Chaba Shelembi vs Republic (Criminal Appeal No. 658 of 2021) [2024] TZCA 988 (25 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: JUMA, C.J.. RUMANYIKA. J.A. And KHAMIS. J.A.^ CRIMINAL APPEAL NO. 658 OF 2021 CHABA SHELEMBI.......................................................................................... APPELLANT VERSUS THE REPUBLIC...........................................................................................RESPONDENT (Appeal from the Judgment of the Resident Magistrates' Court of Shinyanga) (Hon. Mrio. SRM with Extended Jurisdiction^ dated the 20th day of October, 2021 in DC. Criminal Appeal No. 35 of 2021 JUDGMENT OF THE COURT 23rd & 25th October, 2024 JUMA, C.J.: The appellant, CHABA s/o SHELEMBI, was in the District Court of Meatu at Mwanhuzi, charged with rape contrary to sections 130 (1) (2) (e) and 131 of the Penal Code Cap 16 R.E. 2002. The particulars of rape alleged that at 11:00 hrs on 10 October 2019 at Malwilo village in Meatu District in Simiyu Region, he had sexual intercourse with a sixteen-year-old girl we shall refer to as "MN", "the victim" or "PW1".

MN, the victim, was the main prosecution witness at the trial. She testified that on 25 October 2019, when she took a witness stand as the first prosecution witness (PW1), she was sixteen and born in 2003. PW1 recalled the time at 11:00 hrs, and the day, on 10 October 2019 when the appellant took her to a guest house at Malwilo for sex. Once inside the room, he undressed her underpants, he undressed his trousers, and they proceeded to have sexual intercourse twice. According to PW1, it was after completing their sexual intercourse that they heard a knock at the door; she started crying because she knew it was her father, Nsulwa Genge (PW4), knocking. After realizing their room was locked from the outside, the appellant tried to break down the door to escape. PW1 managed to escape. PW4 and several other people caught up and arrested the appellant after he made a short run to escape from the scene. On her part, just before reaching home, the escaping PW1 met his brother, who took him to the office of the village executive officer. The village officer took PW1 to Mwandoya Police Station and hospital. In his sworn defence as DW1, the appellant denied the charge and stated that on 3 October 2019, he visited an auction at Malwilo, where he

repaired phones. While working at his repair shop, PW1 passed by selling ripe bananas. The appellant chatted her up, asking where PW1 lived and whether she was a student. She replied that she lived in Mwabagalu village and was not a student. She assured the appellant that she completed her studies in 2018 and failed. After getting the clarification, the appellant decided to seduce PW1. They agreed to meet a week later, on 10 October 2019. PW1 kept her word and visited the appellant's phone repair shop. The appellant asked for sex, and according to the appellant, PW1 did not only agree to have sexual intercourse; she identified a suitable guest house and led the way to the venue. According to the appellant, PW1 booked a room at the guest house reception desk. The appellant followed PW1 into the room. After they had sexual intercourse for five minutes, they heard the voices of men outside their room. When the appellant tried to open the door, he found it locked from outside. PW1 decided to escape through the window and ran away. Several men unlocked the door and accosted him, one asking him why he was having sexual intercourse with his daughter. The appellant replied that the girl had consented to sex, and he did not force her. When they told him the girl was a student, he said he did not know it. 3

The appellant blames PW1 for lying to him, leading to their sexual intercourse. The appellant blamed PW1 for lying that he was the one who undressed her, whereas she readily undressed herself. He also faulted PW1 for lying about her name being Mage, but in court, he was surprised when she identified herself as MN. The appellant denied breaking down the door the victim's father had locked from outside. In convicting the appellant for the statutory rape of a sixteen-year-old girl, the trial magistrate (C.L. Chovenye-RM) believed the evidence of PW1, the victim of rape, concerning her age of sixteen, the age which, according to the trial magistrate, the victim's father (PW4), corroborated. The trial magistrate found that the prosecution proved the ingredient of sexual penetration through the evidence of the victim. The medical officer (PW2)'s evidence corroborated the victim's evidence when he testified that the victim suffered from a bruised and ruptured vagina caused by a penis. After convicting the appellant, the trial magistrate imposed a sentence of thirty years in prison. Dissatisfied with the decision of the trial District Court of Meatu, the appellant filed his first appeal to the High Court at Shinyanga. The High

Court at Shinyanga transferred the appeal to the Resident Magistrates' Court of Shinyanga and assigned a Principal Resident Magistrate (M.P. Mrio-PRM) to hear the appellant's first appeal on extended jurisdiction. M.P. Mrio, the Principal Resident Magistrate, who sat on extended jurisdiction, dismissed the appellant's appeal and agreed with the respondent Republic that the evidence of the victim and that of her father proved the age of the victim as sixteen and, therefore, under the age of eighteen when she and the appellant had sexual intercourse. The first appellate court held that since the offence the appellant committed was statutory rape, the victim's consent cannot be a defence to spare him from a conviction for rape and consequent punishment of thirty-year imprisonment. Still aggrieved, the appellant has preferred this second appeal based on five grounds of appeal. In his first and second grounds of appeal, the appellant faulted the trial and first appellate courts for convicting him of statutory rape of a woman under eighteen. The appellant insisted the victim was an adult over eighteen who had consented to sexual intercourse between adults. In his third ground, the appellant blamed the way the two

courts below believed the generalized testimony of the victim. In so far as the appellant is concerned, the victim's evidence did not prove sexual penetration, an essential ingredient of rape. The fourth ground of appeal blames how the trial and the first appellate courts handled the appellant's guilty pleas. The appellant insisted the courts below erred in convicting him based on an equivocal or doubtful plea of guilty, which was contrary to section 282 of the Criminal Procedure Act (Cap 20 RE 2019). Through his fifth ground of appeal, the appellant blamed the two courts for relying on evidence of a medical officer (PW2) to prove the sexual penetration of the victim. On 23/10/2024, the date o f the hearing o f this appeal, Ms. Nancy Mushumbusi, Senior State Attorney, assisted by Mr. Anesius Kainunura, Senior State Attorney, Ms. Immaculata Mapunda, Senior State Attorney, and Mr. Leonard Kiwango, State Attorney, represented the respondent Republic. The appellant, who appeared in person, preferred first to hear the learned Senior State Attorney's response to his five grounds of appeal, and he will reply later. 6

After making her position clear that the respondent Republic did not support this second appeal and invited us to dismiss all the five grounds of appeal, Ms. Mushumbusi addressed grounds one and two together, then moved on three and five together, concluding with ground number four. In urging us to dismiss grounds of appeal number one and two, Ms. Mushumbusi urged us to reject the appellant's claim that the victim of the sexual offence was, after all, above eighteen capable of consenting to sexual intercourse. For proof that the victim was under eighteen, Ms. Mushumbusi referred us to the testimony of the victim (PW1) under oath. PW1 testified that she was sixteen and was born in 2003. Ms. Mushumbusi submitted that the testimony of the victim's father (PW4) proved that his daughter (PW1) was sixteen when she and the appellant had sexual intercourse on 10/10/2019. PW4 testified that PW1 was born on 15/08/2003 at Malwilo Mnadani and on 25/10/2019 when PW4 testified, his daughter was sixteen. Ms. Mushumbusi argued that the victim and her father were the best witnesses to prove the victim's age. To augment her stance on who is the best witness to prove age, Ms. Mushumbusi referred us to our decision in

HARUNA MTASIWA V. REPUBLIC, CRIMINAL APPEAL NO 206 OF 2018, where we reiterated that proof of age may come from parents, medical practitioners, or birth certificate. Ms. Mushumbusi submitted that what the appellant described as consent from the sixteen-year-old was an admission of guilt and did not in any way absolve the appellant from liability for statutory rape under section 130(l)(2)(e) of the Penal Code, Cap. 16. The learned Senior State Attorney strenuously rejected the appellant's grounds three and five, wherein the appellant insisted that the evidence does not prove the sexual penetration required to prove the offence of rape. To demonstrate proof of penetration, Ms. Mushumbusi referred to the evidence of the victim, who recalled how she and the appellant checked into a guest house, undressed, and had sexual intercourse twice before her father surprised them. To support her argument that the evidence of the victim of a sexual offence can stand alone to convict, Ms. Mushumbusi referred to a statement the Court made in SELEMAN MAKUMBA VS. REPUBLIC, CRIMINAL APPEAL 94 OF 1999 (unreported) to the effect that, "True evidence o f rape has to come from the victim , if an adult, that there was penetration and no consent, and in 8

case o f any other woman where consent is irrelevant, that there was penetration. In the case under consideration the victim -PW l- said the appellant inserted h is m ale organ into her fem ale organ. That was penetration." Ms. Mushumbusi invited us to note the weight of the victim's testimony that she and the appellant had sexual intercourse at a guest house and how the appellant failed to seize his moment in cross- examination to contradict the victim's assertion that they had sexual intercourse. Relying on what we said in HARUNA MTASIWA V. REPUBLIC (supra), the learned Senior State Attorney submitted that failure by the appellant to cross-examine and contradict his accuser (PW1) on such an important matter as the two having had sexual intercourse implies the appellant accepted PWl's version of evidence as accurate. The Senior State Attorney urged us to dismiss the appellant's ground number five, where he complained that medical evidence did not prove sexual penetration. Contrary to this assertion, Ms. Mushumbusi referred us to the evidence of the medical officer, PW2, which corroborated the victim's evidence of sexual penetration. She pointed out that PW2

examined PW l's vagina, found bruises, ruptures, and bleeding from inside, indicating penis penetration. Although Ms. Mushumbusi urged us to expunge from the record of evidence the medical examination report (exhibit PI) that PW2 had prepared after treating PW1, the learned Senior State Attorney was quick to insist that the oral evidence of the medical officer remains standing and is sufficient to prove sexual penetration. Ms. Mushumbusi next adverted to ground number four, where the appellant complained about misinterpreting his equivocal admission of guilt. The appellant insists that his plea when the prosecution read out the charge sheet was not an unequivocal (unambiguous) guilty plea. The learned Senior State Attorney urged us to dismiss this ground because the trial court did not convict the appellant on his plea of guilty but based on evidence of witnesses who proved essential ingredients of the offence, which are the age of the victim, sexual penetration and the appellant as perpetrator of that rape. Ms. Mushumbusi implored us to dismiss this appeal. When his moment came to respond, the appellant urged us to allow his appeal on the strength of his five grounds of appeal, which he insists 10

have merit. The appellant insisted that the evidence on record does not prove the victim to be under eighteen. He wondered why the prosecution failed to tender the victim's birth certificate to prove that she was under eighteen, as the prosecution claimed. He submitted that the victim's behaviour was that of a consenting adult woman who even booked a guest house room for their sexual encounter. The appellant believes the prosecution fabricated the charge sheet to make the victim appear as a child while she was an adult. After hearing submissions on the grounds of appeal, it is appropriate to point out that at the second appeal, the Court is mainly concerned with issues of law. As we have restated on numerous occasions, on a second appeal, the Court rarely interferes with concurrent findings of fact by the trial and the first appellate courts. The Court may only interfere if the trial and first appellate courts acted on wrong principles in making their findings, or there are misdirection or non-directions on the evidence by the first appellate court to justify this second appellate court on a second appeal to revisit the evidence and make its findings of fact: see- KHAMIS ABDRAHAKIM VS. R [2019] TZCA 113 TANZLII. 11

The issues of law in this second appeal arise from ingredients of the offence of rape (contrary to sections 130 (1), (2) (e), and 131 (1) of the Penal Code) for which the trial and first appellate courts convicted the appellant: 130.-(1) It is an offence for a m ale person to rape a g irl or a woman (2) A m ale person com m its the offence o f rape if he has sexual intercourse with a g irl or a woman under circum stances falling under any o f the follow ing descriptions: -(a )- (d) (e) with or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years o f age and is not separated from the man. The weight of evidence on record does not support the appellant's five grounds of appeal. Both the trial district court of Meatu and the first appellate Resident Magistrates' Court of Shinyanga (Extended Jurisdiction) made a concurrent finding of fact that the appellant had sexual intercourse with a 16-year-old PW1, which the appellant admittedly believed was consensual sex between consenting adults. 12

It seems clear to us that sexual intercourse with a girl under eighteen (contrary to section 130 (1) (2) (e) of the Penal Code) is a strict liability offence. Efforts the appellant made to establish P W l's age before engaging her in sexual intercourse did not constitute a defence against the full force of statutory rape, which is the crime of having sexual intercourse with a girl under eighteen with or without her consent. In the upshot, this appeal lacks merit, and we accordingly dismiss it. DATED at SHINYANGA this 25th day of October, 2024. I. H. JUMA CHIEF JUSTICE S. RUMANYIKA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 25th day of October, 2024 in the presence of the Appellant in person - unrepresented and Ms. Mboneke Ndimubenya State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL 13