MANENO MANYIKA

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY

AT DODOMA DC CRIMINAL APPEAL NO. 28522 OF 2024 (Appeal from Criminal Case No. 4070 in the District Court of Bahi) MANENO CHIHUYO MANYIKA........................................ APPELLANT

VERSUS THE REPUBLIC............................................................ RESPONDENT

JUDGMENT 14h November & 31st December, 2024 MUSOKWA, J, In the District Court of Bahi (trial court), the appellant was charged with the offence of rape contrary to section 130 (1) and (2) (e) of the Penal Code, Cap. 16 R.E. 2022 (Penal Code). It was alleged that on 7th February, 2024 at about 06:40 hours, at Magaga Village, within Bahi District in Dodoma Region, the appellant did have sexual intercourse with a girl aged 13 years, a student of standard seven at Magaga Primary School. The said girl will be referred to as "the victim", in order to conceal her identity and protect her dignity. After conducting a full trial, the trial court convicted the appellant, sentenced him to life imprisonment, and further ordered him to pay compensation of TZS 1,000,000/- to the victim. i The appellant being dissatisfied by the decision of the trial court lodged the present appeal based on the following grounds of appeal: - 1. That your honor Judge, the learned trial Magistrate gravely erred in law and fact when convicted the appellant while the prosecution side totally failed to prove the case against the appellant beyond all reasonable doubt.

2. That your honor Judge, the learned trial Magistrate gravely erred in law and fact by failing to notice that it is not the duty for the appellant to prove his innocence.

3. That your honor Judge, the learned trial Magistrate gravely erred in law and fact by convicting the appellant while the trial was unprocedural tried then contravened the provisions of section 10(3), 9(3) and 192 (3) both of the CPA (Cap. 20 R.E 2022) as this occasioned miscarriage ofjustice against the appellant and enabled the prosecution side to pirate the court and vaguely inject their witnesses then build up the case from the case already heard in court.

4. That your honor Judge, the learned trial Magistrate gravely erred in law and fact by failing to warn herself that the evidence of the witnesses with interest to serve has to be corroborated first.

5. That your honor Judge, the learned trial Magistrate gravely erred in law and fact by failing to notice that PW2 (Victim) was not a credible witness as delaying to name the suspect contrary to the procedure of the law.

6. That your honor Judge, the learned trial Magistrate gravely erred in law and fact by failing to notice that the way which the Doctor (PW3) used to examine the victim by putting/inserting his fingers into the vagina of the victim to find out whether she was raped or not is not a proper way in fact to find penetration c/s 130 (4) (a) of the penal code (Cap. 16 R.E2022). 2 7. That your honor Judge, the /earned trial Magistrate gravely erred in law and fact when admitted Exhibit P2 (cautioned statement) while the same violated the provisions of section 53,54,50,52 & 57(2) (a) & (b) both of the CPA (Cap. 20 R.E 2022), as the prosecution side failed to tender even the certificate which was signed by the appellant to prove that he was willing to record his statement on the absence of his advocate, relative or friend as required by the law.

8. That your honor Judge, the learned trial Magistrate gravely erred in law and fact by failing to take part on proceedings to inform the appellant of his rights c/s 162 of the criminal procedure decree of the laws. When this appeal was called for hearing on 14th November 2024, the appellant fended for himself, and the respondent had the service of Ms. Margareth Tiegray learned state attorney. The appellant prayed for the respondent to submit first but reserved his right to rejoin. In contending the appeal, and with the leave of this court, Ms. Tiegray addressed the 1st, 2nd, 4th, 5th and 6th grounds of appeal collectively; while the 3rd, 7th and 8th grounds of appeal were argued separately. The respondent's counsel submitted that the ingredients of the offence of statutory rape were sufficiently proven beyond reasonable doubt. In order to prove statutory rape, penetration and the age of the victim must be established. Ms. Tiegray submitted that, penetration was proven through the testimony of the victim (PW2) as reflected at page 11 of the printed 3 trial court proceedings. In support of this argument, the landmark case of Seleman Makumba vs. Republic, [2006] T.L.R 379 was cited, which held that the best evidence in sexual offences must come from the victim. Ms. Tiegray stated further that, the testimony of PW3 the medical doctor corroborated the testimony of PW2 as recorded

at page 16 of the printed trial court proceedings. In his testimony, PW3 testified on the findings of the medical examination that was conducted to the victim. This witness also tendered the PF3, which was admitted and marked as Exhibit Pl. The learned state attorney submitted that, at page 22 of the trial court proceedings, the appellant admitted that he did not fully penetrate the victim, but that his male organs were in contact with the victim's female organs. It was submitted further that, at page 11 of the trial court proceedings, the victim, identified the appellant in court, as the perpetrator of the alleged offence. On the issue of the age of the victim, Ms. Tiegray referred to the testimony of PW1 as recorded at page 8 of the said proceedings. This witness, the aunt of the victim, stated that the victim was aged 13 years. The respondent cited the case of Isaya Renatus vs R, Cr. Appeal No. 542 of 2015 (unreported) in support of the position. In this case, the Court of Appeal of Tanzania (CAT) held that where there is no birth certificate; the 4 victim, relatives, parents, or a medical practitioner may testify as to the age of the victim. In addition to the testimony of PW1, the victim in her testimony also stated that she was 13 years old. Therefore, according to the respondent, the age of the victim was properly established. The 6th ground of appeal challenges the

manner in which the medical doctor conducted the medical examination of the victim. In response thereto, the learned state attorney asserted that the medical doctor, PW3, being the medical expert, duly conducted the medical examination, in accordance with his expertise. Thus, the respondent prayed that this ground be dismissed for want of merit. Having collectively addressed the 1st, 2nd, 4th, 5th and 6th grounds of appeal; the respondent proceeded to respond to the 3rd, 7th and 8th grounds of appeal separately. In addressing the 3rd ground of appeal, Ms. Tiegray conceded that sections 10(3) and 9(3) of the Criminal Procedure Act, Cap. 20, R.E. 2022 (CPA) were not complied with. The said provisions require the trial court to supply an accused person with a copy of the complainant's statement. However, the learned state attorney argued that, failure to comply with the said provisions, did not prejudice the rights of the appellant. The 5 reason being that the witnesses were paraded before the trial court and the appellant was afforded the opportunity to cross examine the said witnesses. Notably, the appellant waived his right to cross-examine the witnesses; and therefore, is estopped from alleging otherwise. In reply to the 7th ground of appeal, the respondent acknowledged non- compliance with the requirements of the law in recording the cautioned statement. Thus, Ms. Tiegray

prayed that the same be expunged from the court records, but stressed that the remaining evidence suffices to prove the case against the appellant. As regards to the 8th ground of appeal, Ms. Tiegray argued that the law referred to by the appellant is non-existent. In the circumstances, she prayed that the instant appeal be dismissed in its entirety and that the decision of the trial court be upheld. In rejoinder, the appellant simply prayed for this court to consider his grounds of appeal favorably and to allow the appeal for the interests of justice. Having heard the submissions by both parties and upon a thorough perusal of the trial court records, the issue to be determined by this court 6 is whether or not the prosecution case was proven against the appellant beyond reasonable doubt. In the case at hand, the appellant at the trial court was charged with the offence of rape contrary to section 130 (1) (2) (e) of the Penal Code. The section reads as follows: - "130 (1) It is an offence for a male person to rape a girl or a woman; (2) A male person commits the offence of rape if he has sexual Intercourse with a girl or a woman under circumstances falling under any of the following descriptions: (e) with or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man." [emphasis

added] The above-mentioned section establishes the offence commonly referred to as statutory rape as was held by the CAT in the case of George Claud Kasanda vs The DPP, Criminal Appeal No. 376 of 2017 whereby it was partly stated that: - 'In essence that provision creates an offence now famously referred to as statutory rape. It is termed so for a simple reason that; it is an offence to have carnal knowledge of a girl who is below 18 years whether or not there is consent." [emphasis added] 7 In light of the above cited case, the ingredients of the offence of statutory rape include carnal knowledge (penetration), and proof of the age of the victim to be below 18 years; see also the case of Robert Andondile Komba v Director of Public Prosecutions, Criminal Appeal No. 465 of 2017 (unreported). In statutory rape, consent is immaterial, as indicated in the above legal authorities. In the instant case, and going by the trial court records, PW1 who is the aunt of the victim testified at page 8 of the trial court records that the victim was 13 years old at the time of the incident. For clarity, PW1 stated that: - "It was on 07/02/2024,1 was informed by someone who said we should not mention her name because for the purpose of her security, she is afraid of the accused person... he toid me that the accused person was having sexual intercourse with 'victim', who is thirteen years old and

the class seven student at Maganga Primary School", [emphasis added] In the case of George Claud Kasanda (supra), it was stated that proof of the age may be by parents, medical practitioners or where available, by a birth certificate. In this case, the age of the victim was proved by PW1 the aunt of the victim. This evidence is similar with the testimony of the victim. Therefore, I am satisfied that the victim was aged 13 years at the time of the alleged event. 8 As regards to the issue of penetration, section 130(4) of the Penal Code reads as follows: - "Penetration however slight is sufficient to constitute the sexual intercourse necessary to the offence." It was the argument of the learned state attorney that the element of penetration was proved through the testimony of the victim and the medical doctor (PW3). Again, the defence case also shows that the appellant admitted that he did not fully penetrate the victim, but that his male organs were in contact with the victim's female organs. The victim, also identified the appellant in court, as the perpetrator of the alleged offence. Regarding this point, I am aware of the principle that the evidence of the victim is the best evidence in sexual offences as it was held in the famous case of Seleman Makumba (supra). However, the evidence of the victim should not be accepted without testing the credibility of such victim. In the

case of Hamisi Halfan Dauda vs Republic, Criminal Appeal No. 231 of 2019 (unreported) the CAT held that: "We are alive however to the settled position of law that best evidence in sexual offences comes from the victim, but such evidence should not be accepted and believed wholesale. The reliability of such witness should also be considered so as to avoid the danger of untruthful victims utilizing the opportunity to 9 unjustifiably incriminate the otherwise innocent person (s). "[emphasis added] Moreover, section 127(6) of the Evidence Act, Cap. 6 R.E 2022 (Evidence Act) provides that: - "Where in criminal proceedings involving sexual offence the only independent evidence is that of a child of tender years or of a victim of the sexual offence, the court shall receive the evidence, and may, after assessing the credibility of the evidence of the child of tender years of as the case may be the victim of sexual offence on its own merits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in proceedings, the court is satisfied that the child of tender years or the victim of the sexual offence is telling nothing but the truth." [emphasis added] In the case at hand, the victim testified that the appellant called her when she was going to school, the victim went to the appellant's house and the appellant raped her. The victim also

narrated several incidences that were committed by the appellant by indicating the respective time. Thus, I am satisfied that the evidence given by the victim was credible and that she was telling the truth. Equally important, the records of the trial court indicate that the appellant did not cross examine the testimony of the victim. The legal implication is that, the appellant accepted the truth of the entire testimony of the victim. In the case of Sokolo Richard vs io Republic, Criminal Appeal No. 478 of 2020 (unreported), the CAT at page 12 partly held that: - 'We are aware that there is a useful guidance in law that a person should not cross-examine if he/she cannot contradict. But it is also trite law that failure to cross-examine a witness on an important matter ordinarily implies the acceptance of the truth of the witness's evidence" [emphasis added] The finding that the appellant accepted the truth of the victim's evidence is also corroborated with his defence. Being his defence, the appellant testified that: - "One day, the victim came to my house and beg me to do sexual intercourse with me, we slept in my mat in my house. I tried to insert my penis to her private part but it did not enter because her private part is small and my penis is big, my penis was stopped but did not urinate"[emphasis added] In addition, the question of credibility of the victim is reflected

in the judgment of the trial court which is recorded as follows: - "The evidence of PW2 was duly admitted and since the victim was the credible witness and the court believed her testimony...in the case at hand, there is no doubt to disbelieve the victim because she is the truthful witness and credible one " [emphasis added] li The appellant in his 3rd ground of appeal, alleged violation of sections 10(3) and 9(3) of the CPA. This ground was admitted by the respondent but it was submitted further that, the violation was not prejudicial to the appellant. I am inclined to agree with the respondent in this regard. In the CAT case of Rashidi Rajabu Amily vs Republic, Criminal Appeal No. 654 of 2020, delivered in August 2024, it was held that: - "In relation to violation of section 9(3) of the CPA, Mr. Ndamugoba submitted that the complaint ought to have been raised during trial. That provision obliges the prosecution to supply the accused with the complaint's statement. We agree with Mr. Ndamugoba that the complaint is belated and an afterthought. Besides, in our view, there is no prejudice that has been established regard being had on the appellant's active participation in the trial" [emphasis added] As to the 7th ground of appeal relating to the validity or otherwise of the cautioned statement, the respondent acknowledged non-compliance with the requirements of the law in

recording the cautioned statement. Thus, Ms. Tiegray prayed that the cautioned statement (Exhibit P2) be expunged from the court records, but stressed that the remaining evidence suffices to prove the case against the appellant. Although the respondent was not forthcoming on this point, it appears to me that the procedure of recording the cautioned statement violated 12 section 50 (1) (a) of the CPA, to say the least. The section provides the basic period of four hours commencing at the time when the appellant was taken under restraint in respect of the offence. According to the testimony of PW4, the appellant was arrested on 7th February, 2024 at 20:00hours but the cautioned statement was recorded on the following day 8th February 2024 at 16:40 hours without justification. Since this mandatory requirement was not complied with, the remedy, as correctly proposed by the respondent, is to expunge the cautioned statement (Exhibit P2) from the records, as I hereby do. With regard to the sentence, the provision of section 131(3) of the Penal Code, states that a person who commits an offence of rape of a girl under the age of ten years shall on conviction be sentenced to life imprisonment. In our case, the victim was aged 13 years well above ten years. In the circumstances, I hereby quash and set aside the sentence of life imprisonment. In lieu thereof, the appellant shall serve a

sentence of thirty (30) years imprisonment from the date he was convicted by the trial court. In conclusion, except for an order substituting the term of imprisonment to thirty (30) years, I cannot fault the trial court, for arriving at the conclusion that the case against the appellant was proved to the required standard. Ultimately, this appeal fails and it is dismissed accordingly. 13 It is so ordered. Right of appeal is explained. DATED at D fex31st day of December, 2024. .D. MUSOKWA

JUDGE Judgment delivered in the presence of the appellant; and in the presence of Mr. Gotharb Mwingira, state attorney for the respondent. 14