Dastan Raphael Kipingu vs Republic (Criminal Appeal No. 508 of 2021) [2024] TZCA 1073 (7 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI CORAM: MWARD A. J.A.. KAIRO. J.A, And FELESHI, J.A, CRIMINAL APPEAL NO. 508 OF 2021 DASTAN RAPHAEL KIPINGU ...... ............... APPELLANT VERSUS THE REPUBLIC .... ...... ...... ...... RESPONDENT [Appeal from the Decision of the High Court of Tanzania at Moshi] (Mutunqi, 3.) dated the 31st August, 2021 In Criminal Appeal No.14 of 2021 JUDGMENT OF THE COURT 1st & 7th November, 2024 FELESHLJ.A.: The appellant, Dastan Raphael Kipingu was convicted and sentenced to life imprisonment by Mwanga District Court, for having carnal knowledge of AZ (her name withheld), a girl aged four (4) years old, contrary to sections 130(1) (2) (e) and 131(1) of the Penal Code, Chapter 16. The offence was committed on 18th September 2019 at Mangulai A Village within Mwanga District in Kilimanjaro Region. AZ shall hereinafter be referred to as "the victim" or "PW2". Aggrieved, the appellant lodged his first appeal in the High Court of Tanzania at Moshi i

which upheld the decision of the trial court. Further disgruntled, he preferred this second appeal. Upon the appellant's plea of not guilty to the charge, five witnesses were called to testify: Joyce Joseph (PW1), the victim's grandmother; PW2, the victim; Juma Daudi (PW3), a person who first responded to PWl's alarm; PW4 Khalifani Mlali (PW4), the medical personnel who examined the victim; and WP 3299 D/GPL Fatuma (PW5), the police investigator. On his side, the appellant adduced his evidence on oath (DW1) and did not have a witness to call. In her testimony, PW1 alleged that, on 18th September 2019 the appellant was with her in the farm together with Anna and Hussein. Present also were the victim and Elisam Shukran (a 2.5 years old boy) who were playing around the hut found within PWl's farm. While there at around 16hrs, the appellant felt tired and excused himself from work. He went to the hut, about 35 footsteps far and ravished PW2. PW1 heard PW2's unusual outcry from the hut. She called to ask what has happened but was not answered. On arriving at the hut whilst accompanied by Anna, she saw the appellant emerging from the hut running away. His short (kaputula) was open-unzipped. They screamed for some help. PW3 responded and managed to apprehend the 2

appellant. The victim's private parts (vagina) was raptured and had sperms around it while her pant was stained with blood. Likewise, the appellant was tainted with sperms. The victim identified the appellant as her assailant. On his part, PW4 examined the victim and found her vagina had bruises and had lost her hymen. He tendered the victim's P.F.3 (exhibit PI) to that effect. In his defence, the appellant (DW1) denied having committed the offence. However, he agreed to have been apprehended by PW3 on the same fateful date and for the same accusation. According to him, on the fateful date he was with one Mzee Mjaluo farming beside PWl's farm. Then PW1 asked him why he slapped the victim before she accused him that he raped the victim. He said, they started beating him. As aforesaid, the appellant appealed to this Court because his first appeal to the High Court proved futile. His appeal to this Court is supported by a total of seven grounds of appeal including, the five grounds he filed on 21st April, 2022 and the two grounds he filed through a supplementary memorandum of appeal on 11th September, 2023. Generally, we find the appellant's complaints are comprised of: failure by the prosecution to call some witnesses who were alleged to be at the scene of crime (1st ground in the supplementary memorandum of

appeal); failure to comply with section 127(2) &(6) of the Evidence Act, Chapter 6 (the Evidence Act), 1st ground in the original memorandum of appeal and 2n d ground in the supplementary memorandum of appeal; failure to re-evaluate evidence (2n d ground in the original memorandum of appeal); convicting basing on weak and contradicting prosecution evidence (3r d ground in the original memorandum of appeal); failure to consider the defence evidence (5th ground in the original memorandum of appeal); and failure to establish the charge against the appellant beyond reasonable doubt ( 4th ground in the original memorandum of appeal). In the appeal before us the appellant appeared in person, unrepresented, while Mr. Issack Mangunu, learned State Attorney, appeared for the respondent/Republic. When invited to expound on his grounds of appeal, the appellant opted for the learned State Attorney to begin and reserved his right to rejoin. On his part, Mr. Mangunu strongly opposed the appeal. Submitting on ground one in the supplementary memorandum of appeal on failure by the prosecution to call some witnesses who were alleged to be at the scene of crime, he argued that section 143 of the Evidence Act does not

