Medy Abedy vs Republic (Criminal Appeal No. 362 of 2020) [2024] TZCA 1005 (29 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA f CORAM: SEHEL. J.A., KIHWELO. J.A. And MDEMU. J.A.’l CRIMINAL APPEAL No. 362 OF 2020 MEDY ABEDY ..... ........... APPELLANT VERSUS THE REPUBLIC ...... ............ ....... .... ....... ............. ......RESPONDENT (Appeal from the decision of the Resident Magistrate Court of Rukwa at Sumbawanga) fMutaki, SRM.EXTJUR^ dated the 27th day of July, 2020 in DC. Criminal Appeal No. 11 of 2019 JUDGMENT OF THE COURT 21s t & 29tn October, 2024 KIHWELO, J.A.: The appellant, Medy Abedy, was arraigned in the District Court of Sumbawanga at Sumbawanga for the offence of rape contrary to sections 130 (1) and (2) (e) and 131 (2) of the Penal Code, Cap. 16 (the Penal Code). It was the prosecution account that, on 27th December, 2018 at Bangwe area within Sumbawanga Municipality in Rukwa Region the appellant did have sexual intercourse with a gir! aged 8 years, who we

shall henceforth identify her as "the victim" for purposes of concealing her identity. The trial court, upon hearing the case for the prosecution and the defence, was impressed by the prosecution's version that the case against the appellant was proved to the hilt. Accordingly, the trial court found the appellant guilty as charged. Upon conviction, he was sentenced to life imprisonment. His appeal to the subordinate court with extended jurisdiction was dismissed in its entirety on account of being devoid of merit, hence this second appeal. The prosecution case which was believed by the trial court was founded on the evidence of six (6) witnesses namely, Godfrey Bwakama (PW1), the victim (PW2), Lidia Venance Mwaikusa (PW3), Diana Venance Mwaikusa (PW4), police No. G. 2117 Detective Corporal Jelod (PW5) and Joseph Vicent Kapufi (PW6). On the adversary side, the appellant was the solitary witness for the defence. Furthermore, the prosecution relied on the PF3 of the victim which was received in evidence and marked exhibit "PI" and the cautioned statement of the appellant which was received in evidence and marked exhibit "P2". In a nutshell, the prosecution case was presented in the following narrative: on 27th December, 2018 at night hours the victim and her aunt,

PW2 were sent by the victim's mother, PW4 to the shop in order to buy cooking oil. Along the way, the duo encountered the appellant who upon greeting them, he subsequently volunteered to accompany the victim to where they were going to buy cooking oil while at the same time requesting PW3 to remain there and wait for them. On their way, the appellant requested the victim to accompany him to another shop to buy cigarettes. However, while passing through the cemetery area the appellant ordered the victim to take off her clothes which she obediently did and subsequently the appellant raped her. The appellant then warned the victim not to dare tell anyone, else he would kill her. PW3 testified that, as the appellant and the victim were taking too long to return, she decided to go back home, but on her way, she met PW4 who curiously asked why did they take too long, and where was the victim. In response, PW3 explained how they encountered the appellant who escorted the victim to buy cooking oil and that she elected to return home upon noticing that the duo took too long to come back and she was left alone to wait. PW4 her evidence was to the effect that, she is the mother of the victim and sister to PW3 who were both Pupils at Katandala Primary School. On the fateful day, she sent the duo to get cooking oil, but unfortunately, they did not come back in time as such she had to make

follow up and just to realize that the appellant had left with the victim alone. She was compelled to report the matter to the police and search of the appellant and the victim ensued. It was not until at or about 11:00 hrs. when the appellant and the victim resurfaced and were found by PW6, a motorcycle rider, who informed PW4. When the victim was inspected by PW4 on her private parts it was discovered that she was raped and there were sperms and blood. She also had bruises on her private parts. PW1 who medically examined the victim found out that there were bruises, white material discharge and blood in her private parts. There was no hymen. He came to the conclusions that the victim was raped. Then, PW1 filled the PF3, exhibit "PI". There was some further prosecution evidence from PW5 who testified that, on 28th December, 2018 he was assigned a case file in relation to rape and recorded the cautioned statement of the appellant, exhibit "P2". Furthermore, PW6 testified how he was informed that the victim went missing with the appellant and how he came across the two on their way and apprehended the appellant while he was attempting to escape. He later, informed PW4 who upon arriving took the victim and the appellant to the police for further actions.

In his sworn defence testimony, the appellant gallantly distanced himself from the accusations made against him by the prosecution. He testified that, on the date he was arrested and taken to the Central Police Station he was on his way from normal routine walk. He then met two youths who asked his name and suddenly they started beating him just after confirming his name. He was severely beaten to the extent that he became unconscious and gained his consciousness while at the Central Police Station. The appellant did not know his offence until when he was brought before the trial court and charges were read to him. Essentially, the appellant denied any involvement in the alleged offence of rape. As hinted earlier on, at the height of the trial, it was found that, on the whole of the evidence, the prosecution case was proven to the hilt and therefore, the appellant was convicted and sentenced as stated above. As stated earlier, on the first appeal, the conviction and sentence were both upheld. It is noteworthy that, the first appellate court disregarded the caution statement exhibit "P2" on account that it was irregularly admitted and relied on. Before us, the appellant has amassed four (4) grounds of grievance which, we shall only give the gist of each ground so as to avoid reproducing them. They go thus, one, that the sentence imposed upon the appellant was illegal. Two, that the case was not proved beyond

reasonable doubt. Three, that the proceedings are nullity since the ruling on the case to answer was delivered in the absence of the appellant. Finally, that the first appellate court erred to proceed with the appeal without assigning reasons on the change of Magistrates with Extended Jurisdiction. On the 21st October, 2024 when the matter came for hearing, before us, the appellant was represented by Mr. Peter Kamyalile, learned counsel, whereas Mses. Irene Godwin Mwabeza and Safi Kashindi Amani, learned Senior State Attorneys stood for the respondent Republic. Addressing the appeal, the learned counsel from both sides put up industrious submissions either in support or opposition to which we are, indeed, appreciative. Mr. Kamyalile premised his submission by abandoning the third and fourth grounds of the Memorandum of Appeal lodged earlier on 21s t September, 2020 and argued the first and second grounds. In his submission, the learned counsel began with ground 1 in which he challenged the legality and propriety of the sentence imposed upon the appellant. He contended that, the trial court, having convicted the appellant of rape, illegally sentenced him to life imprisonment contrary to the dictates of the law. Arguing further, the learned counsel submitted that, at the time of commission of the offence the appellant was eighteen

years. This was apparent in the evidence on record in particular, one, the charge sheet specifically referred to section 131 (2) of the Penal Code as the punishment provision. Two, the particulars of the appellant annexed to the charge conspicuously indicated that the appellant was eighteen years. Finally, according to the preliminary hearing it was not disputed fact that the appellant was eighteen years. Mr, Kamyalile forcefully argued that, since the appellant was a first offender the appropriate sentence was corporal punishment in terms of section 131 (2) (a) of the Penal Code. He paid homage to the case of Julius Josephat v. Republic (Criminal Appeal No. 3 of 2017) [2020] TZCA 1729 (18 August, 2020; TanzLII) and Mng'ao Yohana Chacha v. Republic (Criminal Appeal No. 244 of 2020) [2022] TZCA 327 (10 June, 2024; TanzLII). On that basis, Mr. Kamyalile implored us to invoke the revisional powers by setting aside the sentence of life imprisonment and substituting with corporal punishment. He further argued that the appellant has already spent five years, four months and twenty-three days as he was sentenced on 28th May, 2019 thus implored us to release him from prison. Arguing in support of the second ground, Mr. Kamyalile spiritedly contended that, the prosecution case was not proved to the hilt. In support of his proposition, the learned counsel submitted that, PW2 the

