Mashishi Lwenge vs Republic (Criminal Appeal No. 660 of 2021) [2024] TZCA 1114 (15 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA fCORAM: MWANDAMBO. J.A.. RUMANYIKA. 3.A.. And KHAMIS, J.A/l CRIMINAL APPEAL NO. 660 OF 2021 MASHISHI LWENGE ......................................................... ....... APPELLANT VERSUS THE REPUBLIC ............ .................................... .................. RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Shinyanga at Shinyanga, Extended Jurisdiction) f Lukuna. PRM. Extended Jurisdiction.) dated the 29th day of October, 2021 in (D O Criminal Appeal No. 85 of 2020 JUDGMENT OF THE COURT 28th October & 15th November, 2024 KHAMIS, J.A.: Mashishi Lwenge was arraigned in the District Court of Kishapu and charged with the offence of rape contrary to section 130 (1) and (2) (e) read together with section 131 (1) of the Penal Code, Cap 16 R.E 2019. It was alleged that on 31s t day of January, 2020 at about 18.00 hours at Mwamadulu Village, within Kishapu District in Shinyanga Region, he had carnal knowledge of a 14 years old girl whose identity is withheld to protect her dignity.

The appellant pleaded not guilty to the offence levelled against him and the matter proceeded to full trial in which the trial magistrate (IP Rwehabula, RM) was satisfied that the prosecution's case was proved beyond reasonable doubt. He was therefore, convicted as charged and sentenced to the statutory thirty (30) years imprisonment. Having unsuccessfully appealed to the Resident Magistrate Court of Shinyanga (Extended Jurisdiction), after being transferred from the High Court, Shinyanga under section 45 (2) of the Magistrates Courts Act, Cap. 11 R.E 2019 (the MCA), the appellant filed the instant appeal premised on six (6) grounds, namely: first, the courts below erred in misapprehending the nature and quality of the prosecution evidence which did not prove the charge beyond reasonable doubts; second, the first appellate court erred in law in upholding the appellant's conviction and sentence while the prosecution failed to prove the case beyond reasonable doubts; third, the courts below erred in law and facts in considering the hearsay evidence of PW1 and PW4 in convicting the appellant; fourth, the first appellate court erred in upholding the appellant's conviction in absence of a mandatory preliminary hearing contrary to section 192 (1), (2), (3) and (4) of the Criminal Procedure Act, Cap 20 R.E 2022 (the CPA); five, the first appellate court erred in law in

upholding the conviction without considering the nature of PW2's evidence which was taken contrary to section 127 (1) and (2) of the Tanzania Evidence Act, Cap 6 R.E 2019 (the TEA); six, the first appellate court erred in law in upholding the appellant's conviction based on the uncorroborated evidence of the prosecution and in failing to draw adverse inference against the prosecution for failure to call the alleged charcoal dealers as witnesses to corroborate the evidence of PW2. The factual backdrop as brought to light by the prosecution in the trial is fairly short and summarized in the testimonies of four (4) witnesses for the prosecution and one defence witness. The victim was the second prosecution witness who testified as PW2. She promised to speak the truth and told the trial court that, after school hours on the material date, she accompanied her father, PW1 and other family members who joined forces to cultivate their farm. When it started raining, she was sent by PW1 to buy milk from the nearby village, Lagana. On the way to Lagana, she met the appellant who dragged her to a bush and sexually assaulted her. To ensure silence, he placed mud in the mouth and forcefully undressed her skirt and underpants before he removed his own trousers and inserted his manhood into her private parts. The act caused severe pains all over the body and she collapsed.

Upon regaining consciousness, she found the appellant on top with his manhood inside her privates. Luckily, two men carrying charcoal passed nearby and heard her screaming for help. They went to help but the appellant took to his heels. The victim said the incident attracted many people who gathered at the scene. Subsequently, PW1 went to the scene and carried the victim on a motorcycle to the office of the ward executive officer (WEO) and later to Kishapu Police Station where a police form no. 3 (PF3) was issued. Thereafter, she was carried to the Jakaya Hospital for medical examination and treatment On further examination, the victim said the appellant was well known as he grazed cattle for Mr. Tengwa, a neighbour in the village. She had known him for almost a year before the incident. PW1, father of the victim, testified that while in the farm with his family, he sent her elder daughter, PW2, to buy milk from the nearby Lagana Village. When at home around 18.00 hours, Bana Chide, a fellow villager, visited him and reported that his daughter was raped by the appellant who was familiar to him. He went to the scene besides the main road and found his daughter surrounded by other people, unwell with faeces on her clothes. He dutifully carried her and reported the incident at the Kishapu Police Station where a PF3 was issued. Thereafter, he

