KELVIN PUNGAMA VS THE REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA CRIMINAL APPEAL NO. 22842 OF 2024 (Originating from the decision of the District Court of Nkasi at Namanyere in Criminal Case No. 199 of 2023) KELVIN PUNGAMA........................................................................ APPELLANT

VERSUS

THE REPUBLIC RESPONDENT

JUDGMENT MWENEMPAZI, J. The appellant herein named was arraigned in the District Court of Nkasi at Namanyere for the offence of Rape contrary to section 130(1) and (2)(e) and 131(1) and (3) of the Penal Code, [Cap. 16 R.E 2022]. It is alleged by the prosecution that Kelvin s/o Pungama on the 5th day of September, 2023 at Kalundi Village within Nkasi District in Rukwa Region did have sexual intercourse with one ‘ABC’ (name withheld to protect the child under the law of the child), a girl aged four (4) years old. 1 When the charge was read over and explained to the appellant (then an accused) he pleaded not guilty to the charge. However, upon hearing of the case against the appellant, the trial court found the appellant guilty of the charges facing him and he was accordingly convicted with the offence of rape as charged. He was thus sentenced to^serve a term of life imprisonment as the victim is under ten (10) years of age. The sentence was meted under the provisions of section 131(1) and (3) of the Penal Code, Cap. 16 R.E.

2019. In this appeal the appellant is aggrieved with the decision of the District Court of Nkasi (Hon. Adam Mwanjokolo-RM) dated 27th day of June, 2024. He has filed a petition of appeal registering three grounds of appeal. The grounds are as follows: 1. That, the prosecution failed to prove their case beyond reasonable doubt as required by law.

2. That, the evidence of PW5 erroneously and improperly admitted by the trial court in contravention to section 127(2) of the Law of the Evidence Act, Cap. 6 R.E.2022 hence has to be expunged from the record. 2 3. That, trial Court erroneously grounded its conviction on reliance of Exhibit P1 and P2 which was not admitted at all or and improperly admitted hence rendering its proceedings vitiated. The appellant prays that the appeal be allowed that that the Judgment, and orders be quashed and set aside respectively and that the appellant be released from custody. At the hearing of an appeal, the appellant was unrepresented and the respondent was being served by Ms. Godliver Shiyo, learned State Attorney. Both parties expressed their readiness to proceed with the hearing. The appellant was the first to submit. He simply and briefly submitted that he prays this court takes into consideration the grounds of appeal which are in the petition of appeal and allows the appeal, quashes Judgment of the trial Court and sets aside the sentence and releases him from the prison. Ms. Godliver Shiyo - learned State Attorney submitted in reply that the respondents are opposing the appeal and due to that they are praying that this court upholds the conviction and sentence meted. She submitted that in this appeal there are three grounds of appeal. She prayed to submit commencing replying on the

2nd ground of appeal. 3 On the 2nd ground of appeal, the appellant faults the taking of evidence of PW5. That it contravened the law. The counsel for the appellant has prayed that the same be expunged. She submitted that Section 127 (2) of the law of evidence Act, Cap 6 RE 2019 provides that a child of tender age may adduce evidence without taking oath but he/she must promise to speak the truth. She submitted to elaborate more that it is true according to the record, PW5 did not promise to speak the truth. That contravened section 127(2) of the Evidence Act, Cap 6 RE 2019. She, however, argued that they do not support the prayer by the appellant that the evidence adduced by PW5 be expunged. The evidence by PW5 was based on truth. The witness has first said that she is a Christian but also their teacher taught them that if they speak lies they will be burnt in fire. During cross examinations she held fast to her statement and confirmed that the appellant raped her. In the case of Wambura Kiginga vs The Republic Criminal Appeal No. 39 of 2018 CA T (Mwanza) at 14 -17 the court faced a similar situation. However, the Court refrained from 4 expunging the evidence for contravening Section 127(2) of Evidence Act, Cap 6 RE 2019 for the reason that the evidence was truthful. In the case of GeorgeJonasLesilwavsRepublic,CriminalAppeal No. 374 of2020, CATatMoshi. "...tee evidence of a

child of tender age should not be discarded on flimsy reasons without proof on a balance of probabilities that there was something lacking that really affected the quality and credibility of such evidence. ” The counsel for the respondent submitted that although the evidence by PW5 was taken contrary to Section 127(2) of evidence Act, Cap 6 RE 2019 the evidence is based on the truth and is admissible. She thus prayed that the said evidence should not to be expunged. On the 3rd ground of appeal, that exhibit P1 and P2 were not admitted at all or improperly admitted hence vitiating the proceedings, the counsel for the respondent submitted that they agree on the fault raised by the appellant. The exhibits were not admitted but their contents were read over. That contravened the directives in the case of RobinsonMwanjisi &ThreeOthersvsRepublic.[2003]T.L.R218page 8. 5 The court directed that before the exhibit is admitted it must be cleared for admission, be admitted and read over in court. The record shows the two exhibits were not admitted by the court but they were read over. The counsel submitted that the two exhibits were wrongly admitted into record. He prayed that they be expunged as that is the proper course of action in the circumstances. The counsel cited the of Sharifu Bakari @ Mdee vs Republic, Criminal Appeal No. 343 of 2021 (page 7) where in it was held: " ...the above

excerpt tells it all, and it is our finding that exhibit P1 was not cleared for admission before it was actually admitted. It was procedurally wrong for the trial court to allow PW4 to read out the PF3 before admission. The appellate court overlooked this procedural irregularity, which we hod to be prejudicial as it was held in Robinson Mwanjisi and 3 others vs. R[2003]TL.R. 218” The counsel submitted that the two exhibits should be expunged from the record of the court. 6 On the 1st ground of appeal, the appellant complain that the offence was not proved beyond reasonable ground. The counsel for the respondent submitted that the complaint has no merit, the prosecution proved the offence without there being doubt. The appellant was charged with the offence statutory rape. Elements to be The said ingredients were proved against the accused. The ingredients were clarified in criminal appeal No 623 of 2021, Yusufu IsmailAkandu vrs Republic. The court discussed the (ingredients at page 7). It was held that: “'This, being a case of statutory rape for which we are mindful of the Court’s stance that there are never-miss threeessentialingredientsforproofoftheoffencecharged. TheCourthasre-statedtheingredientsseveraltimesand 7 repeatedlytobe:

one,that,thevictimofrapeisunder age,two,thattheaccused’smanhoodhaspenetratedinto victim’ssexualpartsandthree,that,theperpetratoristhe accusedandnobodyelse.” It has been submitted by the counsel for the Respondent that the prosecution proved the ingredients as follows: one, Age of victim was proved by her father (PW1) and her sister (PW4). Both testified the victim was born 11/8/2019.The event occurred in 2023 when the victim was four years. Two, Penetration was proved by the victim (PW5) - page 26 of proceedings; many decisions have stated that in sexual offence the best evidence comes from the victim. In the case of Joseph Gerald @ Mdomvi vs Republic (Criminal Appeal No. 680 of2021) [2024] TZCA 765 (19 August 2024) the court held that: “'The second ingredient is penetration of the complainant privatepart.Itgoesunquestioned,intheinstantcase,that,not onlythevictimwasthesoleeyewitnesstotheoffenceatissue, butalso,inthatregard,generaly,sheistheauthorofthebest 8 evidence.Thecourtpronounceditselfinthecelebratedcaseof SelemaniMakumbaV.R[2006]T.L.R.379whichfolowed in numerous subsequent cases. Nonetheless, courts are instructedtotake such evidencecautiouslyconsidering also, the victim's credibility as the safety valve. It is so because the rule in Selemani Makumba(supra) did not intend that the evidence of a victim of sexual offence would be alpha and omega. It is until such time her

evidence has passed the test of truthfulness that it will found a conviction. See Mohamed Said v. Criminal Appeal No. 145 of 2017 (unreported)” The witness PW5 is trustworthy and during cross examination she insisted that the appellant is the one who raped her. In order to show that the witness is credible, after the event she went to see her sister and told her the story. Her evidence is sufficient to prove the case. Evidence by PW5 is supported by PW2 (doctor) who said in his examination of the victim’s vagina she had bruises. The counsel for the respondent submitted as to the question whether the appellant is the responsible person that is proved by PW5 who named the 9 appellant. She submitted and concluded that all ingredients were proved. The offence was proved beyond any reasonable doubt. She therefore prayed that the appeal be dismissed for lack of merit and that the Judgment, conviction and sentence of the trial court be upheld. I have as well read the record of the trial court and heard the submission by the parties. First and foremost, we have that part of evidence, the PF3 (Exhibit P1) and Caution Statement (Exhibit P2) wrongly admitted as submitted by the counsel for the respondent. The counsel for the respondent has admitted that there was breach of procedural law in admitting into evidence of the said documents and proposed that they be expunged. I do agree to the

proposal as it is in line with the law. I therefore proceed to expunge the said part of evidence. Also, with the authorities clarified by the learned counsel for the respondent, I refrain from expunging the evidence by PW5 based on the authorities in Wambura Kiginga Vs. The Republic and George Jonas Lesilwa Vs. The Republic. We therefore have the evidence by the Victim, PW5 and PW2 Geogrefy Mwambesie, who conducted examination of victim and also the evidence 10 by PW4 Sophia Milambo the mother of the victim. In the evidence of PW4 Sophia Milambo she testified that on the 05th September, 2023 she was at her neighbor home queen went there limping and crying she told her she had pain in her private part and she said that the accused took her to his room. The victim has ‘dirties from vagina things like whitish’ She (PW4) took her to bath and then to the VEO’s office that is where she realized that she had been raped. If you go back to the testimony by PW3 Mary Alois Chitimbwa Sophia Milambo went to the VEO’s office accompanying the victim. Sophia told her that the victim has been raped and she (VEO) had an opportunity to secretly examine her before she sent them to the police and ordered the arrest of the accused(appellant) by the Militiamen. The police, as a matter of procedure, guided by the nature of the offence in question, issued a PF3 and sent the victim to the hospital for

examination. It is unfortunate the PF3 which was admitted as Exhibit P1 has been expunged as evidence due to wrongful admission by the trial court. However, Godfrey Mwambesie, the Doctor who examined her, testified that: 11 “I caled a nurse a child and one parent to inspection/examination room. After that Queen Milambo was foundwithoutvirginitybruisesaroundvagina.Also,Isenther tolaboratoryforfurtherexaminationafterthatthepatientwas found wth HIV Positive. She was free from venereal diseases. I filled in PF3 after that she was found infected wth like gonorreal she was found with fungal infection. Probably she was infected even before. I gave her some tablets to cure infection. ” I was wondering the chronology of events. It is clear from the testimony of PW4 she had taken the victim to take bath before even taking her to the Village Executive Officer’s office and also to the hospital. She washed her the whitish dirt things seen in her vagina. PW2 did not find any bruises in her private parts except what was discovered later, as gonorrhea. According to Oxford English Dictionary, 12th Edition, gonorrhea is a venereal disease involving inflammatory discharge from the urethra or vagina. Among the symptoms are discharge from the vagina and Pain or burning sensation while urinating. 12 In his defence the accused, appellant herein, testified that he admitted before the police officer to

avoid being beaten. That means he disowned the contents of his admission. In any case, although the caution statement has been expunged, the testimony by the police officer and the victim must be handled cautiously. PW4 is the first person to meet the victim after she had come from the accused’s place. She testified that she was limping and crying due to pain. With the observation in the foregoing ^paragraph, we cannot say with certainty that the victim was raped. There are doubts that the victim might have been feeling pain due to infections she had which was confirmed by the doctor who examined her. Under the circumstances of the case, I find that there are still doubts as to the allegations against the appellant which need to be cleared before one can find there was rape as alleged beyond any doubt. For the reasons, I find the appeal has merit and the same is allowed, Judgment of, and conviction by the, the trial court is quashed and sentence set aside. I order that the appellant be released forthwith unless he is being held for another lawful cause. 13 It is ordered accordingly. Dated and delivered at Sumbawanga this 13th day of December, 2024 T. M. MWENEMPAZI

JUDGE 14