ELIUD NGALYA DRAFT JUDGMENT

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY

AT DODOMA DC. CRIMINAL APPEAL NO. 15453 OF 2024 (Originating from the Criminal Case No. 71/2023 in the District Court of Mpwapwa at Mpwapwa)

BETWEEN ELIUD ELIA NGALYA ….………..…………………… APPELLANT

VERSUS THE REPUBLIC ……………………..…….…..…..….. RESPONDENT

JUDGMENT Date of last Order: 22/08/2024 Date of the Judgment: 28/08/2024 LONGOPA, J.: This appeal against the conviction and sentence entered by the District Court of Mpwapwa on the offence of rape allegedly committed by the appellant herein when he was 18 years of age. The District Court sentenced the appellant to serve thirty (30) years imprisonment C/S 130 and 131(1) of the Penal Code, Cap 16 R.E. 2022. 1|Page On 6th June 2024, the appellant instituted an appeal against both conviction and sentence entered by the District Court of Mpwapwa on the following grounds, namely: 1. That, the trial court erred both in law and in facts when did not warn himself if the sentence of 30 years was legal and proper to impose to the appellant as it is on record firmly unchallenged that the appellant was eighteen years (18) of age at the time he alleged to have committed the offence, whereas the appellant was the first offender, this was contrary to the requirement of section 131(2) of the Penal Code Cap 16 (R.E.2022).

2. That, the trial court grossly erred in law and fact when convicted the accused person (appellant) while the prosecution side totally failed to prove the charge against the appellant beyond all reasonable doubts.

3. That, the trial court erred in law and fact by failing to assess the credibility of the prosecution witnesses hence arising at the wrong verdict against the appellant. 2|Page 4. That, the trial court erred both in law and in facts when failed first to address the issue of identification due to the fact that the complainant did not given in details how she managed to identified the rapist such as clothes which he was dressed on the material time, if she knows even before the occurrence of incident, height, color and physical appearance in absence of that descriptions the identification pared was very important to be conducted so as to avoid miscarriage of justice on part of the appellant, thus contrary to the law.

5. That, the trial court erred both in law and fact when failed totally to act on the principle of the law that an accused person ought to be convicted on the strength of the prosecution evidence and not on the weakness of his defence the case at hand the trial court did such mistake while it is against the law.

6. That, the learned trial Magistrate grossly erred in law and fact by acting upon improperly procured and admitted an exhibit P2 (PF3) which obtained illegally and exhibit P1 (Clinic Card). 3|Page 7. That, the learned trial magistrate improperly considered and evaluated the appellant’s defence evidence. The appellant prayed that this honorable court be pleased to allow the appeal, quash a conviction and to set aside the sentence of thirty (30) years in jail thereafter to order immediately release of the appellant from imprisonment. On 22nd August 2024, the parties appeared before me for viva voce hearing. The appellant enjoyed the services of Mr. Sostenes Peter Mselingwa, learned advocate while the respondent enjoyed the legal services of Ms. Sara Anesius, Francis Mwakifuna and Victoria Njau, State Attorneys. Mr. Sostenes Peter Mselingwa, learned advocate was the first one to address the court on this appeal. In respect of the first ground relating to err in law and fact by convicting and sentencing the appellant to 30 years imprisonment instead of corporal punishment, it was argued that the District Court of Mpwapwa imposed a sentence which was against section 131(2) of the Penal Code, Cap 16 R.E 2022 as the appellant was aged 18 years as the charge stated. 4|Page It was reiterated that in the proceedings, at page 20, the defence witness brought the defence of age to be 17

years, thus the punishment was against the law as stated in the foregoing provision. To cement this ground, the counsel for the appellant cited a case Jumanne Mzanje Vs Republic, Criminal Appeal No. 601 of 2021, where the Court of Appeal of Tanzania (Hon. Lila, JA) stated at page 7 stated that if the offender is 18 years or below 18 years then the sentence is corporal punishment. Thus, the District Court erred by awarding a different penalty. This appeal is merited on this first ground. In the second ground relating to the error in law and fact for conviction and sentence while the prosecution failed to prove the case beyond reasonable doubt, it is submitted that defence evidence at page 20 indicates that appellant was arrested while returning from a place where he went to watch football match. One DW2 also testified in favour of the appellant as they were together on that material time. It was further argued that the appellant saw the victim for the first time at that place where he was arrested. According to appellant’s counsel, the evidence of the victim is contradicting and weak as there are a lot of doubts as it appears there were no neighbours who could have assisted her. At page 9 of typed proceedings, the victim stated that the appellant covered the mouth of the victim using a hand, then proceeded to undress the skirt and underwear of 5|Page the victim. There is no

effort shown by the victim to rescue herself from the alleged action. The evidence of Medical doctor, at page 13 indicates that he examined the victim found the virginity perforated, no infection thus it indicates that the victim was experienced person thus was not raped. PW2, PW4 are the persons who didn’t see the appellant when committed the offence nor they are not the ones who assisted the victim. The evidence of the prosecution if weighed in light of defence, it is lead that the matter was not proved to the required standard of proof beyond reasonable doubts. There was no dispute nor exiting conflict between the victim and the appellant, the appellant was of the opinion that the direction that case was not proved thus all the sentence and orders of the District Court be set aside as they are illegal. On the other hand, the respondent partly concurred with the appeal. In accordance with section 130 and 131(2) of the Penal Code, Cap 16 RE. 2022, the punishment is corporal punishment if the accused is below 18 years the age of the appellant was not contentious. At page 6 of the proceedings when the Preliminary Hearing was conducted, the appellant admitted the same as he did not dispute on the age. The appellant 6|Page admitted to be 18 years as the age was not above 18 years. Thus, the sentence imposed against the appellant was illegal. On the second ground relating to the

failure of the prosecution proved the case beyond reasonable doubts by calling witnesses and tendered documentary evidence, it was submitted that the case was proved to the required standard. PW1 stated the manner in which the offence was committed and stated the ingredients of the offence. The victim elaborated the way in which she was raped, the use of force by the appellant to facilitate the penetration by force. Further, PW2, corroborated stated that PW1 informed immediately that it is the appellant who was the assailant/wrongdoer. When PW1 and PW2 went to look for the person, immediately PW1 recognized the offender. The timing of the commission of the offence was right and easy to identify the offender. Moreover, PW4, Medical doctor, proved that there was penetration which was by force and tendered Exhibit P2 which was PF3 as recorded in page 14 of the proceedings as the victim had bruises at her vagina and there was blood thus there was penetration. Finally, PW5, the investigation officer came to corroborate the evidence of the victim, to have the offence committed by the alleged offender. 7|Page The evidence of the victim was direct, reliable and convincing as the case of Selemani Makumba best evidence is that of the victim and any other evidence corroborates that evidence of the victim. Furthermore, it was the respondent’s counsel submission that the judgment of the

trial court was not based on weakness of the defence case but strengths of the prosecution’s case that established the offence beyond reasonable doubts. The evidence of defence at page 20 indicates that DW2 was not with the appellant thus could not cast any reasonable doubt. On these grounds, we are of the view that the second ground lacks merits thus the same has nothing to warrant the Court to set aside the conviction. It is our prayer that the appellant was properly convicted. That is all. Having heard the submissions of both parties in support or opposition of the appeal, I have dispassionately perused the record of the trial court including the proceedings and judgment to find out merits or otherwise of the appeal. It should be stated at the outset that the appellant opted to address only two grounds of appeal out of all the seven grounds preferred. The rest five grounds was abandoned formally by the counsel for the appellant. 8|Page Proof of the case to the required standard was one of the grounds of appeal that was argued seriously by parties. The parties have divergent views on the proof of the case. The criteria used in proof of criminal cases is well established and it is the settled law that burden of proof is always on the prosecution and standard of proof is that of proof beyond reasonable doubts. The criteria were reiterated in the case of Pascal Yoya @ Mganga vs

Republic (Criminal Appeal No. 248 of 2017) [2021] TZCA 36 (24 February 2021) (TANZLII), at pages 16-17, the Court of Appeal of Tanzania stated that: It is a cardinal principle of criminal law in our jurisdiction that, in cases such as the one at hand, it is the prosecution that has a burden of proving its case beyond reasonable doubt. The burden never shifts to the accused. An accused only needs to raise some reasonable doubt on the prosecution case and he need not prove his innocence. See the cases of Woodmington v. Director of Public Prosecutions [1935] AC 462; Abdi Ally (supra) and Mohamed Haruna @ Mtupeni & Another v. Republic, Criminal Appeal No. 25 of 2007 (unreported). In the just cited case of Mohamed Haruna @ Mtupeni & Another (supra) the Court stated that: - 9|Page "Of course, in cases of this nature the burden of proof is always on the prosecution. The standard has always been proof beyond reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence." Again, in Mwita and Others v. Republic [1977] TLR 54 the Court said: “The appellants' duty was not to prove that their defence was true. They were simply required to raise a reasonable doubt in the mind of the magistrate and no more.” Accordingly, the role of the defence is minor simply to poke holes in the

prosecution’s evidence that raise reasonable doubt that there are possibility of the alleged offender to have not participated in commission of alleged crime. To prove commission of the offence of rape, it is important to establish the ingredients of offence of rape, mainly first, that there was penetration of the victim’s vagina by male organ i.e. penis. Second, that the age of the victim is below 18 years old. In respect of penetration, there must be evidence that victim’s vagina was penetrated. In the case of Godi Kasenegala vs Republic (Criminal 10 | P a g e Appeal 10 of 2008) [2010] TZCA 166 (12 October 2010) (TANZLII), at pages 14-15, the Court of Appeal instructively stated: It is also a specific requirement of the law that for there to be rape there must be penetration. We cannot express it more lucidly than the Court did in the case of Mathayo Ngalya @Shabani V Republic, Criminal Appeal No. 170 of 2006 (unreported). It said: “The essence of the offence of rape is penetration of the male organ into the vagina. Sub-section (a) of section 130 (4) of the Penal Code ... provides: - ‘for the purpose of proving the offence of rape, penetration, however slight is sufficient to constitute the sexual intercourse necessary to the offence.’ For the offence of rape, it is of utmost importance to lead evidence of penetration and not simply to give a general statement alleging that

rape was committed without elaborating what actually took place. It is the duty of the prosecution and the court to ensure that the witness gives the relevant evidence which proves the offence." It is on record that PW 1’s testimony narrated the ordeal in that the appellant chased the victim who fell down and the appellant covered the victim’s mouth with hand. It is at that juncture when the appellant opened 11 | P a g e the victim’s skirt and removed the tight and underwear. He opened the victim’s legs and took his penis inserted into the victim’s vagina. It was after sometimes that the appellant removed his penis from the victim’s vagina. It is settled law that best evidence in sexual offences is that of the victim. The principle was emphasized in the case of Kennedy Mahuve @ Mjaliwa vs Republic (Criminal Appeal No. 540/590 of 2020) [2024] TZCA 19 (6 February 2024) (TANZLII), at page 15, where the Court stated: On the other hand, we are mindful of the settled law that the best evidence in sexual offences comes from the victim as stated in Selemani Makumba v. Republic [2006] T.L.R. 379 and several other decisions of this Court. However, we hasten to emphasize that, the said position equally depends on the credibility of the respective witness on the facts of the incident and the connection of the accused to the offence...It is settled that delayed reporting weakened the

credibility of the evidence of the victims. Having perused the record especially the proceedings, I am satisfied that the testimony of the victim is credible and reliable. The victim narrated fully on the manner in which the offence of rape was committed against her. The credibility and reliability of PW 1 testimony is based on two main 12 | P a g e reasons. First, it is the corroborating evidence on record; and Second, the consistency of the evidence. PW 1’s evidence had strong corroboration. PW 4, a medical doctor testified to have examined the victim on the same day of the incident. It was PW 4’s testimony that he found the victim had heavy discharge on her labia majora and bruises that were bleeding. She had lost virginity and she had a lot of discharge mixed with drops of blood. Exhibit P2 which was a PF 3 was tendered, and admitted, and read out in court. It was not objected by the appellant. The PW 4’s evidence concluded that the victim was penetrated in her vagina with a blunt object without her consent. With regard to consistency, the evidence of PW 2 is that immediately after the incident PW 1 informed PW 2 and one Benester that she was raped against her will by the appellant. When they looked for the assailant, PW 1 immediately identified the appellant as the alleged rapist. It was PW 2’s evidence that the appellant was found in possession of the victim’s shirt which

he took immediately after the incident of rape. Indeed, PW 1 had testified that the offender took her shirt by force thus she had to put on another shirt from her beg as she took several clothes with her. The evidence of PW 1 and PW 2 tallies squarely with that of PW 5 the Police officer who stated that upon recording the victim’s statement it was revealed that appellant did penetrate the victim by inserting his penis on 13 | P a g e victim’s vagina and removed and took the victim’s shirt as well. It was PW 5 testimony that PW 1 was given PF 3 to attend medical examination and the same was filled and returned to police station where it was kept on the case file. Indeed, totality of evidence of PW 1, PW 2, PW 4 and PW 5 sufficiently establish the element of penetration of the victim’s vagina by the appellant’s penis. Thus, penetration was sufficiently established by evidence of the prosecution. The second aspect is proof of age of the victim as the offence of rape hinges on either age of the victim if the offence is committed to a person below 18 years old or the lack of consent. In the circumstances of the appeal, the age is the most important aspect as the charge and preliminary hearing alleged that the victim was 16 years old. It was evidence of PW 1 that she is aged sixteen (16) years old. This was corroborated by PW 3 one Rukia Julius Chivulati who is the victim mother. It was her evidence that victim was 16 years old as she was born on 18/02/2007 and tendered a Clinic Card of the victim as Exhibit P.

1. In the case of Cosmas Herman vs Republic (Criminal Appeal No. 211 of 2020) [2024] TZCA 393 (3 June 2024) (TANZLII), at page 4, the Court stated categorically that: 14 | P a g e It is plain, therefore that, for a rape under section 130(2) (e) of the Penal Code to exist, the victim must be a girl whose age is below 18 years. The age of the victim is, therefore, an essential element of the offence in the absence of which the same cannot be proved. Thus, in the case of Sumitu Abdallah v. R (Criminal No. 247 of 2021) [2023] TZCA 17994 (14 December 2023), it was held that; in a case where the victim's age is the determining factor in establishing the offence, evidence must be positively laid out to disclose the age of the victim. As the evidence of PW 1 and PW 3 revealed that the victim was 16 years of age, I am satisfied that the evidence disclosing the age was positively laid down and disclosed by the prosecution during the trial. The age of the victim can be proved by different mechanisms including the evidence of the victim herself, parents, school records or medical record that has indicated the age. In the case of Hassan Bundala @ Swaga vs The Republic (Criminal Appeal 386 of 2015) [2015] TZCA 261 (23 February 2015) (TANZLII), at page 4 the Court of Appeal observed that: Not only was the age of the victim mentioned in the charge sheet but the medical evidence through PW6

and 15 | P a g e the PF3, exhibit PE1 showed that the victim was aged 8 years when she was raped. The appellant did not challenge this evidence then and he can't be heard at this stage to say that the age of the victim was not proved. Thus, the evidence of PW 1 and PW 3 was sufficient to prove that the age of the victim was below the age of 18 years old. The victim and her mother testified on oath that the victim is aged 16 years old. Furthermore, on Memorandum of Agreed Facts, the age of 16 years old for the victim was one of the facts that were not disputed. As such, the age of the victim was established. As the defence evidence did not raise any serious and reasonable doubts on the prosecution’s evidence, it is settled view that the prosecution did manage to prove the case against the appellant to standard required by law. Indeed, it is illustrative that where prosecution’s evidence is so strong not to leave any possibility of reasonable doubts that case shall be regarded to have been proved beyond reasonable doubts. This is the principle in the case of Chausiku Nchama Magoiga vs Republic (Criminal Appeal No. 297 of 2020) [2023] TZCA 17810 (9 November 2023) (TANZLII), at page 11 where the Court of Appeal observed that: The duty of the prosecution to prove a criminal case beyond reasonable doubt is universal and, in our case, it is 16 | P a g e statutorily provided for under