accompanied her at the Jakaya Kikwete Hospital for medical formalities. The appellant was arrested and remanded at Kishapu Police Station. PW4, mother of the victim and the wife of PW1, testified that she was present when PW2 was sent to buy milk from Lagana Village. White at home, Bana Chide reported that her daughter was raped by the appellant who was employed to graze cattle for a fellow villager. She accompanied her husband, PW1 to the scene where she found the victim in a bad shape, with mud in the mouth and the clothes were dirty. They ferried the victim to Kishapu Police Station and subsequently to the Jakaya Kikwete Hospital for treatment. She produced a clinic card showing the victim was born on 4th April, 2006 (exhibit P2) and described the scene as a bush that lies between Mwamadulu and Lagana Villages. PW3 Shaban Mwikalo, a clinical officer at Jakaya Hospital, examined the victim on 31s t January 2020 at around 23.40 hours. He said the victim was accompanied by PW1 and results showed she was neither pregnant nor HIV positive. However, she had sperms, blood and mud in her privates. Her cervix was slightly open with wet labia majora and minora. Physically, the victim's clothes were dirty with mud all over. He concluded that she was raped. He filled in the PF3 that was admitted as exhibit PI.

When put to his defence, the appellant testified under oath generally denying the accusation. He disputed knowing the victim and said she has never met him. He prayed to be acquitted. When the appeal came up for hearing before us, the appellant was present in person, unrepresented, while the respondent Republic enjoyed legal services of Ms. Ajuaye Bilishanga Zegeli, learned Principal State Attorney who teamed up with Mses. Mwamini Yoram Fyeregete, learned Senior State Attorney and Upendo Mwakimonga, learned State Attorney. When called upon to address the Court, the appellant preferred to let the Republic submit on the grounds of appeal and reserved his right of responding. The Republic opposed the appeal and opted to consolidate the first, second and third grounds. The other grounds were addressed separately. On the integrated first, second and third grounds which challenged the lower courts' findings that the prosecution case was proved beyond reasonable doubts, Ms. Fyeregete submitted that the prosecution proved its case to the hilt. She contended that, the evidence adduced by the four prosecution witnesses was unshaken and left no reasonable doubt. She maintained that, the charge of rape was sufficiently proved by PW2 whose evidence could stand alone on strength of our decision in Seleman

Makumba v Republic [2006] T.L.R 379 that, true evidence of rape has to come from the victim, if an adult, that there was penetration and no consent, and in case of any other woman where consent is irrelevant, that there was penetration. Ms. Fyeregete asserted that age of the victim was equally proved by her mother, PW4. To buttress the point home, she cited our decision in Isaya Renatus v. Republic, Criminal Appeal No. 542 of 2015 [2016] TZCA 218 (26 April 2016) TANZLII where we opined that, it is desirable the evidence as to proof of age be given by the victim, relative, parent, medical practitioner or, where available, by the production of a birth certificate. The learned Senior State Attorney faulted the appellant for failure to cross examine the prosecution witnesses and equated the omission to admission of the accusations levelled against him. She backed up the assertion with our holding in Nyerere Nyague v. Republic, Criminal Appeal No. 67 of 2010 [2012] TZCA 103 (21 May 2012) TANZLII thus, a party who fails to cross examine a witness on a point at issue is deemed to have accepted that point and will be estopped from asking the trial court to disbelieve what the witness said.

On the fourth ground of appeal, which queried the trial court's omission to conduct the preliminary hearing in terms of section 192 (1), (2) and (3) of the CPA, Ms. Fyeregete admitted the oversight by the triai court but maintained that, the trial court had read out the facts and adopted them before a memorandum of agreed facts was prepared as reflected at pages 7 - 8 of the record. She argued that, the default if any, was minor and did not prejudice the appellant who was full aware of the nature of the case and appreciated the facts read out and explained to him. On the fifth ground which relates to non-compiiance with section 127 (1) and (2) of the TEA, Ms. Fyeregete readily conceded that, the victim (PW2) was above 14 years' age at the time of testimony and therefore, no longer a child of tender age in terms of the cited provision. Relying on the evidence of PW4 that PW2 was born on 4thApril, 2006, she reasoned that, the victim was bound to take an oath before testifying. She argued that, since the victim did not take an oath as required, her evidence should not be discarded but regarded as unsworn and subjected to corroboration. On the sixth ground of appeal in which the appellant complained of lack of corroboration and failure of the prosecution to call material

witnesses, the learned Senior State Attorney contended that, the charcoal dealers who spotted the appellant raping the victim were not necessary as PW2 had sufficiently proved the necessary ingredients of statutory rape. She argued that the evidence of PW2 was corroborated by PW1, PW2 and PW4 and urged us to find that, in the circumstances, there was no need to summon the charcoal dealers. In response to the submissions by the Republic, the appellant adopted the grounds of appeal and contended that, he did not commit the offence as alleged by the Republic. He humbly submitted that the prosecution failed to prove its case to the required standard and, as such, the conviction and the resultant sentence is bad and untenable in law. He moved the Court to acquit and release him from custody. This is a second appeal and therefore in terms of section 6 (7) of the Appellate Jurisdiction Act, Cap 141 R.E 2019 (the AJA) and rule 72 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules), only issues of law are to be decided upon. On the face of the grounds of appeal, the following seem to be the main issues for our determination: first, whether the first appellate court erred for failure to make a finding that the trial court omitted to conduct a preliminary hearing; second, whether the evidence of the victim (PW2) was irregularly received and the lower courts

erred to rely on it to find a conviction; and; third, whether the lower courts correctly found the prosecution proved the charge of rape to the required standard;. The first issue is a procedural aspect and addresses the fourth ground of appeal. It starts with a basic question whether a preliminary hearing was conducted by the trial court. It is not disputed that holding a preliminary hearing is a mandatory requirement under the CPA and rule 3 of the Accelerated Trial and Disposal of Cases Rules, 1988. Section 192 (1) of the CPA provides that if an accused pleads not guilty the court shall hold a preliminary hearing in the presence of an accused and his advocate if any, and the public prosecutor to consider matters which are not in dispute between parties and which will promote a fair and expeditious trial. In ascertaining the matters that are not in dispute, the court shall explain to the accused who is not represented about the nature and purpose of the preliminary hearing and may put questions to the parties as it thinks fit (section 192 (2) of the CPA). According to section 192 (3) of the CPA, at the conclusion of the preliminary hearing, the trial court is required to prepare a memorandum of the matters agreed which is to be read over and explained to the accused in a language he understands and then signed by him and his

advocate (if any) and by the public prosecutor. The said memorandum is then filed in the case file. In Joseph Munene and Ally Hassan v. Republic [2005] T.L.R 141, we opined that, preliminary hearing was intended by the legislature not only to reduce the costs of criminal trials in the country, but also to ensure that trials are, without prejudice to the parties, conducted expeditiously. We equally found that proceedings which were conducted without invoking the procedure laid down under section 192 of the CPA were not vitiated. In the present matter, the preliminary hearing was conducted on 28th April 2020. It is shown at page 7 of the record that, the public prosecutor successfully sought leave of the court to file the written facts which were adopted by the court. Thereafter, the facts were read over to the appellant who was asked to reply. The trial magistrate recorded that, "the reply is indicated in the memorandum o f agreed facts". Thereafter, the trial court recorded that, all facts are undisputed except fact number 3 of the adopted memorandum of facts. It was also recorded that the list of witnesses and exhibit is as per the adopted memorandum of facts.

Admittedly, the adopted memorandum of facts is missing from the record. However, upon examination of the original record, we came across the memorandum of facts which reads as hereunder: "Memorandum o f Facts o f the Case for Preliminary Hearing Made under Section 192 o f the Criminal Procedure Act, Cap 20 of the Laws, R.E 2019. That the accused person to be reminded his charge.

1. That the accused person in this matter is Mashishi S/o Lwenge, an adult male person aged 34 years old, Sukuma, Christian, Peasant and Resident ofMihama village.
2. That the accused person in this case is charged with an offence o f rape.
3. That on the 31st day o f January, 2020 at about 18.00 hours at Mwamaduiu village within Kishapu District in Shinyanga Region had a carnal knowledge o f one (PW2), a girl aged 14 years old and a pupil o f standard five a t ... Primary School.
4. That on the 4 h day o f February, 2020 the accused person was brought before your Honourable Court for the first time to answer his allegation.

That during the trial in order to prove its case the prosecution intends to call the following witnesses:

1. The victim's father (PW1) o f Mwamadulu Village.
2. The victim (PW2) o f Mwamadulu Village.
3. Rahim S/o Mohamed o f Lunguya Village.
4. Dr. Shaban S. Mwikaio o f Dr. Jakaya M. Kikwete Hospital.
5. G. 2548 D/C Justine o f CID Kishapu Police Station. That the prosecution wishes to tender the following exhibits as part of the evidence.
6. The PF3 o f the victim (PW2). Date: 12/05/2020 (Signed) Public Prosecutor." On close examination of the above reproduced facts, we found that the appellant admitted his name, age, tribe, religion, occupation, and place of residence. He also admitted that he was charged with the offence of rape and the remaining facts were disputed. Nonetheless, the memorandum of agreed facts was not signed by the appellant as required under section 192 (3) of the CPA. This omission was glaring on the face of the record and should have been addressed by the first appellate court. Despite that, we did not find any instance or suggestion that the appellant was prejudiced by the omission. In view of our stance in Joseph Munene 13

(supra), we are settled that the omission did not vitiate the proceedings of the courts below. Therefore, the fourth ground of appeal is dismissed. The second issue is whether evidence of the victim (PW2) was irregularly received by the trial court. This covers the fifth ground of appeal where the appellant faulted the trial court for not observing the requirements of section 127 (1) and (2) of the TEA. The first appellate court was not addressed on this aspect but since it is a point of law, we shall tackle it. Ms. Fyeregete argued that, on the date of testimony, PW2 had passed the age of 14 years and therefore, was not covered by section 127 (1) and (2) of the TEA as suggested by the appellant. She maintained that the said witness was required to take an oath or affirm before she couid testify. We are in agreement with this line of reasoning. Section 127 (2) of the TEA provides that, a child of tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth. In Kimoio Mohamed @ Athumani v. Republic [2016] TZCA 956 (15 April 2016), PW1 was on a threshold of a child of tender age. The trial magistrate was satisfied that she understood the nature of an oath but

due to her actual age, received her evidence without an oath. On appeal to this Court, we reasoned that, there was no prejudice occasioned to the appellant as the witness understood that to tell untruth is bad and her evidence was comprehensible. Further, we pointed out the legal consequences for unsworn testimonies, thus: "...If the witness understood the nature o f an oath she was entitled to have her evidence taken on oath because giving unsworn testimony has its implications. In some cases\ it may require corroboration and sometimes an adverse inference may be drawn against such evidence." In Charles Yona v. Republic, Criminal Appeal No. 79 of 2019, [2021] TZCA 339 (2 August 2021) PW5 and PW6 were witnesses of the tender age who took oath before a voire dire test was conducted. It turned out that after such test each of them demonstrated to know the meaning of an oath and the duty to speak the truth. The Court was of the view that the irregularity was immaterial. It is trite law that the unsworn testimony of a witness can be acted upon where it is corroborated by other pieces of evidence. In this matter, records show that, on the date of testimony, PW2 was 14 years and 3 months old. The trial magistrate acting on the assumption that she was a child of tender age, conducted a voire dire examination and formed an

opinion that she was a credible witness. She promised to tell the truth but did not take an oath or affirm as required under the law. In the circumstances, her unsworn evidence is not discarded. Rather, it requires corroboration. The last issue is whether the tower courts correctly found the prosecution proved the charge of rape beyond reasonable doubt. This issue covers the first, second, third and sixth grounds of appeal which are interrelated. In her submissions, Ms. Fyeregete was upbeat that, the prosecution had dutifully discharged its onus in proving the charge. The appellant was adamant that the prosecution evidence was incredible. To him, the evidence of PW1 and PW4 was hearsay; evidence of the four prosecution witnesses was uncorroborated; and; the prosecution failed to call material witnesses, namely: Bana Chide and two charcoal dealers. On that note, he faulted the trial court and the first appellate court for failure to draw adverse inference against the prosecution. Having resolved the weight of the evidence of PW2, this issue should not detain us. It is trite law that, true evidence of rape has to come from the victim, if an adult that there was penetration and no consent, and in case of any other woman where consent is irrelevant, that there was penetration

(See: Selemani Makumba (supra)). Penetration was defined by the Court in Babu Idd v. Republic, Criminal Appeal No. 332 of 2015 (unreported) to mean the act whereby the male sexual organ enters the female sexual organ, and such entrance, however slight, is sufficient to constitute the sexual intercourse necessary to the offence. In the instant case, PW2 testified that, the appellant dragged her to the bush, forcefully removed her clothes and underpants and then inserted his manhood into her privates which caused her severe pains. She went on record that, the appellant placed mud into her mouth to stop her yelling for help. TTiis was corroborated by PW1 and PW4 who found her at the scene with mud in her mouth and in bad shape. The medical doctor, PW3, capped it all. He saw the victim with mud on her clothes, her private parts were found with sperms, blood and Omud. The labia minora and majora were wet and the cervix was slightly open. He concluded that she was raped. Exhibit PI, the PF3 did not miss the details. The medical practitioner's remarks were that the medical examination revealed penetration into the victim's private parts which established the act of rape. In the circumstances, the appellant was positively recognised as

the perpetrator of the offence and therefore, Bana Chide and the charcoal dealers were unnecessary. For those reasons, we find the prosecution evidence on the offence of rape consistent and bereft of any gaps capable of creating any reasonable doubt in the mind of the Court. It is therefore, our finding that the courts below properly concurred on the appellant's guilt and conviction. We also uphold the sentence meted out to him. The appeal is hereby dismissed in its entirety. DATED at DAR ES SALAAM this 13th day of November, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 15th day of November, 2024 in the presence of Appellant in person and Ms. Mboneke Ndimubenya, learned State Attorney for the Respondent/Republic via video link from High Court