CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA (CORAM: MUGASHA. J.A., LEVIRA. 3.A. And MAKUNGU. J.A.1 CRIMINAL APPEAL NO. 304 OF 2021 EMMANUEL SAMWEL @ N O E L ................................................................ APPELLANT

VERSUS THE REPUBLIC....................................................................................RESPONDENT (Appeal from the decision of the Resident Magistrate Court of Manyara at Babati) (H. Mnquruta, SRM with Extended Jurisdiction^ dated 12th day of March 2021 in Criminal Appeal No. 22 of 2020

JUDGMENT OF THE COURT 2nd& 5thJuly, 2024 MUGASHA. 3.A.: Before the District Court of Manyara, the appellant was charged with two counts of rape and unnatural offence contrary to sections 130 (1) (2) (e) and 131 (1) and (3) and 154(1) (a) of the Penal Code of the Penal Code Cap 16 RE 2019 respectively. At the trial, it was alleged by the prosecution that the appellant on 16/7/2018 at Maganjwa village within Babati District in Manyara Region had sexual intercourse with a girl aged 8 years old. It was further alleged that on the same date and venue, the appellant did have canal knowledge of the said girl against the order of nature. The girl shall be referred to as the victim or PW1 in order to conceal her identity. After a full trial, he was convicted as charged and sentenced to life imprisonment on both counts and in addition three strokes of a cane. The sentence was to run concurrently. Being aggrieved with the said decision, he unsuccessfully appealed before the High Court of Tanzania and his appeal which was transferred and assigned to SRM with extended Jurisdiction, was dismissed in its entirety and the sentence upheld. Still discontented, in the present appeal the appellant seeks to impugn the verdict of the High Court. Before addressing the appeal, it is pertinent to have a brief factual account underlying the conviction of the appellant. From a total of five prosecution

witnesses, the prosecution account was to the effect that: On the fateful day, at about 18:00 hours the victim was sent by her mother (PW2) to the milling machine. She met the appellant on the way who carried her to the school farms and ravished her. She sustained injuries and blood was oozing out of the vagina and anus and stool was coming out. After finishing his lust the appellant did bite her on the face and the leg. What befell the victim was flanked by her mother Marry Dominicia 2 (PW2) who when the victim resurfaced; she inspected her and found that she was actually ravished. According to PW2, the victim named the appellant to be the one who ravished her. Prior to and after the victim had resurfaced, in a bid to trace her, PW2 had notified the ten cell leader one Bartazari Walee (PW3) who also confirmed to have seen the victim bleeding and in a bad state. Then PW3 pursued the appellant who was apprehended and taken to the residence of the victim who upon seeing him, she said that he is the one who ravished her. On the following day, that is, on 17/7/2018, the matter was reported to the police; a the PF3 was issued and the victim was taken to the hospital. She was examined by Sheidai Salim (PW4) the doctor who established that the victim was seriously injured and had a bad tear on the private parts. The victim was stitched on the torn private parts and subjected to

medication. The natures of injuries sustained by the victim were recorded in the PF3 which was tendered at the trial as exhibit PI. Subsequently, the appellant was arraigned for the offences charged. On the other hand, the appellant denied the assertions laid against him by the prosecution. He stated that on the fateful day he was busy at their farm throughout the day until 17:00hrs when he turned back home. 3 He said that, the ten cell leader arrested him during the night when he was asleep. His evidence was flanked by DW2, DW3, and DW4. Ultimately, the prosecution account was believed to be true and the trial court concluded that the charge was proved to the hilt given that the evidence of the victim was corroborated by that of PW3 and PW4. As earlier stated, the appellant was sentenced to life imprisonment on both counts and in addition three strokes of a cane. In the memorandum of appeal dated 27/3/2023 the appellant has raised eight points of grievance as hereunder: 1. That the 1st appellate court erred in law and facts in finding that the charge sheet was incurably defective for citing section 131(1)(e) which does not exist in the Penai Code.

2. That the 1stappellate court erred in law and facts in not finding that the age o f the appellant was within eighteen years during the commission o f the said offence, hence contravening section 160B o f the Penal Code.

3. That the 1st appellate court erred in law and facts for upholding the conviction based on PW3's evidence who alleged that the appellant admitted committing an offence but unfortunately failed to tender his caution statement.

4. That the 1stappellate court erred in law and facts in not finding that the existence o f scratches on the appellant's face was not reported to the police and the one who issued the PF3 did not testify.

5. That the 1st appellate court erred in law and facts in upholding the conviction o f the appellant based on the sole evidence o f PW1 (victim) while her evidence was taken contrary to section 127(2) o f the Evidence Act, [Cap 6 R: E 2002].

6. That the 1stappellate court erred in law and facts in not finding that PW1 failed to scream for help when the appellant was rapping her, thus signifies that this case was framed against the appellant.

7. That the 1stappellate court erred in law and facts for not considering the defence evidence o f the appellant.

8. That the 1stappellate court erred in law and facts in not finding that the appellant was denied his rights o f being represented by an advocate contrary to section 310 o f the CPA. Moreover, on 26/6/2024, the appellant filed a supplementary memorandum of appeal containing two grounds as follows: 1. That, the first appellate court erred in law and fact in failing to scrutinize properly the evidence given by PW1 (Victim) as she was too incredible to warrant the appellant's conviction.

2. That the first appellate court erred in law and fact in not finding that; there were material contradictions in the prosecution witnesses. 5 When the appeal was called for hearing, the appellant appeared in person, unrepresented. He adopted the memorandum of appeal without more and urged us to allow the appeal reserving the right to re-join, if need arises. The respondent Republic had the services of Ms. Naomi Joseph Mollel, learned State Attorney who appeared alongside Mr. Charles Lwanga Kagirwa and Ms. Helena Patson Sanga, both learned State Attorneys. At the outset, Ms. Mollel did not support the appeal save for the sentence meted on the appellant. In her address, she drew our attention on grounds 3, 4 and 6 in the Memorandum of Appeal arguing that, this Court has no jurisdiction to entertain and determine them because they were not initially raised and determined by the High Court. This need not detain us. It is glaring that in the stated grounds of appeal, the appellant has raised grievances not relating to the points of law and which were not brought to the attention of the first appellate court. The mandate of the Court to hear and determine appeals from the High Court and subordinate courts with Extended Jurisdiction is prescribed under section 4 (1) of the Appellate Jurisdiction Act [CAP 141] R.E.141 2022. Save for matters touching on questions of law, the Court has

no jurisdiction to hear and 6 determine matters not initially raised at the High Court and from subordinate courts with Extended Jurisdiction. See: BAKARI ABDALLAH MASUDI V. REPUBLIC, Criminal Appeal No. 126 of 2017 (unreported). In premises, on account of lack of jurisdiction to decide what was not initially presented to the first appellate court, we discard grounds 3, 4 and 6 in the Memorandum of Appeal. In the remaining grounds of appeal as gathered from the memoranda, the appellant is faulting the two courts below on mainly: One; the improper conviction and sentence relying on a defective charge; two, failure by the trial court to comply with the provisions of section 127 (2) of the Tanzania Evidence Act [CAP 6 R.E.2019] ( the Evidence Act) in that prior to giving her testimony, the victim did not promise to tell the truth; three, irregular conviction based on contradictory prosecution account; four, failure by the courts below to consider his defence; five, denial of a right to be represented by an advocate and six, failure by the courts below to consider age before imposing imposing illegal sentence of life imprisonment. Regarding the propriety or otherwise of the charge, it was the appellant's complaint that section 131 (1) (e) is non-existent in the Penal Code and as such, the charge was rendered defective and it should not have been acted upon to convict him. This was

