Christopher Justine Mniko vs Republic (Criminal Appeal No. 619 of 2020) [2024] TZCA 1011 (31 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: MUGASHA. 3.A., KITUSI. J.A. And ISSA. J.A.1 CRIMINAL APPEAL NO. 619 OF 2020 CHRISTOPHER JUSTINE MNIKO ................................................... APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Kahyozcui.) dated the 2n d day of October, 2020 in Criminal Appeal No. 44 of 2020 JUDGMENT OF THE COURT 28th & 31st October, 2024 KITUSL J.A,: The District Court of Musoma convicted the appellant of statutory rape, an offence with which he stood charged, contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code. It sentenced him to life imprisonment as the said court was satisfied that the victim was 4 years old. The first appeal to the High Court was unsuccessful, hence this appeal before us. The prosecution alleged and adduced evidence seeking to prove that the appellant and the victim's father (PW1) were tenants in the same

house, which was being occupied by other tenants too. To that end there was no dispute. On the fateful day the victim's mother (PWl's wife) had travelled to another village leaving her two children with PW1. When PW1 left for his work he entrusted one of the tenants with the care of his two children. At around 15:00 hours, PW1 bought something for the children to eat and decided to take it home for them and he asked his friend PW2 to accompany him. However, when he opened the door to his room, he heard the victim's voice saying "kaka, kaka" meaning "brother, brother". Then he saw the victim coming from the appellant's room crying, with her blouse smeared with sperms. When he pushed the appellant's door open, he found him dressing his trousers up. He probed the appellant as to what he had been doing with his daughter, to which the appellant allegedly replied "tulikuwa tunacheza" meaning "we had just been playing." PW2 alluded to more or less the same fact except that the words uttered by the victim were not identical. PW1 was about to assault the appellant but PW2 intervened and had him turned over to Bweri Police Post, nearby, and later to the Central Police. On the next day, that is on 9/3/2018 Dr. Regina Bernad Msonge (PW3) conducted medical examination on the minor victim. She detected

no sperms in the girl's vagina but noted that it was enlarged and bruised. She concluded that there had been penetration into her vagina. In defence, the appellant alleged that the case was a concoction by PW1 with whom there was bad blood because of sharing a lover. He stated that PW1 had previously warned the appellant about his indulgence and promised to make him regret if he would not stop. He also stated that on the material day, PW1 returned home drunk and attacked him while calling neighbours shouting that he had raped his daughter. The trial court as well as the first appellate court accepted the account given by the prosecution witnesses and dismissed the defence for being improbable. The learned trial magistrate was of the view that the appellant's defence of bad blood would not extend to PW2, so he dismissed it. The High Court dismissed the defence too holding it to be an afterthought which came too late in the day. The appellant had previously lodged a memorandum of appeal consisting of six grounds but on 21st November, 2022 Mr. Cosmas Tuthuru, learned advocate filed another in substitution. It had 3 grounds but the learned advocate opted to address us on only two of them, that is:-

1. That, the Appellant was wrongly convicted and sentenced with the offence charged as there Is misapprehension o f the evidence on record resulting a m iscarriage o fjustice to the Appellant.
2. That, as a whole the offence with which the Appellant was charged was not proved to the required standard. Mr. Tuthuru argued the two grounds together placing emphasis on the contention that the two courts below misapprehended the evidence because it did not appreciate grave contradictions and reached at an erroneous decision. The first alleged contradiction was the presence or absence of other tenants at the time of the alleged suspicion by PW1 that his daughter had been in the appellant's room for a wicked purpose. The learned counsel pointed out that if PW1 had entrusted his two children to one of the tenants, where was this tenant and where was the other child? And also that when PW1 was cross - examined he stated that there was no one around because the other tenant was at her shop. He wondered why was one version that there was no one around, then that there was one around?

The other alleged contradiction was in relation to the medical findings by Dr. Regina Bemad Msonge (PW3), vis a vis the trial Judge's conclusion on the issue. Mr. Tuthuru submitted that PW3 testified that she detected no sperms in PWl's fluids. He argued further that if PW1 and PW2 were truthful that they found the victim smeared with sperms and medical examination was conducted on her within 24 hours, PW3 would have seen the sperms. He faulted the judge for concluding that sperms were found on the victim, relying on the evidence of PW1 who was untrustworthy. The learned counsel referred to Guidelines & Protocols Medico - Legal Care for Survivors/Victims of Sexual Violence, Ministry of Health & Family Welfare, Government of India at page 29 where he drew our attention to the fact that "The spermatozoa can be identified oniy for 72 hours after assault." And that no swabs for detection of spermatozoa should be taken three days after the assault. In this case, he argued, medical examination was done within 24 hours. He invited the Court to consider these contradictions with the uncontested defence evidence in mind, that the case had been fabricated by PW1 because of his previous misunderstanding caused by conflicting interests over a woman. Counsel faulted the Judge for dismissing that defence on account of failure to cross-examine, arguing that the court

had a duty to guide the lay appellant as decided in Noel Paulo @Kizingo V. Republic Criminal Appeal No. 377 of 2020 (unreported). The respondent Republic was represented by Ms. Sabina Choghoghwe, learned Senior State Attorney, Ms. Agma Haule and Ms. Beatrice Mgumba, learned State Attorneys. Ms. Haule who addressed us on behalf of the team, submitted that throughout, PW1 maintained that there was a tenant attending the shop, so there was no contradiction in that respect. She pointed out that PW1 and PW2 did not elaborate as to where was the other child and the tenant who had been asked to take care of PWl's children, but this fact, she argued, did not affect the case for the prosecution. Ms. Haule submitted that the overriding fact was that there is evidence that when out of rage, PW1 wanted to assault the appellant, a tenant came up and stopped him. As for the medical findings, Ms. Haule submitted that PW3 examined the victim after a day and further pointed out that penetration was established whether there were sperms or not because of the enlarged vagina. She considered the Guidelines cited by Mr. Tuthuru not relevant. Lastly, she submitted that the appellant's failure to cross-examine PW1 on the alleged existence of bad blood was fatal to him, and the

contention that he was a layman does not hold because he cross- examined other witnesses. In a short rejoinder, Mr. Tuthuru submitted that the principle in Goodluck Kyando v. Republic [2006] T. L. R 379 that every witness is entitled to credence should also apply to the appellant. Our starting point is an observation that, for a conviction on statutory rape to stand, all what the prosecution needs to prove is age, that it is below 18 years and penetration. The law is settled that penetration, need not be deep but it is enough if it is slight, which is the essence of section 130 (4) of the Penal Code. See also the case of Bayo Paschal @ Banga @ Bayo Sambiye v. Republic (Criminal Appeal No. 679 of 2021) [2024] TZCA 730 (14 August 2024). So, it is both against the above settled law and risky in our view, to conclude that where sperms are not observed in the victim's vagina then it necessarily suggests that there was no penetration. This is not to venture a guess that there could be a variety of reasons why sperms are not there. Therefore, we do not see any material contradiction going to the root of the matter on this, and even if there was, the contradiction would be neither here nor there, because proof of presence of sperms is unnecessary.

As regards the tenants at the scene, it is not right in our view to pick hairs and conclude that PW1 and PW2 were not credible. True, there were slight differences here and there such as in the words each heard from the victim, but both are at one that she was in the appellant's room. That many people came in response to the fracas that ensued is stated by the appellant himself in his defence. It was unnecessary in our view for PW1 to be preoccupied with the identity of those who gathered there, and one of them turned out to be a tenant. On the alleged failure to accord weight to the defence, we agree with the High Court judge that the defence was an afterthought. We do not find it probable that the appellant, who cross-examined other witnesses, was tonguetied in raising a matter as serious as that the case had been staged to punish him. In our view the High Court rightly rejected that line of defence. With respect, Mr. Tuthuru's assertion that the appellant's evidence of existence of conflict with PW1 was unchallenged, misses the point. We ask, who would have challenged that contention raised by the appellant long after PW1 had finished his testimony and left without being cross examined on it? This is the reason the High Court concluded that it was an afterthought.

All said, it is our conclusion that the case was proved beyond reasonable doubt as there were neither misapprehension nor contradictions in the evidence of the prosecution witnesses. The appeal is therefore dismissed in its entirety. DATED at MUSOMA this 31st day of October, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL jgment delivered this 31st day of October, 2024 in the presence of the Appellant in person - unrepresented and Mr. Felix Yona Mshama, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the origi J. E.TOVO DEPUTY REGISTRAR COURT OF APPEAL