Juma Panduji vs Republic (Criminal Appeal No. 661 of 2020) [2024] TZCA 1146 (26 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA fCORAM: SEHEL. J.A.. KIHWELO. J.A And MDEMU, J.A.) CRIMINAL APPEAL NO. 661 OF 2020 JUMA PANDUJI .................................................................... ...... APPELLANT VERSUS THE REPUBLIC........................... ................................... ........ RESPONDENT (Appeal from the judgment of the High Court of Tanzania, at Sumbawanga) f Mkeha, dated the 30th day of October, 2020 in Criminal Appeal No. 90 of 2019 JUDGMENT OF THE COURT 23rd October & 26th November, 2024 MDEMU, J.A.: In the District Court of Mpanda, in Criminal Case No. 45 of 2018, the appellant, Juma Panduji, was arraigned for two counts, to wit; rape contrary to sections 130 (1) and (2) (e) and 131 (1) of the Penal Code, Cap. 16, and the other count was impregnating a school girl contrary to section 60A (3) of the Education Act, Cap. 353 as amended by the Written Laws (Miscellaneous Amendment) (No. 2) Act, No. 4 of 2016. In both counts, the victim or PW2 was 17 years old and a form one student of Misunkumilo Secondary School. It was alleged that, on diverse dates between 1st to 31s t July, 2017 the appellant did engage in sexual intercourse with the victim at l

Mwamkulu Village within Mpanda District, an act that resulted into pregnancy on the victim's side. The facts of this case are simple and straight forward. In march, 2018 the headmistress of Misunkumilo Secondary School one Oliver Alkado Matelya (PW5) took the victim for pregnancy test. The test was conducted by Vevagrace Alphoce (PW4). In the course, it was discovered that, the victim was pregnant. It was estimated to be of 28 weeks as per the PF3, exhibit P3. When inquired, the victim named the appellant to be responsible for the pregnancy. Fortunately, on 4th May, 2018, the victim gave birth to a baby girl. Given such state of affairs, the appellant was subsequently arrested. In further investigation, sometimes on 21s t July, 2018 a clinical officer one Abdallah Mohamed Chawanzi (PW7) took swabs, that is, saliva from the appellant, the newly born child and the victim for DIMA test which was conducted by Ramadhan Hassan Nauja (PW1) of the Chief Government Chemist Laboratory in Dar es Salaam. His report, which was tendered as exhibit PI, indicated that the appellant is likely to be the father of the newly born baby by 99.99%. With this evidence, as said, the appellant stood for trial, and though distanced himself from both counts of rape and impregnating a school girl,

the trial court trusted the prosecution witnesses, and in the end, it convicted the appellant on both counts. The appellant was accordingly sentenced to serve thirty (30) years prison term in each count. The sentences were ordered to run concurrently. That was on 12th September, 2019. The appellant was not happy, thus registered his dissatisfaction on both conviction and sentences in the two counts. He henceforth appealed to the High Court. On 30th October, 2020, Mkeha, 1 dismissed the appeal for want of merits. Still discontented, the appellant lodged this second appeal before us. He lodged the first memorandum of appeal comprising of three grounds on 10th March, 2021. Almost after a year later, that is, on 8th March, 2022, another memorandum of appeal containing nine grounds was lodged by the appellant. Lastly, was a supplementary memorandum of appeal lodged on 26th August, 2024 which comprised of ten grounds of appeal. This gave a total of 22 fronted grounds of complaint. For reasons which shall soon come to light, we will not reproduce all the 22 grounds of appeal. That besides, in their totality, the said grounds may be collapsed to one ground of complaint, that is, the trial court erred to convict and the first appellate court erred to uphold conviction of the appellant for the offences of rape and impregnating a school girl while the evidence did not link with the appellant's involvement.

The appeal came before us for hearing on 23rd October, 2024. The appellant appeared in person whereas the respondent/Republic had the services of Mr. Calistus Kapinga, learned Senior State Attorney, who resisted the appeal right away. When invited to address the Court on the filed 22 grounds of appeal, the appellant opted to hear first from the respondent's reply to the fronted grounds of appeal and would rejoin in due course, when a need to do so would arise. We therefore allowed the learned Senior State Attorney to argue the appeal. Mr. Kapinga commenced his submission by responding to all the grounds of appeal in one ground of complaint, that is, whether the prosecution case was proved beyond reasonable doubt. In his approach, Mr. Kapinga submitted in each count separately. Beginning with the first count of rape, the learned Senior State Attorney submitted that, this being a statutory rape, the prosecution was obliged to prove two elements. One, that, the victim was under eighteen years old and two, that, the appellant penetrated his manhood into the victim's vagina. Regarding the age of PW2, Mr. Kapinga submitted that, PW2 who is the victim of rape, testified to be of 17 years old at the time the appellant had sexual intercourse with her. This evidence, according to the learned

Senior State Attorney, was corroborated by the evidence of the victim's father one Budonho Nangaie Kitenge (PW3) who testified that, PW2 was born on 1s t July, 2001. He thus concluded that, the prosecution therefore managed to prove that, at the time of rape, PW2 was of the apparent age of 17 years. Submitting on the ingredient of penetration, it was his argument that, PW2 explained clearly how he met with the appellant, their sexual engagement and ultimately, the resultant pregnancy. He added that, PW4 who made clinical examination and tendered the PF3, exhibit P3, testified that the victim was 28 weeks pregnant. The said pregnancy, according to the DNA test, exhibit PI, is the responsibility of the appellant. It is in this evidence, Mr. Kapinga argued, the evidence regarding penetration of the appellant's manhood into the victim's vagina remain overwhelming. Regarding the second count on impregnating a school girl, Mr. Kapinga submitted that, this too has been proved because, one, according to PW2 herself, she was a form one student at Misunkumilo Secondary School. The headmistress of the school (PW5) tendered the admission register and attendance register, exhibits P4 and P5 respectively for proof thereof. Two, according to the DNA test (exhibit PI), the appellant is the father of the newly born child. The learned counsel thus summed up that, the offence of

impregnating a school girl which the appellant stood charged with was accordingly proved. As to the sentence of thirty (30) years imprisonment meted out to the appellant on the second count of impregnating a school girl, Mr. Kapinga submitted that, since the appellant was a first offender, the trial court ought not to have inflicted the maximum sentence of thirty (30) years provided for by the law. He thus invited us to exercise our revisional powers under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 (the AJA) to substitute it with a lesser sentence. When his turn for rejoinder came, the appellant submitted that, the prosecution case has some contradictions in the evidence of PW2 and PW3, particularly as to when the victim completed standard seven and ultimately joined secondary school education. To the appellant, it is not clear between the year 2017 or 2018 when did the victim joined secondary school. The second component he queried is, in respect of want of justification as to why the victim did not raise an alarm at the time she alleged to have been raped. He finally urged us to take into account his raised grounds of complaint, for there is substance in them, and allow his appeal. We have attentively listened to the submission of the parties and careful considered the entire record of appeal in line with the appellant's

grounds of complaint contending his innocence. In resolving the appellant's complaint, we take the approach taken by the learned Senior State Attorney when arguing the appeal. In that case therefore, the appellant's complaint is thus resolved through determining each count the appellant stood charged seriatim. In both counts, the issue that calls for our determination, as we raised above, is whether the prosecution managed to prove the appellant's involvement beyond reasonable doubt. Before we resolve the issue raised, we wish to make it clear that, the two courts below are in a concurrent finding on matters of evidence regarding the appellant's involvement in raping the victim and also making her pregnant, being a consequence of that rape. In that regard, we are cautioned not to interfere with such concurrent findings of matters of facts unless the two courts below entered into misdirection or did not direct properly on such matters of evidence as to result in a miscarriage of justice. See Salum Nicholaus Mnyumali v. Republic, Criminal Appeal No. 327 of 2020 (unreported). This principle stands to guide us in this judgement. Beginning with the first count of rape, specifically on statutory rape as in the instant sexual offence, Mr. Kapinga urged, and rightly so, in our view that, the prosecution need to prove two elements. One, that, the victim was under eighteen years old and two, that, the appellant penetrated his

