Thobias Bandi vs Republic (Criminal Appeal No. 453 of 2021) [2024] TZCA 1168 (25 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT IRING A (CORAM: MKUYE, J.A.. MGEYEKWA. 3.A. And NGWEMBE, J.A.^ CRIMINAL APPEAL NO. 453 OF 2021 THOBIAS BANDI ...... ............. ....................... ....... ....... APPELLANT VERSUS THE REPUBLIC ........ ..... ....... ........ ......... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Iringa) (Mlvambina, 3.) dated the 30th day of July, 2021 in Criminal Appeal No. 28 of 2020 JUDGMENT OF THE COURT 25lh November & 2n d December, 2024 MGEYEKWA, J.A.: In this second appeal, the appellant, Thobias Bandi, is still faulting his conviction and sentence of life imprisonment by the trial District Court of Mufindi at Mafinga for the offence of rape. Based on the testimonies of three (3) witnesses, the prosecution sought to establish the charge that the appellant, on 19th September, 2019 at Mji Mwema Mafinga Township within Mufindi District in Iringa Region, did have carnal knowledge of a girt aged

five years whose identity is concealed, henceforth to be referred to as "the complainant" or simply as "PV/1", the codename by which she testified. In brief, the evidence adduced by the prosecution was to the effect that, PW1 was five (5) years. According to her, on 19th September, 2019, she was playing with her friends, and unexpectedly, the appellant appeared and took her inside his house. Bewildering, the appellant's demeanor changed dramatically. He instructed the complainant to undress her underpants, but she refused. Having subdued her on his bed, he undressed her underparts and then forced his manhood into her vagina. It was the testimony of PW1 that, the experience was painful. The complainant wanted to scream, but the appellant threatened to kill her if she disclosed the ordeal to anyone, Christina Wilfred Lubava (PW2), the complainant’s neighbour testified that on material date, she was informed by Meshack, the complainant's brother, that the appellant had taken PW1 and locked her inside his house. PW2 then went to the appellant's house, opened the gate, and went straight to his room. She pushed the door open and found the appellant sitting on his bed. PW2 asked the appellant why he was with PW1, to which he replied that the complainant and her friends had been caught

stealing fruits. PW2 noticed the complainant trembling and holding four fruits. She then took the complainant's and led her outside the appellant's house, where they met the complainant's mother. PW2 informed her that she had found PW i inside the appellant's house. Upon checking her, PWl's mother noticed that she was raped. According to PW2, the complainant's mother proceeded to the appellant's house and asked him why he had raped her daughter, the appellant denied. A moment later, other people and neighbours arrived at the appellant's house, they demanded him to tell them the truth, the appellant admitted to have raped PWI. The complainant’s evidence was supported by Dr. Lilian Sanga (PW3), a medical doctor at Mafinga Hospital, who adduced that on the fateful day, she attended the complainant. Her findings, which she posted into PF3 (exhibit PI) were that, PW l's vagina exhibited bruises and that her hymen was perforated. The defence by the appellant was total denial, refuting all the allegations fronted against him. He testified that there was a tree with fruit in his yard. He complained that on the fateful day, he saw three boys, who were carrying fruits, there was no girl at his house and no one was found inside his home. He testified that the complainant was unfamiliar to him.

He added that on the fateful day, he was on his way to fetch water when the villagers surrounded and arrested him. Subsequently, he was taken to the police station. On the whole of the evidence, the trial court found that the prosecution witnesses presented a credible tale that the complainant was raped. The trial court thus, established that the appellant ravished the complainant Against this backdrop, the trial court convicted and sentenced the appellant to life imprisonment. The High Court, on the first appeal, upheld the trial court’s findings of fact on the ground that they were made upon soundly evaluated evidence on record. As a result, the first appellate court dismissed the appeal thereby upholding the conviction and sentence. Still undaunted, the appellant has preferred this second appeal. He filed a memorandum of appeal containing four grounds which may be paraphrased as follows: one, that, the first appellate court erred in law and fact by failing to summon Meshack and the complainant's mother, whose testimony would have corroborated the evidence of PW1 and PW2; two, that, the prosecution's evidence relied on hearsay and circumstantial evidence. Additionally, the police officer and Village Executive Officer (VEO)

were not called to testify, and PW2 did not witness the appellant's assault on PW1; three, that, the appellant argued that no direct evidence was presented in the trial court. He claimed the court wrongly relied on PW3’s testimony and exhibit PI to convict him. He also questioned the doctor's qualifications; and four, that, the prosecution failed to prove the case beyond reasonable doubt. At the hearing of the appeal, the appellant appeared in person and urged us to consider his grounds of appeal. The respondent was represented by Mr. Yahaya Misango, learned Senior State Attorney. He stoutly resisted the appeal. We shall revert to the details of the parties' arguments in the course of determination of the issues of contention. On the first ground, the appellant argued that the first appellate court erred by failing to summon Meshack and the complainant's mother, whose testimony would have corroborated the evidence of PW1 and PW2, In his reply, Mr. Misango argued that Meshack and the complainant's mother were not material witnesses. He clarified that the prosecution case was proved by PW1 who narrated how the appellant raped her, PW2 who found PW1 inside the appellant's room, and PW3 who examined the complainant and in her findings, she confirmed that PW1 was penetrated 5

by a blunt object as her hymen was perforated. The learned Senior State Attorney was quick to point out that in terms of section 143 of the Evidence Act (the EA), there is no specific requirement for a particular number of witnesses to prove a fact. The learned Senior State Attorney urged us to disregard this ground of appeal. At the outset, we wish to express that, the appellant's complaint does not yield any material consequences. As rightly submitted by Mr. Misango, in terms of section 143 of the EA no particular number of witnesses is required for proof of any fact. The provision states as follows: "143. Subject to the provisions o f any other written law, no particuiar number o f witnesses shall in any case be required for proof o f any fa c t" The Court in the case of Yohanis Msigwa v. Republic (1990) TLR 148 referring to the above section held: "As provided under section 143 o f the Evidence Act 1967, no particular number o f witnesses is required for proof o f any fact. What is im portant is the witness's opportunity to see what he/she claim ed to have seenf and his/her credibility."

We should stress that from the above extract, there is no specific requirement for a particular number of witnesses to prove a fact; what matters is the credibility of the witnes. The mere fact that Meshack and the complainant's mother were not called to testify in court alone is not sufficient to undermine the trial court's decision, provided that the prosecution evidence was credible and reliable. Therefore, we find this complaint without substance and dismiss it. The second complaint by the appellant is that the prosecution's evidence relied on hearsay and circumstantial evidence. Additionally, he complained that the police officer and Village Executive Officer (the VEO) were not called to testify, and PW2 did not witness the appellant's assault on PW1. In response, the learned Senior State Attorney argued that there was no need for the prosecution to call an investigator to testify, as DW1 was arrested by villagers who had been informed that the appellant had raped the complainant. He further argued that none of the prosecution witnesses mentioned the involvement of the VEO. It was his further submisison that, PW1 proved that the appellant ravished her and her evidence was corroborated by PW2 and PW3's evidence.

We think this ground should not detain us. The appellant attacked the decision of the courts below for reliance on the PW2's evidence who did not witness when the appellant alleged to have sexually abused PW1. In a sense the complaint in this ground of appeal is closely related to the first ground. As mentioned earlier, there is no particular number of witnesses to prove any fact. Therefore, we agree with Mr. Misango that, there was no need for the prosecution to call the VEO to testify in court as DWI was arrested by villagers who had been informed that the appellant had raped the complainant and both were found in the appellant's house. The need of an Tnvestigotor to testify in criminal trial cannot be over emphasized, it is always importanta to unearth any thing associated with the offence, however in respect to the instant appeal, the appellant was found in his room with the complainant. Conversely, the prosecution’s evidence was not hearsay, as rightly submitted by Mr. Misango. PW1 was a credible witness, and her evidence was corroborated by PW2 and PW3 evidence. This ground has no merit, and we hereby dismiss it. We now turn to determine the third ground. The appellant pegs his complaint on the fact that no direct evidence was presented in the trial court. He claimed that the trial court wrongly relied on PW3's testimony

and exhibit PI to convict him, while also questioning the doctor's qualifications, Responding, the learned Senior State Attorney contended that the doctor was a proper and qualified person to tender the PF3 (exhibit PI), He elaborated that PW3 is a degree holder with ten (10) years of working experience, he examined PW1 and prepared the PF3. He added that failure of the appellant to cross examine PW3, leaves her evidence to stand unchallenged. We have no inhibition in holding that this ground is misconceived. We are saying so deliberately because the record of appeal shows that PW3 is a medical doctor with a degree from KCMC and has been practicing since 1998. Therefore, we agree with Mr. Misango's assertion that PW3 is a qualified doctor. It is also glaring from the record that the appellant did not cross examine PW3 on this issue. More often than not, the Court has held that failure to cross examine a witness on a significant point infer that the cross-examining party accepts the witness' evidence and it will be difficult to suggest that the evidence should be rejected. For instance, in the case of Damian Ruhele v. Republic, Criminal Appeal No. 501 of 2007 (unreported), the Court observed that:

"It is trite law that failure to cross-examine a witness on an im portant m atter ordinarily im plies the acceptance o f the truth o f the witness evidence." See also the Court's decisions in Athanas Kibogoyo v. Republic, Criminal Appeal No. 88 of 1992 (unreported) and Goodluck Kyando v. Republic [2006] TLR 363. From what we have stated above, ground three has no merit and should fail. We dismiss it accordingly. Ground four, faults the prosecution for failure to prove the case beyond reasonable doubt. The learned Senior State Attorney contended that the prosecution proved the case beyond reasonable doubt. Elaborating, he submitted that, in proving the offence of statutory rape the prosecution had to establish the ingredients of statutory rape as predicted under sections 130 (1), (2) (e) and 131 (1), (3) of the Penal Code. He clarified that the prosecution had to establish; one, whether there was vaginal penetration of the complainant; two, that the complainant's age at the time of the sexual act is below eighteen (18) years; and three, that the perpetrator of the sexual act was the appellant. Expounding, the learned Senior State Attorney submitted that based on the prosecution evidence of PW1, PW2 and PW3, it was sufficiently

proven that PW1 was raped on 19th September, 2019, PW1 narrated how the appellant undressed her and inserted his male organ in her vagina. He expounded that PW1 evidence was corroborated by PW2 who found the appellant and PW1 in the appellant's room, and PW3 examined the complainant and found bruises, blood and sperms in the complainant's vagina which means that the complainant was penetrated by a blunt object. He added that on the material date, PW1 testified that she was five (5) years old and that the appellant was the ravisher in exclusion of any other person. Mr. Misango contended that the trial court found that PW1 and PW3 presented a credible tale that the appellant ravished the complainant. On the strength of his submission, Mr. Misango beckoned upon the Court to dismiss the appeal in its entirety. Having closely considered the parties' submissions on the last ground and examined the record of appeal in respect of evidence on record, we agree with the learned Senior State Attorney that, in proving the offence of statutory rape the appellant faced, predicated on sections 130 (1), (2) (e) and 131 ( I X (3) of the Penal Code, the prosecution had to establish the following: one, that there was vaginal penetration of the complainant; i l

two, that the complainant was under the age below eighteen (18) years at the time of the sexual act; and three, that the perpetrator of the sexual act was the appellant. Having reviewed the testimonies of PWI, PW2, and PW3 along with exhibit PI, and considering the consistent findings of the lower courts, we are confident that the appellant's conviction was based on properly evaluated evidence. PWI narrated how the appellant undressed her and inserted his male organ in her vagina. Therefore, the evidence of PWI that she was raped by the appellant is the best evidence, which was properly acted upon by the two courts below to ground the conviction of the appellant. This was the standing of the Court in the celebrated case of Selemani Makumba v. Republic (2006) TLR 374 which has been cited in numerous decisions of this Court including the case of Mohamed Haji Ali v. Director of Public Prosecution, Criminal Appeal No. 225 of 2018 [2018] TZCA 332 (13 December 2018 TanzLII) In addition, PW l's testimony regarding the alleged sexual assault was consistent with PW2 who found her in the appellant's room, and the medical evidence presented by PW3 and exhibit PI, which showed bruises

on her vagina and a perforated hymen and she established that there had been vaginal penetration by a blunt object. With respect to the identity of the offender, we are at one with the lower courts' findings, in which PW1 identified the appellant as the perpetrator. PW1 provided a clear and credible account of the painful ordeal she endured at the hands of the appellant, who she knew personally, as he lived on the same street. We are keenly conscious of the fact that age is of great essence in establishing the offence of statutory rape under section 130 (1), (2) (e) of the Penal Code, the more so as, under the provision, it is a requirement that the complainant must be under the age of eighteen (18). The Court emphasized the necessity of strict proof of the victim's age in statutory rape cases. In the case of Alex Ndendya v. Republic, Criminal Appeal No. 207 of 2018 [2020] TZCA 202 (6 May 2020 TanzLII), the Court held: 7/7 lig h t o f the above age is o f utm ost importance and in a situation where the appellant was charged with statutory rape then age o f the victim m ust specifically be proved before convicting the appellant " The Court has underscored the importance of establishing the complainant's age, the evidence as to proof of age be given by the victim,

relative, parent, medical practitioner, or by production of a birth certificate. In our previous decisions. See: Peter Bugumba @ Cherehani v. Republic, Criminal Appeal No. 251 of 2019 [2023] TZCA 221 (4 May 2023 TanzLII) and Xssaya Renatus v. Republic, Criminal Appeal No. 542 of 2015 [2016] TZCA 218 (29 April 2016 TanzLII), In the tatter case, we held that: "We are keenly conscious o f the fact that age is o f great essence in establishing the offence o f statutory rape under section 130 (1) (2) (e), the more so as, under the provision, it is a requirem ent that the victim m ust be under the age o f eighteen. That being so, it is most desirable that the evidence as to proof o f age be given by the victim ; relativef parent, m edial practitioner or, where available by the production o f a birth certificate. We are however, far from suggesting that proof o f age, must, o f necessity, be derived from such evidence. There may be cases, in our view, where the court may infer the existence o f any fact including the age o f the victim on the authority o f section 122 o f [the Evidence Act ]..." See also July Joseph v. Republic, Criminal Appeal No. 226 of 2021 [2022] TZCA 322 (8 June 2022 TanzLII).

As alluded to above, the victim's age in statutory rape cases is a crucial element that must be proven beyond reasonable doubt. Incidentally, this ground was raised before the learned Judge, who concluded that the testimony of the complainant and the doctor was sufficient to establish the age of the complainant. We disagree with the learned Judge's finding that the complainant and the doctor proved the victim's age, as the complainant did not mention her age in her testimony. The record of appeal is to the effect that, neither the victim nor her parents testified on that aspect. The reference to her age was stated in the charge sheet, the doctor and the particulars of the complainant before she gave evidence show that she was five (5) years, which does not constitute admissible evidence. The importance of proving the age of the complainant in rape offence was emphasized in the case of Peter Bugumba @ Cherehani (supra) cited with approval in Andrea Francis v. Republic, Criminal Appeal No. 173 of 2014 (unreported) where we held that:- "... it is trite Jaw that citation in the charge sheet relating to the age o f an accused person is not evidence. Likewise, the citation by a magistrate regarding the age o f a witness before giving evidence is not evidence o f that person's age."

We are alive to the decisions of July Joseph (supra) whereby the Court maintained that the age of the victim may be proved either by the victim, relative, parent, medical practitioner, or birth certificate on which we do agree. However, it is noteworthy that, the medical doctor's findings sufficed only to establish that there was penetration. The age may be determined through medical examination where a doctor is instructed to examine a girl for that purpose. Therefore, it is clear that in the instant case, the victim's age was not medically assessed or proved. However, in the circumstances of this appeal, we found that in any event the victim was at the tender age, we therefore partly allow this ground. Having reviewed the above finding and reasoning, we hold that the appellant benefits from the doubts on the complainant's age warranting imposition of a lesser sentence of thirty (30) years imprisonment under section 130 (1) of the Penal Code. To this end, we are satisfied that the conviction and sentence meted against the appellant cannot be faulted. In the circumstances, we dismiss the appeal against conviction and, we invoke our revisional powers bestowed on the Court under section 4 (2) of the Appellate jurisdiction Act Cap. 141 to set aside the sentence

imposed on the appellant and substitute it with one of thirty (30) years imprisonment. In the upshot, except for the revised sentence, the appeal stands dismissed. DATED at IRINGA this 30th day of November, 2024. R. K. MKUYE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 2n d day of December, 2024 in the presence of the Appellant in person and Mr. Herbet Ishengoma, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. __ D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL