Mtaki Malima vs Republic (Criminal Appeal No. 25 of 2021) [2024] TZCA 1012 (31 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: MUGASHA. J.A.. KITU5I, J.A. And ISSA. J J U CRIMINAL APPEAL NO. 25 OF 2021 MTAKI MALIMA................................................................................. APPELLANT VERSUS THE REPUBLIC........................................................... .............. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) ( Kahvoza. J.^ dated the 19th day of November, 2020 in Criminal Appeal No. 119 of 2020 JUDGMENT OF THE COURT 28th 31st October, 2024 KITUSL J.A.: The appellant was charged with rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code allegedly for having sexual intercourse with a girl aged 13 years (PW1) the offence popularly known as statutory rape. It was further alleged that the appellant forced PW1 into submission by pulling a knife and slashing her on the arm. So in the second count he was charged with grievous harm contrary to section 225 of the Penal Code. Principally the evidence constituting the prosecution case came from PW1 who testified that the appellant, a neighbour and person she know, broke into her bedroom at night and raped her wielding a knife with which he slashed her and; that of PW2, her grandmother to whom she immediately l

reported her ordeal and; PW3 the village Chairman to whom the complaint was lodged. Medical examination by PW5 established that PW1 had been carnally known and had a cut wound on her arm. He posted those findings in the PF3 which was tendered as exhibit P2. PWl's age was proved by PWl/s grandfather and her birth certificate (exhibit PI). Both the trial court and the High Court found PW1 a credible witness. The trial court took into account the principle that true evidence of sexual offence comes from the victim. The High Court considered the early naming of the appellant as a litmus test to PWl's credibility. Therefore, the conviction and sentence of 30 years for rape by the trial court and 2 years for grevious harm was confirmed by the High Court. This is the second appeal predicated on 6 grounds of appeal. The appellant appeared in person and had virtually nothing to say in elaboration to those grounds, even when he was called upon to rejoin to the submissions made by the respondent Republic. The respondent Republic appeared through Ms. Sabina Choghoghwe, learned Senior State Attorney, Ms. Agma Haule and Ms. Beatrice Mgumba, learned State Attorneys. It was Ms. Mgumba who addressed us. To begin with, we are not going to deal with the first ground of appeal which takes issue with the fact that the case was poorly investigated. Ms.

Mgumba submitted and we agree with her that this ground was not raised at the High Court, therefore does not qualify to be considered. We need not make this decision any longer by restating the settled principle on this. Only that we pause to wonder whether this should be a complaint or something an appellant should take advantage of. We leave it at that. The remaining grounds of appeal may be paraphrased as follows: First, that the evidence of visual identification by PW1 was too weak to be relied on in convicting the appellant. Secondly, connected to the issue of identification that PW1 gave a dock identification without any prior description of the appellant. Thirdly, that medical evidence was given by PW5 who did not establish his credentials. Fourthly, that PWl's credibility did not pass the test under Section 127 (2) of the Evidence Act and; Lastly, that the case was not proved beyond reasonable doubt. On the issue of identification covering grounds 1 and 2, Ms. Mgumba submitted that PW1 knew the appellant before, identified his voice and face by the aid of torch light and was credible. As we earlier intimated, the two courts below found PW1 credible being the victim and for naming the appellant early. We have neither the intention nor reasons for disturbing these concurrent findings of the two courts. If we must add, this was an issue of recognition of a person who lived in the neighbourhood whose voice she knew. The fracas must have taken time during which the culprit

assaulted PW1. As this disposes of the first ground, it also disposes of the second ground. We dismiss grounds 1 and 2. The third ground complaining that PW5 did not establish his credentials as a medical practitioner is, if anything, misconceived because, as rightly submitted by Ms. Mgumba, PW5 made a brief statement introducing himself as a medical doctor who graduated at Bugando University. We are satisfied that PW5's qualification is way above the definition of medical practitioner adopted in Charles Bode v. Republic Criminal Appeal No. 46 of 2016 [2019] TZCA 578 (6 March, 2019 TANZLII). Which covers a clinical officer, leave alone a medical officer. This ground is therefore dismissed. The fourth ground challenges PWl's credibility, Ms. Mgumba submitted that PW1 promised to tell the truth as required by section 127 (2) of the Evidence Act. During his defence, the appellant did not suggest why he held PW1 to be untruthful. It is only PW3, the village chairman, whom he accused of being a person he had conflict with, but nothing was said about PW1. This ground of appeal is dismissed because there is no ground for offsetting the concurrent findings of the two courts below on PWl's credibility. The fifth and last ground is that the prosecution did not prove the case beyond reasonable doubt. Ms. Mgumba submitted that there was proof of penetration through PW5 although the PF3 must be expunged

because it was not read. She submitted that there was also proof of PWl's age by her grandfather who tendered a birth certificate. In our conclusion it is not always that rape must be proved by medical evidence. In this case the evidence of PW1 who was 13 years old was sufficient to prove penetration. We agree with Ms. Mgumba that the evidence of PW5 still supports the fact that there was penetration. The age of PW1 was also adequately proved. This ground has no merit, so we dismiss it. In the upshot, the appeal has no merit and we dismiss it in its entirety. DATED at MUSOMA this 31st day of October, 2024. of the Appellant in person - unrepresented and Mr. Felix Yona Mshama, learned State Attorney for the Respondent/Republic is hereby certified as a S. E. A. MUGASHA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL Orient delivered this 31st day of October, 2024 in the presence true copy of the original. J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL