Andrea Andrea vs Republic (Criminal Appeal No. 23 of 2021) [2024] TZCA 1026 (4 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: MUGASHA. J.A.. KITUSI. J.A. And ISSA. J.A.1 CRIMINAL APPEAL NO. 23 OF 2021 ANDREA ANDREA ................................................................. APPELLANT VERSUS THE REPUBLIC..................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Galeba. J.^ dated the 20hday of November, 2020 in Criminal Appeal No. 97 of 2020 JUDGMENT OF THE COURT 1s t & 4th November, 2024 KITUSI, J.A.: The appellant appeared before Bunda District Court, charged with rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code and in the second count he was charged with impregnating a Primary School girl contrary to section 60A (3) of the Education Act, Cap 353, as amended by the Written Laws Miscellaneous Amendment Act No. 2 of 2016. It was alleged that, between July 2019 and 9th January 2020 at Nyamswa, village within Bunda District, the appellant had sexual intercourse with a girl aged 14 years and that as a result of the said / illicit sexual intercourse, the appellant made that girl pregnant. That girl l

who testified as PW1 was allegedly schooling at Nyasura "A" Primary School, hence the second count. In a nutshell, PW1 alluded to a brief courtship with the appellant who was her father's employee entrusted with the duty of taking care of livestock. She got hooked with him and the two started sexual relationship from July 2019. In October 2019 she discovered that she had become pregnant of him and when she informed the appellant about it, the two eloped to another village known as Mwanza Busega where the appellant's sister lived. PWl's mother Magreth Maliake Mbise (PW4) proved that her daughter was 14 years old as per the birth certificate (exhibit P2). PWl's father (PW2), unhappy with what had happened to his daughter, traced her to Mwanza Busega accompanied by his friend one Emmanuel Msekwa PW3). PW2 and PW3 found PW1 under the appellant's control. They apprehended the appellant as well as PW1 and turned them over to police from where the legal processes were set in motion. The District Court made a finding of fact that PW1 was 14 years and that she had sexual intercourse. On the evidence of PW1 it was satisfied and found as a fact that the appellant was the architect of the sexual intercourse but found no proof that the girl was a scholar.

The appellant was sentenced to 30 years in jail. His first appeal against the conviction and sentence was barren of fruit. This is his second appeal based on 5 grounds mainly raising evidential issues in oblivion of settled law. We shall reproduce them, anyway. They are:

1. That, the first appellate Court erred In law and fact to uphold the judgment of the trial court basing on the evidence of PW1 who did not attested her credibility as per the law section 127 (2) o f the Evidence Act Cap 6 R.E. 2002.
2. That, the evidence of PW2 and (PF3) were not qualified to corroborate the victim's evidence due to the witnesses nor charge sheet that charged the appellant, also PW2 did not disclose his qualification neither experience and what he used to examine the victim (PW1).
3. That, the conviction and sentence reached by the trial and first appellate court was unfair and unjust for failure to evaluate totally the appellant's strong defence.
4. That, there was no sufficient evidence from PW1, PW2, PW3, PW4 and PW5 to hold the appellant liable for the commission of the offence and also the prosecution side did not prove the charge against the appellant beyond all reasonable doubt
5. That, the first appellate court erred in law and fact for relying on the evidence, of Clinical Officer (PW2) and inconclusive examination report exhibit PEI which was relied upon to convict the appellant

The appellant appeared in person and had very little to say in support of those grounds, other than asking for our consideration of those grounds and allowing the appeal. The respondent's case was argued by Ms. Sabina Choghoghwe, learned Senior State Attorney who was being assisted by Ms. Agma Hauie and Ms. Beatrice Mgumba, learned State Attorneys. Ms. Choghoghwe submitted in relation to the first ground of l appeal that although PW1 was aged 14 years her evidence was recorded upon affirmation, section 127 (2) of the Evidence Act was not violated. She submitted that what happened at the trial was not fatal to the prosecution case. In our view, the appellant took a long shot and sadly missed. The fact that the trial magistrate was satisfied that PW1 understood the meaning of oath and had her affirmed, sufficiently qualifies her competent. We have held so in the case of Bashiru Salum i Sudi v. Republic (Criminal Appeal No.379 of 2018) [2020] TZCA 196 (1 April 2020), where we stated: - fln the absence o f such method, we do not think the method adopted by the trial court for the purpose o f ascertaining PW l's ability to give evidence on oath or affirmation was fata! to her evidence and prejudicial to the appellant ; What we gather from the record is that the trial court indulged itself in matters which were unnecessary 4

but, in the end, it formed an opinion that PW1 was capable o f giving her evidence on affirmation". For the reason discussed above, this ground is dismissed for want of merit. Grounds 2 and 5, which the learned Senior State Attorney argued jointly are on PW2's competence to give expert opinion and the validity of the PF3 which he tendered. Ms. Choghoghwe briefly submitted that PW2 introduced himself as an Assistant Medical Officer holding Advanced Diploma in Medicine from Bugando Health College. She also cited the case of Charles Bode v. Republic (Criminal Appeal No. 46 of 2016) [2022] TZCA 86 (1 March 2022) which defines medical practitioners for purposes of medical examination or postmortem reports. These grounds of appeal are based on misconceptions in our view and on the basis of the submissions by Ms. Choghoghwe, we dismiss them. The third ground of appeal raises issue with the trial court's alleged failure to consider the defence. The learned Senior State Attorney submitted that the defence case was considered. She referred us to page 41 of the record where we see clearly the learned trial magistrate saying

"On the side o f defence the accused person didn't testify anything regarding the charges he was facing he oniy stated that on 09/01/2020 he was at Nyamswa centre and that a person who is an auxiliary officer informed him that he was required at the Poiice Station .. . " The learned trial magistrate proceeded to make a finding that the appellant did not dispute knowing PW1 nor that he had sexual intercourse with her. This ground lacks merit, leave alone the fact that it was not raised before the High Court. It is accordingly dismissed. The fourth ground of appeal is generic as it alleges that the prosecution failed to prove the case against the appellant beyond reasonable doubt. Ms. Choghoghwe submitted that proof of statutory rape requires proof of age being below 18 years and penetration, both of which, she argued, were proved. As we stated earlier, the appeal raises evidential issues in this second appeal and this is dangerously growing into a norm. This is against settled case law that only where there is misapprehension misdirection or non-direction in the evidence, this Court may interfere with the concurrent finding of the trial court and that of the first appellate court. See the famous case of DPP v. Jaffari Mfaume Kawawa [1981] T.L.R 149

In our conclusion, considering the above principle and the unsubstantiated issues on evidential findings, there is neither allegations nor justification for us to hold, that there were such misapprehension, misdirection or non-direction. We maintain the concurrent findings of the two courts below that PW1 was raped and it was the appellant who raped her. The conviction for that offence is, therefore, upheld resulting in the dismissal of the fourth ground of appeal. Regarding the sentence of 30 years though not raised by the appellant, we found ourselves wondering whether the appellant who was 19 years when he testified in 2020, was of age in 2019 when the offence was committed as to be sentenced to custodial sentence. We took Ms. Choghoghwe on board on this, and she was equally disturbed as she could not get hold of any evidence suggesting that the appellant was of age in 2019 at the time of the commission of the offence. In our view the decision to sentence the appellant to custodial sentence was arrived at arbitrarily without there being proof of the fact that he was of the age above 18 years. As a result of the foregoing, we dismiss the appeal against the conviction but allow the appeal against sentence. Ordinarily the appellant who is a first offender, would have been sentenced to corporal punishment as per section 131 (1) (a) of the Penal Code, but the justice

of the case militates against making such an order for this appellant who has served more than four years in jail. In view of that we sentence him to a term that will result in his immediate release if he is not being held for another lawful cause. DATED at MUSOMA this 4th day of November, 2024. Judgment delivered this 4th day of November, 2024 in the presence of the Appellant in person - unrepresented and Mr. Michael Kayombo, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. S. E. A. MUGASHA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL