semuyemba

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA DC CRIMINAL APPEAL NO. 9611 OF 2024 (Originating from the decision of the Resident Magistrate's Court of Tabora in Criminal Case No, 45 of2022) PIUS S/O SEMUYEMBA....... ......................................... APPELLANT VERSUS THE REPUBLIC......... .................... ............................. ...RESPONDENT JUDGMENT Date of Last Order: 24/06/2024 Date of Delivery: 15/08/2024 MANGO, J. The Appellant stood charged in the Resident Magistrate's Court of Tabora for the offence of rape contrary to sections 130(1) (2)(e) and 131 (2) and (3) of the Penal Code, [ Cap 16 R.E 2022]. It was alleged that, on 18th day of August 2022 at Nsepa suburb, Majengo village within Sikonge District in Tabora Region, the Appellant did have carnal knowledge of a 6-years-old girl. For the purposes of this judgement she will be generally referred to as the victim in order to protect her dignity. After full trial, he was convicted and sentenced to serve thirty (30) years imprisonment. Aggrieved by conviction and sentence, the Appellant filed this appeal armed with five grounds of appeal which read as follows: i 1. That the prosecution case was not proved against the Appellant beyond reasonable doubt as required by law. 2. That PW1 was not positive whether Pius Peter is one and the same person as Plus Semuyemba. 3. That penetration as required by law was not established by the victim in her testimony during the trial court. 4. That the age of the victim of the offence was not cogently established by the prosecution. 5. That the defence of the Appellant was not considered by the trial Magistrate at the time of composing judgement. During hearing of the appeal/ the Appellant fended for himself/ whereas Ms Wivina Rwebangira, learned State Attorney appeared for the Republic/ Respondent. When the court invited parties to argue the appeal, the Appellant had nothing to add rather than adopting his grounds of appeal to form part of his submission. On her part Ms Rwebangira opposed the appeal. She submitted on the first and third grounds of appeal collectively. The main challenges posed by the Appellant in the two grounds are the alleged failure by the prosecution to prove penetration and in general, the alleged prosecution's failure to prove the case against the Appellant on the required standards. She submitted that, the prosecution managed to prove penetration through testimony of the victim child who testified as PWl. She argued that, for rape under section 130(1) (2)(e) of the Penal Code to be established, the prosecution need to prove that the male person had sexual intercourse with a girl below 18 years. The learned State Attorney referred the Court to the testimony of 2 PW1. She submitted that, the victim child stated clearly that, the accused who she mentioned by the names of Pius Peter inserted his penis into her vagina. According to the learned State Attorney, the victim's testimony is corroborated by PW2, Magreth Malugu a grandmother of the victim and PW3, Dr. Yusuph Peterson Kisunza a medical doctor who examined the victim child upon request by the Police via PF3. She explained the contents of testimonies of the two witnesses and how the same proved penetration in this matter. She submitted that, PW2 testified that she saw the victim coming back home while crying, the victim told her that she was raped by the Appellant. PW2 examined the victim and found her vagina with blood and sperms. PW3, observed that the victim had bruises and that the bruises were caused by penetration by a blunt object. He also filled a PF3 which was tendered and admitted as evidence. It was her opinion that, the evidence adduced by PW1, PW2 and PW3 proved the case against the Appellant. The Attorney went on to argue that the Appellant had not cross examined the Victim and PW2 when they testified before the court. Citing the case of Emmanul Saguda @Sulukuka Vs Republic Criminal Appeal No. 422 "B"of 2013 CAT at Ta bora, she argued that, failure to cross examine a witness suggests that the accused conceded material particulars contained in the testimonies of the prosecution witnesses. On the second ground of appeal Ms Rwebangira argued that, it is true that the victim mentioned the assailant to be Pius Peter and not Pius Semuyemba. However, the victim mentioned that they stay in the same village, mentioned 3 his work as a business man and she identified him before the court. She urged this Court to take into account the fact that, the victim was a child aged 6 years and what she knew is that the Appellant's name was Pius Peter and that the Appellant did not raise existence of the alleged discrepancies regarding his names during trial. On the fourth ground of appeal which concerns the age of a victim, she submitted that, the victim stated clearly that she is aged 6 years. PW2 also testified to the effect that the victim child is aged 6 years. It was her contention that the age of the victim is proved by the victim herself, relative, doctor or birth certificate as it was stated in the case of Issaya Renatus vs Republic (Criminal Appeal No. 542 of 2015) [2016] TZCA 218 (29 April 2016) and the case of Elia Richard Shoo vs Republic Criminal Appeal No. 196 of 2021 CAT at Moshi. Alternatively, she urged this court to infer age of the victim from the available evidence such as the fact that the victim child was studying at standard one. On the fifth ground of appeal Ms Rwebangira averred that, the judgement of the trial Court considered testimony of the Appellant. She however, invited this court being the first appellate court to re-evaluate evidence on record in case it will find that defence evidence was not adequately considered by the Trial Court. She cited the case of Mosi Chacha @ Iranga vs Republic Criminal Appeal No. 508 of 2019 CAT at Musoma on the powers of the first appellate Court to re-evaluate evidence on record and reach its own findings. She then prayed the appeal to be dismissed. 4 In his brief rejoinder, the Appellant urged this court to consider the contradiction of names from Pius Peter who was mentioned by the victim to Pius Semuyemba. She claimed that, his names are Pius Semuyemba and not Pius Peter. Lastly it was his complaint that he was not properly heard by the trial court and that the trial court did not allow him to complete his testimony. He prayed the appeal be allowed. I have considered grounds of appeal raised by the Appellant, submissions by both parties and Court record. I will start with the third ground of appeal in which the Appellant alleges that the prosecution failed to prove penetration. From Court record it is not disputed that the victim child was raped and penetration was proved beyond reasonable doubts. Proof that the victim was raped is found from the testimony of the victim herself who stated expressly that the Appellant inserted his penis into her vagina. It is trite law that in sexual offences, evidence of the victim is enough to establish the case against an accused person unless there are reasons that makes victim's testimony incredible. See the decision of the Court of Appeal of Tanzania in the case of Selemani Makumba vs Republic (Criminal Appeal 94 of 1999) [2006] TZCA 96 (21 August 2006). In the Appeal at hand, the victim's testimony is supported by the testimony of her grandmother, Magreth Malugu (PW2) who examined the victim child immediately after the incident and found blood together with discharges that she mentioned to be sperms. There is also evidence from Dr. Yusuph Peterson Kisunza, the doctor who testified clearly that, he examined the victim child and found the victim's vagina had bruises that suggest to have been caused by penetration of a blunt object. His observations and expert 5 opinion is also reflected in the PF3 which was tendered and admitted by the Court without objection. With all those pieces of evidence, the prosecution cannot be said to have failed to prove penetration. Another crucial issue is the age of the victim as reflected in the fourth ground of appeal. In this, I join hands with the State Attorney on the assertion that the age of a victim was established. PW1 stated clearly that she was 6 years old, her grandmother (PW2) also testified that, the victim was 6 years old. Age of the victim can be established by among other persons, the victim and a relative as it was held in a number of cases. In the case of Issaya Renatus supra the Court of Appeal observed that: "That being so, it is most desirable that the evidence as to proof of age be given by the victim, relative, parent, medical practitioner or, where available, by the production of a birth certificate. We are, however, far from suggesting that proof of age must, of necessity, be derived from such evidence. There may be cases, in our view, where the court may infer the existence of any fact including the age of a victim..." From the above observations, I find testimony of PW2 to have sufficiently established the age of the victim child to be 6 years. On the second ground of appeal, the Appellant alleges that the victim was raped by a different person and not him because his names are Pius Semuyemba and not Pius Peter who was mentioned by the victim child. The charge lodged against Appellant described him as Pius Simuyemba while the victim testified that the Appellant is Pius Peter alias Pius. The victim went 6 further to describe the Appellant as a business man living in the same village where the victim and her family live. Also as rightly argued by Ms Rwebangira, the Appellant failed to cross examine the victim during trial, this implies that he agreed to whatever was stated by the victim. Moreover, it was the description and the names of the assailant that were mentioned by the victim that made the Appellant to be arrested and prosecuted. Thus, allegations that the names Pius Peter and Pius Simuyemba refer to different persons is just an afterthought which is not borne by record. I hold so because it is an elementary principle of evidence that he who allege must prove as provided under section 110 of the Evidence Act, [Cap. 6 R.E 2022]. Thus, the Appellant who disputes that the names Pius Peter referred to him ought to have proved so before the trial Court. Unfortunately, there is nowhere in Court record where the Appellant challenged the names Pius Peter to be not referring to him. In that regard, raising the issue during appeal is merely an afterthought. The fifth ground of appeal is based on the allegation that the Appellant's evidence was not considered during composition of judgement. Records reveal that, despite the fact that the Appellant briefly denied the charge against him as indicated at page 14 of typed proceedings, the court considered his defence during composition of judgement as it is seen oh page 3 of the trial court's judgement. The fact that the appellant's evidence was rejected, does not mean that it was not considered, this stance was also discussed in the case of Jafari Mohamed vs Republic (Criminal Appeal No. 112 of 2006) [2013] TZCA 344 (15 March 2013). Therefore, this ground also fails. 7 After disposing the four grounds of appeal, I can now determine the first ground of appeal which challenges the prosecution for its alleged failure to prove the case against the Appellant beyond reasonable doubts. Findings of this Court on the second, third, fourth and fifth grounds of appeal establishes that the prosecution successfully proved that the Appellant raped the victim girl. Thus, this ground is unmeritorious and bound to fail. From the foregoing reasons, I find this appeal to be without a merit and I hereby dismiss it in its entirety. The right of further appeal is hereby explained to whoever aggrieved with this decision. Dated at Tabora this 15th day of August 2024 Z. D. MANGO JUDGE 8