Machuma Sita Judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA CRIMINAL APPEAL NO. 3541 OF 2024 (Arising from the Judgment of the District Court of Shinyanga Before Hon. Y. Zahoro- SRM, Criminal Case No.146 of 2023) MACHUMA SITTA……………..…………………….…..…………….....APPELLANT VERSUS THE REPUBLIC………………………………………………….…..……RESPONDENT JUDGMENT Date of Last Order 20.08.2024 Date of Judgment: 13.09.2024 MWAKAHESYA, J.: In the District Court of Shinyanga District at Shinyanga the appellant, Machuma s/o Sitta, was charged with the offence of Rape c/ss 130(1) & (2)(e) and 131(1) of the Penal Code. The prosecution alleging that on diverse dates between April, 2023 and 31 July, 2023 at Ibinzamata area within Shinyanga Municipality – Shinyanga Region, the appellant had sexual intercourse with “HJ” (name withheld to protect her identity) a girl aged 15 years old. To prove their case, the prosecution paraded a total of six witnesses: HJ (PW1); Kurwa Muhera Mohamedi (PW2); Macline John 1 Shija (PW3); Victor Vedastus Kajuna (PW4); Dennis Edgar Kiwika (PW5); and WP. 9156 D/C Takelove (PW6). Meanwhile, the appellant was the sole witness for his defence. HJ gave evidence that she and the appellant had a sexual relationship which started in March 2003 and on 31.07.2023 she was found by her teacher Hella and one Ndusa, a Ward Education Officer, at the appellant’s home after having sexual intercourse, and that they were taken to the Ward Executive Officer’s office and later to the police. PW2, a teacher at Ibinzamata Primary School, where HJ was pursuing her studies, gave evidence that after a tip from a good samaritan she and the Ward Executive Officer (WEO) apprehended the appellant at his home where the latter was found in his underwear and in the company of HJ who was also in her underwear. This was on 31.07.2023. PW3, a Ward Education Officer, also testified that on 31.07.2023, alongside others, apprehended the appellant in the company of HJ at the appellant’s house and both of them (the appellant and HJ) were in their underwear. HJ told them that the appellant was her lover. PW4, a WEO of Ibinzamata Ward, testified that after a tip that there was a motorcycle rider (bodaboda) seen with a student at his 2 house, went with PW2 and apprehended the appellant and HJ who were in their underwear and HJ told them that the appellant was her lover. PW5, a doctor at Shinyanga Municipal Hospital examined HJ on 31.07.2023 and found that she was not a virgin an indication that a blunt object had been inserted into her vagina. PW5 filled a PF3 which was tendered as exhibit “Pe1”, without objection from the appellant. Lastly, PW6 an investigator, testified on how she went about investigating the allegations of the appellant raping HJ. Her testimony is mostly hearsay and therefore I do not find it worthy of detailing it at this point. Having been ruled to have a case to answer, the appellant elected to testify on oath where he gave evidence that he knew HJ like his daughter since he had a love affair with her mother, and that after the love affair turned sour the latter became bitter and on the eve of his apprehension she requested for money which HJ came to collect on 31.07.2023, only for him to be arrested when HJ was outside his house waiting for the money. He insisted that the case against him was fabricated by HJ’s mother. The appellant confirmed that HJ was aged below 18 years. 3 The trial court, in the view that the prosecution had proved their case and disbelieving the appellant’s version of events, convicted the appellant with the offence he was charged with and sentenced him to 30 years imprisonment. Aggrieved with the conviction and sentence, the appellant has preferred the present appeal based on four grounds of appeal, which are quoted verbatim: 1. THAT, the learned trial Magistrate totally misapprehending (sic) the nature and quality of the prosecution evidence against me (appellant) which did not prove the charge beyond reasonable doubt. 2. THAT, the trial magistrate misdirected herself in law and fact by convicting and sentencing the appellant without considering that the evidence adduced by the PW’s did not prove that the appellant committed the rape against the victim. 3. THAT, that the crucial elements of rape to wit penetration, bruises and sperms were not established during trial to sustain rape offence. 4. THAT, that the alleged offence was not proved beyond reasonable doubt. 4 At the hearing of the appeal the appellant fended for himself, while the respondent Republic was represented by Ms. Nyamnyaga Magoti, learned State Attorney. The appellant opted to submit first and the respondent Republic to reply thereafter and for him to make a rejoinder if need be. Submitting on the first and second grounds of appeal conjointly, the appellant was of the view that, the charge showed that he committed the offence in April, 2023 while the victim testified that he committed the offence in March, 2023. Meanwhile, PW4 testified that he was told by the victim that the offence was committed in July, 2023 and in the judgment, it shows that the offence took place on diverse dates in April, 2023. He submitted further that, the persons who arrested him, gave evidence that the victim was a truant at school for more than two weeks and questioned how it was possible that the headmaster did not inform the victim’s parents that she was a truant. To his end this showed that the whole case was made up against him. He elaborated that, during trial the teachers never brought the attendance register to show that the victim was a standard four student and the headmaster did not testify that the victim was a student at his 5 school. He was of the view that it was important for the headmaster as the spokesperson of his institution to testify. The parents not being told of the truancy of their child was fatal to the prosecution’s case especially considering that no parent was involved in his arrest. He went on to submit that he was a resident of Kinzumbi Ward, but the arresting persons came from Ibinzamata Ward, and they did not involve any official(s) of Kinzumbi Ward. Also, if the victim was carried on a motorcycle “bodaboda” the said motorcycle should have been tendered as an exhibit in court. He then attacked the evidence regarding his arrest, submitting that, it was stated that the victim was found in his room, PW4 testified that the gate was open and the door was open, and he was found wearing a boxer, and the victim was only wearing underpants. In his view it is difficult for a person to leave his premises in that manner and also answer the door while in his underwear. He insisted that the entire case against him was fabricated and the victim was found outside his house after he had already given her TZS 5,000/= to take to her mother. On the third ground of appeal the appellant submitted that, there were no bruises found on the victim and no semen was found hence the case was made up against him. 6 On the fourth ground of appeal, he submitted that, the offence was not proved beyond reasonable doubt and it was wrong for the trial magistrate to put the burden of producing the victim’s mother on him in order to prove that he had a relationship with her. He insisted that, the duty lay on the prosecution and considering that she was involved in the conspiracy to frame him it was more difficult for him to procure her. He rounded off his submission beseeching the court to allow his appeal and set him free. Responding, the learned State Attorney submitted that, the respondent Republic was resisting the appeal and was therefore supporting the conviction and sentence meted out by the trial court. The learned State Attorney responded by arguing the first, second and fourth grounds of appeal jointly, since the same were interrelated as they dealt with the issue of whether the offence was proved beyond reasonable doubt. Ms. Magoti submitted that, the charge against the appellant was proved beyond reasonable doubt. She went further to elaborate that, during trial the prosecution paraded a number of witnesses and exhibits. In proving rape, statutory rape that is, three things needed to 7 be proved. These were: age of the victim; penetration; and whether it was the accused who committed the offence. Ms. Magoti was of the view that, age was proved through PW1 who stated that she was 15 years at the time she was testifying and also, PW5 who testified that he received the victim who was 15 years. She cited the court of Appeal decision of Isaya Renatus v. The Republic, Criminal Appeal No. 542 of 2015, where it was held that, the victim, relative, parent, medical doctor or birth certificate can prove age of a victim. She concluded that, in the appeal at hand the victim and a medical doctor proved the age of the victim. On penetration, she submitted that, the same was also proved. It was proved through PW1 who testified that she knew the appellant who is her lover and they had sexual intercourse on numerous times and on 31.07.2023 they were found by PW2, PW3 and PW4, at the appellant’s home after engaging in sexual intercourse. This proved penetration, and the same was corroborated by PW5 who testified that he observed the victim and found that she had a hole in her vagina which showed that a blunt object had been inserted in her vagina and tendered exhibit “Pe1” which was a PF3. 8 Whether it was the appellant who committed the rape, it was the learned State Attorney’s submission that, PW1 proved this as she gave evidence that she was in a sexual relationship with the appellant meaning the two had engaged in sex on several occasions. She submitted further that, PW1’s evidence was direct evidence and the position of the law being that the best evidence in sexual assault cases is that of the victim as per the case of Selemani Makumba v. The Republic [2006] T.L.R. 379. She went on to state that, PW1’s evidence is corroborated by PW2 who testified that the appellant and PW1 were found in their underwear. Likewise, PW4 who also testified that the appellant and the victim were found in their underwear. On the third ground of appeal, the learned State Attorney submitted that, in order to prove the offence of rape there is no need for the victim to be found with bruises or semen. This was stated in the Court of Appeal decision of Athanas Ngomai v. The Republic, Criminal Appeal No. 57 of 2018 (unreported). Therefore, she submitted that, this ground of appeal lacked merit. In rejoinder, the appellant had nothing useful to add apart from reiterating his prayer that his appeal be allowed. 9 Having gone through the record, grounds of appeal and the submission of the parties it is now the duty of the court to determine the merit or otherwise of this appeal. All four grounds of appeal boil down to a similar allegation, that is, the charge against the appellant was not proved beyond reasonable doubt. Therefore, I shall endeavor to determine the appeal in its totality and not each ground in isolation. It is trite that in rape cases, and specifically statutory rape as in the instant case, that the prosecution needs to establish three ingredients: One, that there was penetration; Two, that the victim was below the age of 18 years; and Three, that it is the accused who was the perpetrator. This is in line with the submission of the learned State Attorney and the Court of Appeal decisions of John Ngusa v The Republic, Criminal Appeal No. 593 of 2020 and Ado Aron @ Nziku v. The Republic, Criminal Appeal No. 449 of 2021 (both unreported). And as submitted by the learned State Attorney, penetration was proved by HJ who gave sworn evidence that she had a sexual relationship with the accused and they started to have sex since March 2023 until the time of his apprehension. HJ gave direct evidence, and as correctly submitted by the learned State Attorney, she was the best witness in the case against 10 the appellant – See: Selemani Makumba v. The Republic (supra). From the record of the trial court there is nothing to doubt the credibility of HJ and as every witness is entitled to credence and must be believed and his/her testimony accepted unless there are good and cogent reasons to believe otherwise (see: Goodluck Kyando v. Republic [2006] T.L.R. 364; Nyakuboga Boniface v. The Republic, Criminal Appeal No. 434 of 2016; Christian Ugbechi v. The Republic, Criminal Appeal No. 274 of 2019; and Ambwene Mligo @ Ambwene Luoga v. The Republic, Criminal Appeal No. 441 of 2019 (all three unreported)), the testimony of HJ was unshaken during trial. Penetration was also proved by PW5, who examined HJ and found that she was not a virgin indicating that a blunt object had been inserted into her vagina and tendered exhibit “Pe1” which also showed that HJ’s vagina was penetrated. It should also be borne in mind that exhibit “Pe1” was tendered unopposed. As regards the age of HJ being below 18 years, this needs not detain us as the appellant himself, in his defence, admitted that HJ was below 18 years and was a student. This can be found at page 20 of the typewritten proceedings of the trial court. Moreover, HJ herself testified 11 that she was 15 years old at the time of giving evidence. Thus, HJ being below 18 years was proved beyond a shadow of a doubt. On the last ingredient which is whether the appellant was the perpetrator. HJ, testified to having a sexual relationship with the appellant, while PW2, PW3 and PW4 apprehended the appellant on 31.07.2023 at his home, being with HJ in their underwear. This is circumstantial evidence that the pair were engaged in sexual activities. The witnesses also testified that HJ told them that the appellant was her lover. I am thus convinced that this element was proved as well. It was also the appellant’s contention that bruises and sperms are also crucial elements of rape and the same were not established during trial. I think the appellant is misguided. First of all, bruises are not an essential element in rape cases but might be proof towards penetration, but not the only proof. And, just for the sake of argument, the victim, HJ, testified that their sexual engagement started way back in the month of March 2023 and the appellant was apprehended on 31.07.2023, if all along the pair were engaging in sex then certainly bruises