Maduhu Talasisi vs Republic (Criminal Appeal No. 401 of 2022) [2024] TZCA 1050 (6 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: MWANDAMBO, J.A., RUMANYIKA, J.A. And KHAMIS. J.A.^ CRIMINAL APPEAL NO. 401 OF 2022 MADUHU TALASISI..........................................................................APPELLANT VERSUS THE REPUBLIC..............................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Shinyanga) (Mkwizu, J.^ dated the 15th day of July ,2022 in Criminal Appeal No. 01 of 2022 JUDGMENT OF THE COURT 28th October & 6th November, 2024 RUMANYIKA, J.A.: Maduhu Talasisi, the appellant, was charged before the District Court of Kahama (the trial court) in Criminal Case No. 256 of 2021 with the offence of rape contrary to sections 130(1), (2) (e) and 131(3) of the Penal Code. It was alleged that, on 11 October 2021, at Nyihogo village within Kahama District in Shinyanga Region, the appellant had carnal knowledge of a two-years-old girl who will be referred to as the victim or PW3, in order to protect her true identity and dignity. The appellant was himself the sole defence witness and denied the charge. The prosecution

had seven witnesses including PW1 and PW2 who are the victim's father and mother respectively. Other witnesses were the victim, Alicia Revocatus (PW4), Kulwa Luviwabu (PW5), Catherine Paulo (PW6), Iddi Saidi Mitimingi (PW7) the local chairman and Iddi Ramadhani (PW8), a medical doctor at Kahama Municipal Hospital. Upon trial, the appellant was convicted and sentenced to a mandatory life imprisonment. His first appeal against the conviction and sentence to the High Court was unsuccessful. He is aggrieved, hence this second appeal. The facts of the case giving rise to this appeal would be stated albeit briefly, thus: In the afternoon of 11 October 2021, the victim was around the homestead playing, while parents, PW1 and PW2 were in the room. PW1 and PW2 rented that house which had other tenants including the appellant. After a while, the victim approached her father (PW1) and told him that she was hurt at her private parts by an elderly man "babu" referring to the appellant. On physical examination, the victim's mother (PW2) noticed some whitish fluid on the victim's underpants. Curious of the fluid substance, PW2 invited her neighbours PW4, PW5 and PW6 to observe the victim. The neighbours were satisfied that the whitish substance were remains of spermatozoa. Based on the findings and the victim's complaints, the incident was reported to the local authorities.

Consequently, the appellant was arrested, arraigned in court, convicted and accordingly sentenced. He vainly appealed to the High Court. Aggrieved with the High Court decision, he preferred this appeal on five points as follows: One, the sentence of life imprisonment was excessive, two, the conviction was based on suspicion, three, his defence evidence was not considered, four, improper evaluation of the evidence and five, the prosecution case was not proved beyond reasonable doubt. At the scheduled hearing, the appellant appeared in person, unrepresented. Resisting the appeal, Ms. Ajuaye Bilishanga, learned Principal State Attorney, Mses. Grolia Ndondi, Louis Mbwambo and Mr. Nyamnyaga Magoti, learned State Attorneys teamed up representing the respondent Republic. The appellant preferred the Republic responding to the grounds of appeal first and reserved the right of rejoinder. Ms. Ndondi clustered the five grounds into three as she chose to argue the second and fifth grounds together, while the third and fourth grounds were also consolidated. The first ground of appeal was separately argued.

The consolidated second and fifth grounds concern the alleged failure of the prosecution to prove the case to the required standards. To prove the appellant wrong, Ms. Ndondi highlighted the three vital ingredients of an offence of rape to be; one, age of the victim, two, penetration and three, perpetrator of the act, which she argued were proved in the present case. Elaborating, she contended that, the evidence of PW1 and PW2 who are the victim's parents told that she was two years old at the material time, born on 11 October 2018, which evidence was not contradicted. Showing the two parents were competent witnesses to prove the age, she cited our decision in Isaya Renatus v. R, Criminal Appeal No. 542 of 2015 (unreported). Regarding penetration, Ms. Ndondi asserted that, the tender aged victim could not have said words more than what is seen at page 11 of the record of appeal, while pointing at her private parts that: "...babu aliniumiza huku... Ms. Ndondi contended that, the victim meant that she was penetrated by an elderly man (the appellant). She contended that her evidence was corroborated by PW1, PW2, PW4, PW5, PW6, PW7 and PW8, the medical doctor who noticed presence of some swellings, bruises and remains of spermatozoa at the victim's genital parts. Ms. Ndondi was of the view that, the appellant was no doubt the perpetrator of the act on

