Venance Mwenda v Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 14322 OF 2024 (Original Criminal Case No. 164 of2022 of the District Court of Babati at Babati) VENANCE MWENDA.......................................................................... APPELLANT Versus THE REPUBLIC................................................................................. RESPONDENT JUDGMENT 3d July and 27h August, 2024 MIRINDO, J:. The appellant, Venance Mwenda, who was married to a woman who had a child with another man, was charged before Babati District Court with two counts of rape and one count of grave sexual abuse against the stepchild of eleven years. The prosecution case rested on the testimony of five witnesses. At the conclusion of the prosecution case, the District Court ruled that the appellant had no case to answer in respect of rape counts but had a case to answer in respect of the offence of grave sexual abuse. At the conclusion of the trial, the appellant was convicted of grave sexual abuse and was sentenced to twenty years imprisonment. He has appealed to the High Court. In his six grounds of appeal, 1 the major point of complaint is that his conviction is against the weight of evidence. The appellant who was unrepresented at the trial and before this Court argued the appeal generally. He doubted the evidence of his wife because she did not promptly report the incident which took place on 28 August 2022 and was reported on 2 October 2022. He pointed out that the medical evidence indicated that the child victim was not a virgin and the medical doctor who testified as the third prosecution witness merely assumed that the sexual organ of the child victim was penetrated by fingers. Another appellant's complaint is that neither the local authority leaders nor the neighbours were involved in this incident. The appellant stated that there was no family meeting to resolve the matter and the incident was not known to villagers. He also argued that the fourth prosecution witness gave hearsay evidence even though he did not cross-examine her. The learned Senior State Attorney, Ms Blandina Msawa, appeared for the respondent Republic and supported the appellant's conviction and sentence. She principally argued that the charge was proved beyond reasonable doubt. She maintained that the appellant's complaints have no merit partly because he never cross-examined prosecution witnesses on those issues. 2 This is a first appeal and this Court has the bounden duty to re-evaluate the evidence before the trial court and arrive at its own conclusions. The victim's child testified, as the second prosecution witness, that on a certain Sunday her father called him to his bedroom and put his finger into her sexual organ. She shouted in Kiswahili that "Nitasema kwa mama". Then her mother, Maria Abuu, came in and found the appellant putting his finger on her sexual organ. The first prosecution witness who is the victim's mother confirmed seeing the appellant putting his fingers on the sexual organ of the victim's child around 14.00 PM into their bed room. She reported this fact to her relatives and their marriage witness. Another witness to this fact was Regina Pantaleo who was a witness to the marriage ceremony between the appellant and the victim's mother. She gave largely inadmissible hearsay evidence not worthy of consideration in the present appeal. The appellant denied the charge and testified that after marrying the victim's mother he was living at his father's in-law compound. He tried to convince his wife that they should look for another residence. His wife threatened him that if he vacated, she would make him jailed for life. It should be recalled that the trial court doubted the prosecution evidence in the respect of two counts of rape and ruled that the appellant had no case to 3 answer. The prosecution evidence was built on repetitive acts of rape and a single act of putting fingers in the victim's vagina. I have no reason to rule that there is sufficient evidence to prove the charge of grave sexual abuse. As mentioned earlier, the appellant argued that there was unreasonable delay in reporting the incident to appropriate authorities. The victim's mother explained that the delay was due to the fact that the appellant threatened to kill them if they disclosed the incidents to anyone. The victim's mother eventually reported the incident to their marriage witness who advised her to report the incident to her blood relatives. This account relates to rape incidents and do not relate to grave sexual abuse. The appellant's testimony is that he was living with his father in-law since marrying the victim's mother. This fact cast doubt on the victim's mother account. First, there is no clear reason why she did not report the allegation of grave sexual abuse to her parents. None of the parents of the victim's mother were called to testify on this incident even though the appellant was living in the compound where the incident took place. Secondly, there is no sufficient reason why the victim's mother trusted their marriage witness more than her parents and chose to report the incident to her. Thirdly, the issue of family meeting to reconcile on these issues was not sufficiently proved to account for delay in reporting the incident. There is no account of persons who attended that meeting. Whatever the case, 4 the meeting took place on 2 October 2022 and does displace the doubt already raised by the appellant. Besides, I am of the view that the prosecution account is incoherent and inconsistent with common sense. The charge relates to an offence committed on 28 August 2022 in the bedroom of the victim's parents. The parents celebrated a Catholic wedding ceremony on 23 January 2021 and by 7 November 2022 they had three children. If these facts, as stated by the first prosecution witness, are anything to go by, there is a crucial fact to be proved by the prosecution to clarify the unusual and solitary presence of the appellant with the victim's child in the couple's bedroom. Maria Abuu must have had a baby or a new born whose natural residence is the mother's room. Where were they at the time of the incident? Giving room to the possibility of a typing error, and assuming that the three children were a bit older where were they at the time of the incident? The statement that Maria Abuu suddenly entered into her bedroom was not enough in the circumstances of this appeal. As the appellant was living at the compound of the parents of the victim's mother, there is no evidence to explain the absence of other persons in the surroundings of the appellant's house. Dr. Solomon Kweka prepared the medical examination report contained in Police Form No. 3, testified as the third prosecution witness, and tendered the report in court. The report does not indicate finger penetration notwithstanding 5 the Dr's unclear statement in court that "The finger was penetrated, up to cervix." I would also point out that the victim's mother account in cross- examination is that she entered into her bedroom when she heard the child victim stating "Baba niachie". This account is in contradistinction to the account given by the child victim. As already mentioned, she testified shouting "Nitasema kwa mama." While I was prepared to hold this to be a slight variation, I am satisfied that this account coupled with the suspicious circumstances under which the appellant is accused of the offence of grave sexual abuse do raise reasonable doubt in the prosecution case. As was held by the Court of Appeal in Zakaria Japhet alias Jumanne and Two Others v R (Criminal Appeal No. 37 of 2003) [2006] TZCA 150: ...It is a cardinal principle of law that in a criminal charge doubt are resolved in favour of the accused however slight they may be. ... I am satisfied that in the circumstances of this appeal, the prosecution was duty­ bound to prove the circumstances in the appellant's house that led to the unusual and solitary presence of the appellant and the child victim in the couple's bedroom. For these reasons I quash the conviction and set aside the sentence imposed by Babati District Court. It is ordered that the appellant, Venance 6 Mwenda, be released from prison custody immediately unless he is otherwise lawfully withheld. DATED at BABATI this 7th day of August, 2024 F.M. MIRINDO JUDGE Court: Judgment delivered in chambers this 27th day of August, 2024 in the presence of the appellant in person and in the presence of the Ms Blandina Msawa, Senior State Attorney for the respondent Republic. BC: William Makori (RMA) present. Right of appeal explained. F.M. Mirindo JUDGE 7