Galus Galus Pokela vs Republic (Criminal Appeal No. 491 of 2022) [2024] TZCA 806 (22 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA fCORAM: MWARI3A. 3.A.. KEREFU, 3,A.. And MAKUNGU. 3.A.) CRIMINAL APPEAL NO. 491 OF 2022 GALUS GALUS POKELA . .......................... .................................. APPELLANT VERSUS THE REPUBLIC . ..................... ............................... ,, ............ . RESPONDENT (Appeal from the Decision of the High Court of Tanzania, at Songea) fMadeha, 3.) dated the 28thday of September, 2022 in DC Criminal Appeal No. 21 of 2022 JUDGMENT OF THE COURT 16t h 8 t 22'd August, 2024 MAKUNGU. J.A.: The appellant Gatus Galus Pokela was charged in the District Court of Mbinga with unnatural offence contrary to section 154 (1) (a) of the Penal Code [Cap 16 R.E 2019] (the Penal Code). It was alleged by the prosecution that, on 13th September, 2021 at Zomba Village within Mbinga District in Ruvuma Region, the appellant did have carnal knowledge of a girl child aged eight (8) years against the order of nature. The appellant denied the charge. After a full trial at which the prosecution relied on the evidence of five witnesses while the appellant depended on his own evidence in defence, the trial court (Kimaro, RM)

was satisfied that the case has been proved beyond reasonable doubt. He was consequently convicted and sentenced to life imprisonment. Aggrieved by the decision of the trial court, the appellant unsuccessfully appealed to the High Court hence this second appeal. The facts giving rise to the appellant's arraignment and his subsequent conviction can be briefly stated as follows; The victim who testified as PW1 (name withheld) was at a material time, a standard III Pupil at Zomba Primary School. It was PWl's testimony that, on 13th September, 2021, while she was sleeping in her bedroom with her sister, Analis Ndunguru (PW3) and her young brother, the door was forcefully pushed open and the appellant entered. PW1 recounted that upon seeing the appellant, her sister ran away. The appellant then stripped off his trouser turned her around and penetrated her against the order of nature. During the incident, PW1 stated that, the appellant covered her mouth with his hand. She recalled that her sister managed to call their brother one Steven Ndunguru (PW4), who arrived at the scene. PW4 shouted for help and the appellant attempted to escape but he was apprehended by PW4. Following that incident, PW4 reported the matter to the Police and obtained a PF 3 for the purpose of taking PW1 to the hospital for medical examination. Having conducted examination on PW1, Dr. Neema J.

Mng'ong'ose (PW2) found PWl's anus with lacerations and bruises, an indication that she had been sexually assaulted. On the basis of the complaint by PW1 and the medical report which was posted in the PF 3, the Police arranged for the arrest of the appellant, He was later arrested and charged as shown above. In his defence, the appellant (DW1) disputed the prosecution evidence that he committed the offence. He testified that on the alleged date, he visited his girlfriend and later stopped to drink a bottle of local brew (wanzuki). While on his way home near PWl's house he was attacked by someone who knocked his leg and suddenly, he was arrested. He claimed to have a longtime conflict with PWl's mother who framed him with the case. As stated above, in its decision, the trial court was satisfied that the prosecution evidence had sufficiently established the case against the appellant beyond reasonable doubt. It found that the evidence of PW1, which was corroborated by that of PW2, was credible and therefore, proved that the appellant did have carnal knowledge of PW1 against the order of nature. On appeal to the High Court, the learned High Court Judge upheld the decision of the trial court. He was of the view that the appellant was

well known by PW4. The learned High Court Judge reasoned further that, PW1 mentioned the appellant at the earliest opportunity. Relying also on inter alia, the case of Selemani Makumba v. Republic, [2006] T. L. R 379, in which the Court emphasized that in sexual offences, the true evidence has to come from the victim, the learned High Court Judge observed that, the evidence of PW1 is credible, and found therefore that the offence was proved beyond reasonable doubt. He therefore upheld both the trial court's conviction and sentence. In his memorandum of appeal, the appellant raised three grounds of appeal and later at the hearing, he raised two additional grounds. All the five grounds can be conveniently paraphrased as follows;

1. That, the High Court erred in iaw in failing to consider the appellant's defence evidence.
2. That, the victim 's age was not proved.
3. Thaty the High Court erred in iaw in failing to consider the lapse of time o f 4 days from the date the victim (PW1) is said to be sodomized to the date she was examined by the doctor.
4. That, the learned High Court Judge misdirected herself in law and fact to uphold PW2's evidence while she was not a qualified medical practitioner.
5. That, the prosecution case was not proven beyond reasonable doubt

When this appeal was called on for hearing/the appellant appeared in person without legal representation, whereas Ms. Tulibake Juntwa, learned Senior State Attorney appeared for the respondent Republic. When called upon to argue his appeal, the appellant opted to let the learned Senior State Attorney submit first in reply to the grounds of appeal and reserved his right to make a rejoinder submission if the need to do so would arise. In her response, Ms. 3untwa opposed the appeal. On the first ground, although she admitted that the first appellate court did not evaluated the defence, she urged the court to step into the shoes of the High Court and consider the appellant's evidence. As for the appellant's contention that the victim's age was not proved, she hesitated hut hastened to refer us to the medical examination report (exhibit PI) where the age of PW1 is mentioned. She then submitted that, exhibit PI is evidential and confirms that PW1 was 8 years old when she was sodomized by the appellant. She thus argued that the second ground has no merit. The learned Senior State Attorney similarly urged us to dismiss the appellant's complaint in the third ground contending that the two courts below did not consider the lapse of time of 4 days when PW1 was

examined by PW2. Ms. Juntwa submitted further that it was not true that the examination was conducted 4 days after the event, but PW1 was examined on 14th September, 2021 and was required to come back to the hospital in the next day for further medical examination. The learned Senior State Attorney next urged us to find that the evidence of PW2 corroborated the evidence of PW1. Ms. Juntwa submitted that PW2 at page 14 of the record of appeal introduced herseif as a Medical Doctor and at page 20 of the record of appeal D/CPL Mwanaharusi, PW5 testified that she handed over PW1 to the Medical Doctor. She then argued that since the appellant failed to take opportunity to ask PW2 questions on her qualifications during cross-examination in the trial, he cannot be heard to complain at this stage of the appeal. On the last ground, the learned Senior State Attorney opposed the appellant's contention that the prosecution did not prove the case beyond reasonable doubt. She argued that the evidence of PW1, PW2 and PW4 sufficiently established that the appellant committed the offence. She concluded that the grounds of appeal bear no merit and should be dismissed. In his brief rejoinder, the appellant reiterated the contents of his grounds of appeal and urged us to allow his appeal.

We have considered the submissions made by the parties on the five grounds of appeal. In terms of section 6(7) (a) of the Appellate Jurisdiction Act, Cap. 141 our mandate when hearing a second appeal is mainly concerned with issues of law, not matters of facts. It is established practice of the Gourt when sitting to hear a second appeal; it avoids upsetting finding of facts by the trial and first appellate courts. In Wankuru Mwita v. Republic, Criminal Appeal No. 219 of 2012 (unreported), the Court reiterated this practice; "The law is well-settled that on second appeal, the Court will not readily disturb concurrent findings of facts by the trial court and first appellate court unless it can be shown that there are perceived, demonstrably, wrong or clearly unreasonable or are a result of a complete misapprehension o f the substancenature and quality o f evidence; misdirection or non-directions on the evidence; a violation of some principle of taw or procedure or have occasioned a miscarriage of Justice (See, Amratlal Danodar Maltaser and Another T/A Zanzibar Hotel (1980) T.LR 31, Mohamed Musero v. Republic (1993) T.LR 290, Salum Mhando v. Republic (1993) T.LR 170, Cosmas Karatasi v. Republic, Criminal Appeal No. 119 of 2004 (CAT, unreported)." 7

The trial magistrate, evaluated the evidence and addressed whether the appellant molested PW1. He weighed up the testimony of PW1, who revisited how she had been molested. In his defence, the appellant vehemently denied the charge insisting that, the case was cooked by PWl's mother basing on their personal conflicts they had, because they once had sexual affairs- the learned trial magistrate disregarded this defence because of the weight of prosecution evidence, especially PW1 and evidence of PW2. The learned trial magistrate relied on section 127(7) of the Evidence Act, which translates to the legal position that the best evidence in sexual offences comes from the victim of rape. He concluded that the prosecution had proved the case against the appellant beyond reasonable doubt. After re-evaluation of the evidence of the victim (PW1), that of PW4, and the Medical Officer (PW2), the first appellate court was not in any doubt, PW1 was a victim of a sexual offence. Evidence of a victim of the sexual offence is believable unless there are good reasons not to. The learned Judge re-evaluated the evidence of PW2 who medically examined PW1 and found bruises in her anus. The learned first appellate Judge went as far as concluding that from the evidence, the 8 years old PW1 had been sodomized by the appellant.

It is appropriate to ask whether, from the perspectives of the appellant's grounds of appeal, there are reasons to interfere with that concurrent finding of facts. In the first ground of appeal, the appellant faults the first appellate court finding of facts so far as the appellant's defence is concerned. We agree with Ms. Juntwa that, we should dismiss this ground of appeal because the trial court considered the appellant's defence but the first appellate court did not consider it as it was not part of the grounds of appeal. However, from our own evaluation of evidence on record and specifically, the appellant's defence, we are satisfied that the same did not raise any reasonable doubt on the prosecution case. The said defence was simply a general denial of him not committing the offence he was charged with. Such a defence, in our view, was too remote to cast any doubt let alone a reasonable one in the prosecution evidence. We also agree with the [earned Senior State Attorney in her submission that the complaint about the age of PW1 in the second ground of appeal lacks merit. It is correct that PW2 who examined the victim (PW1) has established to attend PW1 who was aged eight (8) years. Also, her findings in the PF 3 report (exhibit PI) show that the victim had eight (8) years. See the Court's decision in Elia John v. Republic, (Criminal Appeal No. 306 of 2016) [2019] TZCA 303 where it was held that;

"It is settled law that proof of age can be done by the victim himself, the relative , parent or a medical practitioner leading evidence on that or else by production as evidence o f a birth certificate." In our view, the learned Senior State Attorney correctly submitted that the medical examination report (exhibit PI) had sufficiently proved that PW1 was eight (8) years of age when she was molested by the appellant. The appellant did not object when the prosecution offered to tender the medical examination report in the evidence. Again, the contents of this report were read over to the appellant during the trial. It is also our considered view that the appellant's complaint in the third ground of appeal, has no substance. We say so, because the incident happened on 13th September, 2021 at night and exhibit PI shows that the examination was conducted on 14th September, 2021. However, we observed that the report was only sighed on 17th September, 2021. As for the fourth ground, we agree with Ms. Juntwa that we should dismiss it. Through this ground, the appellant blames PW2 for failure to disclose her qualifications as medical practitioner. As correctly submitted by the learned Senior State Attorney that PW2 testified before the trial court as a Medical Doctor who filled exhibit PI. During cross-examination, the appellant was required to ask questions, among others, about her 10

qualifications. The appellant failed to do so. That said, we find this ground of appeal to have no merit and dismiss it. As for the fifth ground of appeal, the main issue which calls for our determination is whether the case against the appellant was proved to the required standard. We would, at first, underline that the prosecution had to establish that there was penetration into PWl's anus and that the perpetrator of that depraved act was the appellant. Having examined the testimonies of PW1, PW2 and PW4 as well as exhibit PI in the light of the concurrent findings of the courts below, we are satisfied that it was sufficiently proven that PW1 was sodomized on the material date. Apart from her evidence having not been controverted by the appellant in cross-examination, it was supported by the impeccable evidence of PW2 and reinforced by the medical report (exhibit PI) that PW1 had or found with "laceration and: bruises" on her anus, which "it seemed that something blunt was inserted into her anus". The courts below found PWl's evidence uncontroverted, credible and reliable. That the appellant was the ravisher who abused PW1. On our part, we see no reason for little girl lying against the appellant. As indicated earlier, the appellant interjected the defence of general denial and suggested that the charge might have been result of the 11

grudges PWl's mother had against him. Apart from this line of defence being generally self-serving the claim that the charge was fabricated was not raised in cross-examination of PW1, PW3 and PW4. The claim was plainly an afterthought. Consequently, we find the fifth ground of appeal unjustified as we are satisfied that the charged offence was proven beyond reasonable doubt. In the event, we find the appeal devoid of merit and we dismiss it in its entirety. DATED at SONGEA this 22n d day of August, 2024. The Judgment delivered this 22n d day of August, 2024 in the presence of the appellant in person and Mr. Elipidi Eugeni Tarimo, learned State Attorney for the Respondent/Republic is hereby certified as a true A. G. MWARIJA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL