MUDRICA ADAM VS THE REPUBLIC CRIMINAL APPEAL NO 379 OF 2023

IN THE COURT OF APPEAL OF TANZANIA

AT BUKOBA (CORAM: MUGASHA. J.A., MWAMPASHI. 3.A. And NGWEMBE. J.A.^ CRIMINAL APPEAL NO. 379 OF 2023 MUDRICA ADAM....................................................................... APPELLANT

VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the decision of the Resident Magistrates' Court of Bukoba at Bukoba) (Amworo. SRM. Ext. Jurl dated the 16th day of December, 2022 in Criminal Appeal No. 2 of 2022

JUDGMENT OF THE COURT 14th & 20th March, 2025 MWAMPASHI. J.A.: The appellant in this appeal, Mudrica Adam, is challenging the decision of the Resident Magistrates' Court of Bukoba at Bukoba (Amworo, SRM-Ext. Juris) in Criminal Appeal No. 2 of 2022. Initially, the appellant was arraigned before the Resident Magistrates' Court of Bukoba at Bukoba (the trial court) facing the charge of rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code [CAP.16 R.E. 2002 now R.E. 2022] (the Penal Code). Before the trial court, it was alleged by the prosecution that, on unknown date of July, 2017, at Katoma area within the Municipality and District of Bukoba in Kagera Region, the appellant had carnal knowledge of one "FG", hereinafter to be referred to as the victim or PW1, a girl of fourteen years of age. He pleaded not guilty. However, after a full trial, he was found guilty and was sentenced to serve a period of thirty years' imprisonment. His appeal to the Resident Magistrates' Court of Bukoba at Bukoba (Amworo, SRM-Ext. Juris) in Criminal Appeal No. 2 of 2022, was dismissed for want of merit. Still protesting his innocence, and as we have alluded to earlier, he has preferred the instant second appeal. The facts of the case, relevant to the instant appeal, may be briefly stated as follows: The victim (PW1) had been staying with her aunt, one Jovinav Felix (PW4), at Maiga

within the District of Bukoba, since when she was six years old. According to the victim, at one time, in 2017, allegedly for a reason of being mistreated by her aunt, she ran away from her aunt's house and went to stay with the appellant who used to be a brick maker and well-known to her aunt. Sometimes later, the appellant took her to mama Elvira at Katoma where she stayed for about a week. It was also testified by the victim that, her aunt reported the appellant to the police and the appellant was arrested for abduction. The testimony of the victim (PW1) was also to the effect that, her father came to town and took her back to their village at Karagwe. However, in July 2017, the appellant went to Karagwe and asked the victim's parents to let him take her back to Bukoba so that she proceeds with her studies. The victim's parents agreed and the appellant took the victim back to Bukoba where he started living with her in a single rented room at Katoma. According to the victim, it was after the appellant had taken her at Katoma, when the misery began. One night the victim woke up from the sleep only to find herself with no pants and bleeding from her vagina. The appellant warned her not to tell anyone about it. At one another night, the appellant seduced and told the victim that he loved her and wanted to have sexual intercourse with her. The victim refused, but the appellant

insisted, stripped her naked by force and inserted his penis into the victim's vagina. Two days later, the appellant took the victim to Dr. Steven at Rwamishenye for pregnancy test which turned negative. The victim testified further that, it was the appellant's son, one Naziru who, after raising concerns as to why his father was living in one room with the victim, reported the appellant to the Ward Executive Officer (WEO) who directed the head teacher of Kilaini Primary School where the victim was schooling, to follow up the matter. Upon being interrogated by the head teacher, the victim opened up and revealed that the appellant had been ravishing her. The case was then reported to the police and the victim was also sent to the Bukoba Government Hospital for medical examination. The headteacher of Kilaini Primary School, Paxidia W. Hunter, testified as PW2 telling the trial court that the appellant who posed as the victim's uncle, transferred the victim from Maiga Primary School to Kilaini Primary School in 2017. Her testimony was also to the effect that, upon being directed by the WEO, she interrogated the victim who told her that the appellant had raped her twice. The victim's aunt, Jovina Felix (PW4) testified that, the victim was born on 08.09.2003 and the victim's baptism certificate was, to that effect, tendered in evidence by her as Exhibit P2. She also told the

trial court that she stayed with the victim from 2007 until 01.06.2017 when she ran away. As she suspected that the appellant was involved, she reported him to the WEO. After being arrested the appellant revealed that the victim was at Katoma. One day later, the victim's father came and took the victim with him back to Karagwe. Later, PW4 came to learn that the appellant had transferred the victim from Maiga Primary School where she had been schoojjng to Kilaini Primary School and was living with her. On 16.10.2018, the police called her and that is when she was told that the appellant had been living with the victim as his wife. PW3 was Dr. Stela Bitumbe from the Regional Hospital who medically examined the victim on 15.10.2018. According to PW3, the victim who was 14 years old had no hymen and had slight blood stains flowing from her vagina indicating that she had been raped. PW3 tendered in evidence a PF3 which was admitted as Exhibit PI. The case was investigated by WP. 4979 D/C Suzana of Bukoba Police Station (PW5) who testified that the case file was assigned to her for investigations on 16.10.2018 which was also the date the appellant was arrested. She visited the appellant's room at Katoma and observed that in the room there was one bed and two rough mattresses. Having interrogated and collected statements from witnesses, PW5 concluded that, although the appellant

