optatus elias

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA SUB-REGISTRY

AT SUMBAWANGA (DC) CRIMINAL APPEAL No. 14644 OF 2024 (Originating from the decision of GJ. William, SRM, District Court of Sumbawanga, at Sumbawanga in Criminal Case No. 26 of2023)

BETWEEN OPTATUS S/O ELIAS ©PAULO @ DPI............ ....APPELLANT

VERSUS THE REPUBLIC....... ........ .RESPONDENT Last order: August 6th, 2024 Judgement: October 3rd. 2024

JUDGMENT NANG E LA, J:. The appellant was arraigned before the District Court of Sumbawanga facing the charges of rape, contrary to sections 130 (1) & (2) (e) and 131 (1) of the Penal Code, and unnatural offence, contrary to sections 154(1) (a) and (2) of the Penal Code, Cap. 16 R.E.

2022. The case against the appellant before the trial court was heard, and the trial court found him guilty of the two counts. He was convicted and sentenced, first to serve a 30-year imprisonment in respect of the first count of rape and, second, to serve a lifetime imprisonment in respect of the second count. Both sentences were ordered to run concurrently. Page 1 of 12 Aggrieved by the conviction and sentence, the appellant has appealed before this court, raising seven grounds of appeal to wit, that: 1. The prosecution side failed to prove the charges laid against him to the standards required by the law, 2. That, trial court erred when it convicted the appellant based on the prosecution evidence, while the same had contradictions as regards the names of the victim.

3. That the trial court erred in law and in fact when it convicted and sentenced the appellant relying on the prosecution evidence while the prosecution side failed to call the chairman to whom it was alleged that the incident was reported.

4. That, the trial court totally erred in law and in fact when it convicted and sentenced the appellant based on Exh. PF-3 while the same was illegal because while the incident was alleged to have happened on the 06.03.2023, the PF-3 was filled by the doctor on the 10.03.2023, almost four days later, something that raises doubts, 5. That, the trial court erred both in law and in fact when it convicted and sentenced the appellant without taking into consideration that there were contradictions in the evidence of Pw-1, Pw-2 and Pw-4, since Pw-1 (the mother of the victim) testified that the victim was ordered to go and buy cigarettes, but Pw-4 testified that the victim was asked to pick a phone in the appellants house. Page 2 of12 6. That, the trial magistrate court erred in law and in fact when it convicted the appellant based on the evidence of the prosecution side without noting that no birth certificate was tendered to prove the age of the victim.

7. That, the defence evidence which was adduced by the appellant was not considered. When the parties appeared before this court on the 6th day of September2024, the appellant urged this court to consider his grounds of appeal and uphold the same, However, Mr. Jackson Komba, learned state attorney appearing for the respondent, opposed this appeal. He implored it to dismiss this appeal for lack of sufficient merits. Expounding his position further, Mr. Komba chose to dispose of the first, third, fourth, and sixth grounds of appeal together. These grounds are essentially concerned with whether the prosecution was able to prove the charges against the appellant to the required standards. Grounds numbers two and seven were, therefore, argued separately. Mr. Komba He told this court that, at trial, the appellant faced two offenses; one was the offence of rape, and the second count was about an unnatural offense, and upon conviction he Page 3 of 12 was sentenced to 30 years for the first count of rape and life imprisonment for the second, the two sentences to run concurrently. He submitted further that; the appellant was also required to pay TZS 2,000,000 as compensation to the victim. As regards the contention that the charges were not proved, Mr. Komba submitted that the charges were proved beyond reasonable doubt. He contended, as regards the first count, all counts involved the

same victim (XD) aged 5years old. Mr. Komba contended that proof of the offence of rape {statutory rape for that matter) involves three ingredients, to wit, that: (1.) the age of the victim. (2) The second is proof of penetration of the offender's penis into the vagina of the victim and, (3) that, proof that the offender was the one who committed the alleged act of rape. He relied on the case of John Ngusa vs. Republic, Criminal Appeal No. 593 of 2020. According to Mr. Komba, all these three elements were fully established by the prosecution. He submitted that the appellant's contention that no birth certificate was produced in court to prove the age of the victim was baseless. Indeed, I would agree with Mr. Komba that it is not only the birth Page 4 of 1.2 certificate which can be relied on to prove the age of the victim. The victim herself, if she can tell the truth or her parents may as well satisfy that requirement. In the case of John Ngusa (supra), the Court of Appeal of Tanzania noted that: "the testimonies on the age of a victim should come: from the victim, her parents, birth certificates, school records, or medical experts." In his testimony, Mr. Komba submitted that even if there was no certificate of birth to prove the age of the victim, still the prosecution did prove that the victim was under the age of 18 based on the testimony of the victim alone, and this is

evident on page 10 of the proceedings where it is revealed that the trial court did carry out an inquiry {voire dire test) and the victim promised to tell the truth. Essentially, as the proceedings would show on pages IQ-11 thereof, all such cautious efforts were taken by the trial court, and the court was satisfied that even if the victim did not know what an oath was, she did promise to tell the truth. The record shows that Pw-2 (who was the victim) was recorded to be aged 5 years. In my view, even if the recording of his name and age Page 5 of 12 comes before she narrated what happened, such could not have just come from nowhere. The inference I draw therefore is that the victim must have been asked her name and age, and the court proceeded to record all that. But even if it was not that way, since the victim was a standard one pupil as Pw-1, who was her mother, testified, an inference in terms of Section 122 of the Evidence Act, Cap. 6 R.E. 2022, could be drawn to the effect that she was a child of tender age. In the above-cited case of John Ngusa (supra), the Court of Appeal of Tanzania was of the view that, in terms of Section 122 of the Evidence Act, a conclusion could still be made that, in the circumstances of the case, the victim was under the age of eighteen years. See also the case of Mashaka Marwa vs. Republic, Criminal Appeal No. 138 of 2018, (unreported) (on page

pages 23-25). As such, the age of the victim was fully established, and I am in full agreement with the learned state attorney that the courts findings on that cannot be faulted. As regards the issue of penetration, which is also an essential ingredient, Mr. Komba argued that the same was fully established. In his appeal, however, the appellant had faulted Page 6 of 12 the PF-3, which was tendered in court as evidence to prove that the victim had been molested by the appellant. In his submission, the appellant questioned the propriety of such PF-3, which was filled some four days after the incident. Although Mr. Komba tried to explain why such delay was occasioned, the appellant did raise an important concern regarding his being arrested on the 6th of March 2023 and the PF3 being filled on the 10th of March 2023. The explanations offered by Mr. Komba to the effect that the victim's problem of being raped came to the knowledge of Pw-1 lately as the victim was threatened not to disclose the incident were unsatisfactory. For that matter, I would expunge the PF-3 from the record, as the same could not have been relied upon having been filled some four days after the fact. But does such an act of expunging the PF-3 from the record for being unreliable evidence tilt the balances in favour of the appellant considering the circumstances and the rest of the facts surrounding the

whole incident? I do not think so. Page 7 of12 I hold it that way because the testimony of Pw-2 (the victim) was well received. She did narrate to the court how the appellant had raped and even had carnal knowledge of her against the order of nature, that the whole ordeal was painful, and that the appellant closed her mouth and later threatened her not to disclose the matter to anybody. In law, and specifically in cases involving rape incidents, the testimony of the victim herself is to be taken seriously regarding proof of penetration. That position was put across in the case of Seleman Mkumba vs. Republic, [2006] T.L.R.

379. In that case, the court was of the firm view that in sexual offences the evidence of the victim is the best evidence, (see case of Dolnald Mwanawima vs. DPP, Crim. Appeal No. 352 of 2019. (see pages 19-20)), although conviction may as well be sustained when there is other cogent evidence on the record. See the case of Nyasani Bichana vs. Republic (1958) E.A.

190. In the case at hand, apart from the testimony of Pw-2 (the victim), who narrated to the court how the appellant raped and molested her against the order of nature, the other reliable Page 8 of 12 testimony is that of Pw-4, who recorded a caution statement of the appellant, which stated was also admitted in court as Exh.P- 2, after the trial court had successfully carried out an inquiry following the appellant's repudiation that he never recorded such a statement. Considering all that, I do not hesitate to hold that the issue of penetration was proved, first based on the testimony of Pw-2 herself and the confession of the appellant recorded in his cautioned statement received in court as Exh.P-2. The victim’s mother, Pw-i, could also be trusted to provide corroborated testimony because, despite her lack of expertise, she was able to see with her own eyes that her daughter's abdomen was unable to contain it due to the injuries the daughter had sustained from the rape. This observation prompted Pw-1 to report the incident to the police. It also follows that the third element—that the appellant was the one who carried out these heinous acts against Pw-2 (the Victim)—was supported by the testimony of Pw-2 and Exh. P-2. In light of all of that, I concur With Mr. Komba’s assertion that the prosecution provided sufficient evidence to establish the Page 9 of 12 rape offense in

violation of sections 130 (1) & (2) (e) and 131 (1) of the Penal Code, Cap. 16 R.E 2022. As regards the proof of the second count, Mr. Komba submitted that there is not much difference from what he submitted when establishing the offence of rape, save that this was a sexual act done by the victim against the order of nature. According to his submission, page 11 of the proceedings makes it evident that the victim did testify in court and describe the abuse she suffered at the hands of the appellant, which went against the natural order. In law, as stated in sections 154(l)(a) and (2) of the Penal Code, Cap. 16 R.E. 2022, that act constituted an offence and, hence, was punishable with life imprisonment. Mr. Komba submitted that, the testimony of Pw-3 did also establish on page 13 of the proceedings that there was penetration on both the vagina and the anus of the victim and did fill a PF-3. As I stated earlier here above, the PF-3 that was filled some four days later was unreliable and I have expunged it from the record. However, as I stated earlier, the victim's testimony was unambiguous. Considering, as well, what the Page 10 of 12 appellants stated in Exh.P-2, that was sufficient to prove that he had failed to contain his insatiable lusts and allowed them to drive him to breach the law and his own moral code. As correctly asserted by Mr. Komba, as per Section 27 of the TEA,

Cap. 6 R.E. 2022, any voluntary confession can be relied upon as evidence against the maker. As regards the appellant's second ground of appeal which is to the effect that there was contradicts as regards the names of the victim, I would agree with Mr. Komba that such was a trivial and an immaterial fact. The charge sheet was very clear who the victim was and itself was sufficient to pinpoint who was the victim. As regards the seven ground of appeal I also find it to be unmerited since the trial court evaluated all evidence placed before it is including that of the appellant who was the only defence witness and had nothing much to offer in defence. While I am indeed mindful that conviction is not and should not be based on the weakness of the defence case but based on the strength of the prosecution case which must be proved beyond reasonable doubts, I am contented that the Page 11 of 12 prosecution case was proved to such required standards and, hence, the appeal lacks merits. In the circumstances, I will dismiss as unmerited, all seven grounds of appeal raised by the appellant. The trial court's decision was thus correctly arrived at, and justice was meted out on both parties. Appeal dismissed in its entirety. It is so ordered. DATED AT SUMBAWANGA ON THIS 03rd DAY OF OCTOBER 2024

DEO JOHN NANGELA

JUDGE Right to appeal is hereby explained. Page 12 of 12