Msiba Leonard Mchere Kumwanga vs Republic (Criminal Appeal No 550 of 2018) [2018] TZCA 571 (6 July 2018)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MMILLA. J.A.. MUGASHA, J.A., And MWANGESL J J U CRIMINAL APPEAL NO. 550 OF 2015 MSIBA LEONARD MCHERE KUMWAGA .................................. APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Matupa, J.) dated the 13th day of October, 2015 in HC. Criminal Appeal No. 113 of 2015 JUDGMENT OF THE COURT 2n d & 6th July, 2018 MUGASHA, J.A.: In the District Court of Musoma, the appellant was charged with and convicted of rape contrary to sections 130(1) (2) (e) and 130(1) of the Penal Code, Cap. 16 R.E. 2002. He was alleged to have raped N. P. (PW1) who was nine (9) years old. The appellant was sentenced to imprisonment for thirty (30) years plus twenty four (24) strokes of the cane. The High Court sustained the conviction and the sentence imposed.

The substance of the evidence which led to the conviction of the appellant was as follows: PW1, the victim was nine years old and a pupil at Nyasho Primary School. On 13/10/2014 while coming back from school, she was grabbed by the appellant who blocked her mouth, took her to unfinished house, undressed her skirt and underpants; he as well undressed and forcefully had sexual intercourse with the victim. As the sexual intercourse was forceful and painful, PW1 cried aloud in agony which aroused the attention of other pupils including MWANAHAWA D/O JUMA (PW2) who went to the scene but was chased by the appellant. Still determined, PW2 was among the pupils who ran back to school and informed the teacher ROSE RESHA (PW3) about PWl's episode. PW1 who could not walk properly due to pains was escorted home and then to the police. At home, she was examined by WARIOBA JOSEPH (PW5) the victim's guardian who recounted to have inspected her and found her private parts swollen, also observed blood stains. Moreover, according to PW5, the victim mentioned the appellant's name on the fateful day. PW3 who also

examined the victim told the trial court that she observed blood stains and whitish fluid substance on the victim's private parts. At the Police, PW4 WP 6548 PC AISHA inspected the private parts of N.P., and observed that the victim had bruises and sperms and was bitterly crying because of the pains. PW1 was thus given the PF3 and was taken to the hospital. DR. SIMON MATIKU KAMULI (PW6) who examined PW1 established that she had bruises all along her vaginal area. The appellant was arrested and charged with rape. At the trial he denied the charge. He told the trial court to have been arrested being accused of disturbing people during night patrols. Then he was beaten by the two youths using a bush knife, sent to the Ward Executive Officer, the Police and charged with rape. Still aggrieved with the decision of the High Court, the appellant has appealed to the Court. He had two memoranda of appeal. In the Memorandum of Appeal, he raised seven grounds of complaint which nevertheless boil down to mainly four grounds namely: One, that the trial was flawed by procedural irregularity as the trial was not conducted in camera. Two, the evidence of the

witnesses of tender age was improperly taken in contravention of section 127(2) of the Evidence Act Cap. 6 R.E. 2002. Three, penetration was not proved in the wake of insufficient and contradicting and incredible testimony of PW1 and PW2. Four, the charge of rape was not proved beyond reasonable doubt. In the supplementary grounds, the appellant's complaint hinges on the following: One, that the doctor's testimony was improperly received as he was not among the listed prosecution witnesses at the Preliminary hearing. Two, the judgment of the High Court bears a wrong registration number of the appeal. Three, the age of the victim was not proved by her parent. At the hearing, the appellant appeared in person unrepresented. Mr. Victor Karumuna, the learned Senior State Attorney represented the respondent Republic. The appellant adopted the grounds of appeal and opted to initially hear the submission of the learned Senior State Attorney. Mr. Karumuna conceded that the trial was not conducted in camera. However, he argued that the appellant was not prejudiced

in any way since the law is geared at protecting the victim who is likely to be affected by the omission. In addressing the 2n d ground of complaint, he conceded that, since the trial magistrate did not satisfy himself if PW1 knew the nature of oath, the evidence of PW1 was taken contrary to section 127(2) of the Evidence Act. However, he pointed out that, the evidence of PW1 is corroborated by firstly, PW2 who found the appellant ravishing PW1. Secondly, the Evidence of PW4 and PW5 who all inspected the private parts of PW1 and found blood stains bruises and whitish series and thirdly, the evidence of PW6 the Doctor who after having examined PW1, established that she was actually raped. In the light of the said strong prosecution account which corroborates that of PW1, Mr. Karumuna urged us not to expunge the evidence of PW1. To back up his proposition he referred us to the case of tu m a in i m tayom ba vs. t h e r e p u b lic , Criminal Appeal No. 217 of 2012 (unreported) where the Court relied on the case of kim bute o t i n i e l v s r e p u b lic , Criminal Application No. 300 of 2011 (unreported).

Mr. Karumuna challenged the appellant's complaint to the effect that penetration was not proved on account of the incredible and inconsistent prosecution evidence. Apart from acknowledging existence of minor contradictions, however, he argued that the contradictions did not adversely impact on the strong prosecution evidence which established the guilt of the appellant. Besides, he added that, those minor contradictions were resolved by the High Court in favour of the Republic. Mr. Karumuna challenged the supplementary grounds arguing that, they were not raised before the High Court and as such, they do not suffice to be raised on the second appeal. However, he pointed out that: One, though the Doctor was not listed during the preliminary hearing, he was summoned to adduce evidence by the trial court pursuant to the prayer by the prosecution on 11/2/2014. Two, the erroneous Appeal No. 133 of 2015 which appears on the record of proceedings is not fatal as the appellant has not been prejudiced in any way. Three, the victim stated her age which was supported by the evidence of her guardian PW5. 6

In conclusion, Mr. Karumuna submitted that, on the basis of the evidence paraded by the prosecution, the charge of rape was proved against the appellant beyond reasonable doubt. On his part the appellant had nothing useful to add apart from urging the Court to consider the grounds of appeal. This being a second appeal, it is settled principle of law that, the Court rarely interferes with concurrent findings of fact by the courts below. The Court can interfere where there are mis directions or non-direction on the evidence to make its own findings (See the cases of MUSA MWAIKUNDA VS REPUBLIC (2006) TLR 387 and SALUM MHANDO VS REPUBLIC (1993) TLR 170. In the matter which is before us, the question to be answered is whether we interfere with the concurrent findings by the Courts below? We shall give our answer in the ensuing discussion. We wish to begin with the appellant's complaint that the trial was not conducted in camera which violated section 186 (3) of the Criminal Procedure Act Cap. 20 R.E. 2002 which provides: 1 1 Notwithstanding the provisions o f any other law, the evidence o f aii persons in aii trials involving

sexual offences shall be received by the court in camera, and the evidence and witnesses involved in these proceedings shall not be published by or in any newspaper or other media, but this subsection shall not prohibit the printing or publishing o f any such matter in a bona fide series o f law reports or in a newspaper or periodical of a technical character bona fide intended for circulation among members o f the legal or medical professions". It is not disputed that, the trial court did not comply with the cited provision which imposes mandatory requirements that, the whole of the evidence must be received in camera. We are in agreement with Mr. Karumuna that the appellant was not prejudiced in any manner. Besides, as the appellant did not make any protest at the trial or complain in the first appellate court, he cannot now complain that he was prejudiced by the said omission. The record is completely silent if the appellant raised the issue during trial. In this regard, we wish to repeat what we said in the case of g o d lo v e a z a e l @ mbise vs r e p u b lic , Criminal Appeal No. 312 of 2007 (unreported) 8

7 /7 what way was the appellant prejudiced under section 186(3) o f the CPA. Even at the late stage when he made his defence as PW1, he did not protest that since he was charged with sexual offence, his evidence should be received in camera." Thus, the omission did not prejudice the appellant in any way and as such the trial was not vitiated and the complaint is not merited. We now turn to the complaint that the evidence of PW1 was taken without meeting the requirements of section 127 (2) of the Evidence Act. Before dealing with the matter before us, we have deemed it crucial to point out that, in 2016 section 127 (2) was amended vide Written Laws Miscellaneous Amendment Act No. 2 of 2016 (Amendment Act). Currently, a child of tender age may give evidence without taking oath or making affirmation provided he/she promises to tell the truth to the court and not to tell lies. However, since the present offence is alleged to have been committed on 13/10/2014, we shall rely on the position of the law before coming into force of the (Amendment Act) whereby section 127 (2) stated: " Where in any criminal cause or matter a child of tender age called as a witness does not, in the 9

opinion o f the court, understand the nature of an oath, his evidence may be received though not given upon oath or affirmation, if in the opinion o f the court, - which opinion shall be recorded in the proceedings, he is possessed of sufficient intelligence to justify the reception of his evidence, and understands the duty of speaking the truth. [Emphasis supplied] In KIMBUTE OTIENIEL vs r e p u b lic , Criminal Application No. 300 of 2011 (unreported) the Court extensively discussed the consequences of the misapplication of or non-direction in the conduct of voire dire under sections 127(1) and 127(2) of the Evidence Act. The Court among other things held: " Where there is a complete omission by the trial court to correctly address itself on sections 127 (1) and 127 (2) governing the competency o f child of tender years, the resulting testimony is to be discounted. 10

Where there is a misapplication by the trial court of section 127(1) and or 127(2) the resulting evidence is to be retained on record. Whether or not any credibility, reliability, weight or probative force is to be accorded to the testimony in whole or in part or not at all is the discretion o f the trial court. The law and practise governing the admissibility o f evidence; cross examination o f the child witness, critical analysis of the evidence by the Court and the burden o f proof beyond reasonable doubt, continue to apply. Where there is other independent evidence sufficient in itself to sustain and guarantee the safe and sound conviction o f an accused, the court may proceed to determine the case on its merit, always bearing in mind the basic duties incumbent upon it in a criminal trial and the fundamental rights o f the accused." The position in kim bute's case was emulated in the case of t u m a in i MTAYOMBA vs r e p u b lic , Criminal Appeal No 217 of 2012 (supra) whereby apart from the Court observing that voire dire examination was not conducted; it concluded that the evidence of the witness of tender age who was a victim was tested in terms of the Rules of Evidence. The Court relied on such evidence to uphold the conviction on rape. l i

In the present case, as reflected at pages 13 and 17 of the record of appeal, the evidence of both PW1 and PW2 was received without the trial magistrate ascertaining if those witnesses of tender age understood the duty to speak the truth which was an omission of the second limb of section 127 (2). Notwithstanding that section 127 (2) was misapplied in receiving the evidence of PW1 and PW2, in our considered view, their evidence was tested as per Rules of evidence and the omission or misapplication did not occasion any miscarriage of justice on the part of the appellant. Moreover, as rightly submitted by Mr. Karumuna, on record there is other independent evidence of PW4, PW5 and PW6 on what had befallen PW1 on the fateful day. We have revisited the evidence of PW1. At pages 14 and 15 of the record at the trial she categorically stated to have been forcefully raped by the appellant. This account is supported by PW2 who went at the scene having heard PW1 crying in agony and at page 18 of the record PW2 recounted to have found the appellant ravishing PW1. Furthermore, the testimonial account of PW3, PW4 and PW5 who all happened to inspect the victim recalled that she had bruises, whitish series and blood stains on the private parts. 12

Moreover, PWl's guardian told the trial court that PW1 mentioned the appellant at the very earliest opportunity on the fateful day which adds credence to the testimony of PW1. (See m arw a WANGITI AND ANOTHER VS REPUBLIC (2002) TLR 39). Regarding the appellant's complaint on lack of penetration, we found the same wanting. PWl's evidence established that there was penetration to the effect that, the appellant had forceful sexual intercourse and she felt pains and cried in agony. PW1 could not have felt the act of sexual intercourse to be painful if the appellant had not inserted his penis in her vagina. Since the victim is the best witness in rape cases, she is better placed to describe or explain her feelings during -the forceful sexual intercourse. (See selem an mkumba vs r e p u b lic , Criminal Appeal No. 94 of 1999 (unreported). We are thus satisfied that, the evidence of PW1 that the appellant forcefully had sexual intercourse with her is sufficient to establish that there was penetration. In the same vein, the evidence on penetration was well canvassed by the Medical Doctor who at page 32 of the record testified that, there was penetration in PWl's vagina due to bruises all along the vaginal area. 13

We have noted the variance at the trial in: One, the testimony of PW3 who indicated not to have seen the appellant at the scene of crime while PW1 recounted that, the appellant jumped through the window and ran away on seeing the teacher (PW3). Two, who escorted the victim to the Ward Executive Officer and she earlier passed through home. However, we are in agreement with the learned Senior State Attorney that, those contradictions which were resolved by the High Court did not adversely impact on the prosecution evidence. We say so because, in the wake of credible evidence of PW1 and PW2 which we find binding on the occurrence of the rape committed by the appellant as there are no circumstances which call for re-assessment of the credibility. (See OMARI AHMED VS REPUBLIC (1983) TLR 52. We are in agreement with the learned State Attorney that the supplementary grounds of appeal were not raised before the High Court and the Court has no jurisdiction to adjudicate on them. (See ABDUL ATHUMAN VS REPUBLIC (2004) TLR 151, JUMA MANJANO VS th e dpp, Criminal Appeal No. 211 of 2009 and e d w in t h o b ia s p a u l vs r e p u b lic , Criminal Appeal No. 130 of 2017 (all unreported). However, for reasons to be demonstrated we have 14

found it crucial to address the appellant's complaint on the age of the victim. The record reflects that, charge sheet shows that on 13/10/2014 which is date of occurrence of the offence, the victim was nine (9) years old and stated so in her account. PW5 who testified on 24/2/2015 when was cross-examined by the appellant at page 28 PW5 replied as follows: - "PW1 the victim was aged 9 years oid by the time you raped her but in this year Nezia is now 10 years oid ..." In the case of e d w a r d Joseph v s r e p u b lic , Criminal Appeal No. 19 of 2009 (unreported) the Court among other things said that, evidence of a parent is better as regards the evidence of child's age. In this regard, we are satisfied that the evidence of PW1 and PW5 was sufficient to prove that PW1 was 9 years on the date she was raped. We are thus satisfied that the charge of rape was proved beyond reasonable doubt against the appellant. As such, we have no reason to fault the concurrent findings of the Court's below.

Since it is settled that, PW1 was below 10 years at the occurrence of the rape, we had to consider the propriety of the sentence of thirty years imposed by the trial court. As such, we required parties to address us on that aspect. The learned Senior State Attorney submitted that, since the victim was below the age of ten (10) years the sentence of thirty years is improper. He urged us to invoke revisional jurisdiction under section 4(2) of the Appellate Jurisdiction Act [CAP 141 RE.2002] (the AJA) enhance the sentence and impose life imprisonment. On his part, the appellant urged us to consider the grounds of appeal in entirety. In the present case, it is settled that in terms of the charge sheet and the evidence of both the victim and her guardian (PW5), the victim was 9 years old when she was ravished by the appellant on 13/10/2014. The proper punishment is stated under section 131 (3) of the Penal Code which provides: "Notwithstanding the preceding provisions o f this section whoever commits an offence o f rape to a girl 16

under the age of ten years shall on conviction be sentenced to life imprisonment" We agree with the learned Senior State Attorney that the sentence of thirty years imposed by the trial court is not in accordance with the law. We thus invoke section 4(2) of the AJA and enhance the sentence of thirty years to life imprisonment. In view of the aforesaid we find the appeal is not merited and it is dismissed. DATED at MWANZA this 5th day of July, 2018. B. M. MMILLA JUSTICE OF APPEAL S. E. A. MUGASHA JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy of the original. B. A. MPEPO DEPUTY REGISTRAR COURT OF APPEAL 17