JUDGMENT France France Ndomba vs

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB-REGISTRY AT SONGEA CRIMINAL APPEAL NO. 18623 OF 2024 (Originating from Nyasa District Court in Criminal Case No. 4960 of 2024) FRANCE FRANCE NDOMBA ……....………………………………………… APPELLANT VERSUS THE REPUBLIC …….………………...…………………………………….. RESPONDENT JUDGMENT Date of last Order: 03/09/2024 Date of Judgment: 30/09/2024 KAWISHE, J.: Before the District Court of Nyasa, the appellant, France France Ndomba was charged, tried and convicted with the offence of rape contrary to sections 130 (1), (2) (e) and 131 (3) of the Penal Code (Cap. 16, R. E. 2022). It was alleged by the prosecution that on 15th day of February, 2024 at Luhindo Village within Nyasa District and Ruvuma 1 Region, the appellant had sexual intercourse with “PW1” a girl of eight years. The appellant pleaded not guilty to the charge. At the end of the trial he was found guilty, convicted and sentenced to serve life imprisonment. The sentence and conviction did not amuse him and he lodged this appeal challenging both conviction and sentence. In his petition of appeal, he raised three grounds of complaints as follows: 1. That, the trial court erred in law to convict the appellant while the prosecution case was not proved beyond reasonable doubt. 2. That, the trial court erred in law and facts in convicting and sentencing the appellant basing on incredible evidence adduced by (PW4), the medical doctor who never mentioned the blunt object which caused bruises and hymen perforation. 3. That, the trial court erred in law and fact to convict and sentence the appellant tough statutory sentence of life imprisonment without taking into consideration the mitigation factor that the appellant is the first offender. Before I proceed with this appeal, I find it is imperative to provide albeit in brief the salient facts of the case. The prosecution case before the trial court was built by five witnesses including the victim who testified as “PW1”. It was testified that, the appellant and the victim were living together in the same area, they were neighbours. According to PW1’s testimony, on the material date, she was playing outside the appellant’s 2 house and she was taken inside the house by the appellant where she was undressed her underwear by the appellant who then carnally knew her. Her testimony was corroborated by the testimony given by her mother (PW2) who told the trial court that she saw her daughter (PW1) in the appellant’s house after looking for her for a while. Upon asking the appellant what he was doing with the victim (PW1), she was told that, they were drinking bamboo juice. Unsatisfied with the answer given by the appellant, she inspected PW1’s private parts and found the victim’s female organ and underwear stained with whitish fluid. Also, the victim (PW1) was bitterly crying. PW2 noticed that something foolish has been done. She reported the incident to her neighbours who advised her to report the matter at the police station. The appellant was immediately apprehended by the local militia man (PW3) and sent to Tingi Police Outpost. Thereafter, at the police post the victim was issued with a PF3 and ordered to go to the hospital where she was attended by PW4, a Clinical Officer. According to PW4’s testimony who attended the victim at the hospital, there were swellings, abrasion and her hymen was perforated indicating that there was penetration by blunt object in the PW1’s female organ. 3 In his defence testimony, the appellant exonerated himself from the commission of the offence. He admitted that he was arrested at his house and the fact that the victim was playing outside his house on the fateful day. It was from these facts that, the trial court found the appellant guilty and proceeded to convict and sentence him to serve the sentence of life imprisonment as stated earlier. When the appeal was call for hearing, the appellant fended himself while, the respondent was represented by Mr. James Rhobi, learned State Attorney. At the outset, the appellant prayed for the grounds of appeal to be adopted and added that the case against him was fabricated as he is not mentally fit. He argued further that, the testimony given by PW4 was not correct and prayed for this court to set him free from prison as he never committed any offence. On his party, the learned State Attorney for the respondent, Mr. Rhobi, resisted the appeal. He supported the findings of the trial court as being firmly grounded on proper evaluation of the evidence tabled before it. He faulted the appellant’s submission that the case was fabricated. 4 Arguing on the first ground of appeal, he referred this court to the original records of the trial court in this appeal. Specifically referred to the provisions of the law under which the appellant was charged, tried, convicted and sentenced with and the testimonies given by the prosecution witnesses. He referred this court on what was testified by the victim (PW1) as to what transpired on the fateful day. He added that, before the trial court she testified on how she was taken by the appellant into his house, being undressed and the appellant’s female organ inserted into her female organ and that, she endured serious pains. Mr. Rhobi submitted further that, it is trite law that in sexual offences the best evidence comes from the victim. Fortifying his submission, he referred this court to the case of Selemani Makumba vs. Republic (2006) TLR 379. The learned State Attorney contended further that, the evidence given by PW1 (the victim) was corroborated by PW2, her mother who saw PW1 in the appellant’s house crying bitterly and with whitish fluids in her underwear and private parts and her underwear was torn. Also, he argued that, the testimony given by PW4 a Clinical Officer who medically examined the victim corroborated the evidence given by PW1. The Attorney went on stating that, even during plea taking the appellant admitted that the victim 5 went into his house and entered his bedroom. That, it supports the evidence that the victim entered the house of the appellant in which the offence was alleged to be committed. He averred that, from this evidence, the case against the appellant was proved beyond reasonable doubt and the trial court correctly convicted him. On the second ground of appeal, that PW4 failed to mention the blunt object which caused burses and perforated the hymen of the victim, Mr. Rhobi argued that, the appellant’s complaint is baseless. He stated that, PW4’s comments were correct given the fact that he was not at the scene of crime. Thus, he never saw which blunt object penetrated into the victim’s female organ. He contended that, it was the victim only who could testify on what was the blunt object which penetrated into her female organ. That, in her testimony, she managed to state that it was the appellant’s male organ. He prayed for this ground of appeal to be disregarded too. Submitting on the third ground of appeal, that the court misdirected itself in convicting and sentencing the appellant into the sentence of life imprisonment without considering his mitigation factor that he was the first offender, the learned State Attorney argued that, it is clear that, the 6 appellant raped a girl of eight years as testified by the prosecution witnesses. That, section 131(3) of the Penal Code (supra) provides for the mandatory sentence of life imprisonment. He emphasized that the trial court had no option of imposing other sentence. That, it is a statutory requirement to sentence a convict to life imprisonment where the victim is less than ten years old. Lastly, he prayed for this appeal to be dismissed and the conviction and sentence of the trial court be upheld. There was no rejoinder from the appellant. Having summarised the submissions made by the parties, this court is required to address the complaints laid before it. The main issue to be responded to in disposing this appeal is whether the appeal has merits. Starting with the first ground of complaint that the prosecution side failed to prove its case beyond reasonable doubt. It is a settled law that, if it is proved that the prosecution did not prove its case beyond reasonable doubt then the appeal succeeds. To the contrary, where the appellant fails to show the first appellate court that he shook the prosecution’s evidence during the trial, then such ground becomes baseless. In his first ground of appeal, the main complaint is that the prosecution did not prove the case beyond reasonable doubt. This court being the first appellate court, has re- 7 appraise the evidence on record and the submission made by the parties. The results of the same are unfolding hereunder gradually. As stated by the learned State Attorney, this court is also alive that, it is trite law that in rape cases the best evidence comes from the victim. This stance was developed by the Court of Appeal in the case of Selemani Makumba vs. Republic (supra) and the case of Godi Kasenegala vs. Republic, Criminal Appeal No. 10 of 2008 (unreported). In the case of Godi Kasenegala vs. Republic (supra), the Court stated that: “It is now settled law that the proof of rape comes from the prosecutrix herself, other witnesses if they never actually witnessed the incident such as doctors may give corroborative evidences” In the instant appeal, the person who was bound to prove on how the offence was committed and by whom was the victim (PW1), who in my view, she promptly managed to discharge her duty. She clearly stated on what happened, on how she was undressed by the appellant who later inserted his male organ into her female organ. It is also trite law that, every witness is entitled to credence and his/her testimony must be believed and accepted unless there are good reasons for not believing. This principle was accentuated in the case of Goodluck Kyando vs. Republic (2006) TLR 363, in which it was held that: 8 “every witness must be believed and his testimony accepted unless good or genuine reason is given.” PW1’s evidence has no any doubt and there is no any cause of disbelieving her testimony that the offence of rape was committed against her by the appellant. Besides, other prosecution witnesses including PW2 and PW4 corroborated her testimony. To ascertain the claim raised by the appellant and the rebuttal made by the learned State Attorney, the court revisited the trial court’s proceedings. At page 5 of the trial court’s typed proceedings the victim testified that the appellant undressed her gown and skin tight and inserted his “dudu” into her “unero or kikongi” (female organ). That she sustained pain and bled. When cross examined by the appellant, the victim reiterated her evidence. The victim’s testimony was corroborated by the testimony of PW2 at page 16 who saw the victim coming from the appellant’s room crying. Suspecting unusual issue, she inspected the victim and noticed the fluids on her female organ and her underwear. To prove penetration, the victim stated to have been inserted the male organ of the appellant and endured pain. At page 9 of the trial court’s proceedings, PW4 corroborated PW1’s testimony medically, where he testified that the victim was penetrated by a blunt object and the hymen was perforated. In proving rape, penetration is at the core of the 9 prosecution’s evidence. Given the testimony of the victim, PW2 and PW4, prosecution proved penetration. In that regard, I find such pieces of evidence proving the commission of the offence of rape without any doubt, that the offence was committed by the appellant and not any other person. Thus, the prosecution side proved its case to the required standard. Thus, the first ground of appeal is dismissed. On the second ground of complaint that PW4 (medical doctor) in his testimony failed to mention the blunt object which caused bruises and perforation of the victim’s hymen, the learned State Attorney for the respondent averred that, PW4 was not present at the scene of crime and he was not in a good position to state exactly on what was the object which was inserted into PW1’s female organ. He contended that, the offence was committed in secret and in the presence of the appellant and the victim only. That, the person who was in the best position to prove what object was inserted into PW1’s female organ was the victim herself, and really, she managed to discharge such a duty. This court has scanned the testimony given by PW4 before the trial court and find that, as an expert, he commented that: 10 ‘I examined PW1’s vagina. It was swollen on labia majola, she sustained abrasions (bruises) on labia minora, she lost her virginity, her hymen was perforated. Those bruises and hymen perforation were caused by blunt object. It may be a penis, cucumber or a finger which were forced entering into PW1’s vagina.’ As stated by the learned State Attorney that the best evidence to prove on what kind of object was inserted into the victim’s female organ was that of the victim (PW1). That, the testimony given by the other prosecution witnesses just corroborated her testimony. From the available evidence, the victim really managed to discharge such a duty. She testified that it was the appellant’s male organ that was inserted into her female organ. Therefore, this ground of complaint lacks merit. Reverting to the third and last ground of appeal that the trial court erred in sentencing the appellant to life imprisonment without taking into consideration that he is the first offender, the learned State Attorney has submitted that, the trial court had no other good option than imposing such sentence. Thus, it is the correct sentence for the offence the appellant was convicted with. The appellant was convicted with an offence of rape contrary to section 130(1)(2) and 131(3) of the Penal Code (Cap. 16 R.E 2024), under which the prescribed sentence is for life imprisonment. 11 For easy of reference, section 131(3) of the Penal Code (supra) reads as follows: ‘Subject to the provisions of subsection (2), a person who commits an offence of rape of a girl under the age of ten years shall on conviction be sentenced to life imprisonment.’ The prosecution side through the testimony given by PW2 and exhibit “PE1” proved the age of the victim to be eight years. Thus, I concur with the respondent’s learned State Attorney that the trial court properly sentenced the appellant in accordance to the appropriate law. I find this ground of appeal to be without merit. Given the foregoing reasons the issue raised whether the appeal has merits is answered in the negative. Consequently, in the upshot this appeal is hereby dismissed. I uphold the conviction and its corresponding sentence meted by the trial court. It is so ordered. DATED and DELIVERED at SONGEA this 30th day of September, 2024. E. L. KAWISHE JUDGE 12 COURT: This judgment is delivered in the presence of Mr. James Rhobi and Ms. Agness Simba, learned State Attorneys for the respondent and in the presence of the Appellant, Mr. France France Ndomba in person. Right of appeal explained. E. L. KAWISHE JUDGE 30/09/2024 13