John s/o Kashindya vs Republic (Criminal Appeal No. 180 of 2013) [2013] TZCA 2159 (26 September 2013)

/ j ' IN THE COURT OF APPEAL O_F TANZANIA . AT TABORA (CORAM: MBAROUK, l.A., MANDIA, l.A. And MMILLA, l.A.) CRIMINAL APPEAL NO. 180 OF 2013 JOHN S/0 KASHINDYE ............................... ~·············APPELLANT VERSUS THE REPUBLIC ..............•..................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Kaduri, J.) dated the 6 th day of September, 2010 in Criminal Session No. 248 of 2008 JUDGMENT OF THE COURT 23 rd & 26 th September, 2013 MBAROUK, J.A.: In the District Court of Igunga at Igunga, the appellant,

John s/o Kashindye was charged and convicted of the offence of rape contrary to sections 130(1) and 131(1)(2)(e) of the .. Penal Code Cap. 16 of the laws as amended by sections 5 and 6 of the Sexual Offences Special Provisions Act No. 4 of 1998 1

R.E. 2002. He was sentenced to thirty (30) years imprisonment with twelve (12) strokes of the cane. Aggrieved, he appealed before the High_ Court of Tanzania at Tabora, where his appeal was dismissed. Still aggrieved he has preferred this second appeal. In this appeal, the appellant has filed a memorandum of appeal containing five ground of appeal, but we think they can conveniently boil down to the following four grounds of complaint, namely: - · (1) that in the absence of the evidence of penetration and sperm~ the prosecution side failed to prove the offence of rape against the appellant (2) that the requirements of Section 240(3) of the Criminal Procedure Act were not complied with. (3) that was no corroborative evidence to support the evidence 2

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• ,, ~ ... . ... of PWl that she slept with the ~ appellant in the sitting room. ( 4) that there was no statement of the appellant tendered by PW4 to prove that he admitted to have committed the offence before him. · Before going to the discussion concerning the points raised in the memorandum of appeal, we have found it useful to give a brief account of the facts of the case which was before the trial court. According to Eva d/o Charles (PW1), she claimed that on 9 th August, 2007 at 05:30a.m. She was at the house of the appellant doing love affairs. · She claimed to have gone to the appellant's house at midnight and had sexual intercourse with him until at that time. PW1 said, it was the second time to go at the appellant's house. She further claimed that, the appellant was her boyfriend and the appellant invited her at his house. PW1 said that, the first · time she met the appellant was when she went to fetch water and washing her clothes. The appellant promised to give PWl 3

shs. 2,000/= and he paid her after hving seual intercourse with her. , Pw1 further testified that their meeting for the second time was at Igunga market, there the appellant told her to go at his house at the midniJht. She said, she went I . there and had sexual intercourse for two rounds~ PWl added that she left the appellant at 06:00 J.m. without being given I anything. At the time she was comiing from the appellant's I . house, her father, Charles s/o Bundala (PW2) saw her and asked where she came from. PWl rehlied that she came from I I the appellant's house. PW1 and PW2 went at the appellant's I . . house and the matter was then repo,ed at the ten cell leader (PW4) who went to arrest the appellant. Thereafter, the ' appellant was taken to Village Offic,r at Nkinga and then at Sungwizi Police Post, where PW1 was given a PF.3 and went at Sungwizi Health Centre. In his defence, the appellant denied to have committed I the offence. He told the trial court that on 9-8-2007, he was surprised to be followed at his house by PW2 and three others 4

including the ten cell leader. He said, they found him asleep • with one Abubakar Ally. He· denied to have slept with PWl and denied to be the lover of PWl. The appellant claimed to . . have been taken to Sungwizi Police post, and then to Igunga Police Station where he was charged with this offence. At the hearing of the appeal, the appellant appeared in person unrepresented, whereas Ms. Juliana Maka, learned State Attorney, represented the respondent/Republic. The appellant. opted to respond after the learned State Attorney has reacted to hrs grounds of appeal. On her part, the learned State Attorney from the outset showed not to support the appeal. In response to the first ground of appeal, she said the evidence of PW1 clearly stated that she had sexual intercourse with the appellant on two occasions. She added that, for the purpose of section 130(4)(a) of the Penal Code, the trial court and the first appellate court were satisfied that the offence of rape was 5 •. ..... ._-.

proved. This is because, she said PW1 proved that there was I!' sexual intercourse and the courts below believed· her to be a truthful witness. The learned State Attorney further submitted that, the presence of sperms is immaterial according to the requirements of section 130(4) (a) of the Penal Code. ·What is required to be proved is penetration however slight which is sufficient to constitute the sexual intercourse to prove the offence of rape. She then urged us to find the said ground of appeal devoid of merit. We are of the considered opinion that, PW1 sufficiently testified as to how she conducted sexual. intercourse with the appellant on two occasions. The two courts below were satisfied that PW1 (the victim) who was a child of tender years was a credible witness and she was telling nothing but the truth. Therefore, in compliance with section 127(7) of the - Evidence Act, we think, after assessing the credibility of the evidence of PW1 who was a child of tender years the trial court was right when it received such evidence. PWl's 6

. evidence alone could have been sufficient to prove the offence ., of rape according to section 127(7) of the Evidence Act as it has been established that she was a child of tender years. PW2 as a father of the victim - (PW1) was in a better position to prove the age of her daughter - See Emmanuel Kibona and Others Vs. R. [1995] TLR 241. For that reason, we think the courts below rightly found that this was a statutory rape. All in all, we are of the opinion that as far as the courts below were satisfied and believed PW1 on the aspect that there was sexual intercourse with the appellant, we have no· reason to fault the concurrent findings of fact of the courts . below. As pointed out in the decision of this Court in Hassani Bakari @ Mamajicho v. The Republic, Criminal Appeal No. 103 of 2012 (unreported) the term sexual intercourse was defined to mean the penis penetrating the vagina. For that reason, we think, the evidence of PW1 sufficiently proved the aspect of penetration and therefore rape. On the other hand, we agree with the learned State Attorney that the presence of 7 ·- '

i I sperms was immaterial according to the requirements of section 13~(4) (a) of the Penal CodJ. In the event, we find I . the first ground of appeal devoid of mbrit. As on the ground of complaint concerning non- . compliance with Section 240(3) of th! Criminal Procedure Act, the learned State Attorney submitted [that it is true that it was . I . not complied with, she therefore, urgJd us to find it with merit, . to which we agree with her. Concerning the ground of comjlaint that, there wa~ no ! corroborative evidence to prove that PW1 slept with the appellant at the sitting room, the learned State Attorney submitted that it was a baseless ground as PW1 sufficiently established that there was sexual inte~course between her and the appellant. Also, the courts bellw found PW1 credible, I hence, that was enough evidence to Jrove the offence of rape against the appellant. She then urged us to find this ground of devoid of merit. 8

.... .: . On our part, we fully agree with the learned State Attorney that it is immaterial to find a corroborative evidence to the evidence of PW! as by· itself has sufficiently proved the =offence of rape ·against the appellant. After all, the true evidence of rape comes from the victim herself - See the decision of this Court in the case of Selemani Makumba vs The Republic, Criminal Appeal No. 94 of 1999 (unreported). · For that reason, we find this ground ofappeal devoid of merit. Lastly, as to the ground of tom plaint that the appellant's statement when he appeared before PW4 (ten cell leader) was not tendered, the learned State Attorney submitted that the latter is not relevant. She said, as for the evidence of PWl sufficiently prove the offence of rape, the said appellant's statement from PW4 could not have added anything, hence irrelevant. On our part, we too are of the same view that as far as the offence of rape has been sufficiently proved by the evidence of PWl, hence, it was irrelevant immaterial to rely 9

upon the said statement which could ot have added anything " ·. to the already proved offence of raAe from the evidence of PW1. All said and done, we are of thi considered opinion that this appeal lacks merit and we hereby tHsmiss it in its entirety. DATED at TABORA this 25 th day 0f September, 2013. M.S.MBAROUf JUSTICE OF APPEAL w. s. MANDIAI I JUSTICE OF APPEAL . B. M. MMILLAI JUSTICE OF APP~AL I I I I certify that this is a true copy of the original. ! 10 .