Meshack Redson Mwasimba vs DPP (Criminal Appeal No. 468 of 2017) [2020] TZCA 1842 (19 June 2020)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA fCORAM: MMILLA, J.A., MWANGESI, J.A. And WAMBALI, J.A.l CRIMINAL APPEAL NO. 468 OF 2017 MESHACK REDSON MWASIMBA@MWAZEMBE ............................. APPELLANT VERSUS D.P.P ........................................ .............................................. ......... RESPONDENT (Appeal from the decision of the Resident Magistrate Court of Mbeya with Extended Jurisdiction at Mbeya) f Mutaki, SRM EXT. Dated the 31st day of July, 2017 in Criminal Appeal No. 26 of 2017 JUDGEMENT OF THE COURT 17th & 19th June, 2020 WAMBALI, JA.: The District Court of Mbozi sitting at Vwawa in Criminal case No. 298 of 2015 convicted the appellant Meshack Redson Mwasimba @ Mwazembe of the offence of rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code Cap 16 R.E. 2002 (the Penal Code). Consequently, he was sentenced to a term of imprisonment for thirty years.

It was alleged in the charge sheet that, on 10th November, 2015 at about night time at Mpakani Sogea area within Momba District in Mbeya Region the appellant had carnal knowledge of a girl aged 12 years. For the purpose of this judgment we wili refer the girl as "SM" or "the victim". The appellant distanced himself from the allegation. As result, the prosecution paraded six witnesses and tendered three exhibits, namely, the Extra Judicial Statement (exhibit PI), Cautioned Statement (exhibit P2) and Medical Examination Report contained in a PF3 (exhibit P3). On the other side, the appellant was the only witness in defending the allegation. In his brief defence, he categorically denied to have raped the victim who they were living together at his home as a step daughter. He insisted that he could not have engaged in sexual intercourse with a girl whom he considered as his daughter under his care as he was married to her mother one Tatu MwiSenga (PW2). At the end of the trial, the trial District Court was satisfied upon evaluation of the evidence tendered by both sides that, the prosecution sufficiently proved the case to the required standard. It was further fully satisfied that none other than the appellant raped the victim. Consequently, it convicted and sentenced him as alluded to above.

Aggrieved, the appellant appealed to the High Court in Criminal Appeal No. 92 of 2016. That appeal was however, transferred to the Court of Resident Magistrate of Mbeya and was registered as Extended Jurisdiction Criminal Appeal No. 26 of 2017. It was thus assigned to Mutaki, SRM with extended jurisdiction. As it were, he unsuccessfully challenged the trial court's decision, hence the present appeal. At the hearing of the appeal, the appellant's attendance was facilitated by a video conference link between the courtroom and Songea Prison. On the adversary, Ms. Hannarose Kasambala learned State Attorney entered appearance for the respondent the DPP. The complaints of the appellant are expressed in a memorandum of appeal containing seven grounds of appeal. However, essentially those grounds of appeal can be compressed and paraphrased into the following five grounds:-

1. That the first appellate court erred in law and fact to believe and rely on the evidence of PW1 and PW2 who as relatives had their own interests to save. 3

2. That the first appellate court wrongly admitted and relied on the cautioned statement to ground the conviction of the appellant.

3. That the first appellate court wrongly believed and relied on the evidence of the extra judicial statement contrary to requirement of the law.

4. That the first appellate court wrongly convicted the appellant while the major ingredients of the offence of rape, that is , existence of bruises and semen were not established by the prosecution.

5. That the prosecution failed to prove the case beyond reasonable doubt When the appellant was called upon to submit in support of his appeal, he essentially adopted his grounds of appeal and urged us to consider them in determining the appeal. He therefore, prayed for his appeal to be allowed resulting in his acquittal. His submission paved the way for the response of the learned State Attorney for the respondent the DPP who categorically supported the findings and the decisions of the two courts below.

With regard to the first ground of appeal the appellant complained that it was wrong for the two courts below to believe the evidence of PW1, the victim and PW2, her mother who as relatives teamed up to incriminate him with the offence of rape which he did not commit. Through his explanation in the memorandum of appeal, the appellant contended that both witnesses had their own interest to save. He urged us to reject their evidence for not being credible and reliable. The learned State Attorney countered the appellant's submission by arguing that there is no law which prohibits relatives to testify in a case which they witnessed or saw the commission of the crime. She emphasized that what is important is that, their evidence must be credible, believable and reliable to ground conviction. She argued further that every witness is entitled to have her evidence believed once it is held to be credible. To support her submission she referred us to the decision of the Court in Goodluck Kyando v. Republic [2006] TLR 367. She thus implored us to dismiss this ground of appeal for lacking merit. From the record of appeal it is not disputed that PW1 and PW2 are relatives, being daughter and mother. It is not in dispute that PW2 is the wife of the appellant and PW1 is his step daughter. It is further not

