Mashaka Marwa vs Republic (Criminal Appeal No. 138 of 2018) [2022] TZCA 416 (12 July 2022)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MUGASHA, J.A.. KEREFU, J.A.. And KIHWELO. J.A.^ CRIMINAL APPEAL NO. 138 OF 2018 MASHAKA M ARW A ......................................................................... APPELLANT VERSUS THE REPUBLIC............................................................................RESPONDENT [Appeal from the Judgment of the High Court of Tanzania at Mwanza] (G w a e J J Dated the 7th day of May, 2017 in Criminal Appeal No. 99 of 2017 JUDGMENT OF THE COURT H ih & 12lh July, 2022 MUGASHA. J.A.: In the District Court of Tarime at Tarime, the appellant was charged, with the offence of rape contrary to sections 130 (1) (2) (e) and 131(1) of the Penal Code, Cap. 16, R.E., 2022. It was alleged by the prosecution that, on 12/1/2016 at about 1500 hours, at Msati High way Street within Tarime District in Mara Region, the appellant had carnal knowledge of a thirteen years old girl. For the purposes of concealing her identity, the girl shall be referred to as the victim or PW1. l

The appellant denied the charge, following which the prosecution paraded four witness and tendered a PF3 which was admitted in evidence as Exhibit PI. The appellant was the sole witness for the defence. After a full trial, he was convicted and sentenced to 30 years' imprisonment and ordered to compensate the victim a sum of TZS. 4,000,000.00. He unsuccessfully appealed to the High Court and hence the present appeal to the Court. A factual account underlying the present appeal is briefly as follows: On the fateful day, about 15.00 hours, the victim was at home with her younger sister. She wanted to attend the call of nature but was scared to go to the pit latrine which was not in order and opted to go to her grandfather's maize farm. While attending the call of nature, someone came from behind and held her collar and when she turned back, she saw the appellant holding a knife. The appellant ordered her to sit down and he threatened to kill her and thereafter, he ordered her to undress the underwear, she declined and he hit her with a stone on the head. Then, the appellant undressed the victim, he undressed, laid down the victim and inserted his manhood into her vagina. The victim felt pains and blood was oozing from her vagina while the appellant's manhood was discharging fluids. Having satisfied his lust, the appellant took the victim's 2

underpants and placed it in his pocket. As the victim was crying in pain, the appellant began to search for maize to hit her but she managed to escape leaving behind the appellant in the maize farm. The victim was crying while she was going home and upon arrival, she reported the incident to her grandfather Sion'go Marwa (PW2) and mentioned the appellant as the one who ravished her. They went to the scene of crime and the victim showed the place where the appellant raped her. Thereafter, they went to the appellant's mother and the trio went to the scene of crime and PW2 reported the incident to the street chairperson Josephat Maseke (PW5) who referred the matter to Tarime Police station. At the police, WP 9207 DC Farida (PW3) interrogated the victim who narrated the rape incident and mentioned the appellant as the culprit and recorded her statement. She also inspected the victim and found blood stains and sperms in her private parts and proceeded to issue the victim with the PF3 and she was taken to Tarime Government Hospital for medical examination. Upon being examined by Dr. Samwel Obiero (PW4) a medical doctor, bruises were found in the victim's private parts and further medical examination into the laboratory revealed that the victim was infected with gonorrhoea. Thereafter, the victim was given medication and the Doctor filled in the PF3 which was tendered in 3

evidence as (exhibit P.I.). Subsequently, the appellant was arrested and arraigned in court as earlier stated. In his defence, the appellant denied each and every detail by the prosecution. He denied to know the victim and claimed to have seen her for the first time in Court. He as well claimed not to have been at the scene of crime because for the whole day he was laying bricks and thereafter, between 1.00 and 4.00hours he was resting at home and that, it is her mother who told him about the accusations. Moreover, he recounted that, it was on the following day when the victim's father surfaced holding a panga with accusations about the rape incident and that later, he was arrested by the police and sent to Tarime Police station. In its judgment, the trial court found the appellant culpable of the offence as it was satisfied that the evidence of PW1 and PW2 as corroborated by PW3, PW4, PW5, and PW6 was credible and did prove the offence charged. The first appellate court sustained the conviction and the sentence and as earlier stated, the appellant is yet unhappy and has lodged a second appeal to this Court. In the memorandum of appeal, the appellant enumerated six grounds as follows; 4

