Renatus Majeshi vs Republic (Criminal Appeal No. 197 of 2022) [2024] TZCA 1237 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORUM: KEREFU, J.A., MWAMPASHI. 3.A. And FELESHI, J.A.) CRIMINAL APPEAL NO. 197 of 2022 RENATUS MAJESHI..........................................................................APPELLANT VERSUS THE REPUBLIC..............................................................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mwanza) (Tiqanqa, J.) dated the 10th day of May, 2021 in Criminal Appeal No. 2 of 2021 JUDGMENT OF THE COURT 29h November & 10h December, 2024 FELESHI, 3.A.: This appeal is against the judgment of the High Court of Tanzania at Mwanza (the first appellate court) which upheld the conviction on the offence of rape entered by the District Court of Nyamagana (the trial court) where the appellant was arraigned contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, Chapter 16. However, the first appellate court enhanced the appellant's sentence from 30 years meted by the trial court to life imprisonment as one SR (name withheld), hereinafter "the victim" or "PW1", a girl of 8 years old, was a child below 10 years of age.

The appellant, dissatisfied by the trial court's judgment, unsuccessfully appealed to the first appellate court which, as aforesaid, after upholding the conviction, it enhanced his sentence from 30 years to life imprisonment He further appealed to this Court. Briefly, the prosecution evidence that led to the conviction of the appellant was that, the appellant was working for Robert Malole (PW2), the victim's father, as a cattle caretaker. On the fateful date, PW1 entered the appellant's room to fetch some water as it used to be kept there. The appellant took the advantage, grabbed her, undressed her pants and undressed himself and then inserted his manhood ( dudu) into her private parts. PW1 felt pain and screamed while the appellant covered her mouth with his hand. That screaming was heard by PW2 who went into the room and found the appellant in flagrante delicto lying on the victims' chest. The appellant's attempt to run away failed as PW2 was able to restrain him while raising an alarm. Neighbours responded to the alarm. Rose Magesa (PW4) was among the neighbours who responded. Then, the incident was reported to Amon Joram (PW3), the Street Chairperson who also rushed to the scene. Upon being asked, the appellant admitted to PW3 and PW4 to have raped the victim. Adam Kulwa (PW6), a clinical officer, tendered the victim's PF3 (exhibit PI) 2

which proved that she was penetrated by a blunt object, lost her hymen, and there were bruises in her vagina. In his defence, the appellant (DW1) denied committing the offence claiming that, the case against him was concocted by PW2 to avoid paying his monthly salary which was due. Further, on cross-examination, he pleaded sexual impotence, thus could not have raped the victim. As aforesaid, both the trial and the first appellate courts were contented that the prosecution's case was proved beyond reasonable doubt. In his appeal to this Court, the appellant has raised a total of nine grounds of appeal contained in a memorandum of appeal and supplementary memorandum of appeal respectively. The said grounds can conveniently be paraphrased into the following grounds of complaints: first, that the evidence of PW1 was taken contrary to the mandatory requirements of section127 (2) of the Evidence Act, Chapter, 6 (the Evidence Act); second, failure by the prosecution to comply with the provision of section 192 of the Criminal Procedure Act, Chapter 20 (the CPA); third, failure by the trial court to consider the appellant's defence of impotence; fourth, the appellant's oral confession was improperly obtained and relied upon by the trial court to mount the appellant's conviction; fifth, the substituted charge was not read to the appellant; and sixth, the prosecution's case had 3

contradictory evidence from PW1 and PW6 hence the charge was not proved beyond reasonable doubt. When the appeal was called on for hearing, the appellant appeared in person, unrepresented, whereas Ms. Naila Chamba, learned State Attorney, appeared for the respondent, Republic. Invited to expound on his grounds of appeal, the appellant prayed for the learned State Attorney to start while reserving his right to rejoin. At the outset, Ms. Chamba intimated to us that the respondent was opposing the appeal. Submitting on the first ground that the evidence of PW1 was taken contrary to the mandatory requirements of section 127 (2) of the Evidence Act, the learned State Attorney referred us to page 16 of the record of appeal and contended that, the irregularity did not prejudice the appellant and is curable under section 388 of the CPA since the effect of promising to tell the truth and oath were intended to make sure that a witness gives truthful evidence. As to the second ground on the failure by the prosecution to comply with the provision of section 192 of the CPA, Ms. Chamba noted that, it is true that there was no clear facts of the case and list of intended prosecution witnesses. However, she submitted that, pages 11 to 12 of the record of appeal bears out that, the prosecution intended to call eight witnesses and tender one exhibit. She said, both the appellant 4

