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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA CRIMINAL APPEAL NO. 28887 OF 2024 (Originating from Criminal Case No. 000021959 of 2024 of Mbozi District Court) FILIMONI ENOCKI KAMINYOGE………………….………APPELLANT

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

JUDGMENT Date: 20 January 2025 & 7 March 2025 SINDA, J. The appellant in this appeal was charged at the District Court of Mbozi at Mbozi (the Trial Court) for the offence of rape contrary to section 130 (1) (2) (e) and section 131 of the Penal Code, Cap 16, R.E 2022 (the Penal Code). It was alleged that the appellant on 12 July 2024 at Mlowo area within Mbozi District in Songwe region had unlawfully sexual intercourse with a girl aged eight years old (the Victim). 1 It was the prosecution's evidence that on the material day, the Victim, while at home washing utensils, was told by the appellant to follow him to his home to take an orange. She went to the appellant's home, and the appellant raped her on the couch. After the incident, the Victim reported the matter to her parents, and then the matter was reported to the ten- cell leaders. That, the appellant also confessed to committing the offence before the father of the Victim father (PW5) and the ten-cell leader. PW4 recorded the appellant's caution statement, and he admitted to committing an offence. The Victim was medically examined by the doctor (PW5), and it was discovered that the Victim was penetrated by a blunt object and had bruises. The appellant, in his defence, denied committing the offence. At the end of the hearing, the Trial Court found that the prosecution proved their case beyond a reasonable doubt. The

appellant was convicted and sentenced to serve life imprisonment. Aggrieved with the decision, the appellant filed the petition of appeal with five grounds of appeal as follows: 1. That, the trial court erred in law and, in fact, by convicting the appellant without being cautioned with a contradictory statement regarding the alleged appellant’s recorded confession and detention of the appellant. 2 2. That, the trial court erred in law and, in fact, by taking prosecution evidence with procedural irregularity and in prejudice to the appellant’s right to be heard.

3. That, the trial court erred in law by failure to take into consideration of the time and capacity of PW5 in making observation to the victim, and evaluation of medical records prepared by PW5.

4. That, the trial court erred in law and in fact by failure to evaluate, beyond reasonable doubt, the evidence of PW2 Tumain Damsi Mwalembe as opposed to the other. During the hearing of the appeal, the appellant appeared in person while the respondent was represented by Thea Mshana, State Attorney. The appeal was argued orally. The appellant opted for the respondent to submit first and he reserved his right to make a rejoinder. Arguing on the first ground of appeal in relation to the cautioned statement tendered in court. Ms. Mshana submitted that if there was any contradiction, it did not affect the ingredients of rape. She stated that the best evidence in rape cases comes from the victim. She further noted that the Victim explained how she met the appellant and went to his room, where she was raped. She added that on page five (5) of the proceedings of the Trial Court (the Proceedings), the Victim explained that the 3 appellant called her and removed her clothes and entered his dudu in her vagina. She stated further that the Victim also showed the court where the appellant entered his dudu. He referred to the case of Selemani Makumba vs. Republic, [2006] TLR 379 to support her argument. Ms. Mshana further contended that the Victim evidence is supported by PW5, who stated on page twelve (12), paragraph one (1) and two (2) of the Proceedings that on 13 July 2024, after

investigating the Victim, he found she had bruises and was penetrated. Ms. Mshana maintained that PW3 evidence also supports the Victim's evidence. That PW3 stated on page six (6), paragraph two (2) of the Proceedings, on how the appellant confessed that he raped the Victim. She added that section 3 (1) (a) (b) (c) and (d) of the Evidence Act, Cap. 6, R.E 2022 (the Evidence Act) states that a person can confess to any person. She continued that the appellant freely confessed to PW3 and PW6, as shown on page thirteen (13), paragraph 1 of the Proceeding. She referred to the case of Mabungulu vs. Republic, Criminal Appeal No. 194 of 2004, to support her argument. She prayed that the first ground of appeal be dismissed. On the second ground of appeal, that the prosecution evidence was taken with procedural irregularity, and the appellant was not heard. She 4 submitted that the appellant was asked if he would bring witnesses on page fourteen (14) of the Proceedings and said that he would give his evidence under oath and bring one witness who testified on page 16 of the Proceedings. She prayed that the ground be dismissed. On the third ground of appeal that the Trial Court did not consider the time and capacity of PW5 in observing the Victim and evaluation of the medical records prepared by PW5. She argued that on page twelve (12) of the Proceedings, when PW5 gave his evidence, it

