CRIMINAL APPEAL NO 497 OF 2022 HAMAD ALLY MPEI VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: SEHEL. 3.A.. KENTE. 3.A And MDEMU, J.A.1 CRIMINAL APPEAL NO. 497 OF 2022 HAMAD ALLY MPEI...................................................................... APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT (Appeal from the 3udgment of the High Court of Tanzania, at Dar es Salaam) (Kakolaki. 3.^ dated the 16th day of September, 2022 in Criminal Appeal No. 49 of 2022 JUDGMENT OF THE COURT 10thJune & 26th July, 2024 MDEMU. J.A.: In the District Court of Kibaha, the appellant was arraigned for the rape of "ZHK" or the victim or simply PWl, the name disguised for identity purposes. The victim was a standard two pupil at Mtongani Primary School having the apparent age of eleven (11) years. In the preferred charge of rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap. 16, the appellant was alleged to have had the carnal knowledge of the victim l on 23rd June, 2020 at Kilangalanga area within Kibaha District in Coast Region. Before the sun set in the fateful evening, the victim went at Bondeni area to collect "visoda" (soft drinks bottle tops) for school arithmetic purposes. She alleged that, the appellant then requested her to go to a nearby toilet, a request which she obeyed. The appellant followed thereafter and while both were in the toilet, the appellant commanded the victim to lie down, he removed the victim's underwear, unzipped his trousers and inserted his manhood in the victim's private parts which PW1 described as "the part she used to urinate". It is stated that, slippery substance was released from the appellant's manhood top openings. In a short while, Siwajibu Mussa and Elizabeth Yohana, PW2 and PW5 respectively saw the appellant getting out of the toilet and when they inquired as to what was up, he replied to have been there for a short call of nature. It is alleged further that, shortly, the victim appeared from the same toilet and informed PW2 and PW5 that the appellant had raped her. Physical examination was then conducted on the victim by Ashura Ramadhan (PW3) and later by Mashauri Naima (PW8), the latter being a medical practitioner. It was stated that, fresh bruises and want of hymen being evidence of 2 vaginal penetration by a blunt object, was revealed in the victim's private parts. Following that incident, the appellant was arrested on 23rd June, 2020 at Msagasaga area. Though having denied, as said, he was charged, prosecuted, convicted and in the end, a sentence of thirty (30) years imprisonment was meted out on him in that regard by the District Court of Kibaha. The appellant wasn't happy with such findings and on appeal, the High Court confirmed both the said conviction and the sentence imposed. Still further aggrieved, the appellant preferred this second appeal by first filing seven (7) grounds of appeal which boil down into two main points. One, the evidence of the victim was taken without conducting a vore dire test and two, the conviction of the appellant was based on an unproven prosecution case. Later, the appellant filed a supplementary memorandum of appeal comprising of five (5) grounds which, after going through them, we have gathered only two main grounds of complaint which did not feature in the first filed memorandum of appeal. This now takes us to ground three, that the evidence of the victim was taken in violation of section 127(2) of the Evidence Act, Cap. 6 (the Evidence Act) and four, that the victim was examined by an unqualified medical practitioner and that the PF3 he had 3 filled was fatally defective. Having such complaints, the question we find relevant to respond, given the above raised main areas of the appellant's complaint, is whether the prosecution case was proved beyond reasonable doubt. In arguing the appeal based on the foregoing raised grounds of complaint, the appellant appeared before us in person unrepresented on 10th June, 2024 whereas Mses. Sofa Bimbiga assisted by Gloria Simpassa, both learned State Attorneys appeared to represent the respondent/the Republic. The appellant commenced by urging us to take into account the grounds of appeal as filed and the written submissions filed prior in that behalf to find his appeal meritorious and basing on that, release him forthwith. He equally promised to have a rejoinder after having heard a reply oral submission by the respondent/the Republic. Arguing in reply thereof, Ms. Bimbiga commenced by resisting the appeal. We will consider her oral submission in line with the four condensed grounds of complaint as raised above. In respect of the complaint about the procedure in recording the evidence of the victim, that is, failure to comply with section 127 of the Evidence Act and want of voire