said seleman vs republic 2021 tzhc 7055 11 november 2021

IN THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA

SUMBAWANGA DISTRICT REGISTRY

AT SUMBAWANGA CRIMINAL APPEAL NO. 60 OF 2020 (Originating from Mpanda District Court Criminal Case No. 184 of 2019) SAID SELEMAN........ .................................... APPELLANT

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

JUDGMENT Date of last Order: 06/10/ 2021 Date of Judgement: 11/ 11/ 2021 NDUNGURU, J. This appeal arises from the decision of the District Court of Mpanda at Mpanda (henceforth the trial court). The appellant Said Seleman was arraigned in Criminal Case No. 184 of 2019 for the two counts. The first count is offence of abduction contrary to section 133 of the Penal Code, Cap 16 RE 2019. The second count is rape contrary to section 130 (1) and (2) (e) and 131 (1) of the Penal Code, Cap 16 RE 2019. He was found guilty, convicted and sentenced to serve thirty (30) i years imprisonment in respect of each count which was to run consecutively. Aggrieved by the trial court decision, the appellant lodged to this court five (5) grounds of petition of appeal. However, after I read them between lines, I found basically the appellant's complainant is that the case against him was not proved beyond reasonable doubt. At the trial court the prosecution alleged that on diverse dates between 23rd day of November 2019 and 14th day of December 2019 at Msasani area within Mpanda District in Katavi Region with intent to marry the appellant did unlawful take away the against her will and had sexual intercourse with one Tumsime Mathias @ Ngemera a Child of 16 years of age. The appellant was arrested and as earlier stated charged before District Court of Mpanda. After full trial he was found guilty,

convicted in respect of the two counts and accordingly sentenced as hinted upon. When the appeal was called on for hearing, the appellant appeared in person, unrepresented whereas the respondent cum republic had the legal service of Mr. Simon Peres - Learned State Attorney. 2 Arguing in support of his appeal, the appellant prayed for the court to adopt his grounds of appeal he has lodged and the appeal be allowed. In reply thereto, Mr. Simon Peres learned state attorney resisted the appeal. Submitting in respect of the first count Mr. Peres submitted that the offence was proved, however the sentence was excessive. Mr. Peres informed this court that the punishment for the offence of abduction is 7 years but the appellant was sentenced to serve 30 years in jail. He submitted that the evidence pertaining the offence was watertight. He said the offence was proved based on the evidence of PW1. The victim told the court the way she was taken by the appellant out of the custody of her parents from 21/11/2014 up to 03/12/ 2019 for the purpose of marrying her. The victim told the court various places where she was hidden and various efforts the appellant took to hide her, including his intention of sending her to Mororgoro. Mr. Peres stated that the evidence of PW1 is supported by the evidence of PW2 who told the court on how PW1 disappeared, the effort PW2 used till the arrest of the

appellant who was together with the victim. Mr Peres concluded that the evidence proved the 1st count of abduction as the appellant retained the victim for 3 weeks from the custody of the 3 parents, and it was against her will because the victim was below 18 years. Thus, he therefore was of the view that the sentence given was proper. As regards the second count, Mr. Peres submitted that the offence was proved beyond reasonable doubt. He stated that PW1 is under age and the same is proved by PW1 and PW2, the mother of the victim who tendered birth certificate Exhibit - P2. Mr. Peres said such proof of age removed the requirement of consent. Further, Mr. Peres as regards the question of penetration, which is the ingredient of the offence of rape as required by section 130 (4) of the Penal Code submitted that PW4 the Medical Doctor examined PW1 and found no hymen and opined that PW1 was penetrated by blunt object. That piece of evidence is corroborated by the evidence of PW1 who is the victim, thus he said her evidence is the best one as per the case of Seleman Makumba's Case. Mr. Peres stated that PW1 told the trial court that during all the time she was under the custody of the appellant was doing sexual intercourse. Mr. Peres was satisfied that the appellant's case was proved beyond reasonable doubt as decided by the trial court, thus he prayed for the 4 appeal be dismissed,

the conviction and sentence for the 2nd count be upheld and for the 1st count, the sentence be corrected. In rejoinder, the appellant having heard what learned state attorney has submitted responded that there was no evidence that he sent the victim to Makanyagio, Kawejense and Msasani. He further argued that there was no independent witness from those area. He submitted that PW1 and PW2 are daughter and mother respectively, thus he said it is very easy for them to conspire. As regards the evidence of PW4, a medical doctor the appellant argued that he has never told the court that PW1 was raped, thus he prayed his appeal be allowed. I have keenly followed the arguments of the appellant and that of Mr Simon Peres for the respondent cum republic during the hearing of this appeal. I have as well read between the lines the appellant's grounds of complaint and the entire proceedings of the trial court. The question to determine is whether the appeal has merit. The appellant herein was charged with two counts, first count is abduction contrary to section 133 and, second count is rape contrary to section 130 (1) (2) (e) and 131, all sections of the Penal Code, R:E 2019. 5 However, for the offence of rape, it is now a trite law that in sexual offences the most important evidence is that of the victim of crime as reflected under section 127 (7) of the Tanzania Evidence Act, Cap 6

RE 2019. Also, the position was reinstated in the case of Seleman Makumba, Criminal Appeal No. 94 of 1999, unreported. The statutory law and the case law, all insists that for the offence of rape, the best evidence has to come from the victim of crime. Again, for the purpose of proving the offence of rape, section 130 (4) (a) of the Penal Code is of paramount to be considered, which reads; (4) for the purposes ofproving the offence of rape (a) Penetration however slight is sufficient to constitute the sexual intercourse necessary to the offence, [emphasis added]. In this case at hand, the offence of rape was alleged to be committed between 23rd of November 2019 and 14th of December 2019 at Msasani area within Mpanda District in Katavi by the appellant. The key evidence by the prosecution was that led by the victim herself (PW1) who when was testifying in this case, she had this to tell the trial court: 6 "J study at St Mary's Secondary School in form IVB. I recall 1st September 2019 we were at school where the school in the end of September was dosed for 2 weeks. I know SAID SELEMAN as my boyfriend, since September 2019 when the school was dosed. We were friends for 3 months we were doing sexual act at Msasani street in the room of SAID SELEMAN. When the school was opened, I was a day scholar. The said SAID SELEMAN is a bodaboda driver he is here in the dock. IVie were meeting

on weekends. I was staying at Kasimba street. We have done sexual act several times with the accused person since September 2019 to November 2019. On 21/11/20191 agreed with the accused person that I should cheat my parents that I am going to school while himself was waiting for me at mwangaza Secondary school area. The accused person was waiting me there. He said he wanted to send me to Morogoro wher he could marry me there. He took me at Mwangaza and sent me to Makanyagio area to his relatives. The accused person had his relatives at Makanyagio, he once sent me there before that date. When we reached there, I found his relatives which he introduced me to them. He told me to remain there white he was processing for getting ticket. I stayed at Makanyagio for 4 days. We did not go to Morogoro, the accused person transferred me from Makanyagio street to Kawajense to his friend 7 called DAUDI where we stayed for one week, he agin transferred me from Kawajense to Msasani to his room. He told me that he transferred me from Makanyagio to Kwajense because the police were tracing us. I stayed at Msasani to the accused person's room for 3 days there after the police arrested us at Msasani at 11:00hrs night. AH this time I was doing sexual act with the accused person. There is a family house at Makanyagio wher the accused person had a room too. He was locking me in the room at Makanyagio

I was being given food, he promised me to send me to Morogoro. At Kawajense also there is a big house which has rooms where we used to sleep in one of the rooms. At Msasani the accused person has rented a room. There are many tenants. Inside his room there is a bed, subwoofer, fan, mirror and a table. I had some past papers, school clothes, casual clothes and a bag. I had a pen, black T- shirt, coat, 2 pairs of sandals, black gown, blouse, body spray and other underwear. The accused person bought a spray and T-shirt for me, other clothes were bought by my parents. The accused person was giving me some money and chips. I used to move with the said bag even when we were arrested. I had the said bag it is purple green if will be shown the said bag I can identify it" 8 Looking at the quoted testimony of the victim above, am doubtful, if the prosecution did prove the ingredient of the offence of rape; that is penetration. PW1 testified well how she became friend with the appellant while she was still at school, her decision to cheat parents and how she was taken by the appellant who was bodaboda and their movement from one place to another in different houses so as to hide themselves and how they slept together doing sexual acts until when they were caught and arrested by the police. It is the question of this first appellate court that, was the statutory rape really committed in

these circumstances? One of the ingredients of the offence of rape is penetration of male organ into the female organ as hinted above. Was there any evidence of penetration? PW1, the victim of rape, merely gave a bare statement that she was doing sexual act with the appellant. In her evidence in chief, she narrated: - we have done sexual act several times with the accused person since September 2019 to November 2019............" PW2 and PW3 in their testimonies did not witness any incident of raping committed between the victim (PW1) and the appellant. PW4 who is 9 clinical officer also testified that on 5th of December 2019 at about 9:30 hrs night he received a victim who had a PF3 alleged to be raped. He examined the victim and found that her hymen was perforated, but neither bruises nor mucus he found and he therefore opined that the victim was penetrated by blunt object. It is on records that the victim and the appellant were arrested on 4th December 2019 at ll:00hrs pm and the victim was examined by PW4 on 5th December 2019 at 9:00hrs at night, almost 23 hours has elapsed. With such duration of time, the result of the examination as conducted by PW4 might not be realistic to prove penetration in my view. Therefore, the testimony of PW4 alone is incapable of incriminating the appellant with the offence of rape. In Mathayo Ngalya @ Shaban vs Republic, Criminal Appeal No. 170

of 2006, unreported) the Court observed: - "The essence of the offence of rape is penetration of the male organ into the vagina. Sub-section (a) of section 130 (4) of the Pena! Code Cap 16 as amended by the sexual offence (special provisions) Act, 1998 provides: - for the purpose of proving the offence of rape, penetration, however slight is sufficient to constitute the sexual intercourse necessary for the offence. For the offence of rape, it is of utmost importance to lead evidence of penetration and not simply to give a general statement io alleging that rape was committed without elaborating what actually took place. It is the duty of the prosecution and the Court to ensure that the witness gives the relevant evidence which proves the offence." In Ex B. 9690 SGT Mshambala vs Republic, Criminal Appeal No. 183 2004, unreported the Court also underscored the importance of the need to lead evidence of penetration of a male organ into the female organ. In the above cited case, the victim of the alleged rape like of this case at hand merely stated the appellant forced her to lay on the ground, he took underwear and raped her. The Court said; - "JVe think, if at all PW1 was raped, she ought to have gone further to explain whether or not the appellant inserted his penis into her vagina, whether or not the penetration, was slight etc." In order to prove the charge against the

appellant in this case, the prosecution had a duty to lead "Unshakeable evidence to prove perpetration. See Joseph Mkumbwa & Another V. Republic, Criminal Appeal No 94 of 2007 ACT (Unreported, and Mbwana Hassan V. Republic, Criminal Appeal No. 98 of 2009 CAT (Unreported). ii In the latter case at page 7 the Court had this to say: In order to prove the charge against the appellant in this case, the prosecution had a duty to lead "Unshakeable evidence to prove penetration." In the case at hand, there is no dispute that no person witnessed the appellant inserting his penis into the vaginal of G.G. (the victim). It was the victim herself who was in a bitter position to prove the court that there was penetration however slight. This is because the best evidence in sexual offences comes from the victim. (See Seleman Makumba's case supra). In the present case, the victim when testifying was 17 years old. To that age I am convinced that the victim was able to tell the court clearly and unequivocally and unambiguously what took place. With the above position of the law, it goes without doubt that, in the instant case the victim and her witnesses did not state that the appellant's male organ penetrated into the vagina of the victim PW1. The testimonies available as per the trial court records shows only bare assertion that victim PW1 had sexual act with the appellant. The evidence of PW1

above and her witnesses and in terms of section 130 (4) of the Penal Code (supra) and on the authority of Seleman Makumba, Criminal Appeal 12 No. 94 of 1999, unreported, it is very clear that the evidence led by the prosecution did not prove the offence of rape, that is a penetration of the appellant penis into the victim vagina. In the case of Seleman Makumba (supra) it was held thus; "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 women where consent is irrelevant that there was penetration" With this short fall on the part of the prosecution case, it can be said that the offence of rape against the appellants was not proved to the standard required by the law. As regards the offence of abduction, in her testimony the victim stated that: - "............... on 21 /ll/ 2091 I agreed with the accused person that I should cheat my parents that I am going to school.........He took me at Mwangaza and sent me to Makanyagio area to his relatives. The accused person had his relatives at Makanyagio, he once sent me there before that date. When we reached there, I found his relatives which introduced me to them. He told me to 13 remain there while he was processing for getting tickets. I stayed at Makanyagio for 4 days.....................i stayed at Msasani to the accused's room for 3

days there............he was locking me in the room at Makanyagio......." That piece of evidence by the PW1 (victim) was corroborated by the evidence of PW2, mother of the victim who testified that on 21/11/2019 PW1 went to school, she had a school bag too. It was during end of term examinations. She left home at 6:30 going to school and at 9:00am hei school teacher MAX called me and told me that Tumsime was not in the examination room. He tried to trace her but could not find her. On 3/12/2019 he got information that her daughter has been found to the room of the accused person and that victim and the accused were arrested and sent to the police station. The other corroborating evidence is that oi PW3 who testified that on 4th December 2019 he was assigned to search the house of the accused person who was arrested previous night with the student (victim) in his room. PW3 stated he successfully retrieved the clothes of the victim in the accused's room. 14 With the above evidence, there is no gainsaying that the appellant abducted the victim as per the provision of section 133 of the Penal Code, [supra]. Hence the offence was proved beyond reasonable doubt. For the foregoing reasons, I quash the conviction and set aside sentence in respect of the second count of rape as it was not proved to the required criminal standards of proof. However, I find that the appellant charged guilty in respect of the first count of abduction. The appellant sentence to serve 30 years in jail is quashed and thereof substituted to serve 7 years in jail. The sentence runs from the day he was convicted by the trial court. It is so ordered. D. B. NDUNGURU

JUDGE 26. 10. 2021 15