the ground that, besides the victim's evidence, which the two courts below concurrently found to be truthful, there was circumstantial evidence of PW4 and PW5 who saw the victim walk out of the appellant's room with difficulties and in pains. Ms. Ndondi added that, the aforesaid evidence concluded that the victim's sexual parts were penetrated by the appellant who did not contradict them by way of cross examination. The third and fourth grounds relate to the alleged non consideration of the appellant's defence and improper evaluation of the evidence. Ms. Ndodi differed with the appellant on this complaint. She argued that the High Court sufficiently weighed his defence against the prosecution case. For all intents and purposes, she argued, the High Court's approach meant to stepping into the shoes of the trial court and evaluate the appellant's defence. Further, Ms. Ndondi asserted that, the learned Judge's view that the appellant's testimony supported the prosecution's case cannot be faulted. Alternatively, Ms. Ndondi contended that, should the Court view it otherwise, that the findings were a result misdirection or non-direction or misapprehension resulting to injustice it may interfere with such findings. Finally, is the first ground of appeal which concerns the sentence alleged to be excessive. Responding to this point, Ms. Ndondi contended

that, the complaint is misconceived as the sentence complained of was in accordance with section 131(3) of the Penal Code because the victim was a child of tender age when she was so offended. The appellant had no useful rejoinder, as he only urged the Court to consider his points of grievance, allow his appeal and restore his liberty. Having considered the foregoing, the Court is called upon to see whether the two courts below were right to concurrently find that; one, that the prosecution case was proved beyond reasonable doubt, and two, that the sentence of life imprisonment was proper. We choose to begin with the consolidated third and fourth grounds of appeal on the alleged failure of the two courts below to consider the appellant's defence and improperly evaluating the evidence. We accept Ms. Ndondi's contention that the first appellate court properly evaluated the evidence and considered the appellant's defence, though indirectly by assessing its impact on the prosecution case. We note that, dutifully, in evaluating the evidence on record, the learned first appellate Judge reproduced part of the appellant's evidence where he admitted to have been with the victim in the room immediately before the alleged rape, and she ate some food. In this regard, at pages 60, 64 and 65 of the record of appeal, it was observed that:

"...this being the first appellate court, it has an obligation to consider and evaluate the evidence on record and come to its own conclusion.. .The defence evidence supports the prosecution's case on where the victim was shortly after the alleged rape. The victim and the appellant knew each other... had stayed together for some time from when the victim was invited for food to when she came out o f the appellant's room to report the hurting incident to her father... (Emphasis added) Further, with reference to the other appellant's confirmatory assertion, on being questioned, as it is seen at page 29 of the record of appeal, he is recorded as saying: "...Wakati mtoto anaondoka sikumuona sikumbuki muda gani baba yake alifika, Ha ni masaa yale yale. Aliniita nikaenda kwake nilikuwa nimevaa boksa." The above phrase literally means that, the child left the room without being noticed by him and that when her father inquired, the appellant went out within the same span of time while in an under pant.

Another similar operative part of the appellant's evidence which, according to the learned Judge advanced the prosecutions case as appears at page 28 of the record of appeal, which reads: "Muda wa saa nane niliwakaribisha majirani zangu chakula. Yule mtoto atikuja ndani hivyo alikula kite chakula.. .Nilipomaliza kula nilIlala sikujua mtoto alitoka saa ngapi kabla sijaenda kazini baba mtoto aliniita...akanipa taarifa kuna tukio mtoto...imekuwaje. NUimwambia kuwa ni kweli mtoto alikuwa kwangu na aliondoka." Meaning that, immediately before the alleged incident of rape the appellant had been together with the victim in his room. Therefore, admittedly, the appellant was the last person to be seen with the victim, as verified by her parents and the said neighbours in the compound. Therefore, in the absence of the appellant's explanation on what befell the victim, he could not have escaped criminal liability as it was concurrently found by the two courts below. We want to add that, when the prosecution is fulfilling its cardinal role to prove case beyond reasonable doubt, there can be no hard and fast rule for evaluation of evidence by the court. Nonetheless, if that duty can be discharged also by looking at it with a view to establishing any shadow of doubt casted to

it or, as it is in this case, the accused to have advanced the case, so much better. By doing the aforesaid, the learned High Court Judge stepped into the shoes of the trial court and rightly evaluated the evidence, and she found the appellant's evidence to be a mile stone to the prosecution's case. Now that we are satisfied, as alluded to before, that the evidence of the infant victim was sufficiently corroborated by PW2, PW3, PW4, PW5 and PW6 and PW8 that the appellant had her carnal knowledge, the issues of non-consideration of the appellant's defence evidence and improper evaluation of the evidence cannot arise. In the upshot, the third and fourth grounds are dismissed. Lastly, it is recalled that grounds one and five raise a complaint that the prosecution case was not proved beyond reasonable doubt. We note that, the court has tested the provisions of sections 130(l)(2)(e) and 131(3) of the Penal Code on different occasions such as in Andrea Francis v. R, Criminal Appeal No. 173 of 2014 (unreported). In that case, we stressed on a distinction between rape of an adult woman and, as it is in the present case, rape of a child girl, that in the latter case, consent is immaterial. The vital ingredients of the offence of statutory rape are;

the age of the victim, penetration and the perpetrator of the act as argued by Ms. Ndondi. Upon examination of the record, we agree with her that the three ingredients were all proved, as follows; One, the age of the victim was proved by her parents who are PW1 and PW2, that she was born on 11 October 2018, hence two years old at the material time. See- Isaya Renatus (supra) where the Court reiterated that parents are among competent witnesses capable to prove the victim's age. Two, as regards penetration, we note that, while testing section 130(4)(a) of the Penal Code, in Mathayo Ngalya @ Shabani v. R, Criminal Appeal No. 170 of 2006 (unreported), the Court held: "... For the purpose of proving the offence of rape, penetration however slight is sufficient to constitute the sexual intercourse necessary for the offence." It is worth noting, in the present case, the said parents also proved penetration as they examined the victim's sexual organ and noticed some seminal fluid, swellings and bruises thereat. Their evidence was corroborated by PW4, PW5 and PW6 and by the clinical findings by the medical doctor (PW8). It will be recalled that, while showing at her private parts to the learned trial magistrate, the victim's assertion that: "...babu aliniumiza huku"... were also vital to prove penetration, as observed

before. One may wish to raise a question whether the said words of the victim sufficiently to prove penetration. No doubt the victim's assertions constituted proof of penetration. Notably through a number of our decisions such as in Hassan Bakari @ Mamajicho v. R, Criminal Appeal No. 103 of 2012 (unreported), the meaning of "sexual intercourse" was broadened to cover the words of the victim above referred. Therefore, to expect such an infant girl to say words beyond that line, it is tantamount to milk a bull which is naturally strange and next to impossible. The more so her evidence which was sufficiently corroborated, as noted before. We stress, therefore, that additionally, the circumstantial evidence which referred earlier on irresistibly pointed to the guilt of the appellant as the perpetrator of the act of rape, to prove the third ingredient penetration. Therefore, grounds two and five crumble. Lastly is the appellant's first complaint that the life sentence meted out to him was excessive. We agree with Ms. Ndondi that this ground is misconceived and unmerited because the impugned sentence was within the dictates of section 131 (3) of the Penal Code as the victim was below the age of ten years at the time of the incident, with whom sexual intercourse was prohibited by the law. Therefore, the appellant deserved the mandatory life imprisonment which means the first ground fails too.

Consequently, we are satisfied that, the concurrent findings of the two courts below were rightly founded, that the prosecution case was proved beyond reasonable doubt and the appellant deserved the sentence meted out to him. In the consequence, we hereby dismiss this appeal for lack of merit. DATED at SHINYANGA this 05th 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 6th day of November, 2024 in the presence of the Appellant in person - unrepresented and Mr. Goodluck Saguya, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL