Lameck Mzazi Judgment Final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA CRIMINAL APPEAL No. 5722 OF 2025 (Arising from Criminal Case No. 31693 of 2024 of the District Court of Bukombe at Bukombe) LAMECK MZAZI MZAZI …………….……………………………………. APPELLANT VERSUS REPUBLIC…………..……………………………………………………..RESPONDENT JUDGMENT Date of last Order: 14/03/2025 Date of Judgment: 21/03/2025 MWAKAPEJE, J.: The appellant in this appeal is aggrieved with the decision of the District Court of Bukombe, where he was convicted for the offence of rape contrary to sections 130(1), (2)(e) and 131(1) of the Penal Code, Cap. 16 R.E. 2022. The appellant was, therefore, sentenced to a 30-year imprisonment. Briefly, the facts of this case are as follows: on the night of 23/10/2024, at Bwenda within Bukombe District, the accused allegedly took the victim to his room and had carnal knowledge of her. The victim raised an alarm, attracting neighbours who intervened, leading to the accused's arrest. When the charge was read to the appellant, he denied committing the offence, prompting the prosecution to call five witnesses. Page 1 of 18 PW1, the victim, testified that on the night of 23/10/2024 while heading to the bathroom about 10 meters from her house, the appellant forcibly dragged her into his room, undressed her, and had carnal knowledge of her. PW1 screamed, attracting neighbours, including her uncle (PW2), PW3 and others who knocked on the door of the appellant. The appellant eventually opened the door, denying that anyone was inside. PW3 entered the room and found PW1 hiding in the corner, covered with clothes. The appellant was taken to Ushirombo Police Station, where PW1 was issued a PF3 and examined at Bukombe District Hospital. PW2, Lucas John Nyanda, the victim's uncle, testified that on the night of 23/10/2024, at around 22:00 hours, he was at home when he heard an alarm coming from the appellant's room. Someone was screaming for help, prompting neighbours, including himself, Zainabu, PW3, and others, to gather at the door of the appellant. He said they knocked on the door, but the appellant remained silent for a while before eventually opening it and stepping out. The appellant was at the doorway, and when questioned about the noise, he claimed nothing had happened. PW3 entered the room and found the victim hiding behind the door. She escorted the victim outside. PW2 further testified that they questioned both the accused and the victim, and the victim stated that the appellant had forcibly taken her into his room and raped her. According to PW2, Page 2 of 18 PW3 and one Zainabu inspected the victim's private parts and observed wetness, which they identified as semen, and the victim complained of pain. PW3, Johari Shabani Husein, testified that on the night of 23/10/2024, while at home, she was awakened by noises, including cries of "Leave me, you are hurting me!" She followed the sound and traced it to the appellant's place, where she found several women gathered outside while the appellant, Lameck, was sitting nearby. PW3 approached the appellant and asked whether a child was inside, but he denied it. She then opened the door and entered the room, where she found the victim hiding in a corner covered with a bed sheet. When asked why she was there, the victim replied that she had been on her way to the bathroom when the accused pulled her into his room. The victim further stated that the accused had offered her Tsh. 5,000 not to disclose what had happened. PW3 further testified that upon inspecting the victim's private parts, she observed mucus-like fluid and blood on her thighs. She then took the victim outside and informed one Zainabu, the ten-cell leader, who called the local militia. The local militia escorted both the accused and the victim to Ushirombo Police Station, where a PF3 was issued, and the victim was referred to Bukombe Hospital. Page 3 of 18 PW4, Stephan Mugisha, a medical doctor, testified that on 24/10/2024, he examined the victim, including an inspection of her private parts and recorded her statement. In his examination, he noted that the victim was not a virgin, and there were no visible bruises or blood, but there was a fluid present. PW4 collected fluid, urine, and blood samples for laboratory analysis. The examination revealed that the vaginal fluid contained sperm, confirming recent sexual intercourse. PW4 completed the PF3 (exhibit PEX1), documenting his findings and examination results. PW5, Joseph Mpini Kimbulu, a militiaman, testified that on 23/10/2024, he was requested to assist PW3 and others with the appellant's arrest, which he did. He escorted the appellant to Bukombe Police Station, accompanied by the victim and PW3. PW5 stated that upon arrival at the station, they were received by WP Eliwaja, who issued a PF3 to the victim and escorted her to Bukombe District Hospital. In his defence, the appellant stated that on 23/10/2024, at around 21:00 hours, while he was sitting at his home, a group of people came and arrested him. He was taken to the police station, where he was informed that he was being accused of rape. The appellant denied the allegation. After the testimonies from both parties, the trial magistrate convicted the appellant of rape and sentenced him accordingly. Aggrieved Page 4 of 18 by the outcome, the appellant appealed to this Court with four grounds of appeal, which are summarised as follows: 1. That the trial court erred in law and fact by convicting the appellant based on the uncorroborated testimony of PW1. The victim alleged that DW1 raped her and gave her Tsh. 5,000/= to conceal the incident. However, the money was never recovered from PW1 on the night in question, casting doubt on her credibility. 2. That the trial court magistrate erred in law and fact by relying on contradictory evidence. PW1 alleged that the rape occurred on 24/10/2024 at 10:00 P.M. and that she was taken to the hospital that night. However, the doctor's statement indicates that he works from 7:30 A.M. to 6:30 P.M. and was not present at the hospital at 10:00 P.M. The unexplained inconsistency raises doubts about the authenticity of the PF3, which ought to be expunged from the record. 3. That the trial court magistrate erred in law by failing to comply with section 312(2) of the Criminal Procedure Act, Cap 20 (R.E. 2022). 4. That the trial court magistrate erred in law by upholding the conviction and sentence despite the prosecution failing to prove the charge against the appellant to the standard required by law. At the appeal hearing, the respondent was represented by Mr Robert Neophitus, a learned State Attorney, while the appellant appeared in person. Page 5 of 18 When the appellant was given the opportunity to address the Court, the appellant stated that he relied on the grounds of appeal and had nothing further to add. In response to the grounds of appeal Mr. Neophitus opposed the appeal. On the first ground of appeal, Mr. Neophitus argued that the appellant claimed that PW1 stated on pages 6–7 of the proceedings that she was given Tsh 5,000 to remain silent, but PW1 made no such statement. He clarified that PW3, on page 10, mentioned being paid Tsh 5,000 upon entering the vicinity, but there was no evidence of actual payment. He further noted that this issue was not contested at trial and did not affect the case. In sexual offence cases, the primary focus of the trial court is on whether the offence was committed rather than the issue of payment. Consequently, he prayed for the dismissal of this ground of appeal. Addressing the second ground, Mr Neophitus stated that the appellant alleged inconsistencies regarding the date and time of the alleged rape. However, he clarified that PW1's testimony on pages 6–7 of the proceedings did not indicate that she was raped on 24/10/2024 at 22:00 hours or that she was taken to the hospital the same night. Instead, PW1 clearly stated that the rape occurred on 23/10/2024 at about 22:00 Page 6 of 18 hours and that she was sent to the police station for a PF3 before receiving hospital treatment. He further argued that no testimony specified the exact time of PW1's arrival at the hospital or when she was attended to. PW4 testified to attending to PW1 on 24/10/2024 during his working hours (07:30– 16:00), showing no contradiction between PW1 and PW4's testimonies. He also asserted that the PF3 met the requisite standards for admission with no valid reason for its exclusion. Thus, he prayed for the dismissal of this ground of appeal. On the third ground of appeal, Mr. Neophitus contended that the appellant argued the trial court failed to comply with section 312 of the Criminal Procedure Act (CPA). However, Mr. Neophitus noted that page 3 of the judgment clearly showed the accused was convicted of rape as charged, and the last page recorded the 30-year sentence. He contended that any irregularities were curable under Section 388 of the CPA and deemed this ground immaterial, praying for its dismissal. Finally, on the fourth ground, the appellant claimed that the offence was not proved beyond a reasonable doubt. Mr. Neophitus argued that PW1's testimony established that the appellant raped her on 23/10/2024, corroborated by other prosecution witnesses. He pointed out that the appellant did not cross-examine PW1 on her testimony, which, as held in Page 7 of 18 Nyerere Nyague vs Republic (Criminal Appeal Case No. 67 of 2010) [2012] TZCA 103 (21 May 2012), amounted to admission. Additionally, PW2 testified to hearing screams from the appellant's place and finding the victim there, while PW3 corroborated PW1's account by stating that upon examining the victim, she observed male sperm. PW4 also confirmed the presence of spermatozoa during his medical examination. Mr Neophitus emphasised that in sexual offence cases, the victim's testimony is considered the best evidence, as established in Selemani Makumba v. Republic [2006] TLR. 379. He further argued that the essential elements of rape, including age, penetration, identity of the accused, and commission of the offence, were sufficiently proved, as held in Meedrage Mohamed Naheka vs Republic (Criminal Appeal No. 391 of 2022) [2024] TZCA 481 (13 June 2024) and Issaya Renatus vs Republic (Criminal Appeal No. 542 of 2015) [2016] TZCA 218 (29 April 2016). He concluded by stating that it was proven the victim was under 18 years of age, penetration occurred, and the appellant was the perpetrator, who was subsequently arrested and taken to the police station. Therefore, he prayed for the appeal to be dismissed and the District Court's decision upheld. In his rejoinder, the appellant reiterated that what he had stated in the petition of appeal was sufficient. Page 8 of 18 Having considered the rival submissions of the parties herein, the issue to be determined by this Court is whether the present appeal is meritorious. Before considering the grounds of appeal, it is imperative to underscore the well-established principle in criminal law that the burden of proof rests solely with the prosecution. This burden is firmly set by section 3(2)(a) of the Evidence Act, Cap 6 R.E. 2022, which explicitly provides the standard of proof beyond a reasonable doubt. The same unambiguously delineates: "(2) A fact is said to be proved when- (a) in criminal matters, except where any statute or other law provides otherwise, the court is satisfied by the prosecution beyond reasonable doubt that the fact exists." Further, in the case of Mohamed Said Matula V Republic [1995] TLR 3 (CA), it was stated that: "…………., the onus never shifts away from the prosecution, and no duty is cast on the Appellant to establish his innocence." [Emphasis supplied] This Court is mindful that proof beyond a reasonable doubt demands that the prosecution's evidence be cogent, credible, and sufficient to establish each essential element of the offence, leaving no room for reasonable doubt in the mind of a prudent and impartial judge or magistrate. In evaluating the appellant's complaints and determining Page 9 of 18 whether the prosecution has met this standard, the Court will carefully assess the evidence presented in the trial court, including witness testimonies and documentary evidence. Now, in the present case, the appellant contended in his first ground of appeal that the trial court erred in convicting him based on the uncorroborated testimony of PW1 lacks merit. It is essential to appreciate that the main issue before the trial court was the determination of whether the offence of rape was committed, not the recovery of the Tsh. 5,000 allegedly given to the victim by the appellant, as rightly argued by Mr. Neophitus. The fact that the said amount was not recovered does not negate the occurrence of the offence. The offence of rape is established by evidence proving the victim's age (or lack of consent for persons above 18 years), penetration, and the identity of the perpetrator rather than by the presence or absence of any subsequent monetary transaction. In the case of Meedrage Mohamed Naheka vs Republic (supra), it was stated that: "We wish, at the very outset, to restate that, as it is trite, in cases of statutory rape that three ingredients have to be proved: one, that the victim was below eighteen years old, two, penetration of the perpetrator's manhood and three, that the accused is the perpetrator." [Emphasis supplied] Moreover, the credibility of PW1's testimony did not hinge solely on the recovery of the Tsh. 5,000. In the present case, the trial court properly Page 10 of 18 evaluated PW1's testimony and found it credible, consistent, and sufficient to establish the elements of rape. The mention of the Tsh. 5,000 by PW3 was merely incidental to the narrative and did not form the crux of the prosecution's case. Therefore, the appellant's contention that the absence of the money casts doubt on the victim's credibility is unfounded, and I dismiss it. Regarding the second ground of appeal, the appellant contends that PW4, the doctor, should not be believed because he testified that he works from 7:30 to 18:30 and, therefore, could not have been present at the hospital at 22:00. This argument is fundamentally flawed as it disregards the context and practical realities of medical practice. Firstly, it is essential to emphasise that the victim (PW1) testified that the rape occurred on 23/10/2024 at about 22:00 hours, not on 24/10/2024 as alleged by the appellant. Secondly, the medical examination by PW4 took place at 01:52 hours on 24/10/2024 as per exhibit PEX 1 (PF3) and not between 07:00 and 18:30 on 24/10/2024, as argued by Mr Neophitus. This was merely a few hours after the incident. The appellant's contention that PW4 should not have been at the hospital at that hour is misguided. Although PW4, during cross-examination, stated that he examined the victim on 24/10/2024 at noon. At the same time, the record indicates the time as 01:52 hours; I Page 11 of 18 consider this a minor inconsistency attributable to human recollection, which does not go to the root of the case. See the case of Dickson Elia Nsamba Shapwata and Another vs Republic (Criminal Appeal No. 92 of 2007) [2008] TZCA 17 (30 May 2008). In his testimony, however, PW4 mentioned his regular working hours, which does not preclude him from being summoned to the hospital to respond to emergencies or urgent cases. I should emphasise here that medical professionals, including doctors, are often required to maintain flexibility and availability beyond conventional working hours due to the inherent demands of their roles. Hospitals operate 24 hours a day, and it is common for healthcare workers to be called back to duty when emergencies arise, regardless of their standard shifts. Therefore, PW4's attendance at the hospital after his regular working hours in this case is entirely reasonable and consistent with the nature of his professional obligations. Therefore, there is no inconsistency between the testimonies of PW4 and PW1 merely because PW4 initially indicated his regular schedule. Furthermore, the credibility and admissibility of the PF3 are not compromised by the doctor's working hours. The pivotal consideration is whether the medical examination was conducted and whether its findings corroborate the victim's account, which was done in this case. Therefore, Page 12 of 18 I find the appellant's claim of inconsistency is misguided. Even if this Court were inclined to expunge the PF3, though I see no justifiable reason to do so, it would still assess the probative value of the remaining evidence. Accordingly, I concur with the learned State Attorney's submission that the appellant's argument on inconsistencies and to expunge the PF3 lacks merit. Consequently, this ground of appeal should be dismissed. On the third ground of appeal, the appellant contended that the trial magistrate did not comply with the provision of section 312(2) of the CPA. On the other hand, Mr. Neophitus argued that the judgment complied with the provision, and if there was non-compliance, then the same was cured under section 388 of the CPA. In order to consider this ground effectively, it is prudent to visit section 312(2) of the CPA. The same provides that: "312(2) In the case of conviction, the judgment shall specify the offence of which, and the section of the Penal Code or other law under which, the accused person is convicted and the punishment to which he is sentenced." This provision underscores the principle of certainty and clarity in criminal proceedings by requiring that a judgment specifies the offence committed, the legal provision violated, and the sentence imposed. The rationale is to ensure that the accused fully understands the basis of their conviction and the corresponding punishment. Moreover, this requirement Page 13 of 18 enhances transparency and accountability by providing a clear record for appellate scrutiny. Non-compliance with this provision may result in ambiguity, which could give rise to challenges or claims of procedural unfairness. In the present case, the trial magistrate, in her concluding remarks, stated thus: "And therefore, this court finds that the prosecution proved the charge against the accused person. And this court hereby finds the accused guilty of rape and hereby convict him as charged." Although the above excerpt does not expressly mention the relevant legal provision and section, it substantially complies with section 312(2) of the CPA. This is because the judgment, at its inception, clearly stipulated that the appellant was charged with rape contrary to sections 130(1) and 131(1) of the Penal Code, Cap. 16, R.E. 2022. Therefore, the phrase "convict him as charged" inherently implies that the conviction aligned with the specified provisions from the outset. In the case of Paulo Lusulo and Another vs Republic (Criminal Appeal No. 481 of 2007) [2009] TZCA 153 (2 November 2009), it was stated that: "Section 312(2) of the CPA simply provides that in case of a conviction, the judgment should specify the offence of which and the section of the PC or other law under which the accused person is convicted and the punishment to which he is sentenced. The issue here is, in our view, of substance as opposed to a form of writing a judgment. In convicting the appellants, the trial magistrate did Page 14 of 18 state(on page 78 of the record) thus: " Accordingly, I find the 1st and 2nd accused guilty, and I convict them as charged." That concluding statement is, in our considered opinion, in compliance with the requirements of section 312 (2) of the CPA. If at all there are any defects in the said conclusion, then they are not fatal." [Emphasis supplied] Guided by this authority, and considering that the substance of the provision was adequately captured in this case, and there is no indication that the appellant suffered any prejudice or injustice as a result of the wording of the judgment, I find this ground of appeal devoid of merit and hereby dismiss it. Regarding the final ground of appeal, it is settled law that in sexual offences, the best evidence comes from the victim, provided that their testimony is credible and reliably connects the accused to the alleged offence. The weight of such evidence largely depends on the victim's credibility and consistency in narrating the incident. In the case of Meedrage Mohamed Naheka vs Republic (supra), it was stated that: "Since the appellant was caught almost red-handed. However, we are also mindful of the legal principle which poses an exception to the rule in Seleman Mkumba (supra), that the rule cannot apply wholesale, ignoring credibility and reliability of the prosecution witnesses and the obtaining circumstances." [Emphasis supplied] Also, in the case of Kennedy Mahuve @ Mjaliwa v. Republic (Criminal Appeal No. 540/590 of 2020) [2024] TZCA 19 (6 February 2024), Page 15 of 18 while referring to the landmark decision in Selemani Makumba v. Republic [2006] T.L.R. 379, the Court of Appeal reaffirmed this principle, stating that: "………………we are mindful of the settled law that the best evidence in sexual offences comes from the victim, as stated in Selemani Makumba v. Republic [2006] T.L.R. 379 and several other decisions of this Court. However, we hasten to emphasise that the said position equally depends on the credibility of the respective witness on the facts of the incident and the connection of the accused to the offence." [Emphasis supplied] In the present case, the victim provided a detailed account of the incident, stating that while on her way to the bathroom, she was forcibly dragged by the appellant into his room, where he raped her. Specifically, in her statement, the victim was recorded to have said: I was with Kanga. He grabbed the piece of cloth while I handled it strongly. He pulled Kanga, and he threw it, and he “alinilalia kwa juu akanivuliisha nguo, nilikua nigella chilli." He undressed, and he entered his penis into my vagina; he used to push his penis inside and move out." The appellant, in cross-examination, did not challenge this evidence as he had no question to ask, which, as established in Nyerere Nyague vs Republic(supra), implied admission. In the said case, it was explicitly provided that: "Unfortunately, the appellant did not cross-examine PW1 on this to shake her credibility. As a matter of principle, a party who fails to cross-examine a witness on a certain matter is Page 16 of 18 deemed to have accepted that matter and will be estopped from asking the trial court to disbelieve what the witness said." Furthermore, during the assault, the victim screamed, which drew the attention of neighbours and other individuals to the scene. Moreover, PW2 and PW3 corroborated this account, testifying that they heard the victim's screams emanating from the appellant's room. Despite the appellant's initial denial of having anyone inside his room, PW3 entered and found the victim present. Upon inspecting the victim, PW3 observed mucus fluid and blood on her thigh, further substantiating the victim's testimony. Additionally, PW4, a medical expert, confirmed the presence of spermatozoa in the victim's vaginal area, providing critical forensic evidence. The victim's testimony was credible, coherent, consistent, and corroborated by PW2, PW3, and PW4consistent testimonies and corroborated by PW2, PW3, and PW4 testimonies. In cases like the present, the prosecution bears the burden of proving three critical elements: that penetration occurred, that the victim was below the age of majority, and that the accused was the perpetrator, see the case of Meedrage Mohamed Naheka vs Republic (supra). In this case, there is no dispute that the victim was 14 years old at the time of the offence, as evidenced by her testimony that she was born on 20/10/2010. The element of penetration was established through the victim's account and corroborated by the testimonies of PW3 and PW4, who provided both observational and forensic evidence. Furthermore, the appellant's culpability was confirmed by the fact Page 17 of 18 that the victim was found inside his room despite his initial denial of her presence. The evidence presented in this case aligned with the standards required to prove the offence of rape. Consequently, the prosecution successfully demonstrated that the essential elements of the offence of rape were met, warranting the appellant's conviction. Therefore, I find no merits in this ground of appeal and dismiss it. That said and done, I am left with no doubt as to the appellant's guilt as rightly found by the trial court, and I accordingly uphold the conviction. Therefore, this appeal lacks merit and is dismissed in its entirety. It is so ordered. Right to appeal explained. DATED at GEITA this 21st day of March 2025. G.V. MWAKAPEJE JUDGE Page 18 of 18