manhood into the victim's vagina. The issue of consent, for that matter, is immaterial. Resolving the age of the victim, there is evidence of PW2, the victim herself who testified that she was 17 years old when the appellant had sexual intercourse with her. The evidence of PW2 is corroborated by the evidence of the victim's father (PW3) who testified that, PW2 was born on 1st July, 2001. That being settled, it is trite law that, the age of the victim may be proved by the victim of sexual offence, birth certificate or the parent of the victim. See Mwalimu Jumanne v. Republic (Criminal Appeal No. 18 of 2019) [2021] TZCA 193 (12 May 2021; TanzLII). On the second element that the appellant penetrated his manhood into the victim's private parts, PW2 explained clearly that he met the appellant, engaged into sexual intercourse which, ultimately, resulted into her pregnancy. In her evidence, PW2 at page 32 of the record of appeal made the following testimony: "The accused seduced me; I agreed to have sexual relationship with him. I remembered he came to our home during the night and we had sexual intercourse in that night in my room. My parents were on safari to Shinyanga Region. My young brothers and sisters were asieep. I remembered Juma Panduji put o ff his clothes. I did the same,

came into my bed and we had sexual intercourse. Having compieted his mission, the accused went back to his home." Both courts below found the evidence of the victim was credible and reliable. We find nothing to fault them. We note and add that, in fact, the evidence of the victim met the test of being the best evidence within the principles stated in Seleman Makumba v. Republic [2006] T.L.R. 379, that, in sexual offences, the best evidence comes from the victim. Besides the evidence of the victim, PW4 who made clinical examination and tendered the PF3, exhibit P3, testified that, the victim was pregnant. She was in her 28 weeks pregnancy. It is further in evidence that, the appellant is responsible for the said pregnancy, as per the DNA test, exhibit PI. We therefore agree with Mr. Kapinga that, the appellant penetrated his manhood into the victim's vagina. It is not correct therefore, on the part of the appellant to alleged that, the evidence of the victim was not corroborated. Regarding the second count on impregnating a school girl, we agree with Mr. Kapinga that, this too has been proved because, one, PW2 herself, testified that she was a form one student at Misunkumilo Secondary School. Her headmistress (PW5) tendered the admission and attendance registers, exhibits P4 and P5 respectively to that effect. In his complaint, the appellant

seems to doubt this evidence on account that, it is not clear as to when PW2 completed her primary education. We think this should not detain us much. We are saying so because, want of clarity as to when PW2 completed standard seven in itself do not discredit the evidence in the admission register revealing that PW2 was enrolled and further, the attendance register indicating that, the victim was attending her classes at Misunkumilo Secondary School. Regarding the DNA test, the thrust of the appellants complaint is diversified, ranging from sample collection, which he refuted, to the manner the DNA test was conducted. We think we should begin with what transpired during preliminary hearing. At page 28 of the record of appeal, among the matters not disputed, is that, swab samples were collected from the appellant for DNA test. Raising it at a later stage is against the spirit envisaged under section 192 (4) of the Criminal Procedure Act, which precludes parties from assembling evidence on matters agreed by the parties at the preliminary hearing stage. See also Mgonchori (Bonchori) Mwita Gesine v. Republic (Criminal Appeal No. 410 of 2017) [2021] TZCA 173 (5 May 2021; TanzLII). Two, according to the DNA test (exhibit PI), the appellant is the father of the newly born child. As we stated above, the appellant's complaint regarding this evidence is in the manner the DNA test was done. We initially 10

dismissed the appellant's complaint that the sample (swabs) used in the DNA test was not collected to him. His further complaint is on the manner the samples were handled. It is clearly explained by H. 311 Detective Constable Emmanuel (PW6) who took the appellant, the victim and the newly born child to Dr. Abdalah Mohamed Chawanzi (PW7) for swabs collection. PW7 collected the swabs, labelled it and handed it over to PW6. The latter took the samples to the Chief Government Chemists in Dar es Salaam on 10th October, 2018. It was received by Ramadhan Hassan Nauja (PW1) who did the DNA test, prepared a report (exhibit PI) and handed it over to PW6. The appellant did not object to the admission in evidence of the report when it was sought to be tendered by PW6. The report was also read out in court after being cleared for admission, and indeed it was admitted. Looking at this chain of custody, we are satisfied that the chronological events in the DNA test did not lead to the tempering of the samples from when they were collected to the testing itself. As we observed in Maneno Matimbwa Francis @ Babio v. Republic (Criminal Appeal No. 35 of 2021) [2023] TZCA 78 (1 March 2023; TanzLII), the offence of impregnating a school girl has been proved because, one, that the victim was a school girl and two, that the act of impregnating that school girl was committed by the appellant in the instant appeal. We thus find the appellant's complaint to have no basis at all. li

Last for our determination is the question of sentence. The sentence of thirty (30) years imprisonment meted out to the appellant for the offence of rape in the first count was justified. It was the minimum one in terms of section 131 (1) of the Penal Code. There is nothing to fault such findings. Regarding the second count of impregnating a school girl, Mr. Kapinga urged us to interfere because the appellant was a first offender, thus not entitled to the maximum penalty prescribed by the law. We are in all fours with Mr. Kapinga that section 60A (3) of the Education Act provides the maximum penalty of thirty (30) years prison term for the offence of impregnating a school girl. We equally agree with him that, the appellant was a first offender, as such, both courts had no justification to impose the maximum penalty. On this one, the Court in Shagi Mang'oma v. Republic, Criminal Appeal No. 356 of 2020) [2023] TZAC 17396 (12 July 2023; TanzLII) regarding the interpretation of section 60A (3) of the Education Act stated that: "In Mawazo Kutamika v. Republic, Criminal Appeal No. 64 o f 2020 (unreported) we dealt with the import o f section 60A (3) o f the Act, citing our earlier decision in Sokoine Mtahali @ Chomangwa, Criminal Appeal No.459 o f 2018 (unreported). In the former case, we reproduced the following paragraph from the latter: -

The above phrase "shall, on conviction, be liable to imprisonment for a term o f thirty years to which we have supplied emphasis, does not impose the custodial term o f thirty years as the mandatory penalty. It gives discretion to the trial court, subject to the sentencingjurisdiction to sentence the offender up to the maximum o f thirty years'imprisonment depending upon the circumstances o f the case after considering all mitigating and aggravating factors" A number o f principles emerge from the above paragraph, and it is clear to us that they were not addressed. One, the sentence o f 30 years for the offence under section 60A o f the Act is the maximum, but not mandatory. Two, that the court has discretion to impose a lesser sentence. Three, in determining the appropriate sentence, the court will take into account its sentencing powers, circumstances o f the case, mitigating as well as aggravating factors." In the case before us, the appellant at page 62 of the record of appeal prayed for leniency because he was a first offender. We strongly believe that, had the trial court took into account such mitigation, and the fact that section 60A (3) of the Education Act prescribes the maximum penalty which is not mandatory, then it would have inflicted a lesser penalty. In that sense, and in the exercise of our revision powers of the Court under section 13

4 (2) of the AJA, we quash the sentence of thirty years imprisonment meted out to the appellant for the offence of impregnating a school girl and substitute in lieu thereof, a custodial sentence of six years to run from the sentencing date by the trial court. Save for the foregoing variation of the sentence in respect of the second count of impregnating a school girl, the appeal of the appellant stands dismissed forthwith. DATED at DAR ES SALAAM this 20th day of November, 2024. G. J. MDEMU JUSTICE OF APPEAL Judgment delivered this 26th day of November, 2024 in the presence of Appellant in person and Jerinus Nzanila, learned State Attorney for the Respondent/Republic connected through video conference from High Court B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL iy certified as a true copy of the original. F. A. MTARANIA DEPUTY REGISTRAR COURT OF APPEAL