denied to have committed the rape in question, there was sufficient evidence to prove that the appellant had raped the victim. In his defence evidence on affirmation, the appellant denied to have committed the rape in question. He claimed that he is related to both PW4 and the victim and further that there was bad blood between him and PW4. The appellant further defended himself by contending that at first, PW4 accused him of abducting the victim and he was arrested for that accusation only to be released two days later after the victim's father brought the victim from Karagwe. However, the appellant admitted that he had been living with the victim in his single rented room in which there were two mattresses for each of them. In his defence, the appellant called his daughter Shamira Mudrica (DW2) who testified that she had been living with the appellant at Katoma until when she got married. She further told the trial court that at first the victim was living with her aunt (PW4) at Maiga. Later, when schooling at Kilaini Primary Schhol, the victim started living with the appellant at Katoma. The trial court found that it was not in dispute that the appellant was living and sleeping in one room with the victim and that at material time she was 14 years of age hence, the rape committed against her was statutory rape. It was also found by the trial court that the victim was

credible and told the truth that she was raped by the appellant. Further, the trial court was satisfied that penetration was proved by the victim herself and that, her evidence in that regard, was corroborated by PW3. The defence evidence was found to lack credence and that it raised no doubts in the prosecution strong evidence against him. The case was thus, found proved to the hilt against the appellant who was accordingly duly convicted and sentenced to serve a period of thirty years in prison. As we have alluded to earlier, the appellant's first appeal against the trial court's conviction and sentence was unsuccessful hence, the instant second appeal before this Court. The memorandum of appeal lodged by the appellant is comprised of five detailed grounds of appeal. However, having examined them we came to the considered view that the grounds hinged on a single general complaint that, the case against the appellant was not proved beyond reasonable doubt. When the appeal was called on before us for hearing, the appellant appeared in person unrepresented. On the other side, the respondent Republic was represented by Misses. Ajuaye Bilishanga, learned Principal State Attorney, Chema Maswi, learned Senior State Attorney and Mr. Dickson Makoro, learned State Attorney. Upon being invited to argue his grounds of appeal, the appellant just adopted the grounds, urged us to consider

them and allow the appeal. For the respondent Republic, it was Ms. Maswi who addressed us. She, at the outset, expressed her position that she was resisting the appeal. Thereafter, focusing her mind on a single general complaint that, the case against the appellant was not proved to the hilt, Ms. Maswi argued that since the victim (PW1) was 14 years old when rape was committed against her, the rape in question was statutory hence no requirement to prove consent. Regarding proof of age, it was submitted by Ms. Maswi that, the fact that the victim was below 18 years of age, that is, 14 years old, was proved by the victim herself, PW3, the victim's aunt and guardian (PW4) as well as the baptism certificate (Exhibit P2). It was further contended by Ms. Maswi that, the victim's testimony was in details on how the appellant had sexual intercourses with her. She insisted that penetration in terms of section 130 (4) of the Penal Code, was sufficiently proved by the victim and her evidence in that regard was corroborated by PW3 and Exhibit PI. Ms. Maswi rested by arguing that there were no material contradictions in the prosecution evidence and further that the appellant's defence evidence raised no reasonable doubt. She thus, argued that the case against the appellant was proved beyond reasonable doubt and that the appeal should thus, be dismissed for being baseless. In his brief

rejoinder, the appellant insisted that he did not rape the victim. He wondered why he was charged in 2018 if the offence in question was committed in July, 2017. The appellant did also deny that he ever lived with the victim. He prayed for the appeal to be allowed. To begin with, we find it apt to restate the long-time settled law that, where there are concurrent findings of facts by two lower courts, 8 the Court should not readily interfere with the findings unless it is clearly shown there has been a misapprehension of the substance, nature and quality of the evidence, a miscarriage of justice or a violation of some principles of law or procedure. See- DPP v. Jaffar Mfaume Kawawa [1981] T.L.R. 149, Alphonce Bisege Mwasandube v Republic (Criminal Appeal No. 630 of 2020) [2024] TZCA 28 (12 February 2024;TanzLII) and Shabani Daudi v. Republic (Criminal Appeal No. 28 of 2001) [2004] TZCA 84 (11 March 2004TanzLII). In determining the instant appeal, we shall be guided by the principle. Admittedly, and as also rightly argued by Ms. Maswi, the instant case involves a statutory rape where the consent of the victim is immaterial. In this category of rape, the prosecution is duty bound to prove three ingredients namely; One, that the victim was below 18 years of age at the time the rape was committed against her, two, that the victim was penetrated and three, that the perpetrator

who penetrated the victim is no one else other than the accused. It is also important to note that in terms of section 130 (4) of the Penal Code, penetration of the female genitals by the male sex organ however slight certifies rape. Before proceeding any further into the determination of the general ground of complaint on whether the case against the appellant was proved to the required standard or not, there are two complaints raised by the appellant from grounds 2, 3 and 4 which we think should be addressed first. To start with, is the complaint that the two lower courts erred in relying on the evidence by PW3 which was to the effect that the medical examination performed by him on the victim on 15.10.2018, revealed that the victim had no hymen, her vagina was open and that she had slight blood stains flowing from her vagina indicating that she had been raped. On this, we agree with the appellant that the two lower courts ought not to have accorded weight and relied on PW3's evidence. Given the fact that the appellant was charged with having raped the victim in July, 2017, the findings by PW3 on 15.10.2018 that the victim's vagina was open or that there were slight blood stains flowing from her vagina were immaterial and had no bearing or connection to the rape which was allegedly committed against the victim in July, 2017. Secondly, the appellant complained and wondered how

come PW3 medically examined the victim on 15.10.208 while according to PW2 the victim was interrogated and taken to the police and then to the hospital on 16.10.2018. We have revisited the original record of the proceedings at the trial and observed that, indeed, in his testimony PW2 is on record testifying that he interrogated the victim and took her to the police and then to the hospital on 16.10.2018. We think this was due to slip of the pen by the trial magistrate which did however, occasion no failure of justice to the appellant. It is so because even the evidence by PW5, is to the effect that, while the case file was assigned to her on 16.10.2018, the case was reported to the police by PW2 on 15.10.2018. Ordinarily, PW3 could not have examined the victim before the case had been reported to the police. We thus, find the appellant's complaint in that regard worthless. Turning to the main ground of complaint that the case was not proved to the required standard and having gone through the evidence on record, we firstly, agree with Ms. Maswi that, it was sufficiently proved that at the time the offence was being committed against the victim, she was 14 years old hence, below 18 years of age. Apart from the victim herself who testified that she was born in 2003, there was evidence given by the victim's aunt PW4, who at one time was the victim's guardian, which is specifically

to the effect that the victim was born on 08.09.2003. Besides that, PW4 tendered the victim's baptism certificate which was admitted in evidence as Exhibit P2 in which the victim's birth date is indicated. At this point we should reiterate the position that proof of age can come from the victim, the parents or one of them, a guardian or a birth certificate etc. See- Mussa Sebastiani v. Republic (Criminal Appeal No. 406 of 2018 [2021] TZCA 119 (15 April 2021;TanzLII) and Wambura Kiginga v. Republic (Criminal Appeal No.301 of 2018) [2022] TZCA 283 (13 May 2022;TanzLII) In view of the above, we have no flicker of doubt that at the time the rape in question was committed against the victim, she was 14 years old hence, below 18 years of age. Regarding penetration and who was the perpetrator the victim (PW1) is on record at page 9 of the record of appeal testifying that: 7 started living with him in one room. We were sleeping in one room but everyone had his own mattress. Mudrica (appellant) was sleeping over the bed and I was sleeping at the floor. One night I was sleeping, I wake up and find myself bleeding with no pant I asked Mr. Mudrica (appellant) but he told me not to tell anyone. I was bleeding from my vagina. I told him that at school we are being examined but he insisted me not to tell anyone and I did not tell anyone. After about a month, during the night he told me

that he loves me and want me to sleep with him. I refused and I told him that at school the teacher is examining us, but he insisted, [took off] his clothes and removed mine, he took his penis and inserted into my vagina till morning. After two days Mudrica (appellant) took me to Dr. Rwamishenye to examine if I am pregnant or not [Emphasis added] In view of the above and bearing in mind that the evidence came from the victim who was found by the trial court to be credible and reliable hence the best evidence in line with the decision of the Court in Selemani Makumba v. Republic [2006] T.L.R. 379, we are thus, settled in our minds that penetration was sufficiently proved. The above part of the victim's evidence tells it all not only that the victim was penetrated but also that it was the appellant who penetrated her. The victim's evidence proved beyond any reasonable doubt that she was penetrated by no one else but the appellant. We think that the fact that the appellant penetrated the victim can also be inferred from the fact that the appellant used to sleep in one room with the victim. Though, before us, the appellant denied to have been living with the victim let alone sleeping with her in one room, his late denial can however, not defeat the strong evidence from the prosecution that, indeed, he used to live and sleep with the victim in one room. Even the appellant himself in

his defence evidence admitted that he was living and sleeping with the victim in one room but on different mattresses. The evidence to the effect that the appellant was living and sleeping with the victim in one room also came from the appellant's daughter who testified as DW2. In view of the above, we find that the case against the appellant was proved to the required standard, that is, beyond any reasonable doubt. Consequently, the appeal is without merits and it is hereby dismissed in its entirety. DATED at BUKOBA this 19th day of March, 2025. S. E. A. MUGASHA

JUSTICE OF APPEAL A. M. MWAMPASHI

JUSTICE OF APPEAL P. J. NGWEMBE

JUSTICE OF APPEAL The Judgment delivered this 20th day of March, 2025 in presence of Appellant in person and Mr. Dickson Makoro, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. C.

DEPUTY REGISTRAR

COURT OF APPEAL