dire test, the learned State Attorney submitted while referring us to page 22 through 23 of the 4 record of appeal that, PW1 promised to tell the truth before her evidence was received. She said so basing on the procedure which the trial court deployed to establish that PW1 was unable to testify on oath. She equally dismissed the complaint of the appellant on the alleged incomplete promise because the promise to tell the truth made by PW1 meant also she would not tell lies. In support of this assertion, the learned State Attorney referred us to the following cases: John Ngonda v. Republic, Criminal Appeal No.45 of 2020 [2023] TZCA 13 (15th February, 2023 TANZLII) and Mathayo Lauranee William Mollel v. Republic, Criminal Appeal No. 53 of 2020 (unreported). As to the complaint that the victim was examined by an unqualified medical practitioner and that the PF3 filled by PW8 was fatally defective, M. Bimbiga submitted that, while under oath, PW8 testified to have had four years' experience in the field after having attended a training at Mtwara College. She also faulted the appellant's complaint as an afterthought because the appellant never cross examined the said witness regarding his professional competence during trial. He cited to us the case of Good luck Kyando v. Republic [2006] T.L.R. 363 insisting that, the said witness be 5 trusted unless there are reasons to do otherwise, which, in her argument, such reasons were lacking. On the defect in the PF3 and that it was not part of the record for not containing a case number, the learned State Attorney was of the argument that the PF3 was issued immediately after reporting the incidence to the police station, filled by a qualified medical practitioner and by then, there was no any case filed in a court of law. She added that, such a requirement was lacking and even when it is legally required to do so, then the omission never prejudiced the appellant. She equally urged us to disregard the complaint by the appellant regarding absence of the name of the officer who issued the PF3 because the signature of that officer had been appended and it is stamped with the police station official stamp. Regarding the allegedly unproven prosecution case, the learned State Attorney submitted on the following in response to the complaints by the appellant: one, is in respect of the direct evidence by PW1 (the victim), Siwajibu Mussa (PW2) and Elizabeth Yohana (PW5). It was her submission that, PW1 was called by the appellant in a broad daylight in the toilet where the appellant undressed her underwear and then ravished her. The victim cried for help. In a short while, PW2 and PW5 saw the appellant getting out 6 of the toilet where the cries were heard from, and only to tell PW2 and PW5 that he was attending a short call of nature. In further evidence, according to Ms. Bimbiga, the victim also came out of the same toilet where the appellant was and instantly informed the two women (PW2 &PW5) that the appellant had ravished her. In her evidence, PW1 described the residence of the appellant and it was such information which helped them in tracing the appellant. Two, Ashura Ramadhan (PW3) the victim's mother who initially conducted physical examination to the victim, noted some slippery fluid and bruises in the victim's private parts. Later, according Ms. Bimbiga, PW8 one Mashauri Naima of Malandizi Hospital examined the victim physically and noted presence of fresh bruises in her vagina with no hymen which, to her, is evidence of vaginal penetration by a blunt object. A PF3 was tendered by PW8 to that effect as exhibit P2. Three, the trial court analysed properly the evidence on record and found that the appellant is the one who committed the offence of rape because the victim was under the age of 18 years and her evidence which was corroborated by PW2 and PW5, ought to be trusted. On the other hand, PW2 and PW5 witnessed both the appellant and the victim getting out of the toilet one after the other. She referred us to the case of Goodluck Kyando 7 (supra) to bolster her argument. She therefore intimated to us that, following such analysis of the evidence by both courts below, the complained contradiction as to who exactly examined the victim at home between PW1 who mentioned an uncle and PW2 who denied the said uncle to have examined her physically, was without substance. She also commented that the alleged contradictions as to whether or not PW1 was examined before being taken to hospital noted in the prosecution case is a minor one and may not be avoided and in fact, it never affected the prosecution case. She implored us to consider the case of Daniel Wasonga v. Republic, Criminal Appeal No. 64 of 2018 [2022] TZCA 418 (12th July, 2022 TANZLII) to disregard such contradictions and inconsistencies as they are usual happenings and minor ones. Four, another complaint by the appellant associated with an unproven prosecution case is in respect of poor investigation. In this one, Ms. Bimbiga submitted that, failure of the investigator to visit the scene of crime, much as it did not prejudice the appellant, the same cannot change factual situation leading to the rape of the victim. She henceforth implored us to attach no weight to such a complaint. She therefore, in all, found the appeal to lack merit and urged us to dismiss it. In rejoinder, apart from reiterating what is in the contents of the grounds of appeal and his written submissions, the appellant added that, during his arrest, he was promised a work to do by the arrester and instead of being given that work, the arrester took him to the police station where he was told to have raped the victim, He nonetheless refuted such accusations. Having carefully considered the grounds of appeal, the written submissions of the appellant and also a reply oral submission by the respondent/Republic in resisting the appeal, the question we raised earlier those calls for our determination is whether the prosecution case was proved to the required standard such that there was none other than the appellant who raped the victim. We begin with the ground that the evidence of PW1 was procured without conducting a voire dire test and also without the witness' prior promise to tell the truth and not to tell lies. We think the question of voire dire test should not take much of our time because it is no longer a legal requirement. We faced a similar situation in Godfrey Wlson v. Republic, Criminal Appeal No. 168 of 2018 (unreported) where we stated: 9 "From the outset, we wish to take o ff by pointing out that section 127 (2) o f the Evidence Act, Cap. 6, R.E. 2002 (Evidence Act) prior to the amendment, required the triai magistrate who conducts a voire dire test to indicate whether or not the child o f tender age understands the nature o f oath and the duty o f teiiing the truth; and if he is possessed o f sufficient inteiiigence to justify the reception of his/ her evidence............ However, in the wake o f the 2016 amendment through Act NoA o f 2016, subsections (2) and (3) o f section 127 o f the Evidence Act were deleted and substituted with subsection (2) in the following manner:..." In the excerpt above, after quoting the said amendment, the Court proceeded, and now the position is that, what is required of a witness of tender age before reception of his evidence by the trial court is a prior promise to tell the truth and not to tell lies. Besides, pursuant to section 127(7) of the Evidence Act, non-compliance with sub-section (2) to section 127 of the same Act, does not render the evidence of a child of tender age inadmissible. This position is settled and as such, we dismiss such ground of complaint. As we stated above, the second limb in the evidence of PW1 complained by the appellant is on noncompliance of section 127 (2) of the Evidence Act. We note in the record of appeal that at the time of testifying, 10 PW1 was eleven years of age. In terms of section 127 (4) of the Evidence Act, PW1 was a child of tender age. As per section 127 (2) of the Evidence Act, such a witness may proceed to testify without oath or affirmation provided a prior promise to tell the truth and not to tell lies is made before receiving that evidence. See also in Hassan Yusuph Ally v. Republic, (Criminal Appeal No. 462 of 2019 [2021] TZCA 472 (14th September, 2021) TANZLII and Nassoro Mwalami Kuga v. Republic, (Criminal Appeal No. 411 of 2022 [2024] TZCA 412 (7thJune, 2024 TANZLII). In the appeal at hand, the thrust of the complaint of the appellant regarding the promise envisaged under section 127 (2) of the Evidence Act hinges on incompleteness of that promise. In his written submissions, the appellant complained that, the promise was not properly made for want of recorded questions on how the witness was tested in arriving at the said promise. He cited to us the cases of John Mkorongov. Republic, (Criminal Appeal No. 498 of 2020 [2022] TZCA 111 (11th March, 2022 TANZLII) and Mohamed Ramadhan @ Kolahili v. Republic, Criminal Appeal No. 396 of 2021 (unreported) in that behalf. As shown before, the learned State Attorney did not find any substance because in her argument, what the trial court recorded at page 12 through 13 of the record of appeal before the evidence of PW1 was recorded, is a complete promise within the meaning of section 127 (2) of the Evidence Act. Let the record speak of itself on this aspect, and we quote: "P W 1 .... I always go to school from Monday to Friday, once you tell lies to somebody else you commit sin. I promise to tell the truth. Court: PW1 does not know the purpose o f oath but promised to tell the court the truth." [emphasis ours] It is clear in the foregoing quoted passage and in no ambiguous terms that, PW1 made a promise to tetl the truth and not to tell lies before her evidence was received. As we stated in Nassoro Mwalami Kuga (supra), there is nothing therefore allied to the alleged incomplete promise as complained by the appellant. We are therefore unable to agree with the appellant on his insistence that, the trial court did not conduct a test on how he arrived at the conclusion that the child could proceed to testify without oath. In our view, the excerpt above indicates that a preliminary test to tell the truth and not to tell lies was duly conducted. We therefore agree with the learned State Attorney that the fact that PW1 promised to tell the truth only, it also meant that she promised not to tell lies. The omission of the 12 phrase "to tell lies" in the promise which the appellant pegs on to be incomplete promise, in our view, does not make the said promise incomplete. The Court in Mathayo Laurance William Mollel (supra) regarding incomplete promise stated that: "The appellant also argued that the child witness promise was incomplete for promising only to tell the truth and omitting not to tell lies. We find difficulties in agreeing with him. We understand the Legislature used the words \promise to tell the truth to the court and not to tell lies. We think the tautology is evident in the phrase, for, in our view, 'to tell the truth simply means \hot to tell lies'. So, a person who promises to tell the truth is in effect promising not to tell lies. The tautology in the section is, in our opinion, a drafting inadvertency. We thus find no substance in the first ground o f appeal and dismiss it." Likewise, we dismiss this ground of complaint as well. We now turn to the last complaint that the appellant was convicted basing on an unproven case of the prosecution. We begin our deliberation with the evidence of PW1. As we alluded to, PW1 promised to tell the truth and not to tell lies before her evidence was received by the trial court. This one is settled. She was underage and was invited by the appellant in the 13 toilet in a broad daylight. She equally informed and named the appellant to PW2 and PW5 being the first persons she met at the time she got out of the toilet where the appellant was. PW3 and PW8 physically examined the victim and found fresh bruises with no hymen being evidence of vaginal penetration by a blunt object. Both courts below trusted this evidence of PW1 to be credible. We have no reason to doubt such findings of the two courts below that this being a sexual offence, the evidence of PW1 meets the test stated in Seleman Makumba v. the Republic [2006] T.L.R. 379. We thus find the evidence of PW1 to be the best evidence. Besides the evidence of PW1, there is also the evidence of PW2 and PW5 who saw the appellant shortly getting out of the toilet where also the victim followed thereafter. No one else was in that toilet besides the victim and the appellant. The victim did not pass at any other place before she was examined physically by PW3 and later the same day by PW8, the medical practitioner. It is through this physical examination which forms the contents of the PF3 exhibit P2 that the victim was found to have fresh bruises with no hymen. Given such chronological facts which are so interwoven, our view is that, the circumstances so stated irresistibly point to no any other explanation other than the involvement of the appellant in the rape of the 14 victim. In other words, that evidence is incompatible with the innocence of the appellant so to speak. See in Mathias Bundala v. Republic [2007] T.L.R. 53. Under the circumstances, the complaint by the appellant that the investigator should have visited the crime scene has no value addition and failure to do so is not only unprejudicial to the appellant but also has not watered down the prosecution evidence in anyway. Connected to an unproven prosecution case complained by the appellant is the evidence of PW8, the medical practitioner who examined the victim of rape allegedly without having the requisite medical qualification. The appellant urged us to disregard that evidence. In the learned State Attorney's submission, and also as per the record of appeal, PW8 attended a training from 2011 to 2015 at Mtwara Health Centre. It is not stated in that evidence which certificate PW8 was awarded. However, in the PF3 (exhibit PI) his tittle appended to the document is "CO" meaning "a clinical officer". He was therefore a clinical officer. In the Social Innovation Journal Vol. 8 (2021), Duncan Ndimbo in his article; "A Healthcare Workforce Cadre that Meets a Country's Needs" defines a clinical officer being a holder of a diploma in clinical medicine and is allowed to practice in both public and private dispensaries, health centres and hospitals. In terms of section 32 and 33 of 15 the Medical, Dental and Allied Health Professionals Act, N o .ll of 2017, a holder of diploma in clinical medicine is allowed to practice as a medical practitioner provided the said qualification is awarded by and from a health institution recognized by the Medical Council. We note from the record of appeal that PW8 acquired his training in clinical medicine at Mtwara Health Centre which is a government institution. We thus dismiss the complaint by the appellant that PW8 examined the victim without possessing the requisite qualification. Having settled that, we find that, the contents of exhibit P2 (the PF3) was filled by a qualified medical practitioner. Going by the medical report, it is clear that there was penetration in the victim's private part by a blunt object, which according to the evidence on record, that object is none other than the appellant's manhood. On that account, a complaint by the appellant regarding the authenticity of the said PF3 and or its being genuine remains an afterthought and we accordingly dismiss it. Last for our consideration on unproven prosecution case is the complained inconsistencies and contradictions in the prosecution case. The basis of the appellant's complaint as we note in the written submissions' hinges on: one, variance between the evidence of PW1 and PW2 regarding the number of women PW1 reported to first about the incidence. In his written submissions, the appellant submitted that whereas PW1 testified to have informed two women, PW2 said they were three. Two, is the concern raised by the appellant in the evidence of PW1 that the woman she mentioned to have seen her going to the toilet never testified and three, is in respect of who made the preliminary physical examination of the victim before being taken to hospital. Whereas PW1 said the uncle, PW3 testified to have made physical examination herself. Ms. Bimbiga, as we recall in her submission, said such contradictions and inconsistencies in the prosecution case are minor and may not be avoided and actually, it never at all affected the prosecution case. We note in the record of appeal at page 13 that an uncle called one aunt Ashura who examined the victim. It is recorded as hereunder regarding this position: "...I told my grandmother that I have been raped, my unde called my aunt Ashura whom I am living with her my unde inspected me at my sexual organ and found slippery water." We just find this to be a writing style but the said uncle did not examine PW1. We also note at page 15 of the record of appeal that the said uncle went to the residence where PW1 was after the rape incidence. PW2 17 however denied to have seen the victim being examined therein. It is PW3 as testified at page 17 of the record of appeal who stated to have examined the victim prior to being taken to hospital. As observed by the learned High Court Judge, which we entirely agree, this is no contradiction, but rather the testimony of each witness on the facts which were in his/her knowledge regarding the instant rape incident. In essence, what the High Court Judge did, which again we agree, is to apply the principles in Goodluck Kyando (supra) that every witness is entitled to his/her credence and has to be believed unless there are reasons to decide otherwise. We also find this complaint of the appellant that there was no evidence of a woman who was mentioned by PW1 to have seen her making entry to the toilet to be an afterthought because, even if she was called in evidence, she would have testified to the effect that the victim was seen going to the toilet and nothing more. We have also demonstrated that, the evidence relating to both the appellant and PW1 being seen getting out of the toilet one after the other is well established in the testimony of the victim, PW2 and PW5. As observed by the two courts below, we also hold so, that there is nothing in the form of contradictions and or inconsistencies 18 in the prosecution case. We accordingly dismiss this ground of complaint as well. Given what we have demonstrated above, we find nothing to fault the two courts below because the prosecution case was proved to the required standard. In the end, we find no substance in the entire appeal and it is hereby dismissed. DATED at DAR ES SALAAM this 26th day of June, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL Judgment delivered this 26th day of July, 2024 in the presence of Appellant in person and Ms. Gladness Mchami, Senior State Attorney for the Respondent, is hereby certified as a true copy of the original.