CR APP 133

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA CRIMINAL APPEAL NO.133 OF 2023 (Arising from Criminal Case No.240/2023, Kahama District Court) KALYANGO SIO MAGANGA NKWABI .................••.... APPELLANT VERSUS REPUBLIC .................•....•.................................... RESPONDENT JUDGMENT 07th & zo» March 2024. F.H. MAHIMBALI, J The appellant herein was arraigned before the trial Court for the offence of rape Contrary to Section 130 (1 )(2)( e) and 131(3) of the Penal Code Cap 16 RE 2022. It was stated that on diverse dates between pt day of May to 30th day of July 2023 at Chapulwa area within Kahama District, the appellant had sexual intercourse with the victim girl aged eight years old. The trial court heard the matter on merit and found the appellant guilty with the offence charged with and consequently sentenced him to suffer life imprisonment. Not amused, the appellant has knocked the 1 doors of this Court marshalled with four grounds of appeal, paraphrased as: 1. That the trial magistrate court erred in law to convict the appellant excessively in the absence of proof beyond reasonable of the charged offence. 2. That the trial magistrate court erred in law in mounting conviction on the contradicting evidence by prosecution on the age of the victim girl. 3. That the trial magistrate court erred in law in entering conviction without considering the defense testimony. 4. That the trial magistrate erred in convicting the appellant basing on the contradicting evidence of the examining doctor - PW4. Digesting these four grounds, they fall into two main categories: factual and legal, whether the prosecution's case was established beyond reasonable doubt and on legal, whether the sentence meted exceeded the legal limit. During the hearing of the case, Mr. Kadata learned state attorney appeared for the respondent/republic while the appellant was solemnly a sole army. 2 Arguing his appeal, the appellant prayed for this court to adopt his grounds of appeal and form part of his submission. In addition, he prayed that he be acquitted of the charges as there was no any credible evidence by the Respondent to establish the charged offence as per legal standard. On the side, Mr. Kadata opposed the appeal. Arguing on the the first ground of appeal which has two parts: excessive sentence and insufficient evidence. He stated that, as per section 131 (3) of the Penal Code, for a person convicted of the statutory rape (under 18 years), the minimum sentence as per law is life sentence. As the lower court awarded him with such a sentence, then, that was appropriate as per law. Thus, there is no any legal violation. On the ground that the offence was not established by evidence, Mr. Kadata propounded that the ground of appeal is unmerited. The record is clear that the said offence was established without any doubt. As per charged offence; which is section 131(1)(2) (e) of the Penal Code, the prosecution was charged to establish three things: that there was male organ penetration to the female genital organ - vagina. Secondly, whether the victim is below 18 yrs. Thirdly, whether the doer is the appellant. 3 With the first ingredient, the victim said it all how she was carnally known by the appellant. That the appellant had inserted his "dudt/' into her vagina for more than ten times. He however argued that the best evidence in sexual offences comes from the victim. See Selemani Makumba V. Republic - (2006) TLR 379. As if this is not enough, PW4 - Examining Doctor testified clearly how she encountered penetration into the said victim's vagina - genital organ, no hymen and that there were bruises, which were caused by blunt object. Thus, the fact of penetration was well stated. On the second ingredient of age, Mr. Kadata argued that the victim was below the 18 yrs, this was well stated by the victim herself at page 10 of the typed proceedings. Similarly, PW4 (Examining Doctor) stated in her evidence that the victim was 8 years old (Page 13 of the typed proceedings). According to law, these witnesses are capable of explaining this fact. See the case of Isaya Renatus V. Republic, Criminal Appeal No. 542 of 2015, CAT at Tabora. On the third ingredient, whether the appellant raped the said victim girl, Mr. Kadata submitted that the testimony of the victim herself is clear and satisfactory that by naming the appellant as the culprit, she was sure of that fact. Further to that it was PW3 who first told her teachers (PW1 4 and PW2) that the appellant as the culprit. At page 11 of the typed proceedings, the victim (PW3), named the appellant as culprit during her testimony in court. He added that the appellant never asked any contradicting questions the said PW3 when giving her evidence. It is trite law that failure to cross examine on important issues, it is presumed that the accused person does not dispute the existence of the said facts. see the case of Masanyiwa Masolwa V. Republic, Criminal Appeal No. 280 of 2018, CAT at Shinyanga at page 18). It is clear that all this disfavored the appellant. On the second ground of appeal on contradiction of age of the said victim, Mr. Kadata argued that the same is baseless. The court is not legally bound to use only birth certificate but rather parents or guardian. On this he sought guidance to the case of Isaya Renatus V. Republic, Criminal Appeal No. 542 of 2015, CAT at Tabora where the Court of Appeal, where the Court considered the fact, a court of law when determining the age of the victim in criminal offences, is not bound by these factors but also other factors as well. However, the variation of age either 7 or 8, didn't prejudice the appellant. Thus, this ground of appeal is devoid of any merit. 5 Mr. Kadata also contended that the assertion that the trial court did not consider the appellant's defense testimony in the composition of the said judgment is not true. Looking at page 9 - third paragraph of the typed judgment, it is very clear that how the said evidence was considered. That notwithstanding, even if that was not done, yet, this Court is mandated to step into the shoes of the trial court and recompose it on its own. See Ngalu Joseph and Another V. Republic, Criminal Appeal No. 172 of 2019, CAT at Mbeya at page 20. On the fourth ground of appeal, that the PW4 didn't establish if the victim was known carnally by him, Mr. Kadata in his view found it to be a bankrupt argument as what the doctor was supposed to establish the said victim girl being known carnally and not the fact that it was the appellant who knew her carnally. PW4 on her part, clearly stated how the said victim girl was carnally known. Mr. Kadata finally pressed that all this said and done, this appeal is bankrupt of any merit, and is bound to be dismissed. He also prayed for the conviction and sentence meted out be upheld. In rejoinder the appellant had no more to add, he just pressed for his acquittal, insisting that he is not responsible of the alleged offence. 6 Having heard both parties on merit and upon scanning the trial court's records, my deliberation of this appeal to the best, I find the major contention between the parties is on the burden of proof and standard of proof. In this point, it is a trite law that, prosecution bears the burden to establish and prove the offence beyond reasonable doubt. Section 3 (2)(a) of The Evidence Act provides the standard of proof in the following words: Section 3 (2) "A fact is said to be proved when (a) "in criminall matters, except where any statute or other law provides otherwise/ the court is satisfied by the prosecution beyond reasonable doubt that the fact exists'/ II Likewise, section 110 of The Evidence Act, also provide in a clear manner as quoted hereunder: Section 110 (1) "Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. " 7 These sections received a considerable legal breath by the Court of Appeal in the case of Anthony Kinanila Enock Anthony Vs. R, Criminal Appeal No. 83 Of 2021 when it held: '~s to the standard of proof which we shall also have the opportunity to consider in the instant case/ the prosecution has the duty to prove all the ingredients of the offence beyond reasonable doubt and here/ one should not waste time trying to invent a new wheel as that is exactly what was stated by the House of Lords in England way back in 1935 in Wooimington Vs. DPP [1935] AC 462 from where our present general principles of criminal law and procedure emanate" Clearly, the offence of rape is established when the following ingredients are proved beyond reasonable doubt: One - there was male penis penetration to a girl's reproductive organ; two - if a girl was below the age of 18 years, is immaterial whether the girl gave consent or otherwise. If a woman was above the age of majority, that is, above 18 years old, then such penetration should be without her consent to constitute rape. The appellant had complained about the age of the victim that was uncertain and thus witnesses' evidence was contradictory in nature. I have gone through the testimony of PW3 a victim who testified none of her age. PW6 a grand father of the victim testified that JM a victim has seven years. PWl testified that JM a victim has eight years. The charge sheet provides that the raped girl was of the age of 8 years. Now the question is; between the charge sheet and testimonies before the court which starts first? In my digest I agree with the appellant that there were contradictions/insufficient evidence on the fact of the victim's age on the available evidence concerning the age of the victim during the trial. According to the evidence in record, it was not established how the said victim girl is 7 or 8 years old. Neither the child herself (PW3) nor the guardian (PW6) stated when the victim girl was born. We could also get this information on the record from school vide PWl or PW2, but none said so certainly. The trial magistrate either didn't establish from which fact, the victim's age was established to be eight years. I thought that was an essential part in the proceedings involving statutory rape and could be established through part of the introductory questions to the 9 victim when establishing whether she is capable of telling the truth and or understands the meaning and nature of oath. I agree with Mr. Kadata, learned state attorney that the age of a child can be established either by a parent, child herself, guardian etc and it is not necessarily established by birth certificate (See Isaya Renatus v. Republic, Criminal Appeal No. 542 of 2015, CAT at Tabora). But in the current case, none of the prosecution's witnesses testified certainly when the said victim girl was born for one to say either is 7 or 8 years. It therefore remains a mere general statement that she is 8 years. Is that legally sufficient? I think it was expected more from them. The legal issue for consideration is not whether the victim girl is 7yrs or 8yrs old, but whether she was below 18 years as per law. The Court of Appeal in developing this good principle on the need to establish the age of the victim as per the case of Isaya Renatus' case, and other good precedents followed thereafter, did not intend to require the court to believe on general statements. The proof of age must be concrete, viable and reliable. General statement cannot be accepted at this era of statutory rape. 10 In a strict consideration of PW1, PW4 and PW6'stestimonies, none stated the specific date, month or even some particulars to authenticate the age information of the victim. For instance, production of birth certificate, clinic card, if any, school registration and any other reliable and acceptable document proving her age. It follows therefore that, where there is neither birth certificate, school registration, clinic card, medical report nor any clear parental or guardianship information on the age of the victim, there must be strong testimony on the date, month and year when the victim was born which was not done in this case. A simple mention that the victim is 8 years, in my considered view, is not a legal proof of the victim's age especially to a punitive statutory rape offence. As this could even be stated by anyone. A parent who witnessed and celebrated the birth of her daughter must give more details required to prove the age of the victim. Under the circumstances the evidence that she was under age to constitute a statutory rape ought to have been given. That was stated in a number of cases including that of Andrea Francis versus The Republic, Criminal Appeal No. 173 of 2014 (eA). It has also further been held that the victim's age in statutory rape cases must be strictly proved and not merely mentioned. See; Edward s/o Yohana versus 11 The Republic, Criminal Appeal No. 48 of 2022 (He) at Shinyanga. Therefore, the trial court abdicated from that noble duty in the circumstances of this case. The other complaint was on reliability of evidence of PW4 the doctor who examined the victim. According to the appellant the said witness did not prove the offence against the appellant. I have looked for the testimony of Pw4, the same was really questionable. At page 14 of the typed proceedings, PW4 stated the following; " I examined JM but she has no bruises or swollen, she has no hymen and discharge which has smell this show that has been raped. " The issue to consider is whether a child of tender age; estimated to being 7 or 8 years old been is considered raped if found to have no bruises and no swellings in her genital part? Does it crick in mind? In anyway a mere absence of hymen is not conclusive proof that it was caused by a sexual act. Further, the medical report (exhibit PI) among others, show that the victim not only had lost virginity, but also was used to sexual intercourse ten 12 times. It would suggest, that is why she did not tell anyone that she was being raped for all the ten times (if at all). Over and above, what caused the victim to reveal the incidence if at all times she had remained silent when raping incidence took place. Based on the testimony of PW4 and exhibit Pi, do they suggest any penetration as core elements in proving offence of rapes to have found in genital female organ of the victim? the answer would be in negation. Though I acknowledge the established principle that the best evidence in rape cases comes from the victim, a proper approach to deal with the victim's best evidence, is to examine the evidence properly to find credibility, coherence and compatibility of that evidence of the victim. The principle in Selemani Makumba's case does not apply without consideration of the circumstances of each case. This is what was cautioned in the case of Fahadi Khalifa Vs. R, Criminal Appeal No. 573 of 2020, CAT at Dodoma where it was held inter alia: "In sexual offences the best evidence comes from the victim see: Selemani Makumba v. Republic [2006J TLR 149. However; we should remark that it is not always the case that such evidence is taken as wholesome, believed and acted 13 upon to convict an accused person without considering other evidence and circumstances of the case" On the allegation that the defense testimony was not considered by the trial court, Mr. Kadata, almost conceded with that ground but made refuge to the rule that this court is mandated to step into the shoes of the trial court and re-digest the evidence in record. I agree with the appellant that his defense testimony was not considered by the trial court. The position of the law is, failure to consider the defense testimony vitiates the trial and the resulting effects are nullity. See Leonard Mwanashoka vs. Republic, Criminal appeal No. 226 of 2014 (unreported) where, while discussing the appellant's complaint that his defence was not considered and after reciting an extract from learned judge's judgment showing how he dealt with the defence evidence, the Court of Appeal stated that: We must quickly and respectively point out here that that is where the learned first appel/ate judge got wrong. accept that the learned trial Resident Magistrate ''summarized the defence evidence'; much as he/she did summarize the prosecution evidence. But that was not the complaint of the appel/ant It is one thing to summarize the evidence for both sides 13 separately and another thing to subject the entire 14 evidence to an objective evaluation in order to separate the chaff from the grain. Furthermore, it is one thing to consider evidence and then disregard it after a proper scrutiny or evaluation and another thing hot to consider the evidence at all in the evaluation or analysis. Thecomplaint of the appellant was that in the evaluation of the evidence, his defence case was not considered at al/. "(Emphasis added). The Court then went further to expound the obtaining consequences in these unambiguous words: '~.. The appellant's defence was not considered at all by the trial court in the evaluation of the evidence which we take to be the most crucial stage in judgment writing. Failure to evaluate or an improper evaluation of the evidence inevitably leads to wrong and/or biased conclusions or inferences resulting in miscarriage of justice. It is unfortunate that the first appellate court judge fell into the same error and did not re-evaluate the entire evidence as she was duty bound to do. She did not even consider that defence case too. It is universally established jurisprudence that failure to consider defence is fatal and usually vitiates the conviction... " 15 See also Hussein Idd and Another vs. Republic, [1986] TLR 166 where the Court said: 'It was a serious misdirection on the part of the trial judge to deal with the prosecution evidence on its own and arrive at the conclusion that it was true and credible without considering the defence evidence". In the case of Kaimu Said V. Republic, Criminal Appeal No. 391 of 2019, CAT at Mtwara, insisted that when a trial court disregards the defense testimony, the trial is vitiated as it is a nullity. Moreover, I agree with Mr. Kadata on the progressive approach of the best manner in dealing with situational cases where the defense testimony is not considered by the trial court; is for the first or even the second appellate court to step into the shoes of the trial court and consider the evidence in its own findings for the interest of justice. Nevertheless,that is just an exceptional to the general rule in the context that each case must be considered in its own facts. But strictly, in prosecution cases, where defense testimony is not considered, the trial is vitiated. This is the general rule. As what is the way forward, depending on each case, there is a mixed approach. 16 Strictly, in the current case, what the trial magistrate did was merely summarizing the defense testimony that he is sick as his penis is swollen and has challenges in passing urine and that does not erect. Though for penetration to mount rape. it does not matter whether the penis is erect or not. A mere fact that it can be inserted into the victim girl/woman's vagina either full, part or even at slightest inch of it, is sufficient to constitute rape. Erection and effective ejaculation is not a legal requirement of rape. Provided one has penis, then by itself is an only known legal instrument of rape as per law. If there can be penetration by other objects similar to penis, in law that is not rape but a mere assault offence. This evidence however, which was not analyzed by the trial court, has now been re-digested and analyzed by this court. With this brief analysis, I am settled in my mind that before the trial court, the age of the victim was not proved. Also, the fact that the appellant had carnal knowledge with the victim was not established and proved beyond reasonable doubt. Though I may accept that the victim may have been raped by somebody some days, the condonation of the guardian and the victim altogether, add more doubt to the prosecution's case. The offence was not proved beyond reasonable doubt. 17 On the legal ground that the sentence meted out was excessive, is dependent on the factual establishment of the case whether it was made beyond reasonable doubt. As that factual issue has been disposed of in negation, the lengthy of the sentence has no place for discussion. But it suffices to say that it being an offence falling in the Minimum Sentences Act, as per section 131 (3) of the Penal Code, for a person convicted of the statutory rape to a victim girl under 18 years, the minimum sentence as per law is life sentence. As the lower court awarded him with such a sentence, then, that was appropriate sentence as per law. Thus, there is no any legal violation That notwithstanding, as per discussion in factual issue that the evidence in record was insufficient to mount conviction as charged, I find this appeal to have been brought with sufficient cause, I allow it and order the appellant's immediate release from custody unless otherwise lawfully held. Right of appeal explained. Dated at SHINYANGA this 20th day of March 2024. F.H. Mahimbali Judge. 18