opposed by the learned State Attorney who pointed out that, the appellant was arraigned for two counts of rape and unnatural offence contrary to the provisions of section 130 (1) (2) (e), 131(1) (3) and 154 (1) of the Penal Code. She was quick to submit that, although the punishment provision of unnatural offence does not feature in the charge, the omission is curable under section 388(1) of the Criminal Procedure Act [CAP 20 R.E 2019]. On this, she argued that, the particulars in the charge were sufficient to inform the appellant the basis of the charge laid against him and he was able to put up a defence. Our careful scrutiny of the charge shows that, the charge of rape was correctly preferred under the provisions of 130 (1) (2) (e), 131(1) (3) of the Penal Code and not 131 (1) (e) as suggested by the appellant. As correctly submitted by the learned State Attorney, in the second count of unnatural offence subsection (2) of section 154 of the Penal Code, which is a punishment provision is missing. We found the omission not fatal as it is curable under section 388 of the CPA. We are fortified in that regard given that, it is evident on the record that the sufficient particulars of the offence were read to the appellant who was thus made to understand the nature of the offence he was charged with and was able to parade defence evidence and call witnesses. Therefore, there is no

injustice which was occasioned on the appellant. See: the case of DEUS KAYOLA V. REPUBLIC, Criminal Appeal No. 142 of 2012 (unreported). Thus, the first ground in the memorandum of appeal is not merited. As earlier stated, the appellant is faulting then two courts below for relying on the contradictory account of the prosecution and the incredible account of the victim to ground the conviction. This was challenged by the learned State Attorney who submitted that, the prosecution witnesses gave a credible account on the fateful incident which was not at all impeached or faulted by the appellant. We are aware that assessing the demeanour of witnesses is the domain of the trial court. However, in appellate jurisdiction the Court can determine the credibility of the witness by assessing the coherence and consistency of the witness compared to other witness including that of the appellant. It is also trite law that, every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing a witness. See: GOODLUCK KYANDO VS REPUBLIC, [2006] T.L.R. 363 Similarly, it is settled law that the best 9 evidence on rape comes from the victim. See: SELEMANI MAKUMBA VS REPUBLIC [ 2002] T.L.R 379. Guided by the stated position of the law, in the present case, victim narrated how she was ravished by the appellant on the

fateful day and mentioned him to her mother and the ten cell leader. What befell the victim is flanked by her mother PW2 and the ten cell leader who upon being told by PW2 on the incident went at the house of PW2 and found the victim bleeding. It is this information which facilitated the arrest of the appellant on the very day. Moreover, the account given by the Doctor at the trial established that there was penetration on the vagina and anus of the victim corroborates the evidence of the victim that she was actually raped and sodomised. Throughout the trial the evidence of the prosecution witnesses was consistent and coherent and it was not in any way impeached by the defence. Therefore, we are satisfied that the prosecution witnesses gave a credible account on the occurrence of the fateful incident. In the premises, the two courts below were justified to act on the credible account of the prosecution to ground the conviction of the appellant. In this regard, the complaint that the prosecution account was marred with contradictions is neither here nor there which renders the 10 appellant's complaint in the two grounds in the supplementary memorandum of appeal without merit. It is also the appellant's complaint that his defence was not considered. This was challenged by the learned State Attorney who pointed out that, in his defence, the appellant claimed to have been working at his father's farm from morning to 16.30 hours, went home at 20.00hrs and at 21.00 hours he was arrested by the ten cell leader. It is settled law that, failure to consider defence evidence when dealing with the prosecution evidence is misdirection. See: HUSSEIN IDD AND ANOTHER VS REPUBLIC [1986] T.L.R.

166. At page 169 the Court. It is evident that the trial court did consider the evidence of the appellant who raised the defence of alibi. However, it was satisfied that the victim's account did place the appellant at the scene of crime and as such, such defence of alibi did not cast any doubt on the overwhelming prosecution's credible account that it is the appellant who raped and sodomised the victim. Thus, the 7th ground of appeal is without merit. Next is the propriety or otherwise of the evidence of the victim which was acted upon to ground the conviction of the appellant. This is the gist of the 5th ground of appeal in the Memorandum of Appeal l i whereby the appellant is faulting the courts below to have relied on the evidence of the victim which was obtained against the dictates of the law. In opposition of this complaint, the learned State Attorney referred us to page 12 of the record of appeal which shows that, the victim did promise to tell the truth before giving her testimony. The manner of taking evidence of witnesses of tender age is regulated by the provisions of section 127 (2) of the Evidence Act. It among other things requires such witness to promise to tell the truth and not lies prior to giving a testimonial account. It is undisputed that the victim who was 8 years was a child of tender age in terms of section 127(4) of the TEA. At pages 11 and 12 of the

record of appeal, it is evident that before embarking to take the evidence of the victim, she did promise to tell the truth and as such, no law was contravened as suggested by the appellant. See: the case of YUSUPH MOLO V. REPUBLIC, Criminal Appeal No.343 of 2017. In this regard, the appellant's grievance is misconceived. Regarding the denial of a right to be represented by an advocate which is the gist of ground 8 of the memorandum of appeal, this was opposed by the learned State Attorney who pointed out that, although the appellant did not request to be represented by an advocate, he was 12 accorded a fair trial and as such, he should not be heard to complain at this stage. We are aware that section 310 of the Criminal Procedure Act [CAP 20 R.E 2019] (the CPA) gives the right to legal representation but it does not require that an accused person must be informed of the right. In addition, the Legal Aid Act, [Cap 21 R.E. 2019] does not mandatorily require that an accused person must be informed of that right. That aside, at the trial the appellant never indicated that he wished to be represented by an advocate. The Court was faced with an akin situation in the case of MAGANGA S/O UDUGALI V. THE REPUBLIC, Criminal Appeal No.144 of 2017, and it stated that: - "...he cannot complain that he was denied the right to legal representation where it is not in the record that he had

expressed his wishes to have legal representation and that the trial court, in any way or manner, refused or hindered him from enjoying the right". However, we agree with the learned State Attorney that, the appellant was accorded a fair trial given that, the charge was read and explained to him in the language he understood; he was addressed to elect the manner of giving his defence which he exercised and brought three witnesses who testified for the defence. In the circumstances, no failure of justice was occasioned on the part of the appellant and thus the complaint in ground 8 of the memorandum of appeal is misconceived. In the circumstances two counts of rape and unnatural offences were proved to the hilt and the appellant was properly convicted. Finally, is the propriety or otherwise of the sentence meted on the appellant who was 18 years at the time of committing the offence. This is the gist of the appellant's complaint in the second ground of appeal which was conceded to by the learned State Attorney. She submitted that, the custodial sentence was in the circumstances not proper. Imposing sentence is regulated by the law. Although it is settled law that, sentencing is the domain of the trial court, the appellate court can alter or interfere with the sentence imposed by the trial court, where there are good grounds for doing so including where the imposed sentence

is illegal. This has been emphasized in a number of cases including: REPUBLIC VS MOHAMED ALI JAMAL [1948] 15 E.A.CA.126; SILVANUS LEONARD NGURUWE VS REPUBLIC [1981] TLR 66; SWALEHE NDUGAJILUNGA VS REPUBLIC [2005] TLR 94. 14 In the present case, since during the preliminary hearing and the trial it was not disputed that the appellant was 18 years at the time of committing the offence, the imposed sentence of life imprisonment is illegal. We say so because section 160B of the Penal Code prohibits cruel sentences to the person of or below 18 years old. The stated provision provides as follows: "160B for promotion and protection o f the right o f the child, nothing in chapter XV o f this Code shall prevent the court from exercising- (a) Revisionary powers to satisfy that cruel sentences are not imposed to persons o f or below the age o f eighteen years; or (b) Discretionary powers in imposing sentences to persons o f or below the age o f eighteen years”. In essence in sexual offences, the cited provision frowns against custodial sentence to the convicts aged 18 years and below. See: PAUL JUMA DANIEL V. THE REPUBLIC, Criminal Appeal No.200 of 2017 and ZUBERI MOHAMED MKAPA VS REPUBLIC, Criminal Appeal No. 563 of 2020. (Both unreported). 15 Given the stated position of the law, it was wrong to sentence the appellant to life imprisonment and in addition three strokes of a cane. We thus quash the sentences meted on the appellant and allow the appeal to the term served. Consequently, the appellant should be released forthwith unless held for other lawful cause. DATED at ARUSHA this 4th dav of July, 2024. S. E. A. MUGASHA

JUSTICE OF APPEAL M. C. LEVIRA

JUSTICE OF APPEAL 0.

0. MAKUNGU

JUSTICE OF APPEAL The Judgment delivered this 5th day of July, 2024 in the presence of the appellant in person and Ms. Helena Patson Sanga, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. 16