prosecution's star witness, her evidence was improperly taken and wrongly admitted. Submitting further, he argued that the record of proceedings does not indicate whether PW2 understood the nature of oath and promised to tell the truth and not to tell lies contrary to the provisions of subsection (2) of section 127 of the Evidence Act, Cap. 6 (the Evidence Act), Reliance was placed in the case of Ramadhani Seif @ Mashoto v. Republic (Criminal Appeal No. 17 of 2020 [2024] TZCA 487 (24 June, 2024; TanzLII) to demonstrate his proposition and prayed that the evidence of PW2 be expunged from the record. According to Mr. Kamyalile once the evidence of PW2 is expunged, the only remaining evidence on record which may rescue the case for the prosecution is the evidence of PW1. However, exhibit "PI" which was tendered in court by PW1 was not read out in court after admission and therefore making it inadmissible. On that basis, he moved us to expunge exhibit "PI" from the record. The learned counsel argued that, even if exhibit "PI" was admissible in evidence, stili there is a lot of disparity which makes the credibility of exhibit "PI" highly improbable. He pointed out some notable disparities between the testimony of PW1 and exhibit "PI". While PW1 testified that he attended the victim on 27th December, 2018 at 7:30 hrs., exhibit "PI" appears to have been issued on 28th December, 2018 and signed on 28th

December, 2018 while PW6 testified that they went to the police station on 27th December, 2018. In his submission exhibit "PI" appears to have been filed by PW1 prior to the occurrence of the alleged incident. On that account he rounded off by arguing that, in the circumstances, the case was not proved beyond reasonable doubt and therefore the appeal be allowed and the appellant be released from prison. Conversely, Ms. Mwabeza, prefaced her submission by supporting both the conviction and sentence meted against the appellant. In response to the first ground the learned Senior State Attorney essentially was brief and to the point, She admittedly took the position that the appellant was charged with rape contrary to section 130 (1) and (2) (e) and 131 (2) of the Penal Code whose appropriate sentence is corporal punishment bearing in mind that the appellant was a first offender. She equally took the view that we may rectify the error, pursuant to our revisional powers, by setting aside the illegal sentence and substituting for it a proper sentence. She referred us to the case of Paul Juma Daniel v. Republic (Criminal Appeal No. 200 of 2017) [2020] TZCA 1753 (28 August 2020; TanzLII) to support his proposition. In response to the second ground, Ms. Mwabeza firmly argued that the prosecution ably proved its case to the hilt, Illustrating, she contended that the prosecution proved that there was penetration. Admittedly, the

learned Senior State Attorney submitted that the cautioned statement was expunged by the first appellate court and she also admitted that exhibit "PI" was irregularly admitted in evidence as it was not read out after admission. On that basis, she also moved us to expunge it from the record. In her view, the remaining evidence on record is oral account of what happened. She took the position that PW2 testified how she was raped by the appellant and the victim's evidence is the best evidence in the authority of the cited case of Paul Juma Daniel v. Republic (supra). The learned Senior State Attorney contended that the evidence of PW2 was supported by that of PW3 and PW4 the victim's aunt and mother respectively. Arguing in response to the issue of evidence of PW2, Ms. Amani spiritedly submitted that, looking at the evidence on record there was slip of the pen in indicating that PW2 took oath in Swahili since the trial Magistrate noted that PW2 promised to tell the truth and therefore, section 127 (2) has been complied with. Responding further, the learned Senior State Attorney submitted that even if the Court was to find that there was a contravention of subsection (2) of section 127 of the Evidence Act, in view of the

amendments to the provisions of section 127 o f the Evidence Act ushered in by the Legal Sector Laws (Miscellaneous Amendments) Act N o .ll of 2023 (the Amendments), which has introduced subsection (7) of section 127 of the Evidence Act, non-compliance of the provision of section 127 (2), do not invalidate the evidence of a child of tender years and therefore invited us to find the complaint to have no merit. Upon our prompting on the issue of proof of age, Ms. Amani argued that the issue of age was ably proved since PW2 testified that she was in Standard III and PW1 in his testimony conspicuously indicated that the victim was 8 years old and according to the authority in Issaya Renatus v. Republic, (Criminal Appeal No. 542 of 2015) [2016] TZCA 218 (26 April 2016;TanzLlI), the evidence as to proof of age may be given by the victim, relative, parent, medical practitioner or, where available, by the production of birth certificate. She finally submitted that the appeal has no merit and therefore, be dismissed. In rejoinder submission, Mr. Kamyalile reiterated his earlier submission and in addition to that, he did not agree with the argument of slip of the pen. Also, he insisted that no witness other than PW2 who proved that the appellant committed the offence he stood charged and that PW1 did not prove penetration.

In dealing with the points of contention, we propose to address first the second ground of appeal whose complaint is that the case for the prosecution was not proved beyond reasonable doubt. We have anxiously weighed the rival submissions on this complaint and our starting point will be on the admissibility of exhibit "PI" which was tendered in court by PW1 but unfortunately it was not read out after admission. We are aware that there was convergence of submissions in respect of this matter and therefore we think it should not detain us much. True, exhibit "PI" was not read after it was cleared for admission and actually admitted in evidence. It cannot be gainsaid that, the requirement to read a document after admission is mandatory and failure to do so renders the exhibit inadmissible. There is, in this regard, a long and unbroken chain of authorities of the Court on this matter. See, for instance Robinson Mwanjisi and 3 Others v. Republic [2003] T.L.R. 218. Under those circumstances, exhibit "PI" which was not read in court after admission was wrongly admitted in evidence in the first place. That being so, we expunge exhibit "PI" from the record. Next, we will deliberate on the complaint that the evidence of PW2 was improperly taken and received in evidence. We have examined the evidence on record and specifically page 15 of the record of appeal which, is indeed, beyond question that the trial Magistrate indicated that PW2

promised to tell the truth and not lies and that section 127 (2) of the Evidence Act is complied with. Having stated that, the learned trial Magistrate still went ahead to record that, PW2 took oath in Swahili and thereafter proceeded to record PW2's evidence. Parties locked horns on this matter and this is the pith and marrow which we are seeking to resolve. Mr. Kamyalile argued that, since it was not clear as to which approach PW2 took between promising to tell the truth and not to tell lies on one hand, and taking oath on the other hand, then it was obvious that her evidence was inadmissible and therefore/ it has to be expunged. Ms. Mwabeza had an opposing view based on the amendments to the provisions of section 127 of the Evidence Act that introduced subsection (7) of section 127. Whilst there may be substance in the submission by the learned counsel for the appellant in that the trial Magistrate appears to have done both, first of all ascertained to ensure that PW2 promised to tell the truth and not to tell any lies and also went ahead to swear PW2 before taking her evidence, but with respect, in our view, that does not vitiate the evidence of PW2. We are keenly alive to the recent amendments to the Evidence Act which was cited by the learned Senior State Attorney in

which section 127 have been amended and a new subsection (7) of section 127 of the Evidence Act, have been added which provides: "Notwithstanding any other iaw to the contrary, failure by a child o f tender age to meet the provisions o f subsection (2) shall not render the evidence o f such child inadmissible ." Clearly, the provision above has come in place in order to cure any defect that relates to taking the evidence of a child of tender age in terms of subsection 2 of section 127 of the Evidence Act. In light of the above provision, the non-compliance complained of do not invalidate the evidence of PW2 and therefore the complaint has no merit. We took similar position in more recent decisions of this Court in Damian Manyika @ Babu Tanga v. Republic (Criminal Appeal No. 306 of 2022) [2024] TZCA 451 (13 June 2024; TanzUI) and Abdul Akwilini Mramba & Others v, Republic (Criminal Appeal No. 342 of 2021) [2024] TZCA 704 (9 August 2024; TanzLII). In view of the foregoing discussion, we are of the firm position that, having left intact the evidence of PW2, and considering what PW2 testified in court, it has been sufficiently established that the appellant whose charge which was laid at his doorstep was predicated on section 130 (1) and (2) (e) of the Penal Code was proved to the hilt. We wish to reaffirm

the elementary principle of law that the best evidence in sexual offences comes from the victim. Thus, given the circumstances of this case, it is, deducible that PW2, the victim ably proved that the appellant raped her. PW2's evidence was supported by the evidence of PW3, PW4 and the oral account of PW1. To this end, we find the second ground of appeal to be devoid of any merits. We will now turn to the first ground of appeal whose complaint is on the legality and propriety of the sentence. There was convergence of submissions in respect of this aspect that the trial court, having convicted the appellant of rape, wrongly sentenced him to life imprisonment. Unfortunately, and for an obscure cause that anomaly went unnoticed by the first appellate court. There was further convergence of opinion as to the way forward having noticed that the trial court imposed an illegal sentence. Both learned counsel from either side, moved us to rectify the error, pursuant to our revisional powers. Section 131 of the Penal Code, which is the governing provision on punishment for the offence of rape, provides as follows: "131. - (1) Any person who commits rape is, except in the cases provided for in the renumbered subsection (2), liable to be punished with imprisonment for life, and in any case for

imprisonment o f not less than thirty years with corpora! punishment, and with a fine, and shall in addition be ordered to pay compensation of an amount determined by the court, to the person in respect o f whom the offence was committed for the injuries caused to such person. (2) Notwithstanding the provisions o f any law, where the offence is committed by a boy who is of the age o f eighteen years or less, he shall - (a) if a first offender, be sentenced to corporal punishment only; (b) if a second offender, be sentenced to imprisonment for a term o f twelve months with corpora!punishment; (c) if a third time and recidivist offender, he shall be sentenced to life imprisonment pursuant to subsection (1) " As clearly indicated above, any person who commits rape is liable to be punished with imprisonment for life, and in any case for imprisonment of not less than thirty years with corporal punishment, and with a fine and in addition to pay compensation. However, the exception to the general punishment is provided for under subsection 2 of section 131. The most relevant part to our case is subsection 2 (a) which relates

to the punishment for rape committed by a boy who is of the age of eighteen years or less and being a first offender. In the case under our consideration there was ample evidence to the effect that the appellant was a boy who is of the age of eighteen years and therefore, he ought to have been sentenced to suffer corporal punishment only. It was a grave mistake and a serious misdirection on the part of the trial court to have sentenced him to life imprisonment which is exclusively reserved for third time and recidivist offenders. We discussed this at considerable length when faced with analogous situation in the case of Mng'ao Yohana Chacha (supra). From this finding, we are minded to exercise the Court's revisionai jurisdiction under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 and, in the result, we proceed to set aside the illegal and improper sentence of life imprisonment imposed on the appellant. Bearing in mind that the appellant has been serving the illegal sentence over five years, four months and twenty-three days since he was sentenced on 28th May, 2019, we take into-account that this is far more than the corporal punishment he ought to have been punished. In the circumstances, we order that in lieu of the illegal punishment he suffered, we impose a sentence on the appellant that would result in his immediate release from prison unless held for other lawful cause,

C O U R r Thus, for the foregoing reasons, save for the order on sentence, the appeal stands dismissed. DATED at SUMBAWANGA this 26th day of October, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 29th day of October, 2024 in the presence of Mr. Peter Kamyalile, learned counsel for the appellant and Ms. Irene Mwebeza, learned Senior State Attorney for the Respondent/ Republic, is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL F. A. MTARANIA