STEVEN LEONARD

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

SHINYANGA SUB REGISTRY

AT SHINYANGA CRIMINAL APPEAL NO. 202404162000009977 (Arising from Criminal Case No. 56 before Busega District Court) STEVEN LEONARD @LUCHAGULA ..........................APPELLANT

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

JUDGMENT 31st July & 29th August 2024 F.H. MAHIMBALI, J The appellant herein was arraigned before the trial Court and encountered with the charge of rape, Contrary to sections 130 (1) (2) (e) and 131 of the Penal Code, Cap 16 RE 2022. It was contended that the appellant on 28/8/2023 during night hours while at Masanza Kona within Busega District in Simiyu region raped a girl aged 17 years without her 1 consent. The trial court after a thorough consideration reached its verdict that the appellant was guilty of the offence thus convicted him and sentenced to suffer thirty years imprisonment. Aggrieved by both conviction and sentence the appellant approached this Court armed with six grounds of appeal which all fall under the question of evidence. That the prosecution case was not proved, the defence evidence was not considered, the age of the victim was not proved and however the trial Court did not consider customary rites which signify that there was customary marriage and the both parents had consented to the marriage. At the hearing of the appeal, the respondent was represented by Mr. Kadata learned State Attorney while the appellant fended for himself. Amplifying for his grounds of appeal, the appellant prayed for the court to adopt the new filed grounds of appeal and form part of his submission. He further stressed for his appeal be allowed and that he be acquitted. Mr.

Kadata on behalf of the republic resisted the appeal. In his submission, the first and sixth grounds of appeal he argued them separately, whereas the 2nd – 5th grounds of appeal he argued them jointly. 2 With the first ground of appeal, Mr. Kadata argued that, it is his view that the prosecution’s evidence sufficiently established the charged offence beyond reasonable doubt as per law. As per charged offense, the prosecution was supposed to establish three ingredients. Firstly, whether there was penetration, secondly whether the victim was below 18 years old and thirdly whether the appellant was the one who did the said act against the victim. With the first ingredient, the victim by disguised name N.M, testified that he had been in sexual relation with the appellant since April 2022. She testified further that on 28th September 2023 was the last day she did the sexual act with the appellant. In her testimony, she stated well how the said sexual acts were being done between the two. As if this is not enough, the PW4‘s testimony (Clinical officer), stated clearly well that the victim is no longer virgin as her hymen has been perforated and that her vagina has been penetrated by a blunt object. Furthermore, the defence witnesses DW2 and DW3 when being cross examined, had stated that as the victim and the appellant were living together in one roof, there was a great possibility

that the appellant did sexual intercourse with the victim girl, he argued Mr. Kadata. 3 With the second element/ingredient is on the age of the victim. On this, Mr. Kadata submitted that the evidence of PW2 had well stated that she is 17 yrs old and that was born on 12th January 2006. PW1 who is the biological father of the victim, testified similar to PW2 that she is a minor of 17 years old. With this evidence, it is Mr. Kadata’s argument that the victim was below 18 years old, in which she was under the protection of the law. On the third element/ingredient whether this appellant is the one responsible of the said rape against the victim, it is Mr. Kadata’s submission that the PW2’s evidence is so abundant on this. PW2 had stated all how she had been with the appellant all the time and that she was being traced at her home. Furthermore, this PW2 did recognize the appellant before this court as the same person she had been with all the missing time from her home. Thus, this element as well, was established beyond reasonable doubt, concluded Mr. Kadata on this. With the 2nd, 3rd, 4th and 5th grounds of appeal, Mr. Kadata jointly submitted that they are all irrelevant as there has not been any proof whether there was any valid marriage concluded between the appellant and the victim girl. The evidence of PW1 (father of the victim) and PW2 (victim herself), none testified on the

completion of any valid marriage 4 between the two: appellant and the victim. Even the defence witnesses (DW1 -DW3), clearly don’t establish existence of any marriage between the two but mainly there was an attempt to pay dowry. So, it is abundantly clear that the appellant and the victim proceeded to live together and doing sexual intercourse in the absence of a validly contracted marriage. Therefore, since there was no issue of marriage between the two, what the appellant did with the victim girl is legally speaking nothing, but a statutory rape. On the sixth ground of appeal, the same is unmerited as age of the victim in law can only be established by the victim herself, her parents, guardians or any close relative with the knowledge. In the case of Isaya Renatus v. Republic, Criminal Appeal No. 542 of 2015 at page 8, that only, when necessary, the documentary evidence will be needed to establish the fact of birth, but the parents, guardians, victim herself and doctor are sufficient persons to establish the fact of age. Similarly, in the current case, the testimony of the PW1 who is the biological father of the said victim and PW2 herself, were sufficient to establish the fact of age of the victim than anyone else and that the issue of documentary evidence was not relevant in the context of the current matter. 5 Mr. Kadata finally submitted that the current appeal has

been brought without any merit and thus ought to be dismissed; conviction and sentence be upheld. By way of rejoinder, the Appellant maintained his submission in chief and kept on insistence that his appeal be allowed and that he be acquitted. He however argued this Court be guided by its good wisdom and find the verdict as improperly procured on account of the evidence on record. Having heard both parties on merit, I have now to determine the appeal and the issue for deliberation is whether this appeal has merit. This being a criminal case, it is the trite law that the prosecution is the one placed with a heavy burden than that of the accused. The first long-established principle in criminal justice is that of onus of proof in criminal cases that the accused committed the offence for which he is charged with, always lies on the side of the prosecution and not on the accused person (See section 110 and Section 112 of the Evidence Act Cap.6 [R.E 2022] and as cemented in the case of Joseph John Makune vs. Republic [1986] TLR 44 at page 49, where the Court of Appeal held that; 6 "The cardinal principle of our criminal law is that the burden is on the prosecution to prove its case; no duty is cast on the accused to prove his innocence. There are a few well-known exceptions to this principle, one example being where the accused raises the defence of insanity in which case he

must prove it on the balance of probabilities... " The second principle is that the standard of proof in criminal cases that is required by law is proof beyond a reasonable doubt (See section 3(2)(a) of the Tanzania Evidence Act, Cap 6, R.E 2022). On this, the Court of Appeal of Tanzania in the case of Mohamed Haruna@ Mtupeni & Another v R, Criminal Appeal No. 25 of 2007 (unreported) held that; "Of course in cases of this nature, the burden of proof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence." That means the evidence must be so convincing that no reasonable person would ever question the accused's guilt. See cases of Mohamed 7 Said Matula vs. Republic [1995] TLR 3, Anatory Mutafungwa vs. Republic, Criminal Appeal No. 267 of 2010 (unreported) and Festo Komba vs. Republic, Criminal Appeal No. 77 of 2015, the Court of Appeal of Tanzania (both unreported). In the present appeal, the appellant had complained that the prosecution’s case was not sufficiently established to the required standard. Here I would like to draw inspiration as correctly argued by Mr. Kadata that the offence of statutory rape is established when the following ingredients are proved beyond reasonable doubt: One -

there was male penile penetration to a girl’s reproductive organ; two – A victim girl was below the age of 18 years, See Masomi Kibusi vs. Republic, Criminal Appeal No. 75 of 2005 (unreported). Now, the charge against the appellant was rape against a girl aged 17 years. PW1 - a father of the victim had testified that her daughter was born 12/7/2007 and is aged 17 years old. PW2 a victim testified that she was born on 12/1/2006 and she was 17 years old. Under these circumstances, between PW1 and PW2 who is to be believed, taking the stance that the age of the victim must be strictly 8 proved. From the piece of evidence, it is obvious that the answer will be uncertain. Much as I agree that the age of the victim can be proved by the parent, among others, yet the testimonies of PW1 did not justify with authenticity that the victim was of that age. It follows therefore that, where there is neither birth certificate nor School registration, nor clinic card, medical report, affidavit on the age of the victim and is only a parent being a witness of the age of the victim, he/she must give strong testimony on the date, month and year when the victim was born. Perhaps it is important to emphasize at this juncture what is evidence. Section 3(1) of the Tanzanian Evidence Act, (supra), defines evidence to mean an alleged matter of fact, the truth of which if submitted to investigation,

is proved or disproved; and without prejudice to the preceding generality, includes statements and admissions by accused persons. Therefore, the fact that the alleged victim girl was under age to constitute a statutory rape ought to have been given. That was stated in a number of cases including that of Andrea Francis versus The Republic, Criminal Appeal No. 173 of 2014 (CA). In my considered view, a mere utterance of something is not by itself an evidence, but ought to have been an 9 established fact. In my perusal to the charge sheet from which the said impugned judgment is born, it reads: Rape contrary to section 130(1)(2)(e) and section 131 (1) of the Penal Code, Cap 16 R.E 2022. That Steven Leonard @ Luchagula stands charged that on 28th day of August, 2023 at night hours at Masanza Kona within Busega District in Simiyu Region did had carnal knowledge with one N.M (disguised name by the Court), aged 17 years, without her consent. According to the charge sheet, the victim girl is stated to be aged 17 years old. The appellant (accused person by then), pleaded not guilty to the charge. So long as the appellant had pleaded not guilty, the prosecution was then duty charged to establish the following ingredients beyond reasonable doubt: That the victim girl was 17 years old, and that she was carnally known by the appellant. Whether the victim girl was really 17 years old at the

date of the commission of the offence, is the first ingredient that the prosecution was duty charged to establish and that the trial court ought to have scrutinized whether the evidence adduced on that ingredient established the said fact 10 beyond reasonable doubt as well. At page 4 of the judgment, the trial magistrate on this fact of age says the following: “In accord with the prosecution’s evidence, PW2 is 17 years old, a former form II student at Kalemera Secondary School. This means, she is below the age of 18 years. PW2 (father) came to testify that PW2 is 17 years old, born 12th day of July 2007. From this, the court is fully satisfied that the age of PW2 had been proved beyond reasonable doubt. As demonstrated by higher courts, proof of victim’s age by parent is higher than that of clinic card or even a birth certificate (Edward Joseph Versus Republic, Criminal Appeal No. 19 of 2009)….” [Emphasis added]. According to the trial court’s judgment, the learned trial magistrate on his appreciation of the victim’s age being 17 years, he made his reliance merely on the PW1’s utterance that the victim girl is born on 12 th day of July 2007. However, he didn’t comment anything on the evidence of PW2 (victim girl) who also uttered that she is 17 years’ old as she was born on 12th January 2006. Though both dates make the girl being below 18 years old, but the law is, this being a

statutory rape, age of the victim girl ought to have been strictly established. Otherwise, it is dangerous to place much 11 reliance on such a mere utterance that one is 17 years old. In a further consideration that there has been a confusion of a birth date between the parent and that of the victim girl (PW1 and PW2), the vital question is one, when is the victim girl born? This being a statutory rape, its establishment was vital and ought to be beyond reasonable doubt. Was that established? Yes, I agree with the observation that evidence of a parent on age of his/her child is better than any. My interest is this, is a mere utterance that D.M is 17 years old as born on 12th July 2007 a conclusive established fact on one’s age? On statutory rape, it being an important ingredient, we must be very strict on its establishment. Otherwise, there is a danger of young men falling preys of rape charges just on parental differences. In consideration of the fact that each case must be considered by its own facts, in the current case where there is an allegation that the victim girl was in marriage arrangement with the appellant, that she was below 17 years old, ought to have been strictly established. Otherwise, there is a danger of antagonistic parents using this opportunity against innocent people to get shield on the age of the victim in favour of rape charge. 12 It is now trite law,