are unlikely to be found. The lack of bruises does not vitiate the conclusive evidence that he carnally knew HJ. In Athanas Ngomai (supra) the Court of Appeal held that: 12 “Existence of bruises is not necessary for proving penetration as was once said, had that been the natural consequences of being penetrated, women might have opted for total abstinence.” Regarding sperms, again the same is also not an essential element in rape cases, as penetration, even the slightest, is enough to prove rape. There is no requirement of the emission of semen from the rapist. The Court of Appeal in Nyeka Kou v. The Republic, Criminal Appeal No. 103 of 2006 (unreported) had this to say (pp. 5-6): “In law, to have sex with a woman, even with the slightest penetration into the woman’s vagina by the male organ, without the woman’s consent (where consent is relevant), is rape. All this occurred Domitila was being carnally known but, in this case, it was not a matter of the slightest penetration, but with full penetration during which there was ejaculation twice. We are satisfied Domitila was raped and the absence of sperms was immaterial. Was it the appellant who raped her?” [Emphasis added]. Next is the appellant’s suggestion that there was contradiction on the month that it was alleged he started having sexual relations with HJ and that the same were material contradictions. This is nothing short of trying to make a mountain out of a mole hill. As stated earlier, I found HJ to be a credible witness and it was her testimony that the two started 13 their relationship in the month of March 2023. The charge stating that the relationship commenced in April 2023 and the judgment of the trial court following suit can be brushed off as mere slips and oversight by the drafters of the charge and the learned trial magistrate which did not prejudice the appellant. Afterall, what is certain is that on 31.07.2023 the appellant had sexual intercourse with HJ who was below the age of 18. Similarly, I find fanciful the contention by the appellant that the lack of an attendance register and failure of a headmaster to testify on the alleged truancy of HJ was fatal to the prosecution’s case. There was ample evidence to support the charge against the appellant. As for PW3 and PW4 hailing from Ibinzamata and coming to apprehend a resident of Kizumbi Ward, I do not find merit in this argument. It was not in contention that the victim was a student at Ibinzamata Primary School and PW3 and PW4 being the Ward Education Officer and Ward Executive Officer, respectively, had every reason to pursue the wellbeing of HJ, even if their approach seemed to be gung- ho and exceeded their respective administrative boundaries (geographical). I do not see how this is proof of fabricated allegations. 14 After all, according to PW3, the appellant’s home was a mere kilometre from the victim’s school. I find nothing illegal in their conduct. Likewise, the absence of the motorcycle (bodaboda) from amongst the exhibits by the prosecution tendered does not vitiate the conviction. The motorcycle was just an instrument used to convey the victim to the appellant’s home where the latter went on to ravish her. Its absence in the prosecution’s inventory during trial is not fatal. PW2, PW3 and PW4 gave similar accounts that on the material day, having been shown the appellant’s home by a good samaritan, the same proceeded to access it and found the appellant and the victim in their underwear. None of the witnesses testified that the appellant left his premises to answer their arrival in his underwear. Thus, the appellant’s submission that the witnesses testified to that effect is inaccurate. As for the victim being found at the appellant’s home having gone to fetch TZS 5,000/= requested by her mother, this is similarly a concoction of the appellant. It does not align with his other testimony that he was an estranged lover of the victim’s mother, because if he two were estranged then how could she ask for money? 15 Lastly, the trial magistrate did not brush aside the appellant’s defence simply because the latter failed to produce the victim’s mother in court in order to prove that she had sent the victim to fetch TZS 5,000/=, but found it wanting when compared to the rest of the evidence (the prosecution’s evidence) which was overwhelming. Therefore, despite the comments by the learned trial magistrate, the judgment was a result of a thorough evaluation of the evidence on record. Thus, all four grounds of appeal lack merit and are accordingly dismissed. The appeal itself is also dismissed in its entirety. The judgment and sentence of the trial court are sustained. It is so ordered. DATED at SHINYANGA this 13th day of September, 2024. N.L. MWAKAHESYA JUDGE 16