JUDGMENT SAIDI HAKIM VS REPUBLIC

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA SONGEA SUB- REGISTRY

AT SONGEA DC. CRIMINAL APPEAL NO. 25913 OF 2024 (Originating from District Court of Tunduru at Tunduru in Criminal Case No. 16255 of 2024) SAIDI HAKIMU ABDALLAH CHIUTIKA………….……………………… APPELLANT

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

JUDGMENT 19th November & 17 December, 2024. KAWISHE, J.: In the District Court of Tunduru at Tunduru, the appellant was charged with the offence of rape contrary to section 130 (1) (2)(e) and 131(1) of the Penal Code (Cap 16 R.E 2022). It was alleged that on 15th March, 2024 the appellant had sexual intercourse with a girl of 12 years whom I shall refer as the victim or girl to conceal her identity. When the charge was read to him, he denied the charges. 1 The trial court convicted and sentenced him to serve thirty-five years in jail and to pay the victim a compensation of TZs. 1,000,000/= (One Million Tanzania shillings only). Irritated with the conviction and sentence of the trial court, he has emerged in this court trying to impugn the judgment with four grounds of appeal as reproduced hereunder: 1. THAT, the court erred in law to convict the appellant and to impose the punishment contrary to the requirements of the Penal Code [Cap 16 R. E 2022].

2. THAT, the trial court erred in law and in fact by relying on the evidence that was produced by PW1 only which was however not corroborated.

3. THAT, the trial district learned magistrate erred in law to convict the appellant by relying on the weakness of the evidence of appellant defence evidence without considering that the prosecution side was on prima facie duty to prove their case beyond reasonable doubt as it is the required standard by law but not to rely on the weakness of defence by considering that the trial learned magistrate failed to record my defence evidence as it I gave during the trial.

4. THAT, the trial district learned magistrate erred in law and in fact by convicting the appellant because the appellant had a witness but the court did not give him an opportunity to call them to appear before the court of law and disclose their evidence. Prior to submerging into the merits of this appeal, it is imperative to state the facts briefly. Before the trial court it was alleged that on 15/03/2024 the accused was at Chiulesi-Lukumbule, Tunduru District at the house of one Khadija Ally Kanduru. That on the same date during morning 2 hours in the village of Chiulesi Village, the accused had carnal knowledge with the victim, a girl of 12 years of age in the house of Khadija Ally Kanduru the victim’s grandmother. That the accused after committing the crime took on his heels to the mineral mines. That the accused was arrested after he returned from the mines. That on 12th June, 2024 the accused was brought to court and the charge was read to him where he pleaded not guilty. During the trial, the prosecution paraded 5 witnesses to prove its case. PW1 the victim testified on how the incident happened. PW2, PW3, PW4 and PW5 corroborated the victim’s evidence. The prosecution tendered one documentary evidence. In his defence, the appellant was the only defence witness. At the end of the trial, the court was satisfied that the prosecution managed to prove the case beyond

a reasonable doubt. That the crime of rape was committed and the one who raped the victim was non-other than the accused. The accused was found guilty of an offence of rape, convicted and sentenced to serve thirty-five years in jail and pay the victim a compensation of TZS. 1,000,000/= (One Million Tanzania shillings only). Aggrieved with the conviction and sentence he has approached this court for an appeal. The appeal was challenged by the respondent/Republic. 3 When the appeal was called for hearing, the respondent was represented by Mr. Gaston Mapunda and Ms. Agness Simba, both learned State Attorneys, whereas the appellant was unrepresented, appeared in person and fended for himself. The Appellant, Mr. Saidi arguing on the first ground of appeal that, the court erred in law to convict the appellant and to impose the punishment contrary to the requirement of the Penal Code (Cap 16 R.E 2022). He disputed the submission of the prosecution that the victim is in standard three and is 12 years old. He added that such evidence was fabricated due to his quarrel with victim’s mother. He claimed that he was not at the scene of crime. That, on the material time claimed that the awful act was committed he was with the victim’s grandfather fishing. The appellant contended that, he called the victim’s grandfather to be his witness but he testified on the side of prosecution. He

continued to submit that, the victim’s mother informed the trial court that he did not rape the victim rather it was to teach him a lesson. That, she offered an apology to the court to set him free. He argued that, the victim stated before the court, that they were using the same room and bed which is not true. 4 Expounding on the second ground of appeal that, the trial court erred in law and in fact by relying on the evidence that was produced by PW1 only which was however not corroborated. The appellant alleged that the victim was not a pupil. He lamented that, the victim’s teacher was to be called to prove that the victim is a pupil. He added that the victim is 17 years old. The appellant averred that the victim is not a pupil as he knows her and she knows him. That they live in the same village. He insisted that it was a fabricated evidence as it was supposed to be supported by the teacher and the victim’s grandmother before the court. He complained that the evidence of PW5 was not adduced in accordance to the law. That the victim had no a PF3. That the same was taken and filed after examination of the victim. He asserted that, the doctor stated that the victim was not raped although she had no hymen. That she is an adult and not new to sexual activities. Wrestling for the third and fourth grounds, that the case was not proved beyond reasonable doubt and the appellant’s

witnesses were denied an opportunity to testify, the appellant stated that the trial court convicted him on the weakness of his defence. That, because he is illiterate he did not examine the witnesses for a long time. That, he cross examined 5 the victim by asking her who trained her to tell lies before the court. Where, she replied that she learned on her own. The appellant condemned the trial magistrate for not allowing the victim’s grandfather to testify on his side. He prayed to this court to allow his appeal and set him free. In her reply submission Ms. Agness State Attorney outrightly stated that they object the appeal. Challenging the first ground of appeal that, the court sentenced him against the Penal Code. She averred that, the trial court convicted the appellant under section 130(1), (2)(e) and 131(1) of the Penal Code (Cap 16 R.E 2022). That the section shows the offence and the elements of the offence. She added that, subsection (2)(e) of the Penal Code (supra) covers the offence, the age of the victim and the punishment for the offence. That it is a sentence of life imprisonment and not less than thirty years. That the trial magistrate at the conclusion of the trial convicted and sentenced the appellant for 35 years imprisonment. Ms. Simba disproved the appellant’s submission that the victim’s age that is, 12 years does not reflect the victim’s class. She stated

that this is a new issue at this appeal. That the matter was not raised before the trial 6 court. She alleged that PW1, the victim, PW2 the victim’s sister and PW3 the victim’s mother testified on the age of the victim but the appellant did not cross examine on the age of the victim or class of the victim in school. To fortify her stance, she cited the case of Kanaku Kidari vs. Republic, Criminal Appeal No. 326 of 2021 CAT where the case of Nyerere Nyague vs Republic, Criminal Appeal No. 67 of 2010 was cited with approval stressing on failure to cross examine. It was the Attorney’s submission that the appellant’s failure to cross examine on the age of the victim, it is taken that he agreed on the age of the victim. She avowed that this ground is baseless and prayed for it to be dismissed. Countering the second ground of appeal, she submitted that page 12 of the trial court’s proceedings clearly shows that PW1 testified. That she testified under oath. She continued to submit that the victim’s testimony started from page 12 to 13 of the trial court’s proceedings. That she testified how the appellant raped her. The Attorney added that, the evidence of PW1 was corroborated by PW2 and PW3. That, PW5 a medical doctor testified that the victim was penetrated. In an effort to disprove the appellant’s submission that PW1’s evidence was not corroborated for the failure to call the

victim’s teacher and grandmother, she stated that in rape 7 cases the victim’s evidence is the best evidence. To buttress her argument, she cited the case of Selemani Makumba vs. Republic, [2006] TLR 379. She pinned her submission that the victim’s evidence was enough to prove what happened. On the appellant’s submission that failure to call the victim’s grandmother and the teacher led to his conviction, Ms. Simba averred that, section 143 of the Evidence Act, (Cap 6 R.E 2019) states that evidence is not weighed by the number of witnesses rather on the credence of the witness. She added that according to section 127(6) of the Evidence Act, (supra) a tender age child’s evidence can be relied on without corroboration if the court is satisfied that the child will tell the truth. She banked on the case of Fahadi Khalifa vs. Republic, Criminal, Appeal No. 573 of 2020 CAT at Dodoma, at page 8, which quoted section 127(6) of the Evidence Act. She insisted that the victim’s evidence was corroborated by three witnesses. She implored this court to dismiss the second ground for being baseless. Ms. Simba, disputing the third ground of appeal stated that, the prosecution proved the offence beyond reasonable doubt. She added that, in proving sexual offences, three elements must be proved beyond reasonable doubt. That in this appeal, the victim is below 18 years. That, 8 the prosecution

proved the age of the victim. She claimed that it was proved that the victim was under 18 years, that she is 12 years old. That, PW1 testified at page 12 of the proceedings, PW2 at page 15 testified on the age of the victim and PW3 the victim’s mother at page 19 of the proceedings. That there was no cross examination on the age of the victim, thus, the appellant had no issues on the age of victim. To strengthen her contention, she referred to the case of Kanaku Kidari vs. Republic (supra), while insisting that the victim’s age was proved beyond reasonable doubt. She substantiated the second element which is penetration. Showing that it was proved, she referred to page 13 of the proceedings, where the victim testified how she was raped and that she was penetrated by the appellant. In addition to that, she cited page 30 of the proceedings showing that PW5 medical doctor, testified that the victim was penetrated. That, in proving penetration, PW5 stated that, there were bruises in the victim’s female organ. That she was penetrated, not virgin. That PW5 tendered PF3 which was admitted as exhibit P1. 9 Amplifying on the third element, the statement that the one who penetrated the victim was the appellant. Ms. Simba argued that, the victim proved on the rape and that she was raped by the appellant. That, the victim before the trial court stated that, it was in the morning in

her grandmother’s home when the appellant raped her. That, at page 13 of the proceedings, the victim stated that she knew the appellant before the awful act was committed. Ms. Simba contended that, the appellant at the trial court or this appeal, did not dispute that they are familiar to each other with the victim. The learned Attorney stated that various cases illustrate how to prove rape cases as it was in the case of Shija Mathias vs. Republic, Criminal Appeal No. 358 of 2021 CAT at Tabora. That, the appellant’s conviction resulted from the prosecution’s evidence and not on the weakness of the appellant during the trial. She insisted that the trial court was correct to convict the appellant as the prosecution proved the case beyond reasonable doubt. She prayed that this ground be dismissed. On the fourth ground of appeal that, he had witnesses but denied an opportunity to be heard. Ms. Simba disputed the same and invited this court to visit the trial court’s proceedings to see what transpired. She added that at page 35 of the proceedings, the appellant told the court that 10 was expecting to call three witnesses. While at page 36 the appellant gave his defence. That after his defence at page 38 of the proceedings he stated that, he had no other witnesses and closed his case. That made him to be the sole witness in his case. She insisted that the proceedings show that the

appellant was availed an opportunity to call witnesses. Hence, his claim is baseless. Disputing the appellant’s claim that the victim’s mother, PW3 apologized and prayed to the court to set the appellant free, she referred this court to page 19 of the proceedings, where PW3 testified on how the act happened. That the victim was in her grandmother’s home. That it was on Sunday when PW1 went back and was complaining that she was sick. That after long interrogation, she stated that uncle Saidi raped her. That, upon inspection, she was seen to have bruises. That, PW3 sent the victim to hospital, PW5 examined and proved that she was raped. That his allegation that PW3 apologized to the court to set the appellant free cannot be traced anywhere in the proceedings. Ms. Simba alleged that the appellant’s submission that he was not on the scene of crime on the date of the commission of the act is a new issue 11 which was not raised at the trial court. She added that, if the appellant wanted to raise it at the trial court, should have followed the requirements of section 194(4) of the Criminal Procedure Act, (Cap 20 R.E 2022). That, what he has submitted is a new evidence, this honourable court cannot accept that evidence. She finally prayed for the ground and the appeal to be dismissed entirely. In his rejoinder the appellant, Mr. Saidi argued that he cross examined the victim and she

agreed that she was telling lies to the court. He conceded that, the victim knew him even before the awful. He reiterated his submission that PW3 did apologize before the court that, he should be set free. He claimed that, he did not rape the victim in her grandmother’s home. That, the grandmother could not shelter him with the victim as she knew that the victim is a pupil. That it is not possible for him to share a bed with a girl or woman who is not his wife or share a bed with a pupil like the victim. I have carefully followed the antagonistic submissions made by both parties, gone through the grounds of appeal and perused the trial court’s proceedings, now this court is called to determine on the merits of this 12 appeal. The main argument between the parties is on proving the case against the accused/appellant. From their confrontations, I find the main issue to be answered is whether the case was proved beyond reasonable doubt. In his first ground of appeal, the appellant complained that, he was convicted and sentenced against requirements of the Penal Code. The learned State Attorney cited the provisions providing for the offence and the punishment for the offence. Thus, she supported the findings and the sentence meted by the trial court. She argued that the trial court convicted the appellant under section 130(1), (2)(e) and 131(1) of the Penal Code (Cap 16 R.E 2022).

She added that, subsection (2)(e) of the Penal Code (supra) covers the offence, the age of the victim and the punishment for the offence. Therefore, the punishment was meted according to the law. The complaint that the trial court erred in law by punishing the appellant contrary to the Penal Code (supra) prompted me to peruse the section creating the offence together with the punishment for the same. This should not detain me much as the offence once proved there is statutory punishment. The trial court, must abide to the minimum sentence 13 as provided by the law. I have the liberty of reproducing the section hereunder. It states: 131.-(1) Any person who commits rape is, except in the cases provided for in the renumbered subsection (2), liable to be punished with imprisonment for life, and in any case for imprisonment of not less than thirty years with corporal punishment, and with a fine, and shall in addition be ordered to pay compensation of an amount determined by the court, to the person in respect of whom the offence was committed for the injuries caused to such person.” The quoted provisions of the law are very clear that any person who commits rape save for the cases renumbered under subsection (2) is liable to be punished with imprisonment for life and not less than thirty years. The appellant was convicted and sentenced to serve thirty-five years imprisonment and pay

compensation to the victim. I find the sentence to have been meted on him in accordance to the law. In my view, the trial magistrate was justified to sentence him accordingly as the punishment is inline with the provisions of the law which set the minimum sentence to be thirty years. The punishment provided for under the section is life imprisonment, not less than thirty years imprisonment with corporal punishment, fine and compensation. In the sentence meted to the appellant, two requirements were considered, not less than thirty years 14 imprisonment and compensation to the victim. The fine and corporal punishment were not considered. If this court is to consider the punishment of the trial court, it would uplift the punishment by adding corporal punishment and not interfere with the sentence. A similar scenario where the appellant complained of excessive rape punishment, apart from the trial court’s sentence for life imprisonment which was upheld by the High Court, the Court of Appeal found that, the trial court had not ordered for the corporal punishment, the Court on top of the life imprisonment sentence, ordered the appellant to get twelve strokes. This was exercised in the case of Elias Juma vs. Republic, Criminal Appeal No. 133 of 2005. The Court stated: “The complaint on sentence is therefore without merit. In actual fact, full sentence as provided by the law was not

meted out by the High court. Under the above quoted provision, apart from 30 years imprisonment, the Court mandatorily had to impose corporal punishment and compensation as well. In terms of section 4 (2) of the Appellate Jurisdiction Act (Cap 141, R. E 2002), we have to step into its shoes on this aspect. In addition to 30 years imprisonment the appellant is hereby sentenced to 12 strokes of corporal punishment.” 15 With regard to the authority cited, an appellate Court can interfere with the findings of the subordinate court if there are misdirections and or non- directions as it was stated in the case of the DPP vs. Mfaume Kawawa (1980) T L R 146. There were no misdirections and non-directions in the instant appeal. Therefore, the first ground of appeal lacks merit and is hereby dismissed. Pondering on the second ground of appeal that, the trial court erred in law and in fact by relying on the evidence that was produced by PW1 only which was however not corroborated. The appellant blamed the trial court for convicting and sentencing him basing on PW1’s testimony which was not corroborated. He averred that, the victim’s teacher was not called to testify if the victim is a pupil. He added that, the victim’s grandmother was not summoned to testify. He denied the submission that the victim is a standard three pupil. He submitted that, the victim and the appellant are familiar to

each other as they live in the same village. He contended that the victim is 17 years old and he is not a school child. He complained that the victim had no PF3, that the same was taken and filled after the victim had been examined. Ms. Simba challenged the appellant’s submission by stating that, PW1’s testimony was corroborated by PW2 and PW3. She 16 referred this court to the trial court’s proceedings which show that PW1’s evidence was corroborated. That, PW5 a medical doctor testified that the victim was penetrated. However, she argued that, the best evidence in sexual offences come from the victim. The appellant’s contention that PW1’s evidence was not corroborated as the grandmother and her teacher were not summoned to testify it is not capable of denting the prosecution’s evidence. As it was submitted by Ms. Simba, learned State Attorney, sexual offences are committed in secret hence, the best evidence comes from the victim. Given appellant’s contention, I decided to re-read the trial court’s judgment. Page 2 and 3 of the judgment presents the honourable trial magistrate’s summary and analysis of the evidence of PW2 and PW3 who interrogated and inspected the victim. That after they have been informed by the victim that, she was raped by uncle Saidi, they inspected her and found her female genital parts bruised and swollen. That, they took her to the hospital where,

PW5 examined her and discovered fresh bruises and she was not virgin. The appellant’s claim that failure to call the victim’s grandmother and school teacher amounted to un-corroboration of the victim’s evidence is 17 unfounded. The learned State Attorney argued clearly that, the victim’s evidence can be relied upon to convict. This assertion is qualified by the trial magistrates finding on the credence of the victim. At page 4 of the judgment she stated, I wish to quote: “It is a trite law that, the best evidence in sexual offences comes from the victim. Section 127 (6) of the Evidence Act [Cap 6 Revised Edition 2022] provides that the evidence of a child of tender age in the sexual offence can be relied upon without corroboration after assessment of such evidence by the court to ground the conviction of an accused person. There is a coherence between the victim and other prosecution evidence on the commission of the offence.” From the passage I quoted above, I am hesitant to agree with the appellant’s submission that PW1’s evidence was not corroborated thus, the court erred in convicting and sentencing him. The trial magistrate was correct to believe in the victim’s evidence which was corroborated by PW2 and PW3 as per the trial court’s proceedings and the judgment. The principle that, the evidence of a child of tender age can be relied upon to convict was accentuated in the

case of Fahadi Khalifa vs. Republic (Criminal Appeal 573 of 2020) [2022] TZCA 251 (TanzLII). The Court stated: 18 “The law is settled that the best evidence in sexual offences like the current case, comes from the victim. It is also settled law that the evidence of a child of tender age in sexual offence can be relied upon without corroboration after assessment of such evidence by the court to ground conviction of an accused person.” This authority warns the trial court to exercise care in relying solely on the evidence of a child of tender age. Simply, the principle accentuated by the Court of Appeal is that, the evidence of a child of tender age cannot be taken unquestioned, that is wholesale. The court must assess the credibility of victim. The court must weigh the credibility of the witness to be satisfied if she is a reliable witness and her testimony deserves credence. Emphasizing on assessing the credibility a witness the Court of Appeal in Elisha Edward vs. Republic (Criminal Appeal 33 of 2018) [2021] TZCA 397 (TanzLII) cited with approval the case of Shabani Daudi vs. Republic, Criminal Appeal No. 28 of 2001 (unreported) stating that: “Credibility of a witness is the monopoly of the trial court but only in so far as demeanor is concerned. The credibility of the witness can also be determined in two ways. One, when assessing the coherence of the testimony of that

witness and two, when the testimony of that witness is considered in relation to the evidence of other witness including that of the accused person. In those two occasions, the credibility of a witness can be determined even by a second 19 appellate court when examining the findings of the first appellate court.” This quoted authority is a yardstick decision in this appeal. The trial court’s assessment of the victim is put into test. Perusing page 4 of the judgment, the trial court stated that, there is a coherence between the victim and other prosecution evidence on the commission of the offence. To find out this, I decided to revisit the proceedings of the case. At page 12 of the proceedings, PW1, the victim stated that, uncle Saidi went into the room where she was with her siblings. That, it was 0600hrs when she was raped by the appellant. She added that, she reported the incident to her grandmother the very same morning who replied that will communicate it to the victim’s mother. When she went back home, she narrated the incident to her elder sister and mother. PW2 the victim’s sister testified that, the victim informed her it was the appellant, uncle Saidi who raped her at her grandmother’s home. PW3 the victim’s mother testified at page 19 of the proceedings, that the victim told her that, she was raped by uncle Saidi, the appellant. That, she was raped at her

grandmother’s home and the victim informed the grandmother soon after the incident. That, her grandmother promised that she would report the same to the victim’s 20 mother. PW5 at page 27 and 28 of the proceedings testified to have examined the victim and treated her accordingly. The victim’s evidence was coherent with the evidence of PW2 and PW3 on the date of the incident, the incident, the rapist and the scene of crime. All stated that, the victim informed her grandmother of the incident. She has all the time mentioned the appellant, the scene of crime and how it happened. From what I gathered in the proceedings of the trial court, the victim was a credible witness. She managed to name the appellant at the earliest possible opportunity and she has been consistent in her testimony. Her testimony is rhythmical with that of PW2 and PW3. In that, even if it was not corroborated it could form a ground to convict the appellant. That being said, this ground has no merit, it is dismissed. On the third and fourth grounds of appeal, the appellant claimed that the case was not proved beyond reasonable doubt and the appellant’s witnesses were denied an opportunity to testify. That the court convicted the appellant on the weakness of his defence. Disputing the third ground of appeal, the learned State Attorney argued that, in proving sexual offences, three elements must be proved beyond

reasonable doubt. That in this 21 appeal, it has been proved that the victim is below 18 years. That, the victim was penetrated and it was the appellant who penetrated the victim. She added that the appellant’s conviction based on the prosecution’s evidence and not on the weakness of the appellant’s evidence. The rival submission of the parties prompted me to pay courtesy to the trial court’s proceedings and judgment once again. Upon perusal, I found at page 11 the victim when asked questions to test her intelligence, she stated that she is 12 years. At page 15, PW2 the victim’s elder sister stated that the victim is 12 years old. PW3 the victim’s mother at page 19 of the trial court’s proceedings stated that the victim is 12 years. She testified that the victim was born on 8th September, 2013. The contentious issue is the age of the victim. The appellant claimed that the victim is 17 years old and not in standard three. The information available as elaborated by the learned State Attorney, the victim is 12 years. I am live of the fact that, age is of great essence in establishing the offence of statutory rape under section 130 (1) and (2)(e) of the Penal Code (supra). The provisions require that the victim must be below eighteen years old. That being the requirement, the age of the victim must be proved by either parent, medical expert or a guardian. This was so accentuated by

