CRIMINAL APPEAL NO 122 OF 2021 MAJALIWA ZACHARIA CLAUD VS

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA (CORAM: JUMA, C.J., MAIGE, J.A. And MURUKE. J.A.^ CRIMINAL APPEAL NO. 122 OF 2021 MAJALIWA ZACHARIA @ CLAUD.............................................APPELLANT

VERSUS THE REPUBLIC...................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (MashauiiJL} dated the 17th day of September, 2021 in Criminal Appeal No. 03 of 2021

JUDGMENT OF THE COURT 19th & 24th February, 2025 MAIGE, J.A: The appellant was charged, at the District Court of Chato (the trial court) with the offence of rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap. 16: 2019. As per the charge sheet, the rape was alleged to have been committed on diverse dates between 8th August and 18th September, 2020 at Mbuye village within Chato District in Geita Region (the village) against a girl of 15 years (the victim). When the charge was read out and explained to the appellant, he entered a plea of not guilty to the charge. As a result, the prosecution paraded five witness including the victim herself who 1 testified as PW1. The brief substance of their evidence is narrated hereunder. The victim (PW1) was, on the material time herein mentioned, a girl of 15 years. She was residing at the village with her grandmother. The appellant was also residing at the same village near the house of the victim's grandmother. PW r testified that on unknown date in August 2020, the appellant took her to his residence where they had sexual intercourse. Before that, she had met with the appellant, in the same month, two times. In the first time, it was in the street and they did not talk much. In the second time, they met at the appellant's residence. At that time, the appellant seduced her, which she accepted. It was her evidence

that, from the moment in time when she was raped by the appellant for the first time, until on 18th September, 2020, it had been common for them to meet at the same place and have sexual intercourse. She testified that for the same purpose, she went at the residence of the appellant on 17th September, 2020 and, while she was in with the appellant, her uncle Simon William (PW2) together with the hamlet chairman, Aloyce Joseph Sultan (PW3) and police appeared and took them to the police station. 2 PW2 testified that, on 17th September, 2020, he got complaint from the victim's mother that the victim had developed a tendency of not sleeping at home. He made an inquiry and established that, she used to be in the appellant's residence. Therefore, on the same day at around 20:00 hours, he went to the residence of the appellant and established that the victim was in with the appellant. He reported the incident to PW3 and again, he went to the scene of the crime with PW3 and a ten cell leader. On reaching there, they knocked the door but the appellant did not open. They, therefore, reported the incident to the police and some policemen came at the scene of crime. At that time, the appellant opened the door and he, together with the victim, were arrested and taken to the police. On the next day, the victim was taken to the hospital and was medically examined by Frank Rwechungula (PW4), a

clinical officer at Chato District Hospital and the result thereof filled in the PF3 (exhibit PI). Though no sperms were found in the victim's vagina, exhibit PI indicated that she had bruises on her Labia Majora and Minora and her vagina was open. It was concluded, therefore that, the victim had been penetrated. In his defense, the appellant refused committing the offence. He said, he was just arrested on 17th September, 2020 at home by three 3 people one of whom being known to him and others not, and handed to the police in connection to the incident under scrutiny. He testified that, as the medical examination of the victim was made in his absence, it cannot be said that the sperms found in the victim's vagina was his. It is a fact, however that, the medical report in exhibit PI did not assert of there being sperms in the victim's vagina. After full trial had been conducted, the trial court was satisfied that the case against the appellant had been proved beyond reasonable doubt. It, therefore, convicted the appellant with the offence and sentenced him to thirty (30) years imprisonment. He appealed to the High Court of Tanzania at Mwanza (the High Court) without a success and hence the instant appeal. Notably, in the substantive memorandum of appeal which was lodged on 25th July, 2022, the appellant raised three grounds of appeal whereas in the supplementary memorandum of

appeal which was presented soon before the commencement of the hearing, raised five grounds. In our careful reading, however, the grounds in both the memoranda can conveniently be reduced into the following complaints: One, the charge sheet violates the requirements under section 135 (f) of the CPA for not disclosing the actual time when the incident occurred; Two, the impugned judgment is defective for want 4 of factual or legal points for determination; Three, the appellant's defense was not considered; and Four, the case against the appellant was not proved beyond reasonable doubt. Before us, the appellant appeared in person while the respondent Republic had the services of Mr. Castuce Clemence Ndamugoba, learned Principal State Attorney who was being assisted by Mr. Godfrey Sanare Odupoy, learned State Attorney. When we requested him to address us on the appeal, the appellant just adopted the grounds of appeal in the two memoranda and asked us to allow the appeal. On his part, Mr. Ndamugoba addressed us in details on the issues raised in the grounds of appeal and urged us to dismiss it. We shall, as we consider the merit or otherwise of the appeal, refer to the relevant submissions. For a start, we shall consider the first complaint on the validity of the charge sheet. It is doubted for being violative of section 135 (f) of the CPA in so far as it did not disclose the

actual time in which the offence was committed. This issue cannot detain us. Much as the law requires disclosure of the actual time in the charge sheet where time is of essence in proof of an offence, the proposition in the instant case which was to be proved was that, the offence was committed on diverse dates between 8th August 2020 and 18th September, 2020 which means that the exact time of the commission of the offence was not known. Time was, therefore, not of essence in the facts in issue as it is not an ingredient of the offence of rape and the date of the commission of the same was not asserted because it was not known. Therefore, in Khalid Mohamed Kiwanga v. R (Criminal Appeal No. 223 of 2019) [2021] TZCA 467 (14 September 2021), where the proceedings of the trial court were doubted because of omission to state the actual time of commission of the offence of robbery, the Court observed that as the actual time of the armed robbery was not an ingredient of that offence, its omission in the charge sheet was inconsequential. For the foregoing reasons, therefore, the first ground is dismissed. We turn to the complaint in the second ground that the impugned judgment lacks factual or legal points for determination. On that, Mr. Ndamugoba submitted, making reference to page 50 of the record of appeal that, points for determination were clearly stated and addressed by the High

Court Judge. In the view of the High Court Judge, he submitted, the grounds of appeal in their totality raised one main issue for determination namely; whether the victim was raped. In his contention, therefore, that was sufficient to constitute a point for determination and it was addressed and determined in the impugned judgment. From the three grounds of appeal at the High Court reflected at page 46 of the record, it may be apparent that, the complaints by the appellant was that he did not rape the victim because: One, the victim acknowledged in evidence to have had sex with another person before; Two, it was not clear in evidence whether the victim was 15 years old or 16 years old: and Three, there was no proof that the sperms found in the vagina of the victim were of the appellant. In effect, therefore, it was correct, as the High Court Judge expressed that, the pertinent issue arising from those complaints was whether the victim was raped by the appellant. As can be seen from page 50 to 51 of the record, the High Court addressed the complaints based on the evidence of the victim and established that all the three elements complained of, were established in evidence. Therefore, regardless of whether or not the conclusion therein was correct, it is a fact that the impugned judgment contained points for determination and they were addressed. On that account, the second

ground is also dismissed. This now takes us to the third ground as to whether the appellant's defense was considered. In address of the ground, Mr. Ndamugoba submitted, making reference to pages 23 and 24 of the record that, the appellant's defence which consisted of a mere general denial, was considered. In the event that we find that it was not, he urged us, in the alternative, to step into the shoes of the first appellate court and consider the same. We have examined the record and satisfied ourselves that, the appellant's defence was not considered by the two courts below. Nevertheless, as the defence was a mere denial with no independent factual assertion which would call for specific inquiry, we shall deal with the complaint along with the last ground which essentially raises an issue of whether the case against the appellant was proved beyond reasonable doubt. In respect to the last ground, the appellant complains in the first place that the prosecution evidence was contradictory on the age of the victim. That, while in her testimony she claimed to be 15 years old, the evidence in exhibit PI suggests that she was 16 years old. The issue, it would appear, was also raised at the trial court. The trial court observed as a point of law, in line with the principle in Mustapha Khamis v. R (Criminal Appeal No. 70 of 2016) [2018] TZCA 1 (6 December 2018) that, age of the victim

can be proved by, among others, the victim herself or her parents. Having observed 8 that, it concluded that the evidence of the victim on her age which was not contradicted by way of cross examination, was sufficient to prove her age. On appeal, a similar issue was raised and the High Court added, perhaps in the alternative that, in as long as both the age of 16 years and 15 years are below the age of 18 years, the discrepancy, if any, could not exclude what the appellant allegedly committed from being a statutory rape. We have taken time to consider the rival submissions on that point in line with what are on the record of appeal. We note that during preliminary hearing, the fact that the victim was 15 years old was not disputed which is why it was recorded among the undisputed facts. Besides, as the trial court rightly observed, neither the evidence of PW1 nor of her uncle PW2 on the age of the victim was questioned by way of cross examination. The 16 years age was just mentioned in the medical report in exhibit PI whose scope was only limited into testing if the victim was penetrated. Such a report, Mr. Ndamugoba is quite right, was not by itself an expert evidence as to the age of the victim. It follows, therefore, that, in as much the evidence of the victim about her age was not questioned, that was, as per the principle in Mustapha Khamis v. R (supra) sufficient to prove

her age. 9 There was also a complaint that the fact that the victim was penetrated on the date of the arrest of the appellant is not in evidence. Much as he conceded that such fact is not in evidence, it was Mr. Ndamugoba's submission that there is a clear evidence from the victim to the effect that she was penetrated by the appellant between August, 2020 and the date of the appellant's arrest. On the date of the arrest, it was submitted, rape could not be committed because of the interception by PW2 and PW3 leading to the arrest of the appellant. Like the trial court, the first appellate court believed the evidence of the victim to be credible. We note that, in the first appeal, no specific ground was raised attacking the credibility of the testimony of PW1. Equally so, in the instant appeal. This being a second appeal, and the issue involved being on assessment of evidence, we are not, as of law, expected to interfere with such concurrent decision of the two courts below on points of fact. We can only do so where there is, which is not in this appeal, misdirection on the point of law or misapprehension of the substance, nature and quality of evidence. See for instance, Mbaga Julius v. R. (Criminal Appeal No. 131 of 2015) [2016] TZCA 274 (25 October 2016). 10 That aside, we have scanned the evidence of the victim in line with that of other witnesses and satisfied ourselves

that, it is credible and probable enough as to leave no reasonable doubt. As per the record, the ordeal was revealed when PW2 and PW3 went at the residence of the appellant and found him with the victim. As the evidence indicates, the appellant was arrested on the spot and taken to the police. Indeed, in his evidence in defence, the appellant admits that he was arrested by PW2 and PW3 during night at his home and linked with the offence. In her evidence, PW1 explained in details and consistently, in our view, how the appellant was arrested on the said day while she was with him. Importantly, she clearly explained how her love relationship with the appellant started. She was very sincere that, when the appellant raped her for the first time, she did not feel pains as she have had sexual intercourse with someone else before. We note that, on cross examination, she was asked if she was forced to have sexual intercourse with the appellant and said, "/ did sex with you voluntarily, you did not force me to do sexual intercourse with you, you are m y lover." It happened that, the appellant did not ask her any question as to the occurrence or nonoccurrence of the incident. Therefore, glancing over the appellant's defence evidence along with his line of cross examination to the victim, it remains plain 11 to us that, it did not raise any meaningful doubt as to shake the credibility and probity of the victim's account of the incident as corroborated by PW2 and PW3. In our opinion, therefore, there is no basis to disturb the concurrent findings of fact by the two courts below. The appeal is henceforth devoid of any merit and it is hereby dismissed. DATED at MWANZA this 24th day of February, 2025. I. H. JUMA

CHIEF JUSTICE I. J. MAIGE

JUSTICE OF APPEAL Z. G. MURUKE

JUSTICE OF APPEAL The Judgment delivered this 24th day of February, 2025 in the presence of the appellant in person and Mr. Benedicto Ruguge, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. p. R. W. CHAUNGU

DEPUTY REGISTRAR

COURT OF APPEAL 12 testified as PW1. The brief substance of their evidence is narrated hereunder. The victim (PW1) was, on the material time herein mentioned, a girl of 15 years. She was residing at the village with her grandmother. The appellant was also residing at the same village near the house of the victim's grandmother. PW r testified that on unknown date in August 2020, the appellant took her to his residence where they had sexual intercourse. Before that, she had met with the appellant, in the same month, two times. In the first time, it was in the street and they did not talk much. In the second time, they met at the appellant's residence. At that time, the appellant seduced her, which she accepted. It was her evidence that, from the moment in time when she was raped by the appellant for the first time, until on 18th September, 2020, it had been common for them to meet at the same place and have sexual intercourse. She testified that for the same purpose, she went at the residence of the appellant on 17th September, 2020 and, while she was in with the appellant, her uncle Simon William (PW2) together with the hamlet chairman, Aloyce Joseph Sultan (PW3) and police appeared and took them to the police station. 2