1. That the 1st appellate court erred in law and fa ct to uphold conviction based on prosecution evidence w hile not observing that the sam e was contradictory, problem atic, and consisting fu ll o f shadows and susceptible o fp ro o f whereas: a. That PW1 and PW2 testified that PW1 was 13 years old w ithout tendering any docum entary evidence before the court to prove her age as required by law. b. PW1 and PW 2 testified that the victim aged 13 years o ld was her firs t tim e to have sex w ithout tendering any docum entary evidence to prove the alleged age. c. PW4 fa ile d to testify in d e ta ilon how the alleged bruises were caused and how the alleged venereal diseases had been detected w ithin 3 hours.

2. That, the firs t appellate Court m isdirected its e lf in law and fact to dism iss the appeal based on prosecution evidence w hile it fa ile d to note that the case lacked m aterial fa ct and proper investigation as no caution statem ent o f the appellant was tendered before the tria l court and the p olice o ffice r who investigated the case d id not appear before the tria l court to prove the alleged rape.

3. That the judgm ent is in contravention o f the provisions o f section 312 (2) o f the CPA. W hereas the conviction and sentence provided on incom petent and in com plim ent o f provisional o f law. (sic) Also, on 26/6/2022 the appellant lodged in Court the supplementary grounds of appeal containing the following grounds; 5

4. That, the charge was not proved due to the evidence o f the p articu lar w itness (PW 1) and PW 2 were a t variance about the date and the scene (street) o f the incident w hile they are basic ingredients.

5. That the victim 's evidence was taken ille g a lly a t open Court contrary to SOSPA, by wrong recording o f the voire dire test and w ithout stating the prom ise than false by the victim contrary to the am ended Crim inal Procedure Act.

6. That, the m edical evidence from PW 4 and the PF3 were not required to corroborate the victim (P W l)'s evidence as the PF3 was adm itted w ithout its contents to be read before the Court and the appellant.

7. That, none o f the appellants recorded plea in the record o r rem inding the charge before the Prelim inary hearing and la te r before the PW1 's testim ony and also none o f the appellant's signature after the facts and the exhibit states are om ission which vitiated the tria lproceedings.

8. That, the low er Courts were prejudiced to consider and determ ine the a lib i defence o f the appellant w hile the court was aware o f the a lib i w ithout observing com m ents on the obvious variance o f the scene.

9. That, the 8th ground o f petition was not considered and determ ined in the High Courtjudgm ent and therefore there was unfair tria l against the appellant. At the hearing, the appellant appeared in person, unrepresented whereas Ms. Maryasinta Lazaro Sebukoto, learned Senior State Attorney 6

appeared for the respondent Republic. Upon taking the floor and following a brief dialogue with the Court, the appellant abandoned ground 3 in the Memorandum of Appeal and ground 4 in the Supplementary Memorandum of Appeal. Thereafter, having adopted the memoranda of appeal he opted to initially hear the submission of the learned Senior State Attorney, and reserved a right to rejoin if need arises. Ms. Sebukoto from the outset, intimated to us that the Republic was not supporting the appeal. Initially, she first opted to submit on the new grounds of appeal raised before the Court and which were neither raised nor decided by the two courts below. On this, she pointed out that the complaint in grounds of appeal 1 (a) and (c) and 2 and 1 in the Memorandum and the Supplementary memorandum of appeal, respectively are on factual issues and not on points of law and as such, the Court has no jurisdiction to entertain them. Regarding the complaint on the age of the victim, constituting ground 1 (b) of the Memorandum of appeal, Ms. Lazaro challenged the same by arguing that, the victim was below 18 years pursuant to the trial court's finding which having conducted a voire dire examination, it was satisfied that the victim was below 18 years. Besides, she added that, at 7

