MUSSA MASANILO MASANJA tanzlii

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY

AT DODOMA DC. CRIMINAL APPEAL NO. 13342 OF 2024 (Appeal from Criminal Case No. 105 of2023 in the District Court of Manyoni) MUSSA MASANILO MASANJA........................................ APPELLANT

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

JUDGMENT 7th August & 13th September, 2024 MUSOKWA, J, The appellant herein was charged and convicted of two counts. The first count is rape contrary to section 130(1) & (2) (a) and 131 (1) of the Penal Code, Cap. 16, R.E. 2022 (Penal Code). The second count is assault causing actual bodily harm contrary to section 241 of the Penal Code. After a full trial being conducted in the District Court of Manyoni (trial court), the appellant was sentenced to a term of thirty (30) years imprisonment for the count of rape; and five (5) years imprisonment for the count of assault causing actual bodily harm. The sentences were to run concurrently. In addition, the trial court ordered the appellant to pay TZS. 1,500,000/- being compensation to the victim. i ■ The facts of the case as recorded in the charge, indicate that the alleged offence was committed on 5th June 2023, during night hours in the Village of Mwamagembe within Manyoni District in Singida Region. Further facts are that on the material date, the appellant had sexual intercourse with a female person whose identity shall be concealed and shall hereinafter be referred to as "the victim". It is further alleged that the appellant herein also assaulted one Juma Mgeta; resulting in injuries to his left hand and forehead. Being aggrieved thereof, the appellant lodged this appeal based on the following grounds reproduced hereinafter verbatim: - 1. That, the trial court erred in law and fact by relying on assumption which resulted to wrong conviction of the appellant.

2. That, the appellant was con victed and sentenced without the court to consider the circumstance prevailing in this particular case, not enough the appellant defense was not into the mind of the court.

3. That the trial court erred in law and in fact to accept the Exhibit PE-5 as documentary evidence and not proving that there was penetration as required evidence proving commission of rape. 4 That the identification parade was not made to identify the accused person. The scheduled date for the hearing of this appeal was 7th August, 2024 whereby the appellant fended for himself. The respondent had the services of Ms. Margareth Tiegray and Mr. Sadik Abdulkheri, learned state attorneys. 2 ’ The appellant prayed to waive his right to begin, upon the prayer being granted, it paved a way for the respondent to start. Ms. Tiegray vehemently contending the 1st ground of appeal, submitted that the offences of rape, and assault causing actual bodily harm, were proven to the required legal standard. Thus, the learned state attorney prayed that the said ground of appeal be dismissed for lack of merit. The counsel for the respondent conceded with the 2nd ground of appeal that the trial court did not consider the testimony of the defence. Despite this anomaly, Ms. Tiegray submitted that in the circumstances, the law provides that the first appellate court can step into the shoes of the trial court. In this regard, it was her submission that this court can exercise such powers and accordingly proceed to rectify the error. The case of Josephat Joseph vs Republic; Criminal Appeal No. 46 of

2017 (unreported) was preferred in support of this position. Ms. Tiegray reiterated that, this court can consider the defence case and reach to an appropriate conclusion thereof. On the 3rd ground of appeal, the learned state attorney argued that, PW8, the medical doctor, gave his testimony under oath and further prayed to tender a PF3. The same was admitted by the trial court and marked as 3 Exhibit PE 5, as reflected at page 11 of the typed trial proceedings. The said PF3 indicates the results of the medical examination and describes the condition of the private parts of the victim at the time of the medical examination. The results of the medical examination revealed that there was penetration to the victim by a blunt object. In addition, PW1, the victim, testified under oath that the appellant attacked her and had unlawful sexual intercourse with her. The testimony of PW1 is reflected at page 9 of the typed proceedings of the trial court. The learned state attorney further submitted that, the law is clear under section 127 (6) of the Law of Evidence Act, Cap. 6., R.E. 2022 (the Evidence Act); that in sexual offences, the best evidence is the testimony of the victim and that such testimony suffices to prove the offence against an accused person. The court however, must first ascertain the credibility of the witness, before acting upon the testimony. The learned state

attorney cited the case of Seleman Makumba vs. Republic, [2006] T.L.R 379 held by the Court of Appeal of Tanzania (CAT) to cement her position. Ms. Tiegray added further that, the testimony of PW1 was corroborated with the testimony of PW8. Thus, the prosecution was able to establish that there was penetration of the victim by the appellant, which is a key ingredient in proving the offence 4 of rape. On that basis, the respondent's counsel averred that the offence of rape was sufficiently proven. In rebuttal to the 4th ground of appeal, Ms. Tlegray argued that the identification parade was conducted, contrary to the assertions of the appellant. The learned state attorney referred to the testimonies of PW1, PW5 and PW6 at pages 25, 30, 31 and 32 of the typed trial court proceedings. The testimonies of the aforementioned witness describe the manner in which the identification parade was conducted. Furthermore, PW6 in his testimony as recorded at pages 30, 31 and 32 of the typed proceedings, testified that he was the one who organized the identification parade. In addition, he prayed to tender in court the identification parade register and the same was admitted in court as Exhibit PE-3. The learned state attorney finally prayed that this court should dismiss the entire appeal for lack of merit and uphold the decision of the trial court. In rejoinder, the appellant challenged the

testimonies of the witnesses and stated that the testimonies were not credible. The appellant submitted that the victim's testimony was entirely false as she testified that the appellant raped her in the presence of her husband. This is evidently false due to the fact that under normal circumstances it is impossible for one to rape another 5 person in the presence of her spouse. The appellant prayed for the court to adopt his grounds of appeal and to determine this matter in his favour for the interests of justice. Careful consideration was given to the submission of the parties and the records before the court. The issue for determination is whether the prosecution proved their case beyond reasonable doubt. In criminal cases, the burden of proof is vested upon the prosecution; further, the standard of such proof is beyond reasonable doubt. This was observed in the case of Halfan Ismail @ Mtepela vs Republic, Criminal Appel No. 38 of 2019 (unreported) whereby the CAT held that: - "It is trite law that the burden ofproof is on the prosecution on the standard which is higher than mere preponderance ofprobabilities applicable in civil cases. It is equally the law that the prosecution has to prove its case beyond reasonable doubt." Further, section 110 and 111 of the Evidence Act provides that: - 110.-(l) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those fact exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

111. The burden of proof in a suit proceeding lies on that person who would fail if no evidence at all were given on either side. 6 Clearly, the prosecution had the duty to prove the charge beyond reasonable doubt. The Penal Code provides that rape can be committed by a male person against a female person in two ways. One, having sexual intercourse with a woman above the age of eighteen years without her consent. Two, having sexual intercourse with a girl under the age of eighteen years with or without her consent. In the present appeal, the appellant was charged under section 130 (1) (2) (a) which provides 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 giri or a woman under circumstances falling under any of the following descriptions: (a) not being his wife, or being his wife who is separated from him without her consenting to it at the time of the sexual intercourse" Further, in rape cases penetration, however slight, must be proven. Section 130(4) of the Penal Code provides that: - ”130(4) For the purpose of proving the offence of rape (a) Penetration however slight is sufficient to constitute the sexual intercourse necessary to the offence" 7 ' In the case of Masanyiwa Msolwa vs Republic, Criminal Appeal No. 280 of 2018, (unreported) the CAT held that:

- "Admittedly, for the offence of rape of any kind to be established, the prosecution or whoever is seeking the trial court to believe his or her version of the facts on trial, must positively prove that a sexual offence organ of the male human being penetrated that of a female victim of the sexual offence, and if the victim is an adult of over 18 years of age, a further condition is needed; proof that the victim did not consent to the sexual act. "[emphasis added] It is a trite law that in proving the offence of rape the best evidence is the testimony of the victim. This principle was extensively discussed in the famous case of Seleman Makumba (supra) whereby the CAT stated that:- "True evidence of rape has to come from the victim, if an adult, that there was penetration and no consent, and in case of any other woman where consent is irrelevant, that there was penetration." Further, in the case of Hamisi Halfan Dauda vs. The Republic, Criminal Appeal No. 231 of 2019 (unreported), it was observed 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 unjustifiably incriminate the otherwise innocent person (s)."

[emphasis added] 8 Reverting to the appeal herein, the trial court records provide for the testimony of PW1, the victim, who testified confidently that she was raped and she identified the appellant as the person who committed the unlawful act. PWl's testimony was corroborated by the testimony of PW8, the medical doctor who examined PW1 on the same date the alleged offence was committed. The results of which sufficed to prove that the victim had been raped. PW8 also tendered a PF3 which was admitted by the court as Exhibit PE-5. I am inclined to agree with the submissions of the learned counsel for the respondent that the testimonies of the aforementioned witnesses sufficed to prove that the appellant herein committed the offence of rape as charged. Section 60 of the CPA which bears similar wording with the provisions of section 38 of the Police Force and Auxiliary Services Act, Cap. 322 R.E. 2022 reads as follows: - "Any police officer in-charge of any police station or any police officer investigating an offence may hold an identification parade for the purpose of ascertaining whether a witness can identify a person suspected of the commission of any offence." [emphasis added] 9 However, in conducting an identification parade, there are rules which need to be observed. This was stated in the case of Mussa Hassan Barie and Another Vs Republic, Criminal Appel No. 293 of 2011

(unreported) whereby the CAT partly held that: - "But it has also been developed that In matters of identification favourable conditions alone are not enough. The credibility of witnesses is also important...It has equally been held consistently that in order to enhance his or her credibility, a witness of identification would be expected to give a description of the suspect, in relation to physique, attire, etc, and if he knows him, to name him at the earliest opportunity, "[emphasis added] As regards to the issue of identification, the appellant alleges that the identification parade was not conducted. However, the records of the trial court provide otherwise. I will refer to the testimony of PW1 specifically in her description of the appellant as recorded at pages 8 and 9 of the typed trial proceedings. PW1, testified as follows: - "...I went outside the house to answer nature call. Upon returning, accused person attacked by holding me and thereafter he did take me to the bushes. I failed to shout because accused person did hold me tightly in the neck. I had unlawful sexual intercourse with the accused person from 02:00hours up to 03:00 hours in the night. Accused person inserted his penis in my vagina after to take of forcefully my clothes and I felt of pain. Accused person fell asleep after to finish having sexual intercourse with me...I io managed to identify accused

person because there was adequate solar light." PW1 at page 9 further testified further that: - "On that particular date, I identified accused person by his face because he has black slim, accused person has small body and he did wear red-t-shirt and yellow trouser". On the basis of the above evidence of PW1,1 am of the view that, the said testimony gave a coherent narration of the incident and further made a thorough attempt in identifying the appellant. The PW1 managed to describe the appellant's features which were repeated to police when she was making a first report as well as during trial. PW1 stated that she did not know the appellant before, but she identified the appellant at night and stated the source of light was a solar and also described the attire worn by the appellant on the material day. Further, the records show that identification of the appellant was done formally as there is evidence to the effect that identification parade was conducted and supervised by a police officer. Therefore, according to the evidence adduced by the prosecution witnesses in respect of identification of the appellant, I am of the settled view that, identification was proper and in accordance with the law. 11 Regarding the count of assault causing bodily harm, the starting point will be section 241 of the Penal Code which create the said offence. The section provides that: - "241. Any

person who commits an assault occasioning actual bodily harm is guilty of an offence and liable to imprisonment for five years." In this case at hand, the evidence adduced by the prosecution side such as PW2 and other witnesses proved that the appellant assaulted PW2 on the material day. PW2 testified that the appellant assaulted him on the head and hand by using a stick. PW8 who examined PW2 testified before the trial court at page 12 of the trial court proceedings that: - 7 examined the patient and after such examination, I discovered that a victim had injuries on his left arm and face. The left arm of the victim had a dose fracture. I gave patient first aid by dressing his injuries and wrapping the left broken arm. I treated the patient and thereafter I filled PF3 form. I referred the said patient to St. Gasper Hospital at Itigi for further treatment." In order to sustain a conviction to this offence, the prosecution must prove beyond reasonable doubt that the appellant assaulted the victim and the assault caused bodily harm to victim. In this case, the evidence of PW2 corroborated with the evidence of PW8 who examined PW2 and tendered 12 * PF3 (Exhibit PE-6) which is important to prove that there was actual bodily harm. As the clearly showed by evidence, I am of the settled view that, the offence of assault causing bodily harm was equally proved. The appellant has, in his

2nd ground of appeal, lamented that his defence evidence was not considered. Notably, this ground was admitted by the respondent and urged this court to step into the shoes of the trial court and re-valuate the defence evidence. On the strength of the CAT case of Athuman Musa Vs Republic, Criminal Appel No. 4 of 2020 (unreported), this court is mandated to do the needful as it was held that: - "In our present case, the complaint that the appellant's defence was not considered by both courts below warrants our Interference. We are therefore set to analyse the appellant's defence and weigh the same against that of the prosecution witnesses in relation to the matter at hand", [emphasis added] The essence of the defence evidence is that the appellant was arrested by the police on 5th June, 2023 at Mkese area when he was going to buy sunflower. The appellant was informed of the charges by the arresting police, but he was allegedly beaten and his TZS 360,000/- was taken by the police. Thereafter, the appellant was taken to Mwamagembe Police Post where he was assaulted and hanged upside down. Later, the appellant was transferred 13 * to Itigi Police Post where he was again beaten and stayed for 10 days. While at Itigi Police Post, he was taken to a room which had a table with an envelope on top, and two chairs. The police officer took a paper from the said envelope and the appellant

was beaten and forced to sign the paper without reading the contents thereof. Afterward, the appellant was transferred to Manyoni Police Post where, one day he was taken out of the lock up and found people standing in line in the presence of the victim. In addition, the appellant challenged the differences of hours mentioned by the prosecution witnesses and testified further that there was no any prosecution witness who witnessed the appellant committing the alleged offences. I have reflected on the appellant's defence evidence against the prosecution evidence; but I am of the considered view that the appellant's defence evidence did not shake the prosecution evidence. The reason is that, the appellant concentrated on narrating the circumstances leading to his arrest instead of contradicting the prosecution evidence. The appellant merely challenged the differences of hours mentioned by the prosecution witness, which was not material especially in rape cases where the best evidence comes from the victim. Moreover, the prosecution evidence established 14 beyond doubt that on the material day, and in attempt to escape from the scene of the crime, the appellant assaulted PW2 (Juma Mgeta) as evidenced by Exhibit PE-6. In this regard, it is my further considered view that even if the trial court had considered it, it might have not come to a different conclusion. From the foregoing analysis, I am satisfied that the prosecution proved their case beyond reasonable doubt. Accordingly, I hereby find this appeal devoid of merits and proceed to dismissed it in its entirety. It is so ordered. Right of appeal explained. Judgment delivered in the presence of the appellant and in the presence of learned counsels for the respondent; Ms. Margareth Tiegray and Ms. Patricia 15