CRIMINAL APPEAL NO 478 OF 2020 THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA fCORAM: SEHEL. 3.A., KIHWELO, 3.A. And MDEMU, J.A.) CRIMINAL APPEAL NO. 478 OF 2020 SOKOLO RICHARD ...................................................................... APPELLANT VERSUS THE REPUBLIC ........................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Sumbawanga) (Mranqo, J.l dated the 23rd day of September, 2020 in DC. Criminal Appeal No. 19 of 2020 JUDGMENT OF THE COURT 22nd Oct., & 15th Nov., 2024 SEHEL, J.A.: The appellant, Sokolo s/o Richard, was charged before the District Court of Mpanda at Mpanda (the trial court) with the offence of impregnating a school girl contrary to section 60A (3) of the Education Act. It was particularized that, on diverse dates between the 1st February 2018 and 28th February, 2018, at Kasokola village within the District of Mpanda in Katavi Region, the appellant impregnated a school girt of Kasokola Secondary School. For the purpose of this judgment, we shali refer to the girl as "the victim" or "PW2" to disguise her identity. The appellant denied the charge. Thus, a full trial ensued whereby the prosecution called a total of five witnesses, namely; Joseph Songolo, the headmaster of Kasokola Secondary School, (PW1), the victim (PW2), Linus Paramambo, the father of the victim, (PW3), Dr. Limbu Mazoya (PW4) and a police officer with force number G. 5604 Detective Constable Alfa (PW5). The prosecution also relied on five documentary exhibits, namely; the attendance and admission registers, exhibit PI collectively, a letter dated 22nd May, 2018 written by the victim, exhibit P2, a clinic card of the victim's child, exhibit P3, a PF3 of the victim, exhibit P4, and the cautioned statement of the appellant, exhibit P5. On the other hand, the appellant fended for himself; he did not call any witness. Also, he did not tender any documentary evidence. The evidence that led to the arrest and prosecution of the appellant was such that; according to PW1, the victim was enrolled in 2017 with registration number 607 of 2017; in 2018, she was in Form II. However, her school attendance was poor as per attendance register. PW1 informed PW3. PW3 also got information that the victim was seen at Mama Mindy's house where she used to meet with a music DJ, one, Sokolo Richard, the appellant herein. PW1 summoned the parents and upon inquiry, the victim named the appellant as the person who impregnated her. She was taken to Mpanda Government Hospital for medical examination. PW4 examined PW2 and observed that she was eight (8) months pregnant. He filled the PF3 which was tendered and admitted in evidence as exhibit P4. The appellant was arrested. On 25th September, 2018, he was interrogated by PW5 where he admitted to have love affairs with the victim and impregnated her. The cautioned statement was admitted in evidence as exhibit P5. In his defence, the appellant denied committing the offence although he acknowledged that he knew PW2 as he used to see her at the disco place where he used to play music. At the end of the trial, the appellant was found guilty as charged. He was convicted and sentenced to thirty (30) years' imprisonment. Aggrieved, he unsuccessfully appealed to the High Court of Tanzania at Sumbawanga (the first appellate court). Still dissatisfied, the appellant has come to this Court on a second appeal. On 23rd November, 2020, the appellant filed a memorandum of appeal comprising of four grounds. At the hearing date, the appellant appeared in person, unrepresented. He sought and was granted leave to present a supplementary memorandum of appeal that raised five grounds. On the adversary side, Mr. Deusdedit Rwegira, learned Senior State Attorney, appeared for the respondent/ Republic. When the appellant was invited to argue his appeal, he opted to adopt the grounds of appeal contained in the two sets of the memoranda of appeal, and thereafter, urged the Court to let him free from the prison custody basing on the grounds of appeal he raised. The learned Senior State Attorney responded to appeal by first grouping the grounds of appeal raised by the appellant into the following complaints: One, the charged offence of impregnating a school girl against the appellant was not proved to the required standard of proof beyond reasonable doubt. Two, the documentary exhibits were unprocedurally admitted in evidence. Three, the trial court did not enter a lawful conviction against the appellant. And four, the defence case was not considered by the two courts below. Before dealing with the appeal, we wish to preface this judgment with the settled principle governing the second stage appeal that the Court rarely interferes with concurrent findings of facts by the courts below. We can only interfere where there are mis-directions or non­ directions on the evidence, or where there was a miscarriage of justice or a violation of some principle of law or practice - see: The Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 149 and Musa Mwaikunda v. The Republic [2006] T.L.R. 387. Now back to the appeal, at the outset, Mr. Rwegira declared his stance that he was not supporting the appeal. Responding to the complaint that the appellant was not properly convicted, he referred us to page 56 of the record of appeal where the trial court entered a conviction against the appellant. It was his submission that if one reads through it, will find that the conviction entered by the trial court was in accordance with the law and it was a proper conviction. Our starting point on this complaint is to revisit the conviction entered by the trial court. After the trial court heard the evidence from both sides; it was satisfied that the prosecution had proved the offence against the appellant beyond reasonable doubt. As such, it entered the following conviction: 7 find the accused person guilty o f the offence and convict him on the offence o f impregnating a school giri contrary to section 60A (3) o f the Education Act, [Cap. 353 RE 200]." From the above, it is evident that the trial court convicted the appellant with the offence he was charged with. Accordingly, we find that the conviction entered by the trial court was proper and in accordance with section 235 (1) of the Criminal Procedure Act (the CPA). We proceed to dismiss this complaint. We now move to the complaint that the exhibits were illegally admitted in evidence and wrongly acted upon by the trial court. Responding to this complaint, Mr. Rwegira referred us at page 34 of the record of appeal where a prayer to proceed ex-parte against the appellant was made after the appellant had absconded trial and an order for ex-parte hearing was made. He pointed out that when the PF3, exhibit P4 and the cautioned statement of the appellant, exhibit P5 were admitted in evidence the appellant was at large. He added that, upon his arrest, the appellant was addressed on the right to recall witnesses which he chose not to recall them but the record of appeal is silent on whether he was informed about the documentary evidence admitted in evidence. In that respect, he argued that the appellant was denied a right to be heard. He thus urged the Court to expunge exhibits P4 and P5 from the record. On our part, having revisited the record of appeal, we discerned therefrom that, indeed, exhibits P4 and P5 were admitted in evidence in absence of the appellant. This procedure is in accordance with the provisions of section 226 (1) of the CPA which provides: "Where at the time or place to which the hearing or further hearing is adjourned\ the accused person does not appear before the court in which the order o f adjournment was made, it shall be lawful for the court to proceed with the hearing or further hearing as if the accused person were present; and if the complainant does not appear, the court may dismiss the charge and discharge the accused person with or without costs as the court thinks fit. "[Emphasis added] The above provision of the law allows the trial court to proceed with the hearing of the case where the accused person absconds his trial but it is silent on the procedure to be followed upon the re-arrest of the accused person when his trial was still in the process. That is, the procedure is silent when the accused resurfaces before judgment is entered. Nonetheless, we do not agree with the submission of Mr. Rwegira that the omission to give the appellant the benefit of knowing the contents of exhibits tendered by PW4 and PW5 denied hima right to be heard. The appellant waived his own right of fair trial byjumping bail. On this, we wish to draw inspiration from the Appellate High Court of Caicuta, India in the case of Kader Khan v. State of West Bengal sourced from https://indiankanoon.orQ/doc/296Q4595/ visited on 26th October, 2024, where it was held that: "The accused person who avoids trial at the initial stage by remaining absconding and subsequently at a later stage when he knows that the materiaI witnesses are not avaiiabie on account o f their death or being not traceable cannot be given the benefit o f the evidence which was recorded at the first instance detrimental to the interest of the prosecution. I f such an analogy is brought into fore then the entire criminal jurisprudence system itself would get jeopardized and it would rather give a premium to the accused person ..." [Emphasis added] Accordingly, we hold that, given that the appellant waived his right to a fair trial, he had no right to be given the benefit of the evidence which was recorded on his volition. This complaint also suffers the same consequences. It is dismissed. We now turn to the contention that the offence against the appellant was not proved to the hilt, Mr. Rwegira replied that the prosecution managed to prove the offence against the appellant at the required standard of proof beyond reasonable doubt. He pointed out that the evidence of PW2 established that she was a Form II student at Kasokola Secondary School and her evidence was corroborated by the evidence of PW1, the headmaster of Kasokola Secondary School who also tendered in evidence admission and attendance registers, exhibit PI collectively. The two registers show that PW2 was enrolled in 2017 with enrolment number 607 but she stopped to attend school in May, 2018. He argued, one of the ingredients of the offence of impregnating a school girl was to prove the victim was a student thus the issue of age raised by the appellant in his grounds of appeal was inconsequential. He added that, another important ingredient was to link the appellant with the pregnancy. Mr. Rwegira argued that, although the DNA test was not taken, there is evidence of PW2, a letter dated 22nd May, 2018 written by PW2 addressed to PW1 and a clinic card. Elaborating on these three pieces of evidence, he said that PW2 named the appellant to be the person who impregnated her, the letter mentioned the appellant to be the father of the unborn child, by then and had been providing monetary assistance in keeping the pregnancy. The clinic card shows that the father of the child is the appellant. We have closely re-evaluated the evidence on record and, as alluded earlier, the appellant was charged with an offence of impregnating a school girl contrary to section 60A (3) of the Education Act. In establishing the offence of impregnating a school girl, two conditions must be proved by the prosecution beyond reasonable doubts. These are; one, the girl was impregnated when she was attending either primary or secondary school; and two, the school girl was impregnated by the accused person. The issue of age, as correctly argued by Mr. Rwegira, is not an ingredient in proving this offence. In the present appeal, the fact that the victim was a Form II student at Kasokola Secondary School was well established by the evidence of PW1, PW2 and PW3. It was the evidence of PW1 that the victim was a Form II student at Kasokola Secondary School. He also tendered the admission and attendance registers that were admitted in evidence as exhibit PI collectively. The admission register shows that the victim was admitted in Kasokola Secondary School in 2017 with roll number 607 of 2017 and the attendance register shows that the victim stopped schooling on 22nd May, 2018. These two pieces of evidence were corroborated by the evidence of the victim (PW2) who said that she was schooling at Kasokola Secondary School but stopped due to pregnancy. The father of the victim (PW3) said that his daughter stopped going to school when she was in Form II in May, 2018 because she was pregnant. With such pieces of evidence in the record of appeal, we are satisfied that the trial court and the first appellate court rightly held that the victim was impregnated while she was schooling at Kasokola Secondary School. On the second ingredient that, whether the appellant impregnated the victim, we revisited the record of appeal and observed that, the victim testified before the trial court as follows: "A person called Sokolo Richard is the one who impregnated me..., We started sexual relationship in January, 2018.1 informed him I was pregnant He told me not to mention him. I had no any other boyfriend before. We used to meet in the bush where we were doing sexual intercourse, it was in the Saturdays and Sundays. I started to attend clinic in August, 2018. The clinic card bears the name o f the accused person one Sokolo Richard. I delivered a child in November, 2018/' The clinic card was tendered and admitted in evidence as exhibit P3 without objection from the appellant. It shows that the surname of the baby is Sokolo Richard, the appellant herein. Also, there is evidence of the headmaster of Kasokola Secondary School, PW1, to the effect that the victim wrote a letter to his school which was admitted in evidence without objection from the appellant as exhibit P2. In that letter, the victim wrote that the appellant told her not to abort and he was maintaining the unborn baby. More so, the appellant did not cross-examine on the important matter of his name appearing in exhibits P2 and P3. This means that he accepted the truth of the contents of exhibits P2 and P3. We held so in the case of Cyprian A. Kibogoyo v. The Republic, Criminal Appeal No. 88 of 1992 (unreported), which we cited in the case of Gerson Geteni v The Republic (Criminal Appeal No. 73 of 2021) [2024] TZCA 52 (19 February 2024; TANZLII) that: "We are aware that there is a useful guidance in iaw that a person should not cross-examine if he/she cannot contradict But it is also trite iaw that failure to cross-examine a witness on an important matter ordinarily implies the acceptance o f the truth o f the witness's evidence." The evidence of PW2 is further corroborated by the evidence of her father, PW3. PW3 told the trial court that the appellant sent the victim to his parents in Sumbawanga so that the victim could not appear in court to give evidence. As such, all along, as rightly observed by the trial court, the victim has consistently mentioned the appellant as the person who impregnated her and has clearly stated when their relationship started. Therefore, as soundly held by two courts below, with the direct evidence in the record of appeal implicating the appellant with the pregnancy of the victim, the complaint that DNA test was not conducted was inconsequential. We are therefore satisfied that the appellant was rightly convicted of the offence of impregnating a school girl by the trial court which was justifiably upheld by the first appellate court. We find nothing to disturb the concurrent findings of the two courts below on the conviction of the appellant. We shall shortly deliberate on the issue of sentence after having considered the appellant's complaint that his defence was not considered. Mr. Rwegira submitted that, in his defence, the appellant complained that the police did not conduct DNA test on him in order to prove that he was a biological father of the child. The learned Senior State Attorney referred us to pages 55 and 86 of the record of appeal where the trial court and the first appellate court respectively discussed in detail about the appellant's defence but ruled it out. It was therefore his submission that the two courts below adequately considered his defence. We entirely agree with Mr. Rwegira that the two courts below considered and determined the appellant's defence and find no justifiable reason to alter their correct finding that, although the DNA 13 test was not done the available evidence sufficiently proved the case against the appellant to the hilt. Accordingly, this complaint stands dismissed. We now turn to the issue of sentence which was raised by the Court. We invited the parties to address us on the propriety or otherwise of the sentence meted out to the appellant by the trial court and later upheld by the first appellate court. On the onset, Mr. Rwegira argued that the sentence was in accordance with the law. When probed further by the Court on whether the sentence of thirty (30) years' imprisonment prescribed under section 60A (3) of the Education Act was mandatory, he readily conceded that it was not as the law only prescribed a maximum period. Nonetheless, he was reluctant to admit that the trial court imposed a sentence basing on a wrong principle of sentencing. He curved after he was referred to the fact that the appellant was a first offender and to our decision in the case of Shagi Mangoma v. The Republic (Criminal Appeal No. 356 of 2020) [2023] TZCA 17396 (12 July 2023; TANZLII). Therefore, he implored us to quash and set aside the excessive sentence and substitute it with the sentence of six (6) years' imprisonment as it was done in Shagi's case (supra). As admitted by Mr. Rwegira, the sentence of thirty years imprisonment prescribed under section 60A (3) of the Education Act is not mandatory, rather, the trial court has discretion to impose any custodial term. Of course, such discretionary power of sentencing is subject to the consideration of the circumstances of each case including aggravating and mitigating factors. Besides, item (I) of the Tanzania Sentencing Guidelines of 2023 guides that, sentences that approach the maximum should only be imposed when the offence comes to the worst of its type and should rarely be imposed on first offender. Given the circumstances of the present appeal that, the appellant was a first offender and he was actually taking care of his unborn child, we agree with the learned Senior State Attorney that the sentence imposed on the appellant was excessive and the trial court acted on a wrong principle in sentencing. On that basis, we are entitled to interfere with the illegal sentence imposed by the trial court to the appellant. We therefore invoke our revisional powers under section 4 (2) of the Appellate Jurisdiction Act and proceed to set aside the illegal and improper sentence of thirty (30) years' imprisonment imposed on the appellant. We substitute it with the sentence of five (5) years7 imprisonment to be reckoned from the date the appellant started serving the previous illegal sentence which includes, as per the provision of section 172 (2) (c) of the CPA, the period he spent in remand. That is, it be reckoned from the date when he was re-arrested after he jumped bail and put in remand custody. In the end, save for the variation of sentence, the appeal stands dismissed. DATED at DAR ES SALAAM this 14th day of November, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. I. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 15th day of November, 2024 in the presence of the appellant in person and Mr. John Mwesiga Kabengula, learned Senior State Attorney for the respondent/Republic via video link at High Court Sumbawanga; is hereby certified as a true copy of the original.