the trial the appellant did not cross examine the victim about her age and as such, he acquiesced that she was below the age of 18 years. To cement her argument, she referred us to the case of ISSAYA RENATUS vs. REPUBLIC, Criminal Appeal No. 542 of 2015 (unreported). Pertaining to the complaint that the trial was not conducted in camera, this was conceded to by Ms. Sebukoto. However, she was quick to argue that, the appellant was not prejudiced because he was not denied a fair trial. Regarding the appellant's complaint that PW1 did not promise to tell the truth, Ms. Sebukoto argued that, since PW1 gave a sworn account, this was in order considering that although the victim was subjected to voire dire, yet the trial magistrate was satisfied that the victim possessed sufficient intelligence to justify reception of her evidence under oath. In this regard, Ms. Sebukoto argued that the law was not contravened. On the question of documentary medical account contained in the PF3, Ms. Sebukoto conceded that it was not read out to the appellant during trial and it deserves to be expunged. However, she contended that in the absence of the PF3, PW4's oral account on findings and observations on the medical examination of the victim suffice to establish that the victim was actually raped.

As to the complaint on non-consideration of the defence of alibi, it was Ms. Sebukoto's contention that, although it was not considered by the two courts below, the totality of the prosecution evidence is sufficient to sustain the conviction of the appellant. Finally, Ms. Sebukoto submitted that the charge of rape was proved beyond reasonable doubt against the appellant on account of credible evidence of PW1, who besides narrating to her grandfather that she was raped by the appellant, she mentioned him to be the culprit at the earliest moment to her grandfather and the matter was promptly reported to the police. Relying on the case of SELEMANI MAKUMBA VS REPUBLIC (2006) TLR 379, she concluded that, the victim is the best witness on the rape ordeal she endured which is corroborated by other prosecution witnesses which rendered the charge proved beyond reasonable doubt against the appellant. She thus urged the Court to dismiss the appeal. In rejoinder, the appellant had nothing useful to add besides urging us to consider his grounds of appeal and set him at liberty. After a careful consideration of the submissions from either side, grounds of appeal and the record before us, basically the determination of this appeal hinges on three major issues namely, One, whether the 9

appellant was denied a fair trial; two, whether the trial was flawed with procedural irregularities such as, failure to read out the contents of the admitted document (PF3); omission to conduct voire dire before PW1 gave her testimony; omission to conduct the trial in camera; and three, whether the charge against the appellant was proved beyond reasonable doubt. We begin with the complaint on the right to legal representation. At the outset and without prejudice, we agree with the appellant that, although the complaint was raised in the petition of appeal before the High Court, it was not determined. Thus, since the complaint raises a pertinent question of law on a fair trial, we shall in the circumstances, step into the shoes of the High Court so as to determine what ought to have been decided by the High Court. The right to legal representation is regulated by the provisions of section 33 (1) of the Legal Aid Act [ CAP 21 R.E. 2019] which stipulate as hereunder: "33 (1)- Where in any crim inal proceedings, it appears to the presiding Judge o r M agistrate that: 10

(a) in the interests o fju stice an accused person should have leg al a id in the preparation and conduct o f h is defence o r appealas the case m ay be; and (b) h is m eans are insufficient to enable him to obtain le g a l services, The presiding judge o r m agistrate, as the case m ay be, sh a ll ce rtify that the accused ought to have such leg al a id and upon such certificate being issued, assign to the accused a le g a l a id provider which has an advocate fo r the purpose o f preparation and conduct o f h is defence o r appeal, as the case m ay b e." According to the cited provision, a person in need of legal aid service has a duty to engage an advocate or apply for legal aid in terms of the cited provision if she is unable to hire an advocate. In the case at hand, it is glaring on the record that the appellant neither applied for legal aid for the purposes of the preparation and conduct of his defence at the trial court, nor informed the trial court or the first appellate court that he wished to engage an advocate for the purpose of preparation and conduct of his defence or appeal. The Court was confronted with a like scenario in the case of JONASI LESIDOO VS REPUBLIC, Criminal Appeal No. 561 of 2020 (unreported) and stated thus, 11

"Since the appellant neither inform ed the tria l court that he w ished to engage an advocate nor apply fo r leg al aid, he cannot be heard to have been denied leg al representation a t both the tria l and in the firs t appeal... Thus, the appellant was not denied a fa ir tria l and as such, h is com plaint is not m erited and it is hereby dism issed." That apart, in the present case the appellant who was present throughout the trial had an opportunity to listen to the prosecution evidence and cross-examine the prosecution witnesses. Moreover, at the close of the prosecution case and after the trial court made a finding that he had a case to answer, the appellant was addressed and given opportunity to elect the manner of giving his defence and call witnesses as per the dictates of section 231 of the CPA. In the premises, we agree with the learned Senior State Attorney that the appellant was not denied a fair trial and ground 6 in the supplementary memorandum of appeal is not merited. Next is the complaint on failure to read out the contents of the admitted document (PF3). Apparently, this was conceded to by Ms. Sebukoto who urged the Court to expunge the exhibit from the record. The respective exhibit was tendered in evidence by PW4, the medical 12

doctor as reflected at page 17 of the record of appeal. However, following its admission, it was not read out to the appellant. It is settled position of the law that, failure to read out the contents of an exhibit after its admission, is a fatal omission as it violates the accused's right to a fair trial. See: ROBINSON MWANJISI AND THREE OTHERS VS REPUBLIC [2003] T.L.R 218; ANANIA CLAVERY BETELA VS REPUBLIC, Criminal Appeal No. 355 of 2017, ZHENG ZHI CHAO VS THE DIRECTOR OF PUBLIC PROSECUTIONS, Criminal Appeal No.506 of 2019 and SIMON SHAURI AWAKI VS REPUBLIC, Criminal Appeal No.62 of 2020 (all unreported). In the case at hand, although the appellant was present throughout the trial, he was convicted on the basis of documentary evidence he was not aware and as such, he could not exercise his right to cross-examine such evidence which was indeed prejudicial to him. Thus, we accordingly discard the exhibit in question. However, as correctly argued by Ms. Sebukoto, even without the PF3 the oral account of PW4 is quite sufficient to cover the contents of the PF3 as his account explained in detail what is covered therein. This takes us to the last complaint relating to the procedural irregularities on the trial not being conducted in camera. Apart from Ms. Sebukoto conceding to the said omission, he was of the view that, in the 13

event the appellant was not denied a fair trial, he was not prejudiced in the circumstances. We understand that, conducting trial relating to sexual offences in camera is a requirement prescribed under provisions of section 186 (3) of the CPA which stipulates as follows: " 186 (3) Notw ithstanding the provisions o f any other law, the evidence o f a ii persons in a ii tria ls involving sexual offences sh a ll be received by the court in camera, and the evidence and w itnesses involved in these proceedings sh a ll not be published by o r in any newspaper o r other m edia, but th is subsection sh a ll not p roh ib it the printin g o r publishing o f any such m atter in a bona fide series o f law reports or in a newspaper o r period ical o f a technical character bona fide intended fo r circulation among m em bers o f the le g a l o r m edicalprofessions." It is not disputed that, the trial court did not comply with the cited provision which imposes mandatory requirements that, the whole of the evidence must be received in camera. That being the case, the follow up question is whether the trial was vitiated. In the case of GOODLUCK KYANDO VS REPUBLIC [ 2006] TLR 363 the Court had the occasion to make a following observation at page 368: 14

" It is not dispute that the appellant who was then a ch ild under the Children and Young Person Act, should have had h is tria l conducted in cam era as prescribed under the said Act. The pream ble to the Sexual O ffences Special Provisions Act, 1998 in the follow ing term s- "An A ct to am end several w ritten law s, m aking special provisions in th is law s w ith regard to sexual and other offences to further safeguard the personal integrity, dignity, lib e rty and security o f women and children Thus the enactm ent o f A ct No. 4 o f 1998 was against th is general consideration. The provisions o f the A ct were designed to safeguard the personal integrity, dignity, lib erty and security o f women and children. It is therefore not surprising that in sexual offences, under section 3 (5) o f the Children and Young Persons Act, such tria ls are to be conducted in cam era so that children as defined under the A ct are not fo r instance exposed to p u b licity which m ay in h ib it a fa ir trial, subject them to fear stigm a and the lik e ." Given the said observation which is applicable in the present matter and considering that the appellant did not make any protest at the trial or complain in the first appellate court, he cannot now complain that he was 15

prejudiced by the said omission. The record is completely silent if the appellant raised the issue during the trial and on this we reiterate what we said in the case of GODLOVE AZAEL @ MBISE VS REPUBLIC, Criminal Appeal No. 312 of 2007 (unreported) thus, "In what way was the appellant prejudiced under section 186(3) o f the CPA. Even a t the late stage when he made his defence as DW1, he d id not protest that since he was charged w ith sexual offence, h is evidence should be received in cam era . " If at all, it is the victim who was entitled to complain and not the appellant who seeks to benefit from what would ordinarily benefit the victim. Therefore, the trial was not vitiated and equally so, the appellant was not prejudiced which renders ground 2 of the supplementary memorandum not merited. Having disposed the grounds relating to the complaint on procedural irregularities, we now have to determine a crucial issue as to whether the charge was proved against the appellant beyond reasonable doubt. The appellant is faulting the two courts below to have grounded his conviction relying on unreliable prosecution account which suffered ailments and did not prove the charge to the hilt. 16

At the outset, it was Ms. Sebukoto's submission that, some of the grounds of appeal raised by the appellant on factual matters are new as neither were they raised nor determined by the two courts below and since they are not based on points of law, the Court is not clothed with jurisdiction to determine them. He pointed out those grounds to include: one, proof if venereal disease could be detected in 3 hours after the rape incident; two, failure by the investigator to adduce evidence and that no cautioned statement was tendered; and three, that the evidence of PW1 and PW2 are at variance on the date and place of occurrence of the rape incident. Apparently, these grounds of complaint were not raised before the first appellate court and have been raised before the Court for the first time. This Court has in numerous occasions stated that, it has no jurisdiction to deal with an issue raised for the first time which was neither raised nor decided upon by the lower courts unless it raises a point of law because the jurisdiction of the Court is confined to matters which came up in the lower court and were decided. See: JAFARI MOHAMED VS REPUBLIC, Criminal Appeal No. 112 of 2006, GODFREY WILSON VS REPUBLIC, Criminal Appeal No. 168 of 2018 and GALUS KITAYA VS REPUBLIC, Criminal Appeal No. 196 of 2015 (all unreported). In the 17

latter case confronted with an issue as to whether it can determine a matter neither raised nor decided by the High Court, we stated: "On com paring the grounds o f appeal file d by the appellant in the High Court and in th is Court, we agree with the learned State Attorney that, grounds one to five are new grounds. A s the Court sa id in the case o f N u rd in M usa W ailu v. R e p u b lic supra, the Court does not consider new grounds raised in a second appeal which were not raised in the subordinate courts. For th is reason, we w ill not consider grounds num ber one to num ber five o f the appellant's grounds o f appeal. This however, does not mean that the Court w ill not sa tisfy its e lf on the fairness o f the appellant's tria l and h is conviction." Yet, in another case of HASSAN BUNDALA VS SWAGA, Criminal Appeal No, 386 of 2015, (unreported) when the Court was confronted with a similar situation, stated as follows: "Mr. Ngoie, fo r obvious reasons resisted the appeal very strongly. F irst o f all, he pointed out that the firs t and th ird grounds were not raised in the First appellate court and have been raised fo r the firs t tim e before us. We agree with him that the grounds m ust have been an afterthought. 18

Indeed, as argued by the learned P rin cipal State Attorney, if the High Court d id not deal with those grounds fo r reason o f failure by the appellant to raise them there, how w ill th is Court determ ine where the High Court went wrong? It is now settled that as a m atter o f general p rin ciple th is Court w ill only look into m atters which came up in the low er court and were decided; not on m atters which were not raised nor decided by neither the tria l court nor the High Court on appeal." Besides, in the present case since the new grounds are matters of fact, in the case of FELIX KICHELE AND ANOTHER VS REPUBLIC, Criminal Appeal No. 159 of 2015 (unreported), the Court among other things, categorically stated: ..Indeed, there is a presum ption that disputes on facts are supposed to have been resolved and settled by the tim e a case leaves the High Court. That is p art o f the reason why under section 7(6) (a) o f the Appellate Jurisdiction Act, 1979 it is provided that a party to proceedings under P art X o f the CPA, 1985 m ay appeal to the Court o f Appeal on a m atter o f law but not on a m atter o f fa ct." 19

In the light of the settled position of the law, in the present matter the complaints in which the venereal disease could be detected in three hours after the rape incident; the investigator not adducing the evidence and the cautioned statement not being tendered and the variation in the evidence of PW1 and PW2 on the date and the scene of crime are disputes on facts which ought to have been initially raised and resolved at the High Court. Thus, since such factual matters do not raise any point of law, we cannot at any rate consider them at this stage. As such, grounds 1 and 2 in the memorandum of appeal and ground 1 in the supplementary memorandum of appeal will not be considered and are hereby discarded. This however, does not mean that the Court will not satisfy itself on the fairness of the appellant's trial and his conviction. This takes us to ground 2 in the supplementary memorandum of appeal whereby the appellant is faulting the trial court to have convicted him basing on the evidence of PW1 who prior did not promise to tell the truth. It was Ms. Sebukoto's argument that, in the event PW1 gave a sworn account, her evidence cannot be invalidated merely because prior, she did not promise to tell the truth. It is glaring at page 10 of the record of appeal that, the trial court conducted voire dire examination on PW1 prior to recording her sworn 20

evidence after making a finding that she understood the nature of the oath. That is the old procedure which ceased to be applicable after the amendment of section 127 (2) of the Evidence Act vide the Written Laws (Miscellaneous Amendments) (No. 2) Act No. 4 of 2016. After the amendment, section 127 (2) of the Evidence Act now reads as follows: - "127(2) - (1) ...N /A (2) A ch ild o f tender age m ay give evidence w ithout taking an oath or m aking an affirm ation but shall, before giving evidence, prom ise to te ll the truth to the court and not to te ll any lie s ." From the wording of the cited provision reproduced above, besides, doing away with the requirement of conducting voire dire test, the fact that the trial court determined PWl's ability to give evidence on oath on the basis of the practice which is obtained under the repealed law, did not invalidate that evidence. See: for instance, the cases of SELEMANI MOSES SOTEL @ WHITE V. REPUBLIC, Criminal Appeal No. 385 of 2018 and BASHIRU SALUM SUDI V. REPUBLIC, Criminal Appeal No. 379 of 2018 (both unreported). In the latter case, the Court observed as follows: - " It is true that her (PW1) evidence was received on affirm ation after the tria l court had conducted 21

a voire dire test despite the fa ct that it is no longer a requirem ent. However, we are settled in our m ind that the fact that the tria l court determ ined PW1 's a b ility to give evidence on oath o r affirm ation on the basis o f the practice obtained under the repealed law, d id not invalidate that evidence. This is because, as observed in G o d fre y W ilson v. R [C rim inalAppealNo. 168 o f 2018] and la te r is Issa Salum N am babuka v. R. [C rim inal Appeal No. 272 o f 2018] (both unreported), the law is sile n t on the m ethod o f determ ining whether such ch ild m ay be required to g ive evidence on oath or affirm ation o r not" In this case, since the victim and a witness of tender age was examined on oath, her evidence was validly obtained and thus, the complaint in ground 2 of the supplementary memorandum of appeal is not merited. We shall revert to this point at a later stage of this judgment. Finally, we have to determine as to whether the charge was proved to the hilt against the appellant. It is glaring that, the conviction of the appellant which was upheld by the first appellate court hinges on One, the credible evidence of the PW1 who told the trial court that it is the appellant who raped her in the maize farm and two, the appellant was not a stranger and she mentioned the appellant to be the assailant to her 22

grandfather (PW2) and the police officer (PW3). In this regard, this being a second appeal, it is trite law that the Court should rarely interfere with the concurrent findings of the lower courts on the facts unless there has been a misapprehension of the evidence occasioning a miscarriage of justice or violation of a principle of law or procedure. See - DPP VS JAFFAR MFAUME KAWAWA [1981] TLR 149 and FELIX KICHELE AND ANOTHER VS REPUBLIC, (supra). We are also aware that the credibility of a witness, apart from that being a monopoly of the trial court only in so far as the demeanour is concerned, it can still be determined by the second appellate court when assessing the coherence of that witness in relation to the evidence of other witnesses including that of an accused person - See SHABAN DAUDI VS REPUBLIC, Criminal Appeal No. 28 of 2001 (unreported). We shall be guided by among others, the above cited principles to determine the present appeal. Having re-evaluated the evidence, we deem it crucial to state that, in order to establish the offence of statutory rape, it must be proved that the victim is below the age of 18 years which is in terms of the provisions of section 130(1) (2) (e) of the Penal Code [CAP R.E.2022]. In this regard, it is most desirable that the evidence as to proof of age be given by the 23

victim, parent, guardian, medical practitioner or where available by production of birth certificate. In the case of ISSAYA RENATUS VS REPUBLIC (supra) which was cited to us by the learned Senior State Attorney, the Court stated: "There m aybe cases, in our view, where the court m ay in fe r on existence o f any fact including the age o f the victim on the authority o fsection 122 o f the TEA which goes thus: "The Court m ay in fe r the existence o f any fact which it thinks lik e ly to have happened, regard being had to the common course o f natural events, human conduct and p u b lic and private business, in th eir relation to the facts o f the p articu lar case." In the case under our consideration there was evidence to the effect that, a t th e tim e o f te stim o n y, th e v ictim w as a c la ss fiv e p u p il a t T w abagondozi P rim a ry S ch o o l. Furtherm ore, PW1 was in tro d u ce d in to th e w itn e ss b o x a s a c h ild o f te n d e r age, follow ing which the tria l court co n d u cted a v o ire d ire te st. Thus, given the circum stances o f th is case, it is, in the least, deducibie that the victim was w ith in th e a m b it o f a p e rso n u n d e r th e age o f e ig h tee n . To th is end, we fin d the fir s t g ro u n d o f a p p e a l to be d e v o id o f a n y m e rits." 24

[Emphasis supplied] Therefore, in the present case, given that the victim testified as a witness of tender age, and in the wake of the evidence that she was a class seven pupil at Sabasaba Primary School, it can safely be inferred that the victim was below the age of 18 when she was raped by the appellant. Thus, the complaint in the ground 1 (b) of the Memorandum of Appeal is not merited. Next for consideration is that, in sexual offences, the best evidence is the credible account of the victim who is better positioned to explain how she was raped and the person responsible. In that regard, having revisited the evidence of PW1 we are satisfied that, she was a credible witness and testified on how she was ravished by the appellant in the maize field where she went to attend the call of nature. She was coherent and consistent in her account which was not contradicted by any witness including the appellant as reflected at page 13 of the record of appeal when cross-examined by the appellant, she firmly replied as follows: "I d id not make noise ioudiy sim ply because "ulikuwa una kisu na ulikuw a unanuka bangi. I only cried. You are the firs t person to have sexual intercourse with m e...." Upon being re-examined by the prosecutor she is on record to have said: 25

"I d id not make noise sim piy because the accused threatened to k ill me. The accused person handled a knife I went back a t home crying". Moreover, on arrival at home she narrated to her grandfather (PW2) that she was raped by the appellant and proceeded to take PW2 at the scene of crime which was the earliest moment. Thus, the victim was better placed to explain her ordeal in the rape incident and the person responsible. See - SELEMANI MAKUMBA VS REPUBLIC (supra) and EDSON SIMON MWOMBEKI VS REPUBLIC, Criminal Appeal No. 94 of 2016 (unreported). Apart from the victim's credible account, her testimony was corroborated by PW2 who took trouble to visit the scene of crime and the police officer PW3 who inspected her private parts and found blood stains and whitish discharge. This was confirmed by PW4, the medical doctor who examined her and found bruises which in our considered view is proof that, there was indeed actual penetration on the vagina of the victim. Therefore, regardless of the appellant's claim that on the fateful day he was not at the scene of crime as he was resting at his residence after laying bricks, the credible account of PW1 who was familiar to the appellant points to his guilt being the one who ravished the victim and no other. This renders the 5th ground in the supplementary memorandum of appeal not merited. 26

Thus, in the wake of credible account by PW1, PW2, PW3 and PW4 we find no cogent reasons for not believing the same as it points to the guilt of the appellant and as such the offence charged was proved to the hilt against the appellant. In view of what we have endeavoured to discuss we do not find cogent reasons to vary the concurrent verdicts of the courts below. Thus, save for ground 3 in the supplementary memorandum, we find the appeal not merited and proceed to dismiss it. DATED at MWANZA this 12th day of July, 2022. S. E. A. MUGASHA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL The Judgment delivered this 12th day of July, 2022 in the presence of appellant in person and Mr. Deogratius Richard Rumanyika, learned State Attorney for Respondent/Republic, is hereby certified as true copy of the original.