Mashala Maligisu vs Republic (Criminal Appeal No. 135 of 2022) [2024] TZCA 1097 (13 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA fCORAM; JUMA, C.J.. MWANPAMBO, 3.A. And RUMANYIKA, J.A.) CRIMINAL APPEAL NO. 135 OF 2022 MASHALA MALIGISU.................................................................. APPELLANT VERSUS THE REPUBLIC .................................................... ..............RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) fMkwizu, J,^ dated the 1s t day of April, 2022 in Criminal Appeal No. 26 of 2021 JUDGMENT OF THE COURT 24th October & 13th November, 2024 RUMANYIKA. J.A.: The appellant, Mashala Maligisu was arraigned in the District Court of Bariadi (the trial court) for the offence of attempted rape contrary to section 132 (1) and (2) (a) of the Penal Code Cap. 16 (the Penal Code). It was alleged that on 24 November 2018 at about 14.00 hours at Isengwa Village, Itilima District, Simiyu Region, the appellant attempted to have carnal knowledge of a girl who was twelve-years-old. We shall herein refer to her as the victim or PW2 in order to conceal her true identity and protect her dignity. Upon trial, the appellant was convicted as charged and sentenced to thirty years imprisonment. Aggrieved with that decision,

he unsuccessfully appealed to the High Court of Tanzania, Shinyanga. Again, not satisfied, he is before us on a second appeal. A brief factual background to the matter tells that, on the material date and time, the victim took over grazing out herds of cattle to enable her brother one Uadi Masanja (PW3) to go home for lunch. A short while later, the appellant appeared suddenly and attempted to have her carnal knowledge. However, his efforts failed as he was interrupted by PW3 who unexpectedly came back. PW3 reported the incident to the Village Executive Officer (the VEO) who arrested the appellant. Upon questioning, the appellant admitted to have raped the victim. He apologized vainly as the incident was reported to the police station. Subsequently, the victim was taken to the hospital and medically examined. Thereafter, the appellant was arraigned in court and charged as such. Four witnesses testified for the prosecution as follows: PW1 is the victim's mother to whom the victim reported the incident at the earliest. Liadi Masanja (PW3) is the victim's brother who saw the appellant on top of the victim when the former came back to the grazing area after lunch. Makenga Petro (PW4), the secretary to the local security committee who arrested the appellant following the incident and before whom the appellant admitted to have raped the victim.

The appellant, the sole defence witness distanced himself from the charged offence. He prayed for mercy of the court and urged it to restore his liberty as he is a victim of HIV AIDS who needed care and attention outside the prison cells. At the end of it all, the trial court found the prosecution case proved to the hilt and sentenced the appellant to thirty years imprisonment. His first appeal to the High Court was unsuccessful hence the present appeal which is premised on six grounds that can be paraphrased as follows; One, the victim was not credible as her evidence contradicted the particulars of the offence regarding the date of commission of the charged offence, two, the evidence of PW2 was wrongly relied upon by the courts below despite some material contradictions, three, the recording of evidence of a child of tender age (PW2) contravened section 127(1) of the Tanzania Evidence Act, four, age of the victim was not proved, five, evidence of PW4 was received contrary to section 27(1) of the Evidence Act, and, six, evidence of the victim was unreliable for lack of a supporting medical report. At the scheduled hearing of the appeal, the appellant appeared in person, unrepresented. Mses. Suzan Masule and Violeth Mushumbusi, learned Senior State Attorneys and Mr. Nyamnyaga Magoti, learned State Attorney, teamed up to represent the respondent Republic. 3

At the outset, the appellant adopted his six grounds of appeal and elected for the Republic to begin the submission on the grounds, while reserving his right of rejoinder. Ms. Masule began by clearing her position that she was opposing the appeal and responded to the six grounds seriatim . For the first ground of appeal, on whether the charged offence was committed on 25.11.2019 as stated by the victim or on 24.11.2019 as is seen in the particulars of the offence, Ms. Masule contended that, the variance was cleared by PW2 it was 24.11.2019. She urged us to find this ground unmerited along with the second ground because the two revolve around the same complaint. As regards the 3r d ground on the alleged improper recording of the victim's evidence, Ms. Masule viewed it to be misconceived and inconsistent with the record. While appreciating the gist of section 127(2) of the Evidence Act, she referred to page 9 of the record of appeal where the victim promised to tell the truth as required consistent with the Court's decision in Mohamed Jumanne v. R (Criminal Appeal 569 of 2021) [2024] TZCA 526 (8 July 2024; TanzLII) which the learned Senior State Attorney cited to bolster her point.

Regarding the 4th ground which concerns the alleged failure to prove the age of the victim, Ms. Masule contended that, this complaint could only be relevant if the offence of rape was accomplished, for the purpose of sentencing which was not the case. She added that, in the present case, proof of the age of the victim was immaterial because the complaint was not about legality of the sentence. She argued that, as she was one of the people who can prove the age, the evidence of the victim and her mother (PW1) was sufficient that the victim was thirteen years old at that material time. And that, in sexual offences as is in this case, true evidence has to come from the victim. Fortifying her argument, she cited the Court's decision in Selemani Makumba v. R [2006] T.L.R. 379. She also referred us to the appellant's admission of the charged offence made before PW4 and the evidence of PW3 that he found the appellant still laying on top of the victim at the crime scene. Therefore, the evidence of PW3, Ms. Masule argued, made the victim's story to be more reliable and acceptable as the Court pronounced itself in Khamis Samwe Iv. R, Criminal Appeal No. 320 of 2010 (unreported). Further commenting on the victim's credibility, Ms. Masule contended that the victim named the appellant to PW1 immediately. In relation to the 5th ground of appeal challenging the alleged appellant's admission before PW4, a civilian to commit the offence, Ms.

Masule contended that, this complaint was introduced for the first time hence not worth to be considered by the Court. In any case, she argued, PW4, was such a respectable person in the community such that the appellant's admission made before him rightly founded the conviction. She cited our decision in Bushiri John V. R (Criminal Appeal No. 486 of 2016 [2019] TZCA 89 (16 May 2019; TanzLII) to bolster her point. As regards the 6th point of complaint on the absence of a medical report to support the case, it was Ms. Masule's submission that this ground is misconceived because rape was not accomplished to warrant examination of the victim's genital parts. She argued that, a medical report was uncalled for in the circumstances. She stressed that like others, PW2 and PW3 were entitled to credence and had to be believed. To reinforce her proposition, she cited the Court' decision in Goodluck Kyando V. R [2006] T.L.R. 363. In his rejoinder, the appellant maintained the six grounds of appeal. He stressed for an order to allow his appeal and restore his liberty. It is worth noting at this juncture that, the offence of attempted rape under section 132(2) of the Penal Code constitutes two essential ingredients; one, an intent to procure a prohibited sexual intercourse and two, the manifestation of that intent. See- Edwin Thobias Paul v. R ( Criminal Appeal 130 of 2017) [2018] TZCA 367 ( 10 May 2018; TanzLII).

With regard to ground one of appeal, we agree with Ms. Masule that, the alleged variance of the dates of the incident between the testimony of PW2 and the particulars of the offence on the charge sheet was but a typographical error. Upon examination of the original or handwritten script of the proceedings we are satisfied that all referred to 24.11.2018 as the date of the alleged incident of attempted rape. Nonetheless, the purported contradictions did not go to the root of the case. It is recalled that PW3 is the one who caught the appellant red- handed and PW2 named the appellant to her mother (PW1) at the earliest possible opportunity making the victim more credible. See- Marwa Wangiti Mwita and Another V. R [2002] T. L. R. 39. As such, grounds one and two of appeal are dismissed. Next for our determination is the appellant's third point of grievance that the recording of the victim's evidence contravened section 127(2) of the Evidence Act. As we are well guided by the principle of sanctity of the court records, we are satisfied that, this complaint is misconceived, as rightly argued by Ms. Masule. In fact, the victim promised to tell the truth before she testified, as it appears clearly at page 9 of the record of appeal. Therefore, the issue of improper recording of her evidence is not borne out of the record. It should not have been raised in the first place. The 3r d ground of appeal also crumbles.

On the 4th ground of appeal which concerns the alleged failure to prove the victim's age, a vital ingredient of the charged offence, with respect, we do not agree with Ms. Masule on her contention that, in this case age of the victim was irrelevant considering the nature of the charged offence. We note that in any case age of the victim has been material for the purposes of sentencing, However, the appellant's complaint is not about legality of the sentence. PW1 being the victim's parent hence one of the people who may prove her age, as the Court held in Robert Sanganya V. R (Criminal Appeal No. 363 of 2019 [2022] TZCA 18 (10 February 2022; TANZLII), her evidence cannot be disregarded. Moreover, there was an equally reliable evidence of the victim that at the material time she was thirteen years old. We agree that Ms. Masule's contention is the correct position of the law that, in sexual offences, as it is in this case, true evidence has to come from the victim. We reiterated this stance in Selemani Makumba (supra). Equally, the evidence of PW3 who found the appellant still lying on top of the victim made the victim's story more reliable and acceptable as the Court held in Khamis Samwel (supra) which was cited by Ms. Masule to fortify her point. Therefore, ground 4 of appeal is dismissed. The fifth ground of appeal is on the alleged admission of the appellant before PW4 to have committed the charged offence. We agree with Ms.

Masule that, this point is untenable as it was not raised and determined by the two courts below. Therefore, it would be unfair to fault the courts on such a matter. All the same, the appellant did not cross examine PW4 on those serious allegations he allegedly made thus: "baada ya hamu kunizidinikalala nae" Meaning that, he committed the charged offence because he lost control of his sexual desire. We find that, not only the appellant's words did not constitute an acceptable defence, but also, his failure to cross examine PW4 implied an admission of the allegations against him to be true. See- Cyprian Athanas Kibogoyo v. R, Criminal Appeal No. 88 of 1992 (unreported) and John Shini v. R (Criminal Appeal 573 of 2016) [2020] TZCA 1747 (25 August 2020; TanzLII). On the sixth ground, the appellant complained about the failure to produce a medical report to support the victim's evidence. We agree with Ms. Masule that this complaint is also new thus untenable. Moreover, the point is unfounded and misconceived as the said report was uncalled for in the circumstances of the case. Therefore, the sixth ground is also dismissed. Now that, as alluded to before, the bottom line is that in sexual offences true evidence has to come from the victim, in this case PW2, the strength of her evidence cannot be over emphasised as rightly found by the two courts below. Her evidence was sufficiently corroborated by PW3,

as observed earlier on. We decline to disturb the concurrent factual findings, as we do not see any peculiar circumstances compelling the Court to do so. We stressed this principle in Raymond Mwinuka V. R (Criminal Appeal 366 of 2017) [2019] TZCA 315 (29 August 2019; TANZLII). As we are satisfied that the prosecution case was proved to the hilt, we find the entire appeal to be unmerited and dismiss it. DATED at DAR ES SALAAM this 12th day of November, 2024. The Judgment delivered this 13th day of November, 2024 in the presence of Appellant in person via video link from High Court of Tanzania at Shinyanga and Mr. Leonard Kiwango, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. I. H. JUMA CHIEF JUSTICE L. J. S. MWANDAMBO JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL 1 J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL