CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA ( CORAM: MWARIJA. J.A., MASHAKA, 3.A. And FELESHL J.A.1 CRIMINAL APPEAL NO. 341 OF 2022 JUMA S/O MBELWA @ HASSAN .......... APPELLANT VERSUS THE REPUBLIC....... ......... ..... ..... ....... .........RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Sumbawanga) fNkwabi, J.~) dated the 8th day of June, 2022 ■n RM Criminal Appeal No. 54 of 2021 JUDGMENT OF THE COURT 14th & 25th March, 2025 MWARIJA, J.A.: In the Resident Magistrate's Court of Katavi at Mpanda (the trial court) the appellant, Juma Mbelwa @ Hassan was charged with and convicted of two counts, burglary contrary to section 294 (1) (a) and (2) and rape contrary to sections 130 (1), (2) (a) and 131 (1) of the Penal Code, Chapter 16 of the Revised Laws, respectively. According to the charge, it was alleged in the first count that, on 30/8/2020 in the night at Ngomalusambo Village within Tanganyika District in Katavi Region, the appellant broke and entered into the dwelling house owned by one BIK (name withheld for the purpose of protecting her dignity). She shall hereinafter be referred to as the victim. It was alleged further, in the second count that, after having entered therein, the appellant did have carnal knowledge of the victim without her consent. When he was arraigned before the trial court, the appellant denied the charge and as a result, the case proceed to a full trial. Having heard the evidence of four witnesses for the prosecution and the appellant, who was the only witness for the defence, the learned trial Senior Resident Magistrate was satisfied that both counts had been proved beyond reasonable doubt. Following his conviction, the appellant was sentenced to twenty years and life imprisonment in the first and second counts, respectively. The background facts leading to the appellant's arraignment and ultimately the conviction giving rise to this appeal, are not complicated. On 30/8/2020 at night, the victim was asleep in her house. She was awaken by voice from outside the house. She heard a person ordering her to open the door lest he would break it open. She did not heed and that person, who had determined to execute his ill motive, broke the door and entered in the house, got hold of the victim and forcefully had carnal knowledge of her. The victim, who testified as PW1 told the trial court that, when she realized that the intruder had entered in the house, she flashed torchlight and identified him to be the appellant, who was well known to her because he was the husband of her niece. She testified further that, the appellant who was naked, found her having put on a skirt and underskirt only, fell her down and forced her to have sexual intercourse with him. She shouted for help calling one Adam Silvester (PW2) but the appellant threatened to kill her and forcefully had carnal knowledge of her. PW l stated further that, luckily, PW2 appeared to assist her. He attempted to stop the appellant who was on top of her by beating him with a stick. He did not stop until when he was flogged twice. He was forced out of the house by PW2 and with the assistance of other persons who had turned out at the scene, he was taken to the office of the Village Executive Officer. The evidence of the victim was supported by PW2 who testified that, on the material night, he was awaken by his wife who heard the victim shouting for help. When he went to the victim's house, he found the door open and heard her crying for help. He helped her in the manner stated by the victim thus stopping the appellant from continuing to molest her. He added that, the appellant was taken before the Acting Village Executive Officer (V.E.Q), one Luka Kyomo (PW4) who informed the police. On that information, police officers from Tanganyika Police Station arrived and arrested the appellant who was taken to the police station together with the victim. At the police station, the victim was provided with a PF3 and went to Majalila Dispensary for medical examination. She was attended by a nurse, one Dasan Daniel (PW3). Testifying before the trial court, PW3 stated that, he examined the victim's vagina and found bruises which according to him, were caused by a blunt object. He tendered in court the PF3 which contained his remarks and the same was admitted in evidence as exhibit PI. The Acting Village Executive Officer, Luka Kyomo, before whom the appellant was taken by PW2 and the villagers who turned up to the victim's house after the incident, also gave evidence for the prosecution. Testifying as PW4, he averred that, he interrogated the appellant about the incident and according to him, admitted that he committed the offences charged. In his defence, the appellant who testified as DW1, opposed the evidence adduced against him by the prosecution witnesses. He testified that, on 30/8/2020, while on the way from his shamba, he was arrested by three persons included PW2. According to his evidence, he was told that he committed the offence of raping PW1 who was known to him because of being her mother in-law. After his arrest, he said, he was taken before PW3 and later to Tanganyika Police Station. He was finally charged in court. In convicting the appellant, the trial court based its decision on inter alia, the evidence of PW1 and PW2. It also considered the fact that, the appellant and the victim were well known to each other. With regard to the evidence of PW2, the trial court was satisfied that he found the appellant in the act of committing the offence of rape. The learned trial Senior Resident Magistrate held therefore, that both counts were proved; the first count, because the breaking was done at night and for the offence of rape, the evidence of the victim as supported by that of PW3, proved beyond reasonable doubt that the victim was penetrated. As to the appellant's defence, the trial court was of the view that, the same did not raise any reasonable doubt against the prosecution evidence, It therefore sentenced the appellant to the custodial sentence of 20 years for the first count and life imprisonment for the second count. On appeal, the High Court (Nkwabi, J.) upheld the decision of the High Court. It found the two grounds raised by the appellant unmerited. He had complained that, his conviction was unfounded because, first, the case was not proved beyond reasonable doubt and secondly, because of want of scientific proof that he had carnal knowledge of the victim. The [earned first appellate Judge observed that, the complaint that the case was not proved lacked merit because the appellant was caught red handed raping the victim. On scientific evidence, citing inter alia, the cases of Musa Sebastian v. Republic, Criminal Appeal No. 406 of 2016 (unreported) and Selemani Makumba v. Republic [2006] T.L.R. 384, the learned Judge observed that, such kind of evidence, which is expert opinion, is not a legal requirement in proving a sexual offence, rather, it is the evidence of the victim which is crucial for that purpose. On those findings, the High Court dismissed the appeal but reduced the sentence met on him by the trial court from 20 years to 15 years for the first count and life imprisonment to 30 years for the second count. The appellant was further aggrieved hence this second appeal. In his memorandum of appeal, he raised the following four grounds of his dissatisfaction with the decision of the High Court: "1, W at, the tria l Judge erred in law ... and fact by convicting the appellant for the case which [w as] not proved beyond... reasonable ... as required b y ... la w .... 2. That, the tria l Judge erred in law ... and fact by convicting the appellant without scientific proof whatsoever that the appellant inserted his penis in the victim 's vagina. 3. That, the tria l Judge ... m isdirect him self by convicting and [sentencing] the appellant relying on the prosecution's evidence w h ile ... the source o f lig h t used to identify the appellant a t the scene o f crim e was not enough to identify [him ], 4. That, your lordship, the tria l Judge erred in la w ... and fact by reducing the sentence for the appellant w ithout considering the defence which [w as] adduced by the appellant a t the tria l court". On the date of hearing the appeal, the appellant appeared in person, unrepresented while the respondent Republic was represented by Mr. Calistus Kapinga, learned Senior State Attorney assisted by Mr. Joseph Mwakasege, learned State Attorney. When he was called upon to argue his appeal, the appellant opted to hear first, the reply submissions by the respondent on the grounds of appeal and thereafter, would make a rejoinder, if necessary. Submitting in response to the first ground of appeal, Mr. Mwakasege argued that, the evidence of PW1 and PW2, as supported by PW4, proved the case against the appellant beyond reasonable doubt. He stressed that, apart from the evidence of PW1 which was the best evidence, there was in addition, the supporting evidence of PW2 who apprehended the appellant while he was in the act of raping the victim. He submitted further that, PW4's evidence which was to the effect that the appellant admitted to have committed the offence, strengthened the prosecution case. On the second and third grounds, the learned State Attorney argued that, while it was not necessary to have scientific evidence to prove that it was the appellant who raped the victim, no evidence of identification was required because the appellant was caught red handed having carnal knowledge of the victim without her consent. He cited, among others, the cases of Selemani Makumba (supra) and Daffa Mbwana Kedi v. Republic (Criminal Appeal No. 65 of 2017) [2019] TZCA 5 (18 February 2019) to support his argument. On the fourth ground, Mr. Mwakasege argued that, in reducing the sentence, the High Court did not err because it did not fail to apply, as one of the criteria, the defence which was relied upon by the appellant at the trial. He argued that, the learned first appellate Judge considered the fact that the appellant was a first offender and on that consideration, reduced the sentence to 30 years which the minimum term of imprisonment provided by the law for the second count and 15 years for the first count. The appellant did not have any rejoinder submissions to make. He merely urged the Court to consider his grounds of appeal and allow his appeal. We have considered the contents of the grounds of appeal and the submissions of the learned State Attorney. We wish to determine first, the second and third grounds of appeal. We agree with the learned State Attorney that, none production by the prosecution, of scientific evidence proving that the appellant did have carnal knowledge of the victim and evidence that, he was properly identified at the scene of crime, did not render the prosecution evidence insufficient to prove the case beyond reasonable doubt. As correctly held by the learned first appellate Judge, there is no legal requirement that in order to prove the offence of rape there must be produced scientific evidence, such as DNA report, linking the accused person with the offence. - See for instance the cases of Hango Omary Hango v. Republic (Criminal Appeal No. 445 of 2022) [2025] TZCA 12 (13 February 2025) and Peter Bugumba @ Cherehani v. Republic (Criminal Appeal No. 251 of 2019) [2023] TZCA 221 (4 May 2023). In the latter case, the Court reiterated the above stated positon, citing the case of Hamis Shabani @ Ha mis (Ustaadhi) v. Republic, Criminal Appeal No. 259 of 2010 (unreported) where it was stated as follows: "...there is no legal requirem ent that offences o f this kind \sophisticated scientific evidence' to lin k the appellant and the offence is required. It is not a req u irem en tfo r example, that the assailants spermatozoa, red and white blood ceils {or even DNA) should be examined to prove that he is the one who comm itted the offence. I f there is other independent evidence to im plicate the accused with the offence and the Court is satisfied to the required standard (that o f p roof beyond reasonable doubt), that, in our view, is sufficient and conclusive". On the complaint that there was insufficient evidence of identification, we also agree with Mr. Mwakasege that, since the appellant was arrested while committing the offence, the issue of identification would not require more proof. In the case of Daffa Mbwana Kedi v. Republic (Criminal Appeal No. 65 of 2017) [2019] (18 February 2019) cited by the respondent, the Court observed as follows: " The Court has always considered the evidence o f finding somebody red handed com m itting an offence to be conclusive. For instance in the case o f A b d a lla h R am adh an i v. R ep u b lic, Crim inal Appeal No. 141 o f 2013 (unreported), the Court stated as follow s: 'When he responded to the calla and went to the scene o f crime, he found the appellant in fragrante delicto raping the com plaint. The evidence to prove the offence o f rape was therefore more than su fficien t" For the above stated reasons, we find the second and third grounds of appeal devoid of merit and dismiss them. The fourth ground of appeal need not detain us much. We find that the complaint by the appellant that, the first appellate Judge erred in reducing the sentences in respect of both counts without considering his defence was based on misconception because what is considered in sentencing is aggravating factor and/or the mitigation of the convicted li person. The learned Judge found, and in our view, correctly so, that the maximum sentences of 20 years and life imprisonment for the first and second counts, respectively, were excessive. He considered the fact that the appellant was a first offender and that, while the offence of rape has a minimum sentence of 30 years imprisonment, the punishment for the offence of burglary has no statutory prescribed minimum sentence. The reduction of the sentences was made in favour of the appellant and for that reason, the appellant's complaint is without merit. Turning to the first ground of appeal, after having dismissed the other three grounds in which, the appellant challenged the finding of the two counts below that the case was proved beyond reasonable doubt, this ground should also flop. The trial court found the evidence of the victim credible as regards the appellant's acts of breaking the victim's door and forcefully having carnal knowledge of her. It also believed the evidence of PW2 that he found the appellant in fragrante delicto raping the victim. Those findings of fact were upheld by the first appellate court. The evidence of PW1, who was found by the two counts below to be credible, was sufficient to prove penetration. - See the case of Selemani Makumba v. Republic (supra). It is on record that when she went to Majalila Dispensary she was examined by PW3 who was a nurse at that Dispensary. After having examined the victim, PW3 filled the PF3 which was admitted in court as exhibit PI. Mr. Mwakasege conceded that the witness was not competent to prepare medical examination report and thus prayed that the exhibit be expunged from the record. Indeed the witness was not a competent person because he was not a medical practioners by virtue of the Medical Practioners and Dentists Act, Chapter 152 of the Revised Laws. - See the case of Jamal Ally @ Salum v. Republic (Criminal Appeal No. 52 of 2017) [2019] TZCA 32 (28 February 2019) in which, the Court expunged from the record the PF3 which was signed by a nurse. On the same stance, we expunge exhibit PI from the record for having been prepared and signed by an incompetent person. Notwithstanding the expungement of exhibit PI, we are of the view that, PW3's oral evidence on what he witnessed after having physically examined the victim as an ordinary person and a nurse, not a medical practioner as stated above, is still valid. It was his evidence that, when he inspected the victim's vagina, he found that it had bruises. That evidence supported the testimony of the victim that, she was penetrated. In the light of that strong evidence of the said witnesses, the contention by the appellant that the case was not proved beyond reasonable doubt is without merit. On the basis of the foregoing reasons, this appeal fails and we hereby dismiss it in its entirety. DATED at SUMBAWANGA this 25th day of March, 2025. A. G. MWARIJA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 25th day of March, 2025 in the presence of appellant in person and Mr. Ladslaus Akaro, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL