CRIMINAL APPEAL NO 413 OF 2021 MWOGA WILLIAM V REPUBLIC 1

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA fCORAM: SEHEL. J.A.. KAIRO. 3.A. And KHAMIS. J.A.I CRIMINAL APPEAL NO. 413 OF 2021 MWOGA WILLIAM ...........................................................APPELLANT VERSUS THE REPUBLIC...................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Kahvoza 3.1 dated the 14th day of June, 2021 in f D O Criminal Appeal No. 182 of 2020 JUDGMENT OF THE COURT 11 “' & 20“’ February, 2025 SEHEL, 3.A.: The appellant, Mwoga William, was charged, convicted and sentenced to thirty years' imprisonment for raping a girl aged thirteen years old. For purposes of concealing her identity, we shall be referring her as the victim or girl. The appellant was also ordered to pay compensation of TZS. 2,000,000.00 to the victim. The appellant's appeal to the High Court was dismissed in its entirety. Still aggrieved, he is before this Court protesting his innocence. Through the legal services of Mr. Emmanuel Gervas, learned advocate from Levislaw & Co. Advocates, the appellant lodged a memorandum of appeal comprised of the following three grounds of appeal: "1. That, the High Court erred in iaw and fa ct fo r failure to determ ine that the prosecution failed to prove the case beyond reasonable doubt against the appellant. 2. That, the High Court erred in law and fa ct fo r failure to determ ine the intensity o f light, the lig h t o f torch was not sufficient to recognize the appellant. 3. That, the High Court erred in law and fa ct fo r failure to determ ine that the appellant was not responsible with the rape o f the PW 1." At the hearing of the appeal, Mr. Gervas, learned counsel, appeared for the appellant and the appellant was present in Court. Ms. Grace Michael Madikenya, learned Senior State Attorney, and Ms. Happiness Machage, learned State Attorney, appeared for the respondent Republic. Briefly, the evidence that led to the conviction of the appellant was that, on 5th November, 2019, the victim (PW1) was sleeping with her younger sisters aged nine and five years old while her brother aged eighteen years old (PW6) was sleeping in the next room. On that day, her parents went to attend a funeral in another village. At about 02:00 hours, the appellant arrived and woke up PW6 and the two went fishing. The victim closed the door. Shortly thereafter, she heard a door being pushed. She lighted up torch and saw the appellant. As what followed thereafter, PW1 narrated that: "He [the appellant] grabbed my torch and tight my throat and push me to bed and pulled with force (sic.) my underwear and tore it. He put (sic.) h is manhood through m y vagina. I fe lt serious pain. I did not shout because he grabbed m y throat W hile he was rapping me, h is phone rang. He took it out [from h is] pocket and looked at it and then he returned it in h is pocket again. A fter he had finished, he opened the door and ran way." She went to the neighbouring house of PW5 and informed her of the tragedy that befell her and named the appellant. PW6 testified that, on the fateful night, the appellant arrived at their home and woken him up to go fishing. On their way to the lake, the appellant excused himself alleging that he forgot to take canoeing paddles, therefore, he let PW6 to proceed alone. PW6 said, the appellant arrived at the lake after one hour. It was the evidence of PW5 that, on the fateful night, she heard the victim crying and was calling her "aunt! aunt! I have been raped by my father's brother." She opened the door and found the victim half naked. She examined her genitalia and saw blood mixed with male sperms and that, it was badly perforated. She said, PW1 named the appellant as the person who raped her. She then took the victim to the suburb chairman (PW4) who told them to return in the morning. In the morning, PW2, PW5 and PW4 went to the Village Executive Office (VEO) where they were issued with a letter to take it to the police station. The victim's mother (PW3) was informed about the ordeal to which she promptly responded and returned home at about 16:00 hours. She ushered the child to the police station where they were issued with a Police Form Number 3 (P.F. 3) for medical examination. The victim was taken to Kasaunga Health Centre where she was attended by a clinical officer (PW2). PW2 said that, on 5th November, 2019 she attended a girl child aged thirteen years old who was in agony. PW2 observed the victim had no hymen and there were male sperms in her vagina. PW2 concluded that the victim was raped. In his defence, the appellant admitted awakening his fellow fishermen, including PW6, Daniel Mtani (DW2) and Deo William (DW3) on 5th November, 2019 at about 02:00 hours for purposes of fishing. The team went fishing up to 06:00 hours when they returned home. At about 08:00 hours, he was summoned at VEO's office. Having gone there, he was arrested by police officers on allegations of raping PW1. The appellant denied the allegation claiming that PW3 had previously quarrelled with him on several occasions and promised to fix him. The trial court found PW1 credible and reliable witness on account that she mentioned the appellant at the earliest opportunity to PW5. It further found that the evidence of PW1 was corroborated by PW2 and exhibit PI which shows that the victim's hymen was not intact and male sperms were found in her genitalia. In that respect, the defence case was found not to have shaken the prosecution's case. Accordingly, the appellant was convicted and sentenced as stated earlier. Mr. Gervas argued each ground of appeal in seriatim. Submitting on the first ground of appeal, he contended that the evidence of PW1 was insufficient to ground a conviction of the appellant because, one; PW1 failed to explain the size of the bed in which the appellant raped her. He explained, on the fateful night, PW1 said, she slept together with her two young sisters but it was inconceivable for four people to fit in a single bed. Two, the young sisters of PW1 were material witnesses but not called to clear doubt as to who committed the offence. He suggested that PW6 had raped the victim because it was impossible for the children aged nine and five years not to hear the rape incident happening on the same bed they were sleeping. Three, since PW6 testified that he slept in the same house with the victim, there was a possibility that PW6 raped his sister. Four, given the age of the victim, it was impossible for her to precisely recount time of each event as she did in her testimony. Five, there were material contradictions in the prosecution evidence. He particularised that, while PW2 said the victim was brought by her neighbour at the hospital, PW3 suggested that she accompanied PW5 and PW1 to the hospital. Mr. Gervas queried, if indeed PW3 was telling the truth, then why PW2 did not mention her. Further, PW3 said she took the child to the police station and at the hospital in the evening but PW5 said they went there in the morning and PW4 said they were escorted to VEO on the fateful night. That, PW6 made self-contradiction on the time; in his examination-in-chief, he said he was awaken at 01:30 hours, whereas, in cross-examination he said he was awaken at 01:45 hours. In this respect, Mr. Gervas relied on the decisions of this Court in Godi Kasenegala v. The Republic (Criminal Appeal No. 10 of 2010) TZCA 5 (2 September 2010; TANZLII) which addressed the need to conduct a voire dire test before reception of the evidence of a child; Majaliwa Ihemo v. The Republic (Criminal Appeal No. 197 of 2020) [2021] TZCA 304 (15 July 2021; TANZLII) and Mohamed Said v. The Republic (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (23 August 2019; TANZLII) that cited with approval the decision of the Supreme Court of Philippines in the case of People of Philippines v. Benjamin A. Elmancil, G.R. No. 234951 dated March, 2019, where it was emphasized on the need to subject the evidence of a child victim of sexual offences to scrutiny in order for courts to be satisfied with what they state contain nothing but the truth. Submitting on the second ground of appeal, Mr. Gervas argued that PW1 failed to describe the type and size of batteries of the torch and intensity of the light illuminated therefrom. He doubted whether PW1 had ever used a torch because that was not mentioned when PW1 went to the neighbouring house and the suburb chairman (PW4). In the third ground of appeal, Mr. Gervas submitted, the act of the appellant responding to the VEO's call proved his innocence. In his view, if the appellant was guilty, he would not have responded to the call, rather, he would have run away. In the end, Mr. Gervas beseeched the Court to find that the evidence as a whole was insufficient, weak and unreliable to uphold the conviction and sentence. He prayed the Court to allow the appeal and release the appellant. Ms. Madikenya made a general reply submission that the prosecution proved the offence against the appellant to the hilt. She contended, for the offence of statutory rape to stand, the prosecution is required to prove three ingredients; one, penetration, two, the accused person committed the offence, and three, age of the victim. She argued, in the present appeal, the prosecution established beyond reasonable doubt through the evidence of PW1 that there was penetration and that evidence was corroborated by PW2 and PW5. Further, she contacted that the age of the victim was established by the mother of the victim (PW3). She clarified that PW3 testified, the victim was born on 13th March, 2016, thus, she was thirteen years old. As regards whether it was the appellant who committed the offence, Ms. Madikenya submitted that the evidence of PW1 corroborated with that of PW6 that the appellant went to awaken PW6 which fact was admitted by the appellant in his defence. The learned Senior State Attorney further argued that, immediately after the victim was raped, she went to report the ordeal to PW5. It her view, the act of naming the appellant at the earliest opportunity gave credence to PW l's testimony. She relied on the cases of Ibrahim Eston v. The Republic, (Criminal Appeal No. 75 of 2021) [2024] TZCA 516 (5 July 2024; TANZLII) and Posian Ntamaboko v. The Republic (Criminal Appeal No. 206 of 2022) [20124] TZCA 900 (17 September 2024; TANZLII) to bolster her submission that the ability of a witness to name a suspect at the earliest opportunity is an all-important assurance of her reliability. Ms. Madikenya responded to the second ground of appeal by admitting that PW1 did not explain the intensity of light illuminated from the torch. However, she contended that PW1 positively identified the appellant because she was the one holding the torch flushing its light to the appellant. To support her submission, she relied on the case of Masanja Lupilya v. The Republic (Criminal Appeal No. 75 of 2021) [2021] TZCA 495 (17 September 2021; TANZLII). In the third ground of appeal, Ms. Madikenya submitted that the complaint was sufficiently responded in the first and second grounds of appeal. Responding to the alleged failure by the prosecution to call the young sisters, Ms. Madikenya argued that the issue was sufficiently considered by the first appellate court and rightly overruled. She referred us at page 53 of the record of appeal. 9 On the complaint that the brother could have been the perpetrator, Ms. Madikenya responded that the argument is far-fetched because the evidence on record of appeal showed that PW6 left the house for fishing with the appellant and such evidence was corroborated by the testimony of the appellant (DW1). On the victim's capacity to accurately narrate the time, Ms. Madikenya replied that the argument is not supported by the evidence in the record of appeal as the said witness (PW1) only estimated the time and did not give specific timings. Replying to the allegation that the prosecution evidence was full of contradictions, Ms. Madikenya argued that the contradictions, if any, were minor, and at most, it was a question of semantics. She pointed out that, the record of appeal at page 17 was clear that PW4 requested PW5 to go home and return in the morning. She argued that it was not true that PW1, PW4 and PW5 went to VEO's office on the fateful night as alleged by the counsel for the appellant. Lastly, the learned Senior State Attorney urged us to dismiss the appeal. In rejoinder, Mr. Gervas reiterated his earlier submission that the prosecution failed to prove the case beyond reasonable doubt against 10 the appellant and contended that, the contradictions goes to the root of the case. This is a second appeal. It has been held in a number of cases by this Court that, where, there are concurrent findings of fact by lower courts, the second appellate court should rarely interfere with such concurrent findings unless it is shown that the courts below have misapprehended the substance, nature and quality of evidence which occasioned a miscarriage of justice - see the cases of The Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 149; Musa Mwaikunda v. The Republic [2006] T.L.R. 387 and Wankuru Mwita v. Republic, Criminal Appeal No. 219 of 2012 (unreported). In the latter case, the Court stated that: "The law is w ell-settled that on second appeal, the Court w ill not readily disturb concurrent findings o f facts by the tria l Court and first appellate Court unless it can be shown that they are perverse, dem onstrably wrong or clearly unreasonable or are a result o f a com plete m isapprehension o f the substance, nature and quality o f the evidence; m isdirection or non­ direction on the evidence; a violation o f some principle o f law or procedure; or have occasioned a m iscarriage o fju stice ." Coming to the appeal, we wish to adopt the approach taken by the learned Senior State Attorney. The appellant was charged with the offence of rape contrary to sections 130 (1) (2) (c) and 131 (1) of the Penal Code. For this kind of offence, the prosecution is under prim a facie duty to prove penetration, age and whether it was the accused person who raped the victim. We shall start with the age of the victim. We believe this should not unnecessarily detain us as it was adequately deliberated and decided by the first appellate court that age was proved by the mother of the victim (PW3). The evidence of PW3 in respect of this issue was as follows: "It was on 3/11/2019 we started our journey to Ukerewe, we le ft the victim a t home aged 13 years old." We therefore agree with the first appellate court that the age of the victim was sufficiently established by her mother. Next, is the issue of rape. As correctly submitted by the learned Senior State Attorney, PW1 described in detail when, where and how she was carnally known. That, on 5th November, 2019, after her brother went fishing in the company of the appellant, she heard someone opening the door. She lighted up torch and saw the appellant who snatched it from her, throttled her and pushed her on the bed. He then undressed her underwear and raped her. Her evidence on penetration is corroborated by PW2 who, upon examination, observed the victim had no hymen and there were male sperms in her vagina. There is also the evidence of PW5 who testified that: "It was on 5/11/2019 a t 02:00 am, I was inside sleeping. I heard a shout, a g irl crying, aunt aunt I have been raped by m y brother's father (sic.), I opened the door and touched the victim .... She was totally naked, she is 13 years old, she was bleeding (severe bleeding) blood m ixed with m ale sperms, and on her private part was very destroyed (sic.) ." Flowing from the above, we are satisfied that penetration which constitutes one of the essential ingredients of the offence of rape, in terms of the requirements of section 130 (4) (a) of the Penal Code, was proved by PW1, PW2 and PW5. The ensuing question is whether there was sufficient evidence to justify upholding the concurrent findings of the trial court and the High Court that it was the appellant who committed that sexual assault on PW1. Upon re-evaluation of the evidence, we observed that it was PW1 who named the appellant to PW5 when she went to seek assistance. In her evidence, PW1 said when she heard the door pushed, she lighted the torch and was able to see and recognize own uncle; the appellant who was very familiar to her. Indeed, we admit that PW1 did not describe the intensity of the torchlight but we think it is easier for the holder of a torch light to see the place and persons flushed against and recognize him/her, especially when they are familiar to each other. We held so in the case of Michael s/o Godwin & Another v. The Republic (Criminal Appeal 66 of 2002) [2004] TZCA 4 (3 July 2004; TANZLII) that: "It is common knowledge that it is easier fo r the one holding or flushing the torch to identify the person against whom the torch is flushed." In the premises, we are satisfied that the appellant was positively identified by PW1 who had seen him for the second time that same night and was a very familiar family member. Therefore, her failure to give description of intensity of torchlight did not dent her credibility. Furthermore, both the trial court and the first appellate court found PW1 a credible witness who was consistent in her testimony, and that, her evidence was corroborated by PW2, PW3, PW5 and PW6 as nothing but true. We hasten to add that PW l's credibility is assured further by her 14 ability to name the appellant at the earliest opportunity to PW5 even before his arrest. Another complaint by Mr. Gervas was that, the prosecution case was dented by the self-contradiction of PW6 on the time, discrepancies between the evidence of PW2 and PW3; PW3, PW4 and PW5. We hasten to say that the first appellate court adequately addressed and canvassed this complaint and rightly held that contradictions by any particular witness or among witnesses is inevitable and only material discrepancies corrode the credibility of a party's case. In the case of Said Ally v. The Republic, Criminal Appeal No. 249 of 2008 (unreported), we stated that: "It is not every d iscre p an t in the prosecution case that w ill cause the prosecution case to flop. It is only where the g ist o f the evidence is contradictory then the prosecution case w iii be dism antled." Having anxiously considered the record of appeal and failed to find any discrepancy in the evidence of PW2, PW3, PW4 and PW5, we fully agree with Ms. Madikenya that it was a matter of semantics rather than discrepancy. On the other hand, while we agree that PW6 contradicted himself on the time he was awaken by the appellant, we see that as a trivial mismatch which does not go to the root of the case that the victim was raped by the appellant. Regarding failure to parade the victim's young sisters to testify, we wish to reiterate our earlier decision in the case of Aziz Abdalla v. The Republic [1991] T.L.R. 71 that: "The general and well-known rule is that the prosecutor is under a prim a facie duty to ca ll those witnesses who, from their connection with the transaction in question, are able to testify to m aterial facts. I f such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution." In the present appeal, given that the two courts below properly directed and found PW1, the victim of sexual offence, credible and was telling nothing but the truth, we think the calling of the young sisters would not have anything to add from what had been testified by the victim. Again, we do not see the relevance of mentioning the size of the bed as, given the peculiar circumstances of the present appeal, it is uncalled for to look at other issues in trying to establish the guilt of the appellant. In terms of section 127 (7) of the Tanzania Evidence Act, the testimony of PW1 that, she was raped by the appellant on the night of 16 5th November, 2019, was sufficient to prove the offence - see also the case of Selemani Makumba v. The Republic [2006] T.L.R. 379. In any event, her evidence was corroborated by other prosecution witnesses as earlier on stated. In that respect, we do not see any justified reason to interfere with the concurrent findings of fact by the two lower courts. In the event and for the foregoing, we find the appeal lacks merit and is hereby dismissed. DATED at MUSOMA this 19th day of February, 2025. B. M. A. SEHEL JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 20th day of February, 2025 in the presence of the appellant in person, Messrs Nico Malekela and Isihaka Ibrahim, both learned State Attorney for the Republic/respondent; is hereby certified as a true copy pf.the original. m iuu. A. S. CljjlUGULU I] DEPUTY REGISTRAR £ COURT OF APPEAL 17