shukuru moshi elimringi vs republic 2020 tzhc 3897 27 november 2020

IN THE HIGH COURT OF TANZANIA

MUSOMA DISTRICT REGISTRY

AT MUSOMA CRIMINAL APPEAL NO 146 OF 2020 SHUKURU s/0 MOSHI @ ELIMRINGI APPELLANT

VERSUS

THE REPUBLIC RESPONDENT (Arising from the decision and orders of the district court of Musoma at Musoma, Hon. Marwa RM, in criminal case no 55 of 2019 dated 08.09.2020)

JUDGEMENT lCfh & 22th November 2020 GALEBA, J. On 09.10.2017 ABC, a secondary school pupil at Paroma secondary school located in the Municipality of Musoma went to school as usual. The girl, aged 16 at that time did not come back until over a year later on 26.10.2018 when her sister Happiness Donald brought her from Mwanza and took her direct to Musoma Police station. Upon completion of investigation on the victim's disappearance from both home and school for the whole year, the prosecution charged SHUKURU s/o MOSHI @ ELIMRINGI, (the appellant or SHUKURU MOSHI), for the offence or rape and preventing a secondary school girt from attending school. He disputed the charges but the court found him guilty on the 1st count of rape but not the 2nd. The trial court therefore convicted him for rape and i sentenced him to thirty (30) years imprisonment. It is this conviction and the sentence in relation to the rape that the appellant is challenging before this court. The gist of what happened to the girl, to avoid repetition, will become live as I will be discussing the grounds of appeal especially the 3rd ground. In challenging the conviction and imprisonment SHUKURU raised 6 grounds of appeal. His complaints in those grounds are that, first the trial court erred because it convicted him of rape without proof of age of the victim, secondly, that the appellant was convicted on

contradictory and inconsistencies in the prosecution evidence, and thirdly that ABC gave a general statement that she was raped but she did not specifically show that there was penetration in order to strictly prove the offence of rape. Fourthly, that the trial magistrate erred in law to convict him based on a fabricated case, especially after refusing exhibits which had been discovered to have been forged; fifthly the trial magistrate erred in law and in fact for considering only one side of the prosecution case without considering his defense and sixthly, the trial magistrate erred in law for relying on PF3 to convict him whereas the said exhibit did not show that ABC had any bruises in her genitals following the rape. 2 As we were about to start, SHUKURU MOSHI requested that this court adopts his grounds of appeal as his submissions and then the state attorney be allowed to answer, so that if possible he would rejoin. Responding to the 1st ground of appeal which was a complaint that age of the victim was not proved, Mr. Isihaka Ibrahim learned state attorney for the respondent submitted that age was proved by ABC and her father at pages 6 and 12 of the typed proceedings respectively. In respect of age, ABC stated at page 6 of the typed proceedings; '...I have no work to do I just stay at home, I was born on 24h January 2002, in the year 2018 I was 16 years old, I know

Shukuru s/o Moshi, he was my lover...' As for PW2, DONALD MATIENYI, the father of ABC, at page 14 he stated; 'The victim was born on 24h January 2002, I remember in the year 2017 my daughter was fifteen years, she was a student at Paroma secondary,...' In law, particularly in sexual offences the age of the victim can be proved by the victim, her parents, relative, a medical practitioner or where possible production of a birth certificate see the decision in Isaya Renatus v the Republic, Criminal Appeal no 542 of 2015. With the above evidence of the 3 victim and her father, this court is confident that age of the victim was satisfactorily proved and this court holds that the 1st ground of appeal has no substance. The complaint in the 2nd ground of appeal was that the evidence upon which SHUKURU MOSHI was convicted, was inconsistent and contradictory because although the evidence shows that the victim was brought to Musoma from Mwanza on 25.10.2018 and went straight to the police but EXHIBIT P2, the PF3 shows that the victim was examined at the health center on 09.10.2018, which according to SHUKURU MOSHI that is impossible as on the day (09.10.2018) the victim had not come from Mwanza. In reply to that ground, Mr. Ibrahim submitted that, the complaint in that ground is misconceived because, the victim went to the police on 26.10.2018 but she did not get the PF3, she went back

there on 09.11.2018 when she got the PF3. To decide on this aspect, the evidence will speak for itself. At page 30 of the typed proceedings, ABC testified thus; '...on 2(fh October 2018 my sister Happiness came and told me that she was sent by my father to take me back to Musoma, we travelled back to Musoma and on arrival I WAS 4 TAKEN DIRECT TO Musoma police station where I recorded my statement and I was released back home, with condition that I will be summonsed back to the police for further investigation, when it reached on November 20181 was summoned back to the police station where I was issued with the PF3 to go to Nyasho health center for medical checkup. At Nyasho I was tested if I had HIV or if I had abortion...they proved I had abortion....' PW4, MARKO MWITA a clinical officer at Nyasho heath center who examined ABC testified as follows; '...on 09.11. 2018 I remember to have attended one girl called ABC, she came there at my office (Nyasho health center) accompanied by her parents...! then filled the report in the PF3,...' In other words, although the victim came from Mwanza on 26.10.2018 but she did not go to the health center on 09.10.2018 but 09.11.2018. That is so even if, by error, at page 3 of the judgment it shows that the victim went to the health center on 09.10.2018. In my opinion there is no contradiction or inconsistence in the evidence of

the prosecution on the aspect of when the victim came from Mwanza and when she went to the police and later to the health center. On 09.11.2018 5 the police called her and gave her PF3 with which she went to PW4 at Nyasho health center. I have checked EXHIBIT P2 itself, the PF3 it was made on 09.11.2018. I agree that there could be a little mix up of dates in the judgment but that can neither change the evidence nor water down its weight. For the above reasons, the 2nd ground is dismissed for it has no merit. MR. SHUKURU MOSHI's complaint in the 3rd ground of appeal is that penetration of the victim was not proved because her evidence was too general. In reply to that ground, Mr. Ibrahim submitted that the victim used the phrase sexual intercourse which actually means that the appellant achieved penetration of the victim, citing the case of Abuu Kahaya Richael v the Republic, Criminal Appeal no 577 of 2018 (unreported). I have considered the above submission and before I get into resolving it, a substantive quote from the evidence of ABC at page 6 of the proceedings will shed light on not only penetration, but the full story of the victim; 7 remember on 09.10.2017at 10.00 hours I was at school at Paroma secondary school accused came to the school and parked his motor vehicle pick up behind the girls dormitories 6 near the roadside... I went where he parked and he took me to

Nyabange to drink tea but when we arrived at Nyabange ... for my surprise he drove to Bunda, when we arrived at Bunda he hired a room in a guest house known as Twiga, he left me into that room and he went for his duties, he came back at 18.00 hours on the same day when he arrived he took me and drove back to Musoma, we did nothing in that guest house, when we arrived at Musoma he took me to his house at Majita road area where we had sexual intercourse (tuiitombana). When it reached l(fh October 2017 at 15:00 hours while sleeping with the accused the police phoned and asked him to report to the police station during the morning, after the phone call he toid me to shift where he took me to pacific lodge where he hired a room, when it reached 05:00 we wake (sic) and travelled to Mwanza where we hired a room at a lodge know as Elizabeth at Kona ya Bwiru area, we slept in the lodge and we also had sexual intercourse, the following morning he took me to his sister at Misungi district, Mwanza region, he took me to stay with his sister and that he will come back to take me to live with him, I stayed at his sister home for two weeks accused came back and took me to Mwanza where he hire a room in a lodge known as PIZZA, at Pizza lodge we slept and also we had sexual intercourse, after that the next day we travelled to Bunda where we stayed for one month, later we went to 7 Mugumu where

we stayed for four months, after that we travelled to Geita where we stayed for three months, later on we travelled to Shirati where we stayed for one month, later on we travelled to Bukoba where we stayed for three months all the places we were having sexual intercourse, when it reached on (sic) August 2018 while we were at Mwanza I informed the accused that I was pregnant, he told me to stay with my pregnancy until I deliver, when it reached October 2018 he told me to do abortion I denied to do abortion but he forced me, he took me to Nana Hospital Mwanza, at the the hospital I was taken in a room and the doctor came with medicines known as misoproter, I read out the box which contain such medicines it was written misoproter, the doctor gave me five tables (sic) and directed me to put three under my tongue and two in my vagina after three hours I started bleeding later on the doctor came and cleaned and gave me another tables (sic). Later on at 18:00 hours the accused came and took me to Kona ya Bwiru lodge Mwanza after that I told him I want to go back home, when it reached 2f?h October 2018 he gave me Tshs 30,000/= as bus fare to came (sic) back home, after he gave the bus (sic) I decided to go to my grandmother from the same dan at Mwananchi area where ...on 2&h October 2018 my sister one Happiness Donald came ...we travelled to Musoma.' 8 That is the evidence that the

appellant is challenging as being too general to show that he penetrated the girl. The above quoted evidence, is the evidence of the victim which in Selemani Makumba v Republic, [2006] TLR 379, the Court of Appeal held that such evidence is the best and the most reliable. As to the term sexual intercourse, in Hassan Bakari Mamajicho v Republic, Criminal Appeal no 103 of 2012, it was held that if the victim testifies that what happened to her was sexual intercourse, then penetration is proved. PW4, MARKO MWITA a clinical officer who examined the victim, testified that the girl had no virginity. In the circumstances I am unable to agree with the appellant that the victim's evidence as to how she was abused was too general to the extent that penetration was not proved. She stated that at all stations, Mugumu Geita, Mwanza, Bukoba, Bunda, Shirati and even at the appellant's house at Majita road in Musoma, the appellant had sex of the victim and she even testified of the pregnancy followed by the abortion in Mwanza. It is the holding of this court that penetration of the victim was proved to the hilt. For the above reasons, the 3rd ground of appeal has no substance or merit and the same is dismissed. 9 When I asked the appellant to clarify what was his complaint at ground 4, he submitted that because the trial court sustained objection against tendering of the birth certificate then

it was supposed to infer and hold that the entire case of the prosecution was fabricated and it ought to have dismissed the case and acquitted him. Mr. Ibrahim submitted that the complaint is misconceived because the birth certificate was not admitted. As for the PF3 he submitted that the complaint is an afterthought because the appellant did not cross examine the clinical officer on the said PF3. In respect of this ground, the impression I got from the appellant is that because some of the evidence of the prosecution did not meet the admissibility threshold or test because of some defects, then it must be taken that the whole prosecution evidence has issues, it is not credible or reliable. In my view that is not the case. In law, the evidence which does not meet the test set by law is excluded, but that does not mean that all evidence is not credible. In the circumstances, I hold that the complaint in 4th ground of appeal has no merit. The appellant's complaint in the 5th ground of appeal is that his defence was not considered. Mr. Ibrahim conceded with that complaint but he prayed that this court has mandated to revisit his evidence and consider io the same if it raised any doubt. I agree with Mr. Ibrahim and legally I am empowered to do so as this is the first appeal from the decision challenged see Hassan Mzee Mfaume v R [1981] TLR 167, in which it was held that what a

court on the 1st appeal is doing is like a re hearing. The evidence of MR. SHUKURU MOSHI was that in October 2019(sic) he was called at the police and was informed that he had abducted ABC but he denied to have seen or to have even known her. He testified that when the case was called he saw ABC but he knew her by the name of TINA who had been a waitress at his bar where she had worked for about a month and later asked for fare of Tshs. 5,000/= which she got and left. He submitted that the prosecution did not bring any witness including his sister who ABC alleged to stay with in Mwanza. This witness denied knowing any person in Mwanza, challenging the prosecution for having framed a case against him. According to the typed proceedings, that was essentially the substance of the appellant's defence. Although a case cannot be decided upon the weakness of the defence, but it is expected that an innocent accused person will give clear defence. For instance, although the appellant submitted that the victim was employed by him for a month, he did not mention even the name of the ii bar or even any other person who worked with the victim at his bar for that period. The appellant other than denying having any relative in Mwanza, he was reasonably expected to say something about the other places that the victim mentioned or cross examine her on them. In other words, the appellants

defence did not per se tilt the straight and clear story of the victim. Having considered the evidence of the appellant, the same evidence does not have any ability to shake the prosecution case. In the circumstances, the 5th ground of appeal has been discharged by analyzing the appellant's defence and found to have no useful substance in favor of the appellant. Finally, the complaint in the 6th ground of appeal was that, the appellants conviction was illegal because PF3 did not document any bruises in the victim's private parts. In reply to that complaint, Mr. Ibrahim submitted that bruises in the genitals is not one of the ingredients of rape. Indeed, this court is at one with Mr. Ibrahim, in this case it was clear according to the evidence of PW1, the victim, that the appellant raped her. In addition the evidence of PW4, the clinical officer, ABC had no hymen which meant that the girl had known man, who she testified to be MR. 12 SHUKURU MOSHI. In the circumstances, the 6th ground of appeal is misconceived and it is dismissed. Based on the above reasons, the conviction and the sentence of 30 years imprisonment imposed on MR. SHUKURU s/o MOSHI @ ELIMRINGI is confirmed and this appeal is dismissed. The appellant shall continue to serve the above sentence of 30 years imprisonment from 08.09.2020 when the judgment of the district court was delivered. DATED at MUSOMA this 27th November 2020 Z. N. Galeba

JUDGE 27.11.2020 13