doubted that in the circumstances of this case, PW1 as the victim was a crucial witness of what transpired on the date of the incident. Her evidence was coherent on how the appellant had sexuai intercourse with her on the fateful date and that he also did so on previous days while her mother (PW2) was not at home. The evidence of PW1 was not contradicted at all by the appellant as he did not cross examine her. Indeed, in view of the cautioned statement (exhibit P2) which was recorded by PW4 the story of PW1 concerning the incident was amply corroborated by the appellant's cautioned statement. Equally important, the testimony of PW2 who was called by the appellant to witness when he recorded exhibit P2 was not contradicted by the appellant as he did not cross examine her. Besides, the appellant did not raise any objection when PW2 was summoned to testify by the prosecution if he really believed that both PW1 and PW2 being relatives, had their own interest to save by teaming up to promote untruthful evidence. Having considered the evidence of PW1 and PW2 in the record of appeal, we are satisfied that the trial court and the first appellate court 6

properly believed their evidence to be credible and rightly relied upon it to ground the appellant's conviction. As rightly submitted by the learned State Attorney, there is no law which prohibits relatives to testify in court. In Paulo Tarayi v. Republic, Criminal Appeal No. 216 of 1994 (unreported) the Court stated that: " We wish to say at the outset that it is, o f course not the law that wherever relatives testify to any event they should not be believed unless there is also evidence o f non-relative corroborating their story. While the possibility that relatives may choose to team up and untruthfully promote a certain version o f events, it m ust be born in mind, that the evidence o f each o f them m ust be considered on m erit as should the totality o f the story told by them The Court proceeded and stated that:- "The veracity o f their testim ony m ust be considered and gauged judiciously-f ju st like the evidence o f non-relatives. It may be necessary ; given circumstances, for a trial judge or m agistrate to indicate his awareness o f the possibility o f relatives having a common interest to promote and save , but

that is not to say a conviction based on such evidence cannot hold unless there is supporting evidence by a non-relative". [See also the decisions of the Court in Peter Mwafrika v.Republic, Criminal Appeal No.413 of 2013 and Edward Nzabuga v. Republic, Criminal Appeal No. 136 of 2008 (both unreported) which were relied upon by the first appellate court in its judgment]. We are of the considered opinion that the above observation of the Court applies even where, like in this, relatives testify against near relative who is the accused. What matters is that their story must be credible and believed by the trial court. As lucidly held by the erstwhile Court of Appeal for East Africa in R. v. Lukakombe and Kiberege (1936) EACA 43 at 44:- ”... there is no rule o f law or practice which perm its the evidence o f near relatives to be discounted because o f their relationship to an accused person..." In the circumstances, we decline the prayer of the appellant to discount the evidence of PW1 and PW2 as it has not been shown that beingrelatives they had their own interest to save as contentedin his 8

ground of appeal. It was found by both courts below that they were witnesses of truth. We accordingly dismiss the first ground of appeal. Next is the complaint of the appellant in ground two that the cautioned statement was wrongly admitted and relied upon to ground his conviction while it was taken contrary to the provisions of the law. The appellant amplified in his ground of appeal that section 54 of the Criminal Procedure Act, Cap.20 R.E. 2002 (the CPA) which requires the suspect to be accorded a right of being with a lawyer or relative when recoding the statement was not complied with. He contended that the cautioned statement was not freely taken as he was tortured by the police before he recorded it. In response to the appellant's complaint in this ground, Ms. Kasambala argued that there is no merit in the complaint because the objection to the admissibility of exhibit P2 was raised by the appellant at the trial but after the inquiry was conducted it was admitted after the objection was dismissed. She submitted further that the appellant recorded the cautioned statement in the presence of PW2 whom he asked the police to summon as his relative. Interestingly, she submitted, the appellant did not complain at that time that he was tortured before he was called upon 9

to record the cautioned statement. The learned State Attorney contended that the appellant did also not dispute the testimony that when he recorded the statement he confessed to have raped PW1, but blamed Satan to have influenced him to do that shameful act. She therefore, requested the Court to dismiss the complaint in this ground. On our part, we entirely agree with the submission of the learned State Attorney that according to the evidence in the record it cannot certainly be said that the cautioned statement was taken contrary to the requirement of the law. The evidence of PW4, a police officer both during the trial and after the objection was raised that prompted an inquiry, amply demonstrated that the appellant freely confessed to have committed the crime he was charged with. Besides, he was given the right to call PW2 who witnessed his confession. Yet, he did not dispute this fact even when PW2 testified at the trial. What is more important as we have alluded to above is that his cautioned statement before PW4 supported the testimony of the victim (PW1) concerning the incident. In the result, we are settled that ground two is unfounded and we hereby dismiss it. With regard to ground three, the learned State Attorney conceded to the complaint of the appellant. Her concession however, was related to the 10

fact that the extra judicial statement which was recorded before the justice of the peace, one Paulo Massawe (PW3) was wrongly relied upon into evidence by the trial court and the first appellate court to ground conviction of the appellant. This is because, she submitted, it was not read over in court after it was admitted to enable the appellant to understand its contents. To this end, she implored us to disregard it in the consideration of the evidence in this appeal. The appellant had nothing to add to the submission of Ms. Kasambala. We entirely agree that the extra judicial statement was wrongly relied upon to ground conviction of the appellant as it was not read over after it was cleared and admitted into evidence (see Robinson Mwsanjisi and Three Others v. Republic [2003] TLR 218). Consequently, we allow this ground to that extent and disregard exhibit PI in the determination of this appeal. In the fourth ground the thrust of the appellant's complaint is that it was not proved that the victim's private parts were found with bruises or semen which, for his part, are most important ingredients of the offence of rape. The appellant argument is premised in the testimony of Dr. Adriano Syumbi (PW5) who examined the victim and tendered in court a PF3 which 11

was admitted as exhibit P3. In the circumstances, the appellant firmly believed that as no bruise or semen were found in the victim's private parts the offence of rape was not proved. Ms. Kasambala, objected to the appellant line of argument contending that the presence of bruises or semen in the victim's private parts is not the necessary requirement to prove the offence of rape. She emphasized that the victim proved beyond reasonable doubt that the appellant penetrated his penis into her vagina on the respective date and previous days. The learned State Attorney submitted further that the evidence of PW5 indicated that after he examined the victim he discovered that she had lost her hymen, a sign which rendered credence to her testimony that despite her young age she had been carnally known. She however, conceded, after prompting by the Court, that as exhibit P3 was not read over after it was admitted into evidence it cannot be reiied upon in determining this appeal. Nevertheless, she submitted that the evidence of PW5 who demonstrated in detail the findings of his examination on the victim is relevant. We have gone through the evidence in the record of appeal and we agree with the learned State Attorney that PW1 proved that the appellant 12

penetrated his penis into her vagina. As the offence was committed against a victim below eighteen years, consent was not an issue. The most important ingredient was penetration as provided under section 130 (4) of the Penal Code. Even if we disregard the PF3 (exhibit P3) because it was not read after it was admitted into evidence, still the crucial evidence is that PW5 who examined the victim revealed clearly that she had lost her hymen. His finding therefore, revealed that the victim had been involved in sexual intercourse before she was examined. That evidence supported the evidence of the victim concerning penetration. Besides, the cautioned statement of the appellant categorically revealed that he penetrated his penis into the victim's vagina in two occasions. At this juncture, we feel compelled to reiterate what was stated by the Court in Selemani Makumba v. Republic [2006] TLR 379 that:- "A m edical report or the evidence o f a doctor m ay help to show that there was sexual intercourse but it does not prove that there was rape, that isf non consensual sex , even if bruises are observed in the female sexual organ. The evidence o f rape • has to come from the victim, if an adult; that there was penetration and no consent-r and in case o f any 13

other woman consent is irrelevant\ that there was penetration". In the event, in view of the evidence in the record of appeal, we are satisfied that the prosecution proved that the appellant penetrated his penis into the victim's vagina. We therefore, find his complaint in ground four to lack substance and dismiss it Lastly, the general complaint of the appellant in ground five is that the prosecution did not prove the case against him beyond reasonable doubt The appellant contended that both courts below did not analyze the evidence in the record properly and that his defence was not considered, resulting in a wrong conclusion that he is guilty of the offence of rape. He requested us to find that the case against him was not proved to the required standard. The learned State Attorney disagreed with the appellant's submission. She argued that the evidence of PW1 left no doubt that the appellant committed the offence of rape. She argued further that PW l's evidence was supported by the evidence of PW2, PW4, PW5 and PW6 and that the cautioned statement of the appellant (exhibit P2) revealed that he confessed to have committed the offence. The learned State Attorney 14

submitted further that both courts below evaluated the evidence of both the prosecution and the defence before reaching the conclusion that the appellant was guilty of the offence of rape. We have considered the contending arguments of the parties on this complaint. In view of the evidence in the record of appeal, we are of the settled opinion that the appellant was duly convicted and sentenced of the offence of rape after it was fully proved by the prosecution beyond reasonable doubt. Considering what we have stated in our deliberation of the other grounds above, it is our firm view that the evidence of PW1, PW2, PW4, PW5 and PW6 together with exhibit P2 left no doubt that the appellant committed the offence of rape. We have no hesitation to state that given the general denial in the appellant's brief defence, it cannot be said that he raised any serious doubt to the prosecution case. We are satisfied that both courts below evaluated the evidence for both sides and came to a right conclusion. Consequently, we dismiss the fifth ground of appeal. In the end, based on our deliberation above in which we have dismissed most of the appellant's grounds of appeal, except ground three, 15

which we have allowed to a certain extent, we dismiss the appeal for lacking merits. DATED at MBEYA this 19th day of June, 2020. B. M. MMILLA JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL F. L. K. WAMBALI JUSTICE OF APPEAL The judgment delivered this 19th day of June 2020, in the Presence of the Appellant in person Linked through video conference from Songea Prison and Mr. Shingai Michael State Attorney for the Respondent is hereby certified as a true copy of the original. , ,v S J. KAINDA“ ,-r i§( DEPUTY REGISTRAR iNfi COURT OF APPEAL