section 3 (2) (a) of the Evidence Act, Chapter 6 of the Revised Laws. Further, in the case of Woodmington v. DPP [1935] AC 462, it was held inter alia that, it is a duty of the prosecution to prove the case and the standard of proof is beyond reasonable doubt. The term beyond reasonable doubt is not statutorily defined but case laws have defined it. In the case of Magendo Paul & Another v. Republic [1993] T.L.R. 219, the Court held that: "For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed." The ground of appeal based on failure by the prosecution to prove the case beyond reasonable doubt is therefore lacking any cogent merits as the analysis has demonstrated that available evidence on record points to one and same direction that the appellant is the one who committed an offence of rape against the victim. Thus, I shall proceed to overrule the ground on failure to prove the case for being devoid of merits. On sentence, the parties are in concurrence that the sentence of thirty (30) years imprisonment was excessive and illegal as the law provides for a different sentence to the offender of that age. Section 17 | P a g e 131(2) of the Penal Code, Cap 16 R.E. 2022 is illustrative on the sentence. It provides that: (2) Notwithstanding

the provisions of any law, where the offence is committed by a boy who is of the age of eighteen years or less, he shall- (a) if a first offender, be sentenced to corporal punishment only; (b) if a second time offender, be sentence to imprisonment for a term of twelve months with corporal punishment; (c) if a third time and recidivist offender, he shall be sentenced to five years with corporal punishment. According to record, the Charge against the appellant stated that the appellant was 18 years of age. This was also the position in the Preliminary Hearing of the matter as the 18 years of age was not contested by the accused person. Indeed, the appellant was aged 18 years old thus sentencing out to have considered the age as per the requirement of the provision of section 131(2) of the Penal Code. It was correctly submitted by the counsel for the appellant that appropriate sentence for an offender aged eighteen (18) years of age or below for the offence of rape is not custodial sentence. It is corporal punishment especially where such offender is regarded to be first offender. 18 | P a g e Indeed, that is the principle in Jumanne Mzanje vs Republic (Criminal Appeal No. 601 of 2021) [2024] TZCA 4 (2 January 2024) (TANZLII), at page 19, the Court of Appeal had noted that: We now turn to consider the first ground of complaint that the two courts below erred in law to impose a

sentence of thirty (30) years imprisonment without considering that the appellant, when he was charged, was 18 years old, was a first offender and the requirement of section 131(2)(a) of the Penal Code and he deserved, upon conviction, to be sentenced to only suffer strokes of the can. This ground of appeal is merited and, luckily, both sides agree with that. Indeed, the personal particulars of the appellant as were presented by the prosecution when he was first arraigned in court and his own defence evidence established that he was 18 years old. In terms of section 131(2) (a), (b), (c) of the Penal Code he could not be sentenced to serve a prison term. The District Court of Mpwapwa sentenced the appellant to serve thirty (30) years custodial sentence for the offence of rape committed against the victim. This sentence, accordingly was not within the permissible sentence to the offender of that particular age. It is an illegal sentence. 19 | P a g e It is on record that having convicted the offender, the trial magistrate heard both the aggravating and mitigation factors. The Prosecution categorically indicated that there are no previous criminal records of the offender but they prayed for strong punishment to be meted to the offender. On the other hand, the appellant prayed for lenience in that he was still young and his mother was old depending on his help. It is at

this juncture that the appellant was sentenced to serve a 30 years imprisonment allegedly as the trial Magistrate was tied by the law. My perusal of section 131(2) (a) of the Penal Code is lucid that where offence of rape is committed by a boy of 18 years, or below he shall if he is the first offender, be sentenced to corporal punishment only. It is therefore, pertinent to state that imprisonment for thirty (30) years was misplaced and illegally imposed. Indeed, the first ground of appeal on the illegality of the sentence has merits. I shall uphold the same as the sentence imposed was in contravention of the law that categorically provides for a different lesser penalty to the offender who is 18 years old or below that age. I shall proceed to set aside the sentence of 30 years imprisonment imposed against the appellant and substitute the same with corporal punishment of twelve (12) strokes of caning. It is so ordered. 20 | P a g e DATED at DODOMA this 28th of August 2024. E.E. LONGOPA

JUDGE 28/08/2024. 21 | P a g e