotes nothing than admission of the evidence adduced by him or her. This sound principle of law was adumbrated by the Court of Appeal in the case of Nyerere Nyague Vs. Republic, Criminal Appeal No. 67 of 2010, (CAT-unreported) where the Court said: "As a matter of principle, a party who fails to cross examine a witness on a certain matter is deemed to have accepted that matter and will be stopped from asking the trial court to disbelieve what the witness said." In the parity of reasoning in the case of Martine Misara Vs. R, Criminal Appeal No. 428 of 2016 (CAT) at page 8 the Court of Appeal observed that: 18 ’’It is the law in this jurisdiction founded upon prudence that failure to cross-examine on a vital point, ordinarily, implies the acceptance of the truth of the witness evidence; and any alarm to the contrary is taken as an afterthought if raised thereafter. See: Damian Ruhele v. Republic, Criminal, Appeal No. 501 of 2007, Cyprian Athanas Kibogoyo v. Republic, Criminal Appeal No. 88 of 1992, George Maili Kemboge v. Republic, Criminal Appeal No. 327 of 2013, Nyerere Nyague v. Republic, Criminal Appeal No. 67 of 2010 and Ismail Ally v.Republic, Criminal Appeal No. 212 of 2016 (all unreported).’’ In the present matter as alluded to above the victim testified on how the respondent raped her and who she reported the matter to her mother PW1 mentioning the respondent, the evidence which was corroborated by PW1 who also made attempt to arrest her after inspecting PW2’s private parts and satisfied herself that she was penetrated as well as evidence of PW3 and PF3 (exh. P2) that confirmed that PW2 was penetrated by using a blunt object. As the respondent failed totally to cross examine these witnesses on such vital evidence connecting him with the offence charged with, leave alone his contention that the case was framed against him by PW2’s parent, this court is entitled to draw an adverse inference as done above that, his defence that his case was fabricated emerged as an afterthought hence disbelieves it. It is so because the Court lacks any materials to believe his 19 story as there is no expressed reasons as to why he should be framed up in such serious allegations. In view of the above deliberation, I find merit in the first ground of appeal as this Court is satisfied that, the offence of Rape was proved against the respondent beyond reasonable doubt. Next in determination is the second ground on the complaint of trial magistrate’s misdirection when held that there were contradictory statements between PW1 and PW3’s evidence, which I think need not detain this Court much for being addressed when determining the first issue. I so find as it is already found that there was no contradiction between the evidence of PW1 and PW3, hence this ground is meritorious too. All said and done, this Court is satisfied the charge of Rape that faced the respondent was proved by the prosecution beyond reasonable doubt. In view of that finding the respondent’s acquittal is hereby quashed instead this Court finds him guilty as charged and proceed to convict him with the offence of Rape, contrary to sections 130(1), (2)(e) and 131(1) of the Penal Code, [Cap. 16 R.E 2022]. It is so ordered. 20 Dated at Dodoma this 15th day of November, 2024 E. E. KAKOLAKI JUGDE 15/11/2024. SENTENCE Having considered the aggravating and mitigation factors and the fact that the offence was committed to the child of 7 years old, I find this Court is forced to award the convict a statutory sentence as provided under section 131(1) of the Penal Code, [Cap. 16 R.E 2022]. I therefore sentence Marusu Mzamilo Hassan to serve a sentence of life imprisonment. Additionally, he has to compensate the victim Tshs. 1,500,000/-. It is so ordered. E. E. KAKOLAKI JUGDE 15/11/2024. 21 Court: This Judgment has been delivered at Dodoma today on this 15 th day of November 2024, in the presence of appellant in person, Mr. Gothard Mwingira, State Attorney for the respondent and Ms. Veradina Matikila, court clerk. Right of appeal fully explained E. E. KAKOLAKI JUGDE 15/11/2024. 22