require certain number of witnesses in proving or disapproving certain fact. Therefore, the evidence of PW1, PW2, PW3 and the Doctor (PW4) were sufficient and managed to prove the prosecution's case to the required standard of proof. He implored the Court to dismiss the ground for want of merit. Regarding the complaint in the 1st ground in the memorandum of appeal and the 2n d ground in the supplementary ground of appeal that the unsworn evidence of PW2 was not accompanied by her promise to teil the truth and not lies, Mr. Mangunu, referring to page 14 of the record of appeal, conceded to the contravention of section 127 (2) of the Evidence Act. However, it was his unwavering contention that, PW2's unsworn evidence was corroborated by PW1, PW3 and PW4 as required by the law. Mr. Mangunu invited the Court to dismiss the grounds of appeal for lack of merit. As to the 2n d ground in the memorandum of appeal which complained that the first appellate court did not re-evaluate the evidence, Mr. Mangunu referred this Court at pages 38 - 42 and 74 - 78 of the record of appeal. He stressed that, the record vividly indicates how the trial court and the first appellate court evaluated and re evaluated the evidence and concluded that the prosecution proved its

case. He implored the Court to reject the ground of appeal for want of merit. Regarding the complaint that the prosecution evidence was weak and contradictory in the 3r d ground of appeal, Mr. Mangunu argued that the prosecution side through the victim (PW2) stated how the appellant raped her. Besides, PW1 stated the way she responded to the victim's alarm and pursued the appellant who was running and how PW3 apprehended him with his unzipped short which had sperms. He added, the Doctor (PW4) examined the victim and found her hymen perforated and stained with blood and sperms. Mr. Mangunu's view was that those witnesses had adduced credible and uncontradicted evidence. It was his caveat, however, that, in case this Court finds some contradictions, it should find them minor, and they do not go to the root of the case. Responding to the 5th ground of appeal on failure by lower courts to consider the appellant's defence, Mr. Mangunu was straight forward and brief that, the defence evidence was considered but found raising no doubt against the strong evidence adduced by the prosecution. He referred the Court at page 43 of the record of appeal where the trial court summarized and evaluated the defence evidence. Also, he reminded that, the appellant had raised the same complaint before the

first appellate Court which also found the ground unfounded. He thus invited this Court to disregard it. With regard to the 4th and last ground that the charge against the appellant was not proved beyond reasonable doubt, the learned State Attorney argued that, the offence with which the appellant was convicted against required proof of three ingredients: one, whether the victim was penetrated; two, whether the appellant was the one who penetrated her; and three, whether the victim was a child below 18 years of age. Mr. Mangunu's submission was that all the three ingredients were proved by PW2 (the victim), PW1, PW3, PW4 and Exh.Pl. He summed up that, the charge against the appellant was proved to the required standard. He, therefore, invited the Court to dismiss the appeal. In rejoinder, the appellant had nothing material to state than saying that the respondent's submissions are a nullity. We have dispassionately considered the grounds of appeal above, the submissions by the learned State Attorney and the record of appeal. We opt to commence with the complained contravention of section 127(2) and (6) of the Evidence Act in relation to the reception of the victim's evidence. Guided by the victim's testimony at pages 13 and 14

of the record of appeal, this ground should not detain us unnecessarily. It is amply provided that, despite PW2 possessing sufficient intelligence, she adduced unsworn evidence because she did not know the nature of oath and she did not promise to tell the truth. As we find cogent evidence from PW1, PW2, PW3 and PW4 corroborating PW2's evidence, we irresistibly agree with Mr. Mangunu, that the complained of omission is curable. -See for instance, the case of Mtendawema Said v. Republic, Criminal Appeal No. 199 of 2011 (unreported). Regarding section 127(6) of the Evidence Act, the appellant's complaint was probably that the evidence of the victim (PW2) alone could not ground a conviction. In view of what we have alluded to above, that PW2's evidence albeit violative of section 127(2) of the Evidence Act, was well corroborated by other prosecution evidence, the complaint relating to section 127(6) of the Evidence Act is rendered baseless. In the upshot, we find the appellants complaint in both the first and second grounds of appeal in the memorandum of appeal and supplementary grounds of appeal respectively, devoid of merit, we dismiss them. We will now consider the 5th ground in the memorandum of appeal in which the appeilant is complaining that his defence was not

considered. We are aware of the stance of the law that failure to consider defence evidence is fatal as it is as good as denying the accused's right to be heard. See for instance, the cases of Stayoo Kundai v. Republic [2008] TLR 352 and Hussein Idd & another vs Republic [1986] TLR 169. Again, we are much mindful that, the law is trite that rejecting defence evidence does not mean non-consideration of the defence evidence in question “See for instance, the case of Godfrey Mwandemwa v. Republic (Criminal Appeal No. 409 of 2020) [2023] TZCA 41 (22 February 2023). In this appeal, however, reading the judgment of the trial court at page 43 of the record of appeal, as correctly argued by the learned State Attorney, it is apparent that, the appellant's defence was considered but was finally rejected. This also obtained to the appellate proceedings before the first appellate court. That being the true position of the record founding the appeal under consideration, we find this ground of appeal also wanting and we dismiss it. We wish now to address the rest of the grounds of appeal together. These are; the second, third and fourth in the memorandum of appeal and the first in the supplemental ly memorandum of appeal. We are constrained to do so because, the attendant main appellant's

complaint derived from them is that the charge against the appellant was not proved to the required standard. As we resolve this complaint, we are abreast of the law that second appellate court cannot easily interfere with the concurrent finding of facts of the two courts below it unless there are good reasons to do so- see the Court'S decision in the case of Director of Public Prosecution v. Peter Roland Vogel [1987] TLR 100. The complaints by the appellant are that material witnesses were not summoned; the prosecution evidence was contradictory and thus the charge was not proved against him beyond reasonable doubt. As we have pointed out herein above, these complaints are faulting the two lower Courts on evaluation of evidence. We have gone through the judgment of the trial court as well as that of the first appellate Court at pages 38 - 42 and 74 to 79 of the record of appeal respectively. Indeed, we found both courts intensively evaluated the evidence, and there are concurrent findings and decision. Without reservation, the first appellate court is on record to have confirmed that the findings and the decision of the trial court were proper and sound in law. That is found from page 78 to 79 of the record of appeal where it summed up thus: 10

"Putting PW'2 testimony into scrutiny and the fact that the appeiiant was apprehended within the premises, the triai magistrate did not error in relying on her testimony . : The trial magistrate was also justified since the same was supported by PW1 and PW3 who arrested the appellant at the scene of crime as well as PW4 who examined the victim and PF3 admitted and marked "Exhibit Pi". The trial Magistrate had in this case taken the whofistic approach. The foregoing notwithstanding, the appellant's defence a t the trial court and in his submission in this Court, have not casted doubt on PW2's (the victim) evidence or put holes in the prosecution's case. His allegations that the case is fabricated are unsubstantiated. In the upshot the prosecution had managed to prove their case beyond the reasonable doubt. In view thereof, I see no reason to fault the learned magistrate's findings and decision." We have also gone through the evidence adduced before the trial Court and specifically looked at PW2's evidence at page 14 of the record of appeal. We are of considered view that, as rightly observed by the two lower courts, the witness story was nothing but the truth. Furthermore, as correctly argued by Mr. Mangunu, the appellant's complaints that the prosecution evidence was weak, tenuous, 11

contradictory, and unreliable are unfounded. Unfortunately, these complaints are not supported by the record of appeal. Having gone through the entire evidence, we did not note any contradiction. As the first appellate Court noted, and per the case of Goodluck Kyando v. Republic, [2006] TLR 363, every witness is entitled to credence and has to be believed unless there is good reason not to believe him. Looking at the prosecution's witnesses in the instant case, there is no reason why they should not be believed, In addition, as correctly articulated by Mr. Mangunu, and as per section 143 of the Evidence Act, evidence is not counted but is weighed. We have considered the evidence of PW1 that, Elisam Shukrani @ Handsome was a child boy of 2.5 years of age. By any imagination, such a child could not have been a material witness to outweigh PW1, PW2 and PW3. As for one Anna, our take is that, per this Court's decision in Yohanis Msigwa v. Republic [1990] TLR 148 (CA), the prosecution was at liberty whether to call her or not basing on her availability, reliability and credibility. So, if no need occurred to require the trial court to exceptionally summon her under section 195 of the Criminal Procedure Act, Chapter 20 and justice was realized through PW1, PW2, 12

PW3 and PW4, on our part, we are unable to appreciate the appellant's complaint. We dismiss it. Owing to the foregoing discussion, we conclude that, the appellant's complaint that the case against him was not proved beyond reasonable doubt is unfounded. This appeal is without merit, we dismiss it in its entirety. DATED at MOSHI this 7th day of November, 2024. A. G. MWARIJA JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 7th day of November, 2024 in the presence of the Appellant in person and Mr. Isack Mangunu, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. 13