Godfrey Winfrid Haule vs Republic (Criminal Appeal No. 492 of 2022) [2024] TZCA 776 (20 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA f CORAM: MWARI3A, 3.A., KEREFU, 3.A. And MAKUNGU. 3.A.1 CRIMINAL APPEAL NO. 492 OF 2022 GODFREY WINFRID HAULE........ ....... . ......... . ...............................APPELLANT VERSUS THE REPUBLIC . ............. . ..................... .............. . ............... ........RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Songea) (Madeha. 3.1 dated the 29th day of September, 2022 in DC. Criminal Appeal No. 19 of 2021 JUDGMENT OF THE COURT 14th & 20th August, 2024 MWARIJA, J.A.: In this appeal, the appellant, Godfrey Winfrid Haule challenged the decision of the High Court (Madeha, J.) handed down on 29/9/2022 in Criminal Appeal No. 19 of 2021. The appeal giving rise to the impugned decision originated from the District Court of Mbinga in Criminal Case No. 33 of 2021. In that case, the appellant was charged with and convicted of the offence of rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, Chapter 16 of the Revised Laws. The prosecution alleged that on 1/3/2021 at Luhagara Village within Mbinga District in

Ruvuma Region, the appellant did have carnal knowledge of a girl child aged seven years. For the purpose of hiding her identity, she shall hereinafter be referred to as the victim. When he was arraigned before the District Court, the appellant denied the charge and as a result, the prosecution called a total of four witnesses with a view to prove its case. On his part, the appellant was the only witness for the defence. The background facts of the case giving rise to this appeal are simple. Until the material date, the victim was living with her aunt, Albina Simon Kinunda (PW1). On 2/3/2021, PW1 left her home and went to work at her farm leaving at home her husband, her other children and the victim. When PW1 returned back home after three days, she found that the victim was not in a normal condition, She was walking with difficulty. When she questioned her, the victim explained that, on 1/3/2021, she was raped by brother God (Goddy) after he had pulled her in a shamba which contained banana plants.

PW1 inspected the victim's private parts and found that her labia minora had swollen and felt pain when putting her legs apart. Following the incident, PW3's husband traced and arrested the appellant. After his arrest, the appellant was taken before the Village Executive Officer and later to Mbinga Police Station. Finally, he was charged in court. As stated above, the prosecution called four witnesses including PW1 whose evidence related to how she noticed the victim's condition and her disclosure as to the person who molested her. The witness testified also that, the said Goddy was her in-law, the husband of her sister and that, he was residing in his grandmother's house which is close to PW l's residence. She added that, the matter was reported to the police following the advice of the nurse at the Health Centre where the victim was first taken for treatment and who found that, the injuries sustained by the victim on her private parts were serious. At Ruanda Police Post, a PF.3 was issued to the victim who was taken to Ruanda Mission Hospital where she was admitted and discharged on the next date. 3

At the hospital, the victim was examined by Dr. Yuvet Laurent Mbilu (PW4). It was his evidence that, upon his examining the victim, he found that the victim's labia minora had pink colours and that the same had ruptured. It also had yellowish discharge which, after laboratory test, was found to be purse. The witness concluded that, the victim was penetrated. He tendered the PF.3 which was admitted in evidence as exhibit PI. Testifying before the trial court, the victim (PW3) narrated on how the appellant, who was known to her as Goddy, molested her. She stated that, on 1/3/2021, while her mother was away at her farm and while her father had gone out, the appellant arrived at her home. He gave her some maize and while receiving the same, he caught her hand and pulled her into the place where there were banana plants, laid her down, removed her trousers, skin tight and underwear and after he had also removed his trousers, inserted his penis into her vagina. He then proceeded to rape her while threatening to kill her if she made any noise. According to her evidence, as a result of the appellant's act, she suffered severe pains to the extent that she could not walk properly.

The victim's evidence was supported by Asha Sadick Lyako (PW2), the PWl's child who was at home with the victim on the material date. It was her testimony that, while she was at home, the appellant, who was known to her, arrived and gave some maize to the victim. Thereafter, she saw the appellant taking the victim to the shamba which had maize and banana plants. She went on to state that, she followed them and heard the appellant telling the victim to remove her clothes. It was PW2's further evidence that, the victim removed her clothes and so was the appellant who, after doing so, lied on top of the victim. She stated further that, when the appellant noticed that PW2 had witnessed the act, he warned her not to tell anybody lest he would kill her. In his defence, the appellant relied on alibi. He testified that, on the date of the incident, he was away at Lukei Village to harvest maize at his mother's farm. On the next day 2/3/2021, he returned home and when he looked for his bag, he could not find it. He asked his cousin (PWl's husband) about it but replied that he was not aware of its whereabouts. DW1 went on to state that, as he was about to get out of the house, he saw his cousin holding a piece of wood threatening to beat him with it. His cousin required him to go to the village office. When he

reported at the said office, he was told that, he had been accused of raping the victim. From there, he was taken to Ruanda Police Station where, he said, was tortured to the extent of losing his two teeth while being required to confess to the offence. When he was cross examined, he contended that, he had grudges with his cousin over their grandmother's farms, In his judgment, the learned trial Resident Magistrate found that the evidence adduced by the prosecution witnesses was cogent, that it proved the case against the appellant beyond reasonable doubt. He found it proved that, the victim was aged 8 years and that the ingredients of the offence of rape were proved. He was also of the view that, it was the appellant who raped the victim. The appellant was aggrieved by the decision of the trial court. He unsuccessfully appealed to the High Court hence this second appeal. In his memorandum of appeal, the appellant raised two (2) grounds which incorporated arguments in support thereto. The grounds may be paraphrased as follows:

1. That, the learned first appellate Judge erred in law and fact in sustaining the appellant's conviction while both courts below had failed to consider the appellant's defence of alibi.
2. That, the learned first appellate Judge erred in law and fact in upholding the appellant's conviction without having properly re evaluated the evidence adduced by both sides thus failing to find that the case against the appellant was not proved beyond reasonable doubt. On the date of hearing the appeal, the appellant appeared in person, unrepresented while Ms. Tulibake Juntwa, learned Senior State Attorney represented the respondent Republic. When he was called upon to argue his appeal, the appellant opted to hear first, the respondent's replies to his grounds of appeal and thereafter, make a rejoinder, if he would find it necessary. Submitting in reply to the 1st ground of appeal, Ms. Juntwa agreed with the appellant's contention that, the High Court Judge did not consider the appellants defence of alibi\ She was quick to submit however, that, the omission is not fatal because this court has the power

of stepping into the shoes of the 1st appellate court and consider the said defence. She argued further that, in any case, that defence was not worth raising a reasonable doubt that the appellant did not commit the offence charged. As for the 2n d ground of appeal, the learned Senior State Attorney opposed the contention by the appellant that, the High Court did not re evaluate the evidence of both sides. She submitted that, even though the appellant's defence was not considered, the learned first appellate Judge undertook the duty of re-evaluating the evidence of all the prosecution witnesses. Reiterating the submissions she made in support of the 1st ground of appeal, Ms. Juntwa contended that, the appellant's defence did not raise any reasonable doubt. The reason, she argued, is because the evidence of all four witnesses remained unchallenged because, the appellant did not cross-examine any of them. She prayed that, the appeal be dismissed. In rejoinder, the appellant did not have any substantial argument to make in response to the learned Senior State Attorney's submissions. 8

He merely urged us to consider his grounds of appeal, allow them and order his release from prison. Having considered the grounds of appeal and the learned Senior State Attorney's submissions on the 1st ground of appeal, we agree that, indeed, the learned first appellate Judge did not consider the defence of a lib i which was raised by the appellant at the time when he was arraigned before the trial court. The appellant pleaded not guilty to the charge by stating that nsio kweii, niiiondoka kwenda sham banl', meaning that, he was not present at the scene of crime as, on the date of incident, he had gone to his farm area. He repeated in his defence evidence that: "... the tim e upon which they said I raped the victim a t noon hours, I was a t the farm s in Lukei nearby Maguguni" In its judgment, the trial court considered that defence but disregarded it oh the ground that, the appellant did not inform or notify the court that he would rely on aiibi. The first appellate court was duty bound to consider the correctness or otherwise of that finding but did not do so.

As submitted by the learned Senior State Attorney, this Court has the power of stepping into the shoes of the first appellate court and do what it ought to have been done by it on that aspect. - See for instance the cases of Pandya v. Republic [1957] E.A. 336 and Shabani Amiri v. Republic, Criminal Appeal No. 18 of 2007 (unreported) cited by the learned Senior State Attorney, Now therefore, to begin with the reasons given by the trial court for disregarding the appellant's alib i ■ it is obvious, from the record as pointed out above, that the learned Resident Magistrate made an erroneous finding. The requirement of a notice provided for under section 194 (4) of the Criminal Procedure Act, Chapter 20 of the Revised Laws, was complied with during the plea taking and further, when the appellant was adducing his evidence. The issue for determination now is, whether that defence raised a reasonable doubt against the prosecution case. To that issue, we hasten to answer it in the negative. The evidence to the effect that, the appellant went to the house of PW1 where the victim resided, was adduced by the victim and PW2. As found by the trial court, the said witnesses were credible as there was no reason to adjudge them otherwise. Their evidence that the appellant 10

arrived there and gave the victim some maize and then pulled her into the shamba was therefore, a credible evidence. On the strength of that evidence, the appellant's defence that, he was not at the scene of crime is, in our considered view, an afterthought and did not therefore, raise any reasonable doubt against the prosecution evidence. We thus find the first ground of appeal devoid of merit and accordingly dismiss it. As for the submissions on the 2n d ground of appeal, the same raise an issue whether or not the learned first appellate Judge re-evaluated the evidence. We have found above that, the defence evidence was not considered. Having weighed that evidence against the prosecution evidence, our finding as shown above is that, the same did not raise any reasonable doubt against the prosecution evidence. With regard to the prosecution evidence, we are with respect, unable to agree with the appellant that, the same was not re-evaluated by the first appellate court. In her judgment, at page 74 of the record of appeal, the learned Judge stated clearly that, as a first appellate court, she had the duty of re-evaluating the evidence. She proceeded to do so as regards the prosecution evidence from page 76 to 79 of the record of appeal. In conclusion, at page 79 of the record ii

of appeal, she held that, the evidence as adduced by the prosecution witnesses before the trial court proved the case beyond reasonable doubt. The 2n d ground of appeal is, for that reason, equally devoid of merit. It is also hereby dismissed. For the foregoing reasons, this appeal is lacking in merit and consequently, we hereby dismiss it in its entirety. DATED at SONGEA this 20th day of August, 2024. The Judgment delivered this 20th day of August, 2024 in the presence of the appellant who appeared in person and Mr. James Rhobi, learned State Attorney for the Respondent/Republic, is hereby certified A. G. MWARIJA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL 0. O. MAKUNGU JUSTICE OF APPEAL