SHABANI FIKEN finale

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY

AT MBEYA CRIMINAL APPEAL NO. 17077 OF 2024 CASE REFERENCE NO. 202406212000017077 (Originating in Criminal Case No. 90 of 2020 in the district court of Mbarali) between SHABANI FIKENI JAMES ...................................................... APPELLANT

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

JUDGMENT 10th February & 3rd March 2025 NONGWA, J. The appellant Shabani s/o Fikeni @James was charged in Criminal Case No. 90 of 2019 of the district court of Mbarali with two counts, one, rape contrary to section 130(1)(2)(e) and 131(1) of the Penal Code Cap 16 R: E 2002 now R: E 2022]. Count two was unnatural offence contrary to section 154(1)(a)(2) of the Penal Code. In both counts it was alleged that on diverse dates in March 2019 at Ibara village within Mbarali district in Mbeya region the appellant had canal knowledge of one (name withheld) a child aged 06 years. To disguise her identity, in this appeal the said child will be referred as “PW2 or victim”. He denied the charged offences. 1 To prove, the prosecution called four witnesses PW1 (mother of PW2), PW2, Ester Modestus (PW3) and Dr. Tresphod Jeremia Sambi (PW4). They had two documentary evidence clinic card (exhibit P1) and PF3 (exhibit P1). The appellant fended himself and had no any exhibit. The prosecution evidence started with PW1 who stated in March 2019 discovered that the victim was smelling bad and fluid oozing and during night she was being wet with some particles in private parts. She took her to the hospital where she was told a blunt object had entered her vagina and anus. When the victim was asked, mentioned the appellant. The matter was reported to police where the victim was issued with PF3 for

examination. PW3 stated in March 2019 PW1 told her that PW2 had abnormal condition during night, she advised her to go to hospital and went together. After being examined they were told she was raped by an adult person. When PW2 was asked mentioned the appellant. At the hospital the victim was examined by PW4 and observed she was feeling pain in her vagina and black fluid with bad smell oozing. Her vagina was large and the anus was defecating frequently and concluded that she was penetrated by blunt object in her vagina and anus. She filled PF3 which was admitted as exhibit P2. 2 Describing what happened to her, PW2 stated Shabani used to undress her and insert his penis in her vagina and anus which was done at the house of her grandmother when she had gone to farm. She said it was done several times and threatened not to tell anyone as she would be cut. Further that she was being molested in the morning after grandmother had gone to farm. In defence, the appellant stated she was mentioned because PW2 was too close to him and gave her whatever she wanted. He distanced from the offence and said on several times she went to his grandmother to visit them. At the heigh of the prosecution evidence, the appellant was convicted and sentenced to 30 year’s imprisonment and ordered compensation to the victim at the tune of TZS. 500,000/=. Aggrieved has filed petition of appeal on four

grounds, namely one, that the trial magistrate erred in law and fact by convicting the appellant while relying on the prosecution case which was not proved beyond reasonable doubt, two, that the trial magistrate erred in law and fact by not complying with section 127(1)(2) of the Tanzania Evidence Act as PW2 being a child of tender age failed to promise before adducting her evidence. Three that the trial magistrate erred in law and 3 fact by failing to properly analyze and consider the defence and four, that the trial magistrate erred in law and fact by relying and believing the evidence of PW2 which was contradictory and not trust worthy. On the hearing date the appellant fended himself without legal representation whereas for the respondent appeared Mr. Lordgard Eliamani, State attorney. Hearing was by filing written submission. Written submission of the appellant is drafted by Mr. Felix Kapinga, learned advocate. In his submission abandoned ground three and four, thus, remaining with first two grounds. Mr. Kapinga started this submission with burden of proof in criminal case embodied under section 3(2) of the Evidence Act that it is beyond reasonable doubt. He contended that exhibits were not read to the appellant after its admission and referred the court to the case of Robinson Mwanjisi and Others vs R [2003] TLR 218. He argued that exhibit P2 was not read after its

admission in evidence and the same has to be expunged. He supported the position with the case of Geofrey Jonathan@ Kitomali vs R, Criminal Appeal No. 237 [2021] TZCA (16 February 2021; TanzLII). Adverting to ground two that evidence of the PW2 was taken contrary to section 127(2) of the Evidence Act, Mr. Kapinga submitted 4 that PW2 was not tested if understands nature of oath and promise to speak the truth and not lies. He referred to the case of Daud David Miti vs Republic, Criminal Appeal No. 156 of 2022 [2023] TZHC 17202 (5 May 2023; TanzLII) in which this court stated “the trial court must record how it engaged that child to conclude that the child promised to tell the truth to the court and not to tell any lies.” And the case of Emmanuel Steven vs Republic, Criminal Appeal No. 281 of 2022 [2024] TZCA 368 (16 May 2024; TanzLII) where it was stated that “failure to record the promise to tell the truth from the child victim the evidence is rendered worthless before the eyes of law” Connecting to the case, Mr. Kapinga submitted proceedings are silent on question and how PW2 was engaged before the court proceeded to record her evidence upon promise to tell the truth. He submitted failure to do so, is gross irregularity and evidence of PW2 (victim) is worthless before the eyes of the law and has to be expunged from record. Counsel stated further, if evidence of PW2 is

discarded, the remaining evidence of PW1, PW3 and PW4 cannot support the charge of rape. He thus prayed for acquittal of the appellant by quashing the sentence. In rebuttal, the respondent did not support the appeal, submitting in ground one on proof of the case he stated that in the first count the 5 prosecution was required to prove penetration, consent, age and the perpetrator. That it was not in dispute that PW2 knew the appellant before as reflected at page 11 and 12 of the proceedings. Further that PW2 gave graphic narration how she was raped and was supported by PW4. On age it was submitted that the same was proved and the appellant did not dispute that the victim was six years old as per evidence of PW1. To that end the state attorney was resolute that the two offences were proved based on the principle that best evidence in sexual offences comes from the victim. On failure to read exhibit P2 after its admission, the state attorney conceded but maintained the stance that the remaining evidence proved the offences. Referring to the case of Hatari Masharubu @ Babu Ayubu vs Republic, Criminal Appeal No. 590 of 2017 [2021] TZCA 41 (26 February 2021; TanzLII) said the offence of rape can be proved even without the evidence of medical practitioner. In ground two on violation of section 127(2) of the Evidence Act, it was submitted the same was complied with, he referred at

page 11 and stated PW2 promised to tell the truth and not lies. He contended that absence of questions and answers did not make such evidence inadmissible and cited the case of George Jonas Lesilwa vs Republic, Criminal Appeal No. 374 of 2020 [2024] TZCA 269 (16 April 6 2024; TanzLII) where it was held the evidence of a child of tender age should not be discarded on flimsy reasons without proof on a balance of probabilities that there was something lacking that really affected the quality and credibility of such evidence. Further submission was that amendment of section 127(7) of the Evidence Act Cap 6 introduce by Legal Sector Laws (Miscellaneous Amendments) Act No. 11 of 2023 any infraction in complying with section 127(2) of the Act did not render the evidence inadmissible. Thus prayed the second ground to be dismissed. While concluding the state attorney submitted that the court did not make any findings in count two of unnatural offence that whether it acquitted or convicted the appellant. He was content that offence was proved and invited the court to find also the appellant guilty and convict him. In rejoinder, Mr. Kapinga maintained that there was violation of section 127(2) of the Evidence Act in receiving evidence of the victim. Counsel contended regardless of the amendment of the law the court has to look at the substance of the complaint raised by the appellant and

see the substantial defect upon such evidence. 7 Having considered rival submission and records of appeal, it boils on three main points one, whether exhibit P2 was read after its admission, two, whether evidence of PW2 was recorded in contravention of section 127(2) of the Evidence Act, and three, whether the prosecution proved the case beyond reasonable doubts. Starting with ground one that exhibit P2 was not read after its admission. Mr. Eliamani readily conceded that exhibit P2 was un- procedurally admitted in evidence as its contents was not read out after its admission in evidence. He thus also urged me to expunge it from the record. Nonetheless, the learned State Attorney was still confident that, even if the said exhibit is expunged, it would not affect the strength of the prosecution's case. In Robinson Mwanjisi and Others (supra) the court emphasized the need for any document which is introduced for admission in evidence to be first cleared for admission before it can be read out in court, then be actually admitted in evidence before finally reading out in court. Reading out documentary exhibits is an assurance that the accused understands the contents of the exhibit. In the case of Anasi Omary vs The Republic [2024] TZCA 924 (23 September 2024; TanzLII) the court was confronted with similar problem of exhibits not being read after its admission. It stated that; 8 ‘It

must be emphasized here that, admitting a document into evidence without reading it out to apprise the accused of its contents, is an omission which has enormous unfair prejudicial impact to the accused and for us, to hold otherwise, would certainly upset the existing precedents that form the bedrock of our established jurisprudence on the point. Our fear, and this we have seen with our eyes, has always been that, without strict adherence to the above requirement, it is only natural and indeed instinctual that the lower courts will quite often proceed to rely on such evidence which is invariably unchallenged and convict the accused persons on the basis of the evidence which was not brought to their knowledge as it happened in this case.’ After perusing the proceedings, I am satisfied, exhibit P2 was irregularly admitted and acted upon to convict the appellant. This applied to exhibit P1. Therefore, I accordingly discard it from the record and find merit in ground one. In ground two under contest is section 127(2) of the Evidence Act which provides ‘(2) A child of tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell any lies. The import of the above provision is that child of tender age could testify without taking an oath or affirmation but is required to promise

to 9 speak the truth after understanding the duty to speak the truth and not lies. However, that the provision is silent on how to conduct an inquiry. In Godfrey Wilson vs Republic, Criminal Appeal No. 168 of 2018 [2019] TZCA 109 (6 May 2019 TanzLII) the Court provided the modality on how to ask the child witness preliminary questions and the answers should be recorded. At hand at page 11 of the proceedings it is recorded “PW2: victim resident of Ibala 6 years old Christian she understand the nature of oath and she promise to tell the truth and not lies”. Understandably, it does not reveal if there were any questions posed by the trial magistrate to assess the intelligence or sufficient knowledge of PW2 to understand the meaning of oath and duty of telling the truth and not tell lies. Further the word suggests it did not come from the mount of PW2 but the trial magistrate. In John Mkorongo James vs Republic, Criminal Appeal No. 498 of 2020 [2022] TZCA 111 (11 March 2022; TanzLII) the Court stated that, the promise to the court under section 127(2) of the Evidence Act should be in direct speech and complete. Therefore, the promise given by the victim was in contravention of section 127(2) of the Evidence Act. As rightly argued by the state attorney section 127 was amended by the Legal Sector Laws (Miscellaneous Amendment) Act No. 11 of 2023 and a new subsection (7) added, it

provides: 10 ‘Notwithstanding any other law to the contrary, failure by a child of tender age to meet the provisions of subsection (2) shall not render the evidence of such child inadmissible’. The amendment being on procedural aspect it applies retrospective and covers PW2 who in 2019 was of tender age. Therefore, this new subsection (7) has cured the said anomaly raised by the appellant. The testimony of the victim is, therefore, admissible and the ground of appeal lacks merit and I dismiss it. Coming to whether the prosecution proved the case beyond reasonable doubt. To be noted the appellant was charged with two counts. The state attorney has submitted that the trial magistrate did not make any order in regard to the second count of unnatural offence, however this is a misdirection, perusing the judgment of the trial court at page 4 the second count is discussed and the magistrate right so found it did not disclose an ingredient of the offence under section 154(1)(a)(2) of the Penal Code, thus found the offence unproved and acquitted the appellant. Hence the complaint and invitation is a misdirection and is rejected. On whether the offence of rape was proved as rightly submitted by the state attorney rape is proved by four main elements one, penetration in the vagina even a slight penetration is sufficient to 11 constitute sexual intercourse under section 130(4) of the

Penal Code. Two, age of the victim which is necessary in determining the sentence to be imposed. Three, consent of the victim, it is immaterial if the girl is under 18 years of age and that, if she is 15 or more years of age, it must be shown that she is not his wife. And four identity of the perpetrator. In this appeal, penetration was proved by PW2 who narrated that she was penetrated in her vagina by insertion of penis, she was corroborated by oral evidence of PW4 who said PW2 was feeling pain in her vagina and it was large. Age of the victim was proved by PW1 who said the victim was born on 1 April 2013. It is the law that proof of age must come from either the victim, relative, parent, medical practitioner or through proof by a birth certificate, if available. See Issaya Renatus vs Republic, Criminal Appeal No. 542 of 2015 [2016] TZCA 218 (29 April 2016; TanzLII.) In this case proof of age came from the parent. The central issue is whether it was the appellant who penetrated the victim. From the records PW2 and the appellant knew each other well. According to PW2, the appellant used to have sexual intercourse with her in grandmother home in the morning when had gone to farm. PW1 and PW3 said the moment PW2 was asked mentioned the 12 appellant. Defending against the accusation, the appellant admitted during cross examination that he used to go at her grandmother’s resident

between 11:00 and 12:00hrs. Further that he was close to the victim and gave whatever she needed the reason he was mentioned. Upon my scrutiny of the available evidence, I find the victim was a credible witness one, mentioned the appellant before PW1 and PW3 the moment she was asked, this gives assurance that she knew well her assailant. It is a cardinal principle that the ability to mention the suspect at the earliest opportune time is of utmost importance as it proves reliability of the witness. See Makende Simon vs Republic, Criminal Appeal No. 412 of 2017 [2021] TZCA 156 (3 May 2021; TanzLII). Two, her evidence on time and place she was being raped was corroborated by the appellant. Evidence that she was being raped in the morning at her grandmother residence was admitted by the appellant who said several times was going to the house of her grandmother to visit and it was between 11:00 and 12:00hrs, thus this appellant’s evidence was carrying forward and corroborating the prosecution case. Faced with akin situation in David Gamata & Another vs Republic, Criminal Appeal No. 216 of 2014 [2015] TZCA 362 (7 December 2015; TanzLII) the court stated; 13 ‘We take it to be one of the settled principles of law that if an accused person in the course of his defence gives evidence which carries the prosecution case further, the court will be entitled to take into account such evidence

of the accused in deciding on the question of his guilt.’ Based on evidence in record, the appellant’s evidence was supporting what was testified by PW2 and therefore he was sufficiently linked with the offence of rape. I am not losing sight that PW2 said it was several times but never reveal to any person until he was inquired by PW1 and PW3, however I find the justification given by PW2 that she was threatened to be cut was sufficient due to her age of six years. At her age, she must have been frightened that the appellant would retaliate had she divulged the details. See Selemani Hassani vs Republic, Criminal Appeal No. 203 of 2021 [2022] TZCA 127 (22 March 2022; TanzLII). From the analysis above, evidence in records points the finger to the appellant to be the one who committed the offence of rape to PW2. I am further satisfied that the prosecution managed to prove the case beyond reasonable doubt and the criticism by the appellant against the conviction and sentence is unwarranted. 14 In the end, I find that the appeal has no merit. I dismiss it in its entirety. V.M NONGWA

JUDGE 3/3/2025 Dated and Delivered at Mbeya this 3rd March 2025 in presence Appellant and Mr. George Ngwembe and Mr. Ntegwa Mpingwa State Attorneys for the Respondent. V.M. NONGWA

JUDGE 15