and the prosecuting Attorney endorsed by signatures on what was recorded as undisputed facts and were read and explained to parties. To her, section 192 of the CPA was thus complied with. In the alternative, she argued that, it is trite law that, noncompliance to the preliminary hearing procedure or failure to conduct it, is not fatal, since its essence is to accelerate trial proceedings where the important aspect is to prove the ingredients of the charged offence. To reinforce her argument, she cited the case of Jovin Daudi v. Republic, (Criminal Appeal No. 4821 of 2020) [2024] TZCA 97 (23 February 2024). With regards to the third ground on failure by the trial court to consider the appellant's defence of impotence, Ms. Chamba contended that the same was considered by the two lower courts. She referred us to pages 49 and 83 to 85 of the record of appeal where the trial court and the 1s t appellate court respectively, duly considered his defence and rejected it for being an afterthought for want of proof. The learned State Attorney referred us to section 114 (1) of the Evidence Act and a decision in Leonard Mkumbo v. Republic (Criminal Appeal No. 574 of 2021) [2024] TZCA 764 (19 August 2024) where we said that, the defence of this nature like that of alibi is supposed to be pleaded as early as possible to allow the prosecution to challenge it and the duty to prove it, is on the accused/appellant. 5

On the fourth ground on the appellant's complaint that, his oral confession was improperly obtained and relied upon by the trial court to mount his conviction contrary to section 53 of the CPA, Ms. Chamba hastily submitted that section 53 of the CPA apply police interviews and did not apply to the evidence of PW2, PW3 and PW4 who were not police officers. On the other hand, she added that, the conviction and sentence meted against the appellant did not rely on oral confessions, but rather was based on PWl's evidence which was corroborated by PW2. On the fifth ground that, the substituted charge was not read to the appellant, Ms. Chamba opposed and submitted that, on page 11 of the record of appeal it is clearly indicated that the charge was read and explained to the appellant who pleaded not guilty. Regarding the sixth ground that the prosecution's case had contradictory evidence from PW1 and PW6 and the charge was not proved beyond reasonable doubt, Ms. Chamba vehemently opposed and argued that, the ingredients of the offence were proved by cogent and credible evidence befitting the best evidence rule per the decision in Wilson Musa @ Jumanne v. Republic, (Criminal Appeal No. 109 of 2018) [2022] TZCA 19 (15 February 2022). In the end, Ms. Chamba

prayed for this Court to dismiss the appeal and uphold the conviction and sentence. In rejoinder, the appellant urged the Court to consider his grounds of appeal and set him free on the reason that the case was concocted by PW2. We have thus considered all grounds of appeal, the submission by the parties, the record of appeal and the law. Notably, this being a second appeal, we will not interfere with concurrent findings of the lower courts unless there are apparent mis-directions or non-directions on evidence in which we will justifiably evaluate the evidence with a view to making our own findings. In respect of the first ground that, the evidence of PW1 was taken contrary to the mandatory requirements of section 127 (2) of the Evidence Act, we note that, there is no dispute whatsoever that the trial court administered an oath to PW1 and at the same time received her promise to tell the truth during trial. The question now is whether that prejudiced the appellant and watered down PWl's evidence. Ms. Chamba's argument is that it didn't. It is worth noting that, PW1 being a child of tender age in terms of section 127 (4) of the Evidence Act could only have her evidence received by the trial court under the dictates of section 127 (2) of the Evidence Act providing that: 7

"A child o f tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell any lies". In this case, though, PWl's promise to adduce truthful evidence was enough, aided by section 53 of the Interpretation of the Laws Act, Chapter 1 in interpreting the provision, we hold a view that, the trial court cannot be found to have contravened section 127(2) of the Evidence Act by receiving PWl's evidence on oath accompanied by her promise to tell her truth provided it satisfied itself that, PW1 knew the nature of her oath and promised to tell the truth. As to her suitability to do so, the learned trial Magistrate is on record at page 16 of the record of appeal to have found that "...I found the child is intelligent enough to testify after knowing the duty to speak the truth." In view of the above, and per our previous decisions in Godfrey Wilson v. Republic (Criminal Appeal 168 of 2018) [2019] TZCA 109 (6 May 2019) and Issa Salum Nambaluka v. Republic, (Criminal Appeal No. 272 of 2018) [2020] TZCA 10 (21 Februar/ 2020) we find that, though, indeed, the law does not require both actions to be taken at the same time, we are inclined to agree with Ms. Chamba that the action taken by PW1 did not prejudice the appellant or cause fatal flaw to the proceedings. We are contented that, the essence to tell the truth is 8

fundamental to avoid untrue evidence from a child whose evidence, once believed, can solely warrant the court to convict in terms of section 127(6) of the Evidence Act read together with section 198 (1) of the CPA. See-Galus Kitaya v. The Republic, (Criminal Appeal No. 196 of 2015) [2016] T7CA 301 (15 April 2016). This is what differentiates the evidence taken under oath and the unsworn evidence which requires corroboration. See-Hassan Bundala @ Swaga v. The Republic (Criminal Appeal No. 386 of 2015) [2015] TZCA 261 (23 February 2015). Having satisfied ourselves that the appellant was not prejudiced and PWl's evidence remained truthfully given and received, we respectfully dismiss the appellant's ground for lack of merits. As to the second ground on failure by the prosecution to comply with the provision of section 192 of the CPA, Ms. Chamba noted the shortfalls but, quickly argued that they are not fatal since the importance of preliminary hearing is to accelerate trials. We also, without hesitation, find ourselves inclined to agree with her argument which also echoes the objective of section 192 of the CPA. In Edimo Shabani v. Republic (Criminal Appeal 333 of 2009) [2011] TZCA 55 (29 March 2011), we had this to say: "It is common ground that the purpose o f conducting a preliminary hearing is to accelerate trial and disposal o f cases. Towards this end, by 9

conducting a preliminary hearing, matters which are not in dispute are identified so as to reduce the number o f witnesses to be called at the trial. In so doing, fair and expeditious trial is facilitated". In view of the above, though mindful of the gaps obtained in the impugned preliminary hearing proceedings including- trial court's failure to ask the witnesses and exhibits the appellant would have wished to produce in defence as it did for the prosecution, still we find, that cannot be the basis of flouting a proven prosecution's case whose strength weighed by the standard of its proof under section 114(1) of the Evidence Act. We hold so because, as precisely argued by Ms. Chamba, it is trite law that, noncompliance to the preliminary hearing procedure or failure to conduct it, is not fatal, since its essence is to accelerate trial proceedings where the important aspect is to prove the ingredients of the charged offence See - Jovin Daudi v. Republic (supra). In view of the aforesaid, we accordingly dismiss this ground of appeal for being devoid of merit. Regarding the third ground on failure by the trial court to consider the appellant's defence of sexual impotence, Ms. Chamba contended that, the same was considered by the lower courts but rejected. We need not to labour much on this ground. Pages 49 and 83 to 85 of the 10

record of appeal expose clearly, as argued by Ms. Chamba,how that defencewas intensively considered by both the trial and the 1s t appellate courts before rejecting it. For example, the 1s t appellate court at page 85 reasoned and concluded that: "Further to that, his other defence was on his impotence, on critical examination o f the evidence, I also find the evidence manufactured. I find so because the appellant did not give that defence when he was testifying in chief, but mentioned it when he was cross examined by the learned State Attorney, it means had the state Attorney decided not to cross examine that wouldn't have manufactured as his defence". [emphasis added] Furthermore, we take a liberty to underscore that, it is the rule of thumb that, defence evidence not accepted does not mean non considered. See for instance cases of Godfrey Mwandemwa vs Republic (Criminal Appeal No. 409 of 2020) [2023] TZCA 41 (22 February 2023) and Hosea Emu Mwangama vs Republic, (Criminal Appeal No. 217 of 2020) [2023] TZCA 10 (13 February 2023). In Godfrey Mwandemwa (supra), we held at page 8 that: 11

"In this case however the record does not support the appellant's contention because... the defence case was considered.... when the defence version o f the matter is not accepted by the court as it happened in this case, that does not amount to failure by the court to consider it". It is in view of the foregoing discussion that, we find the ground wanting, the same is rejected. On the fourth ground that the appellant's oral confession was improperly obtained and relied upon by the trial court to mount the appellant's conviction contrary to section 53 of the CPA, we hastily agree with Ms. Chamba that, PW2, PW3 and PW4 who were the victim's father, Luhanyima Street Chairman and a neighbour respectively, as civilian witnesses, could not in any way assume any of the investigative powers exercised by police officers under section 53 of the CPA. The section guides investigative officers to inform a person under police restraint of his /her rights before interrogation on an alleged offence. In our view, the oral confessions made to those witnesses, could more appropriately be dealt with under section 3 of the Evidence Act and not section 53 of the CPA. For that matter, as remarked by Ms. Chamba, it is clear to us that section 53 of the CPA was wrongly applied or cited. To this end, the fourth ground of appeal is dismissed for lack of merits.

In respect of the fifth ground that, the substituted charge was not read to the appellant, we are inclined to agree with Ms. Chamba that, the appellant's complaint is unfounded. The record of appeal bears it clearly at page 11 that, the charge was read over to him and explained in the language he understood (Kiswahili) and he entered a plea of not guilty. We thus have no other evidence warranting us to defy the record of appeal. Just to add our tone, as we find it appropriate to remind, parties involved in court proceedings should always bear in their mind that courts of record are bound by the court's record. This is to avoid importation of extraneous and foreign substance never existed in the court proceedings before when same cases are called on for consideration by same or upper courts at a later stage. For that reason, the law is clear when it comes to the issue of court records, that they are presumed to be serious and genuine documents that cannot be easily impeached unless there is evidence to that effect. See for instance the case of Halfani Sudi v. Abieza Chichili, [1998] TLR. 527. As in this appeal, we have found it was the same charge which, per pages 11 to 95 of the record of appeal, founded the entire proceedings without further substitution, we respectfully find the appellant's complaint devoid of merits, and we reject it. 13

As we wind up, there is complaint in the sixth ground that, the prosecution's case had contradictory evidence from PW1 and PW6 and the charge was not proved beyond reasonable doubt. Ms. Chamba vigorously opposed it and argued that the ingredients of the offence were proved by cogent, credible and best evidence per section 127(6) of the Evidence Act and decisions in Selemani Makumba v. Republic (Criminal Appeal 94 of 1999) [2006] TZCA 96 (21 August 2006), Wilson Musa @ Jumanne v. Republic (supra), Godi Kasenegala v. The Republic, (Criminal Appeal 10 of 2008) [2010] TZCA 5 (2 September 2010 ). We agree with Ms. Chamba's submission and, we find important to remind that, the testimony of PW6 was not the basis of the appellant's conviction. That diminishes the complaint that his evidence contradicted with PW1. Therefore, having dismissed the other grounds above, we have remained without any reason to differ with concurrent findings of the lower courts on the cogence and credibility of PWl's evidence, and as summed up by Ms. Chamba, the charge against the appellant was proved to the hilt. And that, the same was corroborated by PW2 and PW4 who led evidence regarding the victim's age and that PW1 was penetrated by the appellant. The law is settled that the victim and her father were competent witnesses to prove the victim's age. - See for 14

instance Issaya Renatus v. Republic (Criminal Appeal No. 542 of 2015) [2016] TZCA 218 (29 April 2016), where we stated thus: "...it is most desirable that the evidence as to proof o f age be given by the victim, relative, parent\ medical practitioner or where available, by the production o f a birth certificate". Owing to the above discussion, we find the prosecution's case was proved beyond reasonable doubt. The appeal is devoid of merit, and it is hereby dismissed in its entirety. DATED at MWANZA this 10th day of December, 2024. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 10th day of December, 2024 in the presence of the appellant in person/unrepresented and Ms. Martha Mtiti and Deogratius Rumanyika, both learned State Attorneys for the