that the victim’s age in statutory rape cases must be strictly proved and not a mere mentioning. See; Edward s/o Yohana versus The Republic, Criminal Appeal No. 48 of 2022 (HC) at Shinyanga. Thus, it goes without saying that the age of the victim was not sufficiently proved. Hower in the cause of digest, I have also noted the issue of delaying to report the incidence. PW2 - the victim girl testified that they started their relation since April 2022 and she shifted from her home place and started living with the appellant as wife and husband. Part of her evidence goes this way: “..I did repeat form II, two times. It was on 2012 and 2022. I did fail Form II exams. I stopped studying after engaged myself on love affairs. I fell in love with Steven Leonard. We met at Bushigwamhala village. ….we started our relationship in in April 2022. He did take at his home place Masanza corner. He did marry me. We used to have sexual intercourse….” PW1’s testimony on this fact, is admitting that his daughter was taken by the appellant in April 2022 and in August 2023 he took her back home after he had traced her from the appellant (after 16 months). But 13 the matter was reported later on 28/8/2023, consequently, the appellant was arraigned before the trial Court on 5/10/2023. From these factual issues, firstly, there is a delay in reporting the matter, taking into consideration that PW1 a

father of the victim was aware of it for so such long time but did not take any legal action. In the case of The Director of Public of Prosecutions vs Simon Mashauri, Criminal Appeal No.394 of 2017 (CAT), it was held that; "Besides that, PW1 did not report to the police station at the earliest opportune time. In that night, she took shower which was not proper in the circumstances and slept. In the next morning, she went to church. The question we ask ourselves, was it a wise idea going to church instead of taking the necessary steps of reporting the rape incident to the police station. PW1 said she did not do it during that night because it was late. We think, if that was the case, reporting to the police in the following day would have been the first thing to do instead of going to church and waiting to report to PW7 first. We find her evidence to be unreliable." (emphases added) 14 This Court has always found it unsafe to convict an accused person in such unexplained delays in reporting the matter to police since the occurrence of the offence. see also cases of Tito Paulo Rwechungura, Criminal Appeal No.570 of 2020 (CAT), Thomas Msemakweli vs The Republic, Criminal Appeal No. 91 of 2019 [2020] TZHC 452; (31 March 2020) (TANZLII). On the same vein, I agree with the appellant that there was on going discussion of marriage continued between the parents of the appellant and PW1.

This is evidenced by the testimony of PW2; and also DW2, DW3 neighbours of the PW1 who clearly provided that they were invited for discussion of bride price arrangement and the consensus was reached that the appellant should pay Tshs 2,000,000/= to marry the victim. Things went well and parties consented to, and the victim proceed to live with the appellant. Mindful the victim had refused to go to school after had failed form II exam. Thus, she was fallen in love with the appellant. Section 17(1) of the Law of Marriage Act provides that; “A female who has not attained the apparent age of eighteen years shall be required, before marrying, to obtain the consent– (a) of her father; or 15 (b) if her father is dead, of her mother; or (c) if both her father and mother are dead, of the person who is her guardian, but in any other case, or if all those persons are dead, shall no require consent.” From the extract above PW1 is estopped from denying to have entered into discission of marriage celebration of her daughter. There was a thrive initiative to that effect and thus had consented thereto. Thus, the charge against the appellant manifested by PW1 is an after thought and has been caused by other unknown factors. Taking on board that the appellant was not charged with the offence of causing a school girl not attend school regularly and since there is no sufficient proof that the

victim was a student, I am of the formed view that the relationship between the appellant and the victim was a consented one by her parents. My construction of the law under section 130(1) (2) (e) of the Penal Code, Cap 16 R.E, 2022 is: a male person who has sexual intercourse with a girl between 15 and 17 years of age who is his wife and has consented to the sexual act, there is no rape as per law. Since PW2 – the victim testified that she was no longer studying and that she was married to the appellant from April 2022, it is my conviction that 16 this rape charge against the appellant was not a real rape but one based on parental differences upon dowry price having been delayed paid. That is not the sexual act statutorily prohibited in the circumstances of this case. A mere delay in dowry payment to under girl dully consented to the marriage, does not legalize rape charge. Therefore, in the absence of sufficient proof of the victim’s age, and the fact that the sexual intercourse if any was consented to, the offence of rape was not proved against the appellant. All this said, I allow this appeal and quash the conviction meted against the appellant. I as well set aside the sentence of thirty (30) years meted against him of the offence. In its place, I order his immediate release from custody unless he is lawfully held by other causes. It is so ordered. DATED at SHINYANGA this 29th day of August, 2024. F.H. Mahimbali Judge. 17