was stated that the Victim was taken for investigation on 13 July 2024, and the incident occurred on 12 July 2024. She added that when the incident occurred, the parents of the Victim were not at home. They were informed on 12 July 2024 at night. It is not true that PW5 medical records were not evaluated. She added further that the appellant failed to cross-examine PW5. PW5 was to explain by himself that the time the appellant was taken to the hospital could bring different results. She also prayed this ground be dismissed. On the last ground of appeal that the court did not evaluate the evidence of PW2 beyond a reasonable doubt. Ms. Mshana submitted that PW2 saw the Victim coming from the appellant's house. She further said that in the judgement of the Trial Court (the Judgement) on page four (4), 5 paragraph one (1), the Trial Court evaluated the evidence of PW2, and she insisted that in rape cases, the best evidence comes from the victim. She was of the opinion that the case was proved beyond a reasonable doubt because three things were proved to include the age of the Victim, penetration and that the appellant is the one who committed rape. She contended that in this case, the Victim proved her age on page five (5) of the Proceeding. Also, the victim's father proved her age on page six (6) of the Proceedings and tendered a birth certificate for the Victim. She referred to

the case of Simon Malembeka vs. Republic, Criminal Appeal No. 298 of 2022, to support her argument. She further contended that concerning penetration, it was proved on page five (5) of the Proceeding and that the Victim knows the appellant, as they are neighbours. She added that this was also agreed by the appellant himself. She added that PW5, who examined the Victim, confirmed that the Victim was penetrated. She further added that this was also supported by the evidence of PW6 who stated the appellant confessed to him and the father of the Victim. She further maintained that the appellant committed the crime because he identified the Victim and confessed to raping the Victim. She prayed the appellant's appeal be dismissed. 6 On his rejoinder, the appellant prayed for the court to set him free. I have reviewed the court records, grounds of appeal, and submissions made by parties, and I find that this appeal can be disposed of under one issue: whether this case at the Trial Court was proved to the required standard. While deliberating this appeal, I will also address other points addressed in the grounds of appeal. It is a trite law that in criminal justice, the onus of proving criminal cases that the accused committed the offence which he is charged with is always on the side of the prosecution and not of the accused person as stipulated under sections 110 and 112 of the

Evidence Act and the case of Joseph John Makune vs. Republic [1986] TLR 44 page 49 that the standard of is beyond the reasonable doubt as provided in the case of Mohamed Said Mutula vs. Republic, [1995]. Discussing the above issue of whether this case at Trial Court was proved beyond the reasonable doubt, as the first appellate court, I wish to re- evaluate the evidence on record fresh. This case is the case of rape (statutory rape); in cases of this nature, it is the settled position of law that the best evidence came from the victim. This was provided in the case of Seleman Makumba vs. Republic (supra) which held that: 7 “True evidence of rape has to come from the victim, if an adult, that there is penetration and no consent, and in case of any other women, where consent is irrelevant, there is penetration.” The ingredient which was required to be proved by the prosecution was that the Victim was under eighteen (18) years old and that the appellant penetrated her. To prove the case, the Victim testified she is eight (8) years old. On 12 July 2024, around 10:20 a.m., she was at home washing utensils, her mother was at church, and her father was at work. The appellant told her to follow him and take an orange. She went to the appellant's home. The appellant told her to enter inside and raped her on the couch. This piece of evidence was corroborated by the evidence from PW5, who

examined the Victim and found that she was penetrated with a blunt object and had no hymen. The age of the Victim was also proved by PW3 that she is eight (8) years old. In the second ground of appeal, the appellant complained that he was not afforded the right to be heard. I find the same lack merit because the appellant was afforded the right to be heard, and he made his defence from pages fourteen (14) to seventeen (17) of the Proceedings. Regarding the appellant's complaints under grounds number one that there was a contradictory statement regarding the alleged appellant's 8 recorded confession, the appellant has not mentioned the alleged contradictory statement. However, I have gone through the court file and found that the recorded confession/cautioned statement is missing in the case file. However, this case is a rape case. Still, the best evidence comes from the Victim, and the appellant can be convicted even in the absence of that cautioned statement. So, this ground lacks merit. On ground number three, the appellant complained about the capacity of PW5 and the timing of observing the Victim and evaluating the medical report prepared by PW5. The appellant insisted that the evidence of PW5 was not adequately evaluated. I find the same lack of merit because the evidence of the Victim was that she was raped on 12 July 2024, and at that time, her parents were not present.

From the evidence of PW3, he was informed about the incident around 09:00 pm. In that regard, I find that there was sufficient reason for the Victim to be examined on the next day, that is, on 13 July 2023. However, after the examination, it was discovered that the Victim had been penetrated with a blunt object and was found with bruises on her private part. On the fourth ground, the appellant complained that the evidence of PW2 contradicted other witnesses. I have gone through the evidence of PW1, PW2, and PW3. I didn’t see any material contradiction other than proving 9 that the Victim was with the appellant inside his house on the material day. PW2 stated that on that day, she went to the appellant's home and found the Victim coming from the appellant's house. After a short time, the appellant also went outside the house. The Victim also stated that after being raped by the appellant in his house, when she went outside the house, she was seen by PW2. In that respect, I find that the prosecution proved its case against the appellant beyond reasonable doubt, and I find no need to interfere with the Trial Court's decision. The whole appeal lacks merit and is hereby dismissed. Right to appeal is explained. DATED at MBEYA on this 7 Day of March 2025. A. A. SINDA

JUDGE 10