the Court 22 of Appeal in the case of Issaya Renatus vs. Republic (Criminal Appeal No. 542 of 2015) [2016] TZCA 218 (TanzLII). The Court stated 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.” [Emphasis is mine]. From the authority quoted, the age of the victim may be proved by a relative or parent or a guardian. In this appeal at hand, the victim’s mother, sister and herself proved the age to be twelve years. In addition to that, victim is a class three pupil at Tulingane Primary School at Makande Village. Furthermore, the victim was introduced to the witness box as a child of tender age. She was subjected to voire dire test by the trial court. In these circumstances, no doubt that the victim is under the age of eighteen years. On the element of penetration, the victim testified how the appellant raped her. At page 12 of the trial court’s proceedings, the victim told the trial court that it was on 15th March, 2024 she was at Chiulesi with her grandmother together with the appellant. That it was at 0600hrs when the appellant raped her. She testified, I quote, ‘When I wanted to get out he 23 pulled me back inside. He

closed the door, undressed me (skirt and tight) also undressed himself a short trouser he was wearing. “Alichukua uboo wake na kuingiza sehemu yangu ya kukojolea” [Then he took his penis and inserted it at my private party where I used to urinate]. Then I felt pain. He got out and grandmother called me. When we were having breakfast, I told my grandmother what Uncle Saidi did to me.’ This evidence shows that she was penetrated. Her evidence was corroborated by PW2 and PW3 who testified that they inspected her only to discover that her private party was mutilated. Her private party was swollen. PW5 a medical doctor, examined the victim and found that she had bruises and no hymen. These testimonies proved that the victim was penetrated. Even if the victim’s evidence was not corroborated, the court could rely on her evidence to convict as long as she was a reliable witness. This is based on the developed principle that in sexual offences the best evidence is that of the victim. This was insisted by the Court of Appeal in the case of Fahadi Khalifa vs. Republic (Criminal Appeal 573 of 2020) [2022] TZCA 251 (TanzLII) while quoting in approval the case of Selemani Makumba vs. Republic [2006] TLR 149 stating that: “… that in sexual offences the best evidence comes from the victim.” 24 While guided by the authority cited, sexual offences mostly are committed in secret. It is the victim

and the ravisher who can testify on the commission of the offence. The victim has testified that the appellant raped her in her grandmother’s house. She narrated the same story to PW2 and PW3 and before the trial court. The trial court was in the monopoly of observing the demeanor of the victim when testifying. The trial court accorded her credence, I have no doubt on the findings of the trial court, hence the victim was a credible witness. In that, penetration was proved. On the element that, it was the appellant who penetrated the victim, the appellant denied the allegation but agreed to have been in the same house with the victim. Also, it was testified that they are relatives. This has a connection to the victim’s reference to the appellant as ‘uncle Saidi.’ In his submission in support of his appeal, the appellant insisted that the victim is seventeen years old and she is not a standard three pupil. In his rejoinder, he argued that, he could not spend a night in the same bedroom and a bed with the victim who is a pupil. For him he could spend the same with his wife or a concubine. This statement, has brought the truth of his mind about the victim. This reveals that, the appellant is aware of the victim’s age and status as a school girl, a pupil. The victim testified before 25 the trial court that, the appellant spent night in the same room with her and her siblings. That

the awful act was committed in the morning at 0600hrs. She named the appellant to her grandmother as the rapist. She named him again to PW2 and PW3. This consistence in the narration and evidence of the victim, keeps her evidence far from any doubt that she failed to identify the assailant clearly. It is a credit on the victim’s ability to name the culprit at the earliest possible opportunity. The Court of Appeal established this principle in the case of Marwa Wangiti Mwita and Another vs. Republic (Criminal Appeal 6 of 1995) [2000] TZCA 23 (TanzLII) where the Court stated that: “The ability of a witness to name a suspect at the earliest opportunity is an all-important assurance of his reliability, in the same way as unexplained delay or complete failure to do so should put a prudent court to inquiry.” From the passage quoted, it is clear that the victim met the principle of being able to name the appellant at the earliest possible opportunity. She told her grandmother the very same morning that the appellant raped her. On arriving at her home, she told PW2 and PW3 that the appellant raped her. With this consistency, I am of the view that, the victim proved that it 26 was the appellant who raped her and not any other person. For that reason, the third ground is unmeritorious. On the fourth ground of appeal, the appellant claimed that, he had witnesses but were denied an

opportunity to be heard. Ms. Simba disputed the same and invited this court to visit the trial court’s proceedings to see what transpired. She added that, the appellant told the trial court that he had three witnesses but at the end of his defence he stated that he had one witness to call and closed his case. Hence, that made him to be the sole witness in his defence case. On the allegation that the victim’s mother apologized and prayed to the court to set him free, Ms. Simba replied that, there is nowhere the witness apologized as the appellant alleged. She added that, the victim’s mother testified how she was informed by the victim on the rape and the steps she took thereafter. The parties’ debate provoked me to re-visit the trial court’s proceedings to find out the truth of the matter. At page 38 of the proceedings of the trial court, the appellant after he has given his defence stated, I quote: “Accused person: I have no witness I pray to close my case.” 27 This statement suggests that the accused/appellant told the court he had no witness to call. He prayed to close his case. No place indicated that he called witnesses and were not heard. In supporting his appeal, he stated that he called the victim’s grandfather but he was told he has to testify for the prosecution. The same is not reflected in the court’s records. He also, questioned why the victim’s grandmother did not

come to testify. His question is answered in the testimony of PW3 at page 19 of the trial court’s proceedings testified, I quote: ‘My mother lives living at farm area. She did not come as her relatives prohibited her from coming they wanted the matter to be solved at home. They said she did not need to come to testify as the accused is her relative but we rejected it.’ The evidence of PW3 shows that, the matter was suggested to be settled at home but there was no agreement to that extent. This is a criminal offence, no mediation or arbitration could settle the same. Therefore, the appellant’s claim that the victim’s grandmother was supposed to be summoned and testify is unfounded as the prosecution decides on the number and type of witnesses to call. This is in accordance with the provisions of section 143 of the Evidence Act, (Cap 6 R.E 2022) which states, I have the liberty to reproduce it: 28 “Subject to the provisions of any other written law, no particular number of witnesses shall in any case be required for the proof of any fact.” Since the law, does not prescribe the number of witnesses required to prove any fact, the non-calling of the victim’s grandmother did not dent the prosecution’s case. That being the position, the fourth ground is baseless and is dismissed. In the same vain, I tried to go through the trial court’s proceedings, but could not locate a single

sentence showing that, the victim’s mother apologized before the trial court as stated by the appellant. The learned State Attorney rightly, stated that no apology was offered. The appellant is trying to find an escaping pigeon hole. It is unfortunate that, it became barren. Consequently, the issue raised whether the case was proved beyond reasonable doubt, is answered in the affirmative. In the upshot, the appeal lacks merit. Thus, it is dismissed and the conviction and sentence of the trial court is upheld and confirmed. It is so ordered. DATED and DELIVERED at SONGEA this 17th day of December, 2024. 29 E.L. KAWISHE

JUDGE Court: Judgment delivered in the presence of Mr. James Rhobby, State Attorney for the respondent and in the presence of the appellant, Mr. Saidi Hakimu Abdallah Chautika in person. Right of appeal explained. E.L. KAWISHE

JUDGE 17/12/2024 30