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THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OFTANZANIA AT KIGOMA DC. CRIMINAL APPEAL NO. 000012117 OF 2024 MZURIKWAO S/O REVOCATUS COMPLAINANT I APPELLANT I APPLICANT

VERSUS HASSAN RAMADHAN MWAIMU RESPONDENT/ DEFENDANT

JUDGMENT A. K. RWIZILE, J This appeal arises from Criminal Case No.497 of 2017 of the district court of Kibondo. The appellant stood charged on two counts of rape contrary to section 130 (1)(2)(e) and 131(1) of the Penal Code, and on the second count, he is charged of impregnating a school girl contrary to section 4(3) of the Education Imposition of Penalties to person who impregnated a school girl [Cap 353 R.E 2002] read with section 60A (1) and (2) of the Education Act, as amended by section 22 of the Written Laws [Miscellaneous amendment No. 2] Act No. 4 of 2016. It was alleged that on 20th August 2017 at Twabagondozi village of Kibondo district in Kigoma region, the appellant had carnal knowledge of a girl aged 16 years old, who was a form four student of Misezero Secondary school thereby impregnating her. Upon arraignment, he denied the charges. The trial court after hearing 5 witnesses for the prosecution was satisfied that the appellant committed the offences. He was found guilty, convicted, and sentenced in absentia to a concurrent sentence of 30 years imprisonment and was ordered to pay TZS. 500,000.00 as compensation to the victim. Seemingly upon arrest and sentence, the appellant was aggrieved, he filed 8 grounds of appeal but at the hearing of the same, he added the 9th ground as follows; - 1. That, the learned trial magistrate erred in law and in fact in failure to consider my defence which was true and reliable.

2. That, the learned trial magistrate erred in law and in fact particularly when he considered the evidence of the victim which was untrue and unreliable to the fact that, formally at police station, she mentioned one Elisha to be responsible to the said pregnancy according to their relationship but was forced to mention the appellant innocently.

3. That, the prosecution side failed to prove their case beyond all reasonable doubt as required by law.

4. That, the prosecution witnesses went against each other particularly when Pwl (the victim) testified before the court that after realizing that she was not in normal condition she told her father about the incident I 0/10/2017 who in next the day on 1l/10/2017 took her to hospital meanwhile her father testified before the trial court that he got the same information on 09/10/2017 after being informed by his wife who suspected Page. 1 Hon. AUGUSTINE RWIZILE her to be not in normal condition by observing her vomiting and on 10/10/2017 took her daughter to hospital where her blood and urine were examined.

5. That, the said PF3 was taken after the victim being examined, the thing which is inconsistent with the law of this land which was on 11/ l 0/2017 while both prosecution witnesses testified that the examination was done on 10/10/2017.

6. Also, the prosecution witnesses went against each other, particularly on point of examination to the extent that, Pw2 told the trial court that, her daughter was taken blood and urine which diagnosed to be pregnancy meanwhile the Doctor Pw3 (Emil Malaki) who examined the victim testified to examine the victim by Ultrasound to discover the pregnancy on 11/10/2017.

7. That, the learned trial magistrate erred in law and in fact when he dared to convict the appellant and sentence him to imprisonment without the primary evidence of DNA.

8. That the learned trial magistrate misdirected himself when he convicted the appellant because of the weakness of the defence.

9. The court erred by accepting the evidence of the age without birth certificate. Before this court, the appellant appeared in person, while the respondent was under the services of Ms Edna Makala, learned state attorney and contested the appeal. The appellant made a brief submission as following: - He argued on the first ground that his evidence was true, he informed the court that he was not at the place when the offence was committed on that day. His submission on the second ground was that the evidence of the prosecution side was contradictory in the sense that, at the police station, the victim mentioned one Elisha to have committed the crime while in court, she mentioned the appellant which is not true. His contention on the third ground was on the evidence of the victim that she was lying as there is no eyewitness. He added, all the evidence against him, is hearsay, and concocted. It was the appellant's argument on the fourth ground that, the prosecution evidence conflicted. The victim said the offence was committed on 10th and was taken to hospital on 11th. The victim's father said, he was told by his wife and not the child. It was his evidence contrary to what was testified by the victim On the 5th ground, it was argued that the PF-3 is doubtful because they said, he was examined on 11th while witnesses say, it was on 10th and he said, he used ultrasound while

witnesses said, it was by urine examination. The evidence of the victim on the 6th ground, it was argued, urine and blood were used to examine pregnancy, and second that the Doctor said, he used ultrasound, and it was on 11th, while others said, it was on 10th The appellant was also clear on the 7th ground that there was no DNA evidence which would show, he was responsible for that pregnancy. It was his view; he was simply convicted. The appellant further held the view on the 8th ground that, the court simply relied on the weakness of the defence. He said, he told the court that he was away, and so did not commit the offence. And further that he did not know the victim, but all this, fell in deaf ears, he added. Page. 2 Hon. AUGUSTINE RWIZILE On the 9th ground, which was argued first; it was submitted that, the court erred by accepting the evidence on the age of the victim without proof of birth certificate. The evidence as to age is proved by birth certificate, because it was not tendered, he argued, age was not proved, they simply said she is below 18 years According to Ms Edna Makala learned state attorney for the respondent, age of the victim as argued on the 9th ground was proved. The birth certificate is not the only evidence proving age of the victim, she said. She held the view that age may be proved by the victim, parents, guardian or a doctor. In the proceedings, she

added, the doctor said, the victim was sixteen and it was written in the PF-3. It was her argument on the 1st ground that, the trial court did not evaluate the evidence of the appellant which is no right in the eyes of the law. But this court, she said, has powers to re-evaluate the evidence, and may come up with the new finding. She commented, the court may do so at this stage for a just decision. The learned attorney submitted on the 2nd and 3rd grounds together. She said, there is enough evidence that proved case. According to her, the victim was under 18 years. The doctor, she added, proved so. According to her, under section 130(4) of the Penal Code, rape must be proved beyond reasonable doubt. It was proved that the victim was penetrated. She further said, this evidence was corroborated by the doctor who said, she had a 7-weeks pregnancy. Indeed, she identified the appellant because she knew him and had seduced her for sexual relationship before. She also informed her parents, and it is same who led the parents to the appellant's home. The victim said, she was threatened to be taken to the unknown place and that the appellant promised her TZS 40,000.00 for abortion. She also said, the parents of the appellant went to the parents of the victim to settle the matter out of court, but they did not accept. Based on that evidence, therefore, the case was proved. According to

her, Pw5 proved the victim was a secondary school student and was in form 1 V and had finished form four exams and so was still a schoolgirl. Submitting on 4th and 6th grounds together, she said, there is no material conflict that went deep into the matter. The only little conflict, in the view of the learned attorney is about the date. The victim said she identified pregnancy in October and went to hospital on 10th and 11th. They were in hospital on both dates shown on pages 8 and 9 of the proceedings. They went to the hospital on IOth and took urine and blood for medical examination and then went to the police on 11th. They went back to the hospital with a PF-3 and she was examined for the second time. Ms Makala was clear that there was no conflict of evidence whatsoever because the doctor, said he used ultrasound and urine. All in all, pregnancy was proved and so was penetration, she added. On the 5th ground of appeal, she argued that the PF-3 was taken in accordance with the law. It was taken on 11th and after examination. Ms Edna agreed that the PF-3, was not read in court and so it conflicted the law. It has to be expunged, but added, that even without it, still, the case was proved. On the 7th ground, she said in the case of Ally Ngozi vs R, Cr. Appeal 216 of 2018, CAT, the evidence of the doctor or medical evidence does not prove rape but the evidence of the victim and

other evidence that supports. According to her, failure to have the DNA evidence does not rule out that the offence was not committed. Page. 3 Hon. AUGUSTINE RWIZILE Lastly, on the 8th ground of appeal. She submitted that the trial court did not evaluate the defence case, but the court may do so at this stage. She asked, this court to dismiss this appeal. From the above-competing arguments of both parties, the main issue for determination is whether the appeal has merit. But before going into the merits of this appeal, it has been observed that, the trial court heard the prosecution case and defence. The judgement was fixed for pronouncement on 15th February 2018. On the judgement date, it is noted, the appellant was absent, since he jumped bail. The judgement therefore was pronounced on same date in absentia perhaps in terms of section 226(1) of the Criminal Procedure Act, and therefore, there was no mitigation. The trial magistrate did not record anything in the proceeding of that day, but it is reflected on page 9 of the judgement, there was no mitigation of the accused because he had jumped bail. The record of appeal is silent on when and how the appellant was sentenced. Surfaces to say, there are two warrants of commitment dated 15th February 20 I 8 and the other one signed on 21st February 2024. On what transpired, on the judgement date, I think, the trial magistrate was

not right. Section 226(2) of the Criminal Procedure Act provides that where the court convicts the accused person in his absence, it may set aside the conviction, upon being satisfied that his absence was from causes over which he had no control and that he had a probable defence on the merit. What should be done therefore is shown under subsection 3 and 4 of the section as hereunder; (3) where sentence passed under subsection (1) shall be deemed to commence from the date of apprehension and the person effecting such apprehension shall endorse the date thereof on the back of the warrant of commitment. It is further stated under sub 4 that the court, in its discretion, may refrain from convicting the accused person in his absence, and in every such case the court shall issue a warrant for the apprehension of the accused person and cause him to be brought before the court Guided by the above, the trial court may be excused on only one aspect, that there was no need to apply subsection 4 of this section, because the case was fully heard on both sides. The appellant was present throughout the trial and made his defence too. It cannot be said therefore that; the trial court had an option of setting aside the conviction when the right to be heard was fully observed throughout the trial. But in terms of substation 3, the trial court upon having discovered that the accused was

apprehended, it ought to cause his presence before it and let him mitigate and instead of issuing a new warrant of commitment, just endorse on the previously issued one and signed on the judgement date. This was not done. I have meditated the effect of failure to comply with the above provisions and its effects on the appellant and I am convinced that because he was sentenced on a concurrent sentence, while the first count is a minimum sentence, injustice was not occasioned. On the merits of appeal, it is clear to me that the 4th, 5th and 6th grounds may be determined together for they are hinging on the conflicting evidence of the prosecution case. The 1st and 8th grounds as well will be determined together as they are about failure to consider or give weight to the defence case. The 9th ground will be dealt with separately while the 2nd and 3rd will be lastly determined together. Page.4 Hon. AUGUSTINE RWIZILE Let me start with the 4th, 5th and 6th ground of appeal. It is material and as submitted by Ms Makala that there was no conflicting evidence for the prosecution. The record has it that on 10th October 2017, the victim's farther took her to hospital, upon discovering she was not well. It was stated that her blood and urine were taken for examination, and she was discovered pregnant. After the discovery, it turned into a police issue. This I, think is what any reasonable

parent could think of. They went to the police station for a PF-3. On 11th October 2017 with the PF-3 went to hospital again. In terms of evidence, a pregnancy test was done twice; when the victim (Pw I) was taken to hospital by her father for check-up following her traces of vomiting, and when they were issued with PF-3 from the police which was on the next day, the 11th. In terms of Pw3, this time, the victim was examined by ultrasound and urine test discovering she was 7 weeks pregnant. It has been stated by Pwl that they had sex on 20th August. Pregnancy test was conducted on I 0th and 11th October 2017, which is 7 weeks from the date of sex. I entertain no doubt; the victim was pregnant and there was no conflicting evidence for the prosecution on this aspect. There is no merit in the 4th, 5th and 6th grounds appeal. The seventh ground of appeal is on use of DNA evidence. The position of the law on use of DNA evidence in rape cases was stated by the Court of Appeal in the case of Mussa Sebastiani v. R, Criminal Appeal No. 406 of 2018, on page 8, that: - "It is, we think, enough for us to say DNA test is not a popular means ofproving rape in our jurisdiction, given its limitations, perhaps. This informs our settled position that the best evidence of rape comes from the victim." It can be said, although the Court did not say, DNA evidence cannot or should not be used to prove

rape, it may be used where the circumstances of the case so permit. Absence of such evidence may not affect the trial given the fact that it is in terms of section 127(6) of the Evidence Act and the cited decision above, there is credible evidence of the victim. I find no merit in this ground as well. As I have shown before, the 1st and 8th grounds are on the defence case. It was submitted by the appellant that the trial court did not evaluate and give weight his defence. It is true as well as submitted by the learned state attorney that the evidence of the defence/ appellant was not evaluated. I have no doubt, failure to evaluate his evidence did not affect his rights. But still, this court is not excused from going after his evidence as I am hereby doing to see if there is merit on his ground of appeal. The appellant said, he did not commit the offence and that he did not even know the victim before. He also said, he was not in the village on the date. This, at law is a defence of alibi which is governed by section 194(4) of the CPA and the accused must give the notice before the prosecution closes its case. Since the appellant did not comply with section 194(4) and (5). The trial court was justified under subsection 6 of the section to accord no weight that defence. But still, the trial did not convict based on the weakness of the defence case, all it said is that after

evaluating the prosecution case, it was satisfied that the charges were proved beyond reasonable doubt. I find no merit in these grounds as well. In the same way, there is no merit in the 9th ground of appeal. The appellant has lamented that since there was no birth certificate of the victim, then her age was not proved. As it is in Ms. Makala's position, so is the law. It has been consistently held in this jurisdiction that age of the victim may be proved by a victim, parents, guardians or a medical doctor. In terms of section 113 of the Law of the Child Act, birth certificate or medical evidence may be used to prove age of the victim. It was held in the case of Leonard Sakata vs The Director of Public Page. 5 Hon. AUGUSTINE RWIZILE Prosecutions, (CAT). Criminal Appeal No. 235 of2019 on pages 13-14 that:- " ... whi/st there may be other ways ofproving age such as by evidence given by the victim, relative, parent, medical practitioner or where available by production of a birth certificate, like any other fact age may be deduced from the evidence availed to the court. " In the present appeal, the record reveals that the victim when asked by the court about her age before giving evidence, she said was 16 years and was a form IV student. Pw2 her parent did not say anything about her age. Pw3, the medical doctor just as the victim said she is aged 16 years. In terms section 1 I 4

(2) of the Law of the Child Act, it is provided that where the court has failed to establish the correct age of the person brought before it, then the age stated by that person, shall be deemed to be the correct age of that person. A form IV student in my view is mature enough to know her age and it was supported by Pw3 a medical doctor. Therefore, I found no reason to doubt on the age of the victim. Lastly is the 2nd and 3rd grounds on whether the case was proved. It is true that the first count facing the appellant was rape. It is clearly statutory rape because the victim is proved to be under 18 years, wherefore consent is immaterial. It is as clear as crystal from evidence of Pw 1, Pw2 and Pw3, that the victim (Pw l) was pregnant. It follows therefore that her pregnancy cannot be held to be from any other cause than rape. The PF-3 which is exhibit Pl, only showed, the victim was 7 weeks pregnant so testified Pw3. As found by both parties, exhibit Pl was not read in court upon admission. By no means, it cannot be maintained, it should be expunged from the record, as I hereby do. It was testified by Pwl that she was a student in form IV. Her evidence was supported by Pw5 a headmaster of Msezero secondary school. The evidence of Pw5 was supported by the school admission register and school attendance register, exhibits P2 and P3 respectively. Like, exhibit Pl, the same were

not read in court and therefore face the similar fate. They are hereby expunged from the record. In totality, even after having expunged from the record, all documentary evidence, still, I have no doubt that the victim was a schoolgirl, aged 16 years, was pregnant and was therefore raped. In Selemani Makurnba v. Republic [2006] TLR 149, it was held that medical report or the evidence of a doctor may help to show that there was sexual intercourse, but it does not prove that there was rape, that is unconsented sex, even if bruises are observed in the female sexual organ. 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 ... that was rape, notwithstanding that no doctor gave evidence and no PF3 was put in evidence. The victim, Pwl said to have been raped by the appellant, and the appellant is responsible for her pregnant. The same was strongly denied by the appellant that he did not rape the victim, he was at Geita, far away from where the incident occurred. I have shown before that the appellant's defence sounds as an alibi. I have as well shown how he did not apply the law to properly issue the notice of that alibi before the hearing or before prosecution closed its case under section 194(4) and (5) of the CPA. The trial court, whether

by forgetfulness or by designed did not accord any weight or speak about it in the judgement. The remaining part of the evidence by the appellant were just mere denials. I have held before in this judgement that in terms section 127(6) of the Evidence Act, evidence of the victim is the best and may be used to convict even if not corroborated. In order to bring down this point, it is better to cite the law; Page. 6 Hon. AUGUSTINE RWIZILE Section 127(6) "Notwithstanding the preceding provisions of this section, where in criminal proceedings involving sexual offence the only independent evidence is that of a child of tender age 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 or as the case may be the victim ofsexual offence on its own merits, notwithstanding that such evidence is not corroborated, proceed to convict, iffor reasons to be recorded in the proceedings, the court is satisfied that the child of tender age or the victim ofthe sexual offence is telling nothing but the truth... " The victim in this case was 16 years, and therefore not of tender age as per section 127(4) of the Evidence Act. The law is therefore clear and needs no further construction; in order to act upon the evidence of the victim of sexual offence as in this case, credibility of her evidence

must be accessed and be satisfied that the witness tells nothing but the truth. In the case ofFahadi Khalifa v. R, Criminal appeal No 573 of 2020, it was stated by the Court of Appeal that : - "However, we should remark that it is not always the case that such evidence is taken as wholesome, believed and acted upon to convict an accused person without considering other evidence and circumstances of the case. " In her evidence, Pwl said, and will reproduce the whole of his examination in chief for clarity. "I live with my parents at Twabagondozi. I know Mzurikwao Revocatus, he asked me for having relationship. On 20th August 2017, I went to my step mother at Malagalasi. I met the accused near new stand ofKibondo. I asked him an exercise book as he previously told me, he is schooling. We went to his house and he entered in his house, I stayed out. He insisted me to enter inside, I refused. He insisted and later, I entered inside, he locked the door and by force he had sex with me as I made efforts but he used his strength. Ifelt pains, then I left the house. I did not tell my parents as I was afraid. In October 2017, I discovered i was abnormal with signs of vomiting. I told my father who took me to the hospital and I was taken for examination of blood and urine and they found I had pregnancy for 7 weeks. On 11th October 2017, I was asked to go to the police post for a PFJ. The

accused is responsible for this pregnancy... " In my view, from the evidence of Pwl, it would appear, the appellant had known the victim before. They had met previously and had a talk. That is why when they met on the fateful day, Pwl asked for the exercise books from him. It further shows, they led the way towards his house. In my examination of this evidence, I find it plausible and consistent with a normal course of doing things. I find no reason why Pwl would concoct as such a strange story for no reason. But still, when cross- examined by the appellant Pwl showed they were in constant communication even after the discovery that she was pregnant. She said, she promised to give her money for abortion and was a well threatened. She went further and mentioned the mobile phone numbers that were used to communicate. The total denial by the appellant that he never met her and does not know her also raises doubt and corroborates the prosecution case. I have no reason as well to doubt the evidence of Pw4 who said, was invited by Pw2, father of the victim in a meeting held at his home where he met people identified as the appellant's parents to settle the matter out of court. He was told, their child impregnated his daughter. The meeting according to Pw4 was held on 9th November 2017. Page. 7 Hon. AUGUSTINE RWIZILE This meeting was as well said by Pw2. All this shows there was

common understanding between the appellant and Pwl on the same matter. I do not think the appellant was right in his defence. In Hassan Kamunyu vs R, Criminal Appeal No. 277 of 216, (pages 13) the Court of Appeal on 21st August 2018, had this to say in respect of how rape cases have to be proved; Thus words like "[he] removed my underwear and started intercoursing me" in Matende/e Nchanga @ Awilo (supra), "sexual intercourse" or "have sex" in Hassan Bakari@ Mamajicho (supra), "[he} undressed me and started to have sex with me" in Nkanga Daudi Nkanga (supra), "kanifanyia tabia mbaya" in Athumani Hassan (supra), "alinifanya matusi" in [umanne Shabani Mrondo (supra) or "he put his dudu in my vagina" in Simon Erro (supra) or "did sex me by force", "this accused raped me without my consent", "While this accused was sexing me I alarmed" and "fortunately one B sio T came to my home and he found this accused still sexing" in Baha Dagari (supra) were, though not explicitly described, taken by the court to make reference to penetration of the penis of the accused person into the vagina of the victim. The record shows Pwl did not elaborated on how she was raped. She simply said, she entered in his house and was raped. She felt pain and then left but did not tell anyone until she was discovered pregnant. In what sounds as a slight shift, from the position in the case of Hassan Kamunyu

(supra), on 27th August 2019, the Court of Appeal in the case Barikiel Akoo Batana v. The Republic, (CAT), Criminal Appeal No. 530 of 2016, on page 12 held: - " ... it is trite law that rape should be proved. This means that the victim of the offence should state what the accused did to her to constitute the offence of rape. It is not enough for one to say that she was raped without more." In this case, the Court appeal relied on its earlier on position in the case of Ex- B 9690 SSGT Daniel Mshambala v. R, Criminal Appeal No. 183 of 2004. Based on the principle of applying the latest decision in case two cases of the Court conflict, I ought to follow the case of Barikiel Akoo Batana, if facts were constant. But in this case, there is more, as the result of rape, the victim was made pregnant. There is no way one would be made pregnant without penetration, not matter how slight. It was proved beyond doubt that the appellant committed the offence. It is so because as I have shown, she was raped on 20th August 2017, she was found pregnant on 10th and 11th October which is 7 weeks. Pw5 told the court that she was a student at Misezero secondary school where he was a headmaster. These facts did not occur by coincidence, it is how things happened. Therefore, this court finds no merit in the last two grounds appeal as well. That being the case, this appeal is dismissed for being unmerited. Dated at KIGOMA ZONE this 4th of October 2024. A. K. RWIZILE, J

JUDGE OF THE HIGH COURT Page. 8 Hon. AUGUSTINE RWIZILE