Nestory vs Republic (Criminal Appeal No. 120 of 2016) [2017] TZHC 3213 (22 August 2017)

IN THE HIGH COURT OF TANZANIA AT MBEYA CRIMINAL APPEAL NO. 120 OF 2016 (Arising from the District Court of Chunya, Original Cr. Case No. 147 of2016) NESTORY SIMCHIMBA .................................... APPELLANT VERSUS THE REPUBLIC .......................................... RESPONDENT JUDGMENT Date of last order: 2710312017 Date of Judgment: 2210812017 Dr. M. C. Levira, J The appellant Nestory Simchimba was in the Criminal case No. 147 of 2016 in the District Court of Chunya charged with the offence of Rape Contrary to Section 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap 16 of the Revised Edition 2002. It was alleged that on or about 101h day of June, 2016 at Mamba village within Chunya District and Mbeya Region, did have carnal knowledge to one Asha d/o Mihayo a child of 04 years old. He was convicted and sentenced to' life imprisonment. Aggrieved, the appellant has lodged Criminal Appeal in this Court to challenge the conviction and sentence of the trial court on the following grounds: ( Page! of 13

That, he pleaded not guilty to the charge which he stood charged with i.e Rape, because I did not commit the alleged offence (sic). That, the trial magistrate erred in law point and fact when convicted the appellant in relying on the evidence of PW1, PW4, PW5 and PW6 by disregarding that, they were from same family, hence their evidence were not established with neither independent witness nor any leader from Mamba village who summoned in court as a witness so that to corroborate their evidence against the appellant. Therefore their evidence should be approached with care, due to the fact that they had a big chance to plant false on how to state about the case for their own benefit. That, the trial magistrate erred in law point and fact when convicted the appellant relying on the evidence of PW 1, PW4, and PW6 without considering that no eye witness who testified before the trial court that he /she see (sic) the commission of crime. On the fateful date allegedly the incident took place. That, the trial magistrate wrongly misdirected himself in law and in fact when he convicted the appellant in believing and acted upon exhibit PE1 (Police Form 3) which tendered in court by PW2 (nurse) which totally improperly admitted in evidence, since there was no any right which given to the appellant by the trial magistrate before admitted in court while the appellant is a layman. Page 2 of 13

That, the trial magistrate wrongly misdirected himself in law and in fact when he convicted the appellant in believing the evidence of PW2 (nurse) without taking into consideration the credibility of PW2. The law point of checking a raped girl is beside the medical nurse called nurse meaning (muuguzi), but the one who was supposed to examine the victim should be a qualified Doctor or assistant Doctor, therefore the procedure of check up was not legally. Hence there is possibility the court can admit false PF3. That, essential the appellant relies on defence alibi, but unfortunately the accused/ appellant appears not to have given required notice c/s 194 (2) CPA and the trial court ignored this ballated defence more so because the appellant called no witness to support him, but in fact the defence unsupported as it was because it is the duty of the prosecution to lead the evidence from Mwaoga Village to show when appellant had arrived there and the date he left, while the appellant gave a reason, on the 08/06/2016 he went to Mwaoga Village to see his father who was indisposed and returned back on 10/06/20 16 arrived at Mamba village around 19.00 hours. That, the defence evidence was not considered by the trial court. That, the charge against the accused was not proved by the prosecution side beyond reasonable doubt. Page 3 of 13

The appellant in this case was unrepresented and on the side of the Republic was represented by Ms. Zena learned State Attorney. The prosecution through State Attorney Ms. Zena submitted that, they have gone through the grounds of appeal and they oppose this appeal due to the following reasons: In the first and 8th ground of appeal there is no dispute that it is for the prosecution to prove a criminal case beyond reasonable doubt as stated in the case of Lahwani and 3 others Vs. Republic [2005] TLR 154 that, it is a requirement of the law that, prosecution side proves the case beyond reasonable doubt. In the current case at page 12 of the judgment, the court satisfied that, the charge against the appellant was proved beyond reasonable doubt and therefore convicted the appellant. In the second ground of appeal, the learned state attorney submitted that, there is no law which forbids family members to testify before the court. What is considered is the value of the evidence in a particular case. This was also stated in Mustapha Ramadhani Kihiyo Vs. Republic [2006] TLR 324, therefore the ground that, PW 1, PW4, PW5, and PW6 were family members is baseless. Page 4 of 13

Regarding the third ground of appeal, she submitted basing on

• the case of Selemani Makumba Vs. Republic [20061 TLR 379, that, in rape cases the only essential evidence is that of the victim taking into consideration that actions in these cases/kind of offences are done in secrecy. She referred Section 127 (7) of the Evidence Act, Cap 6, R.E. 2002, which provides that the evidence of the victim has to be considered regardless whether it is corroborated or not. It was her further submission that at page 17 of the proceedings the current case, the victim who testified as PW5 stated how she was raped by the appellant, therefore her evidence was sufficient to convict the appellant. It was her views that even this ground of appeal is also baseless. In regard to the fourth and fifth grounds of appeal, the learned State Attorney submitted that at page 11 of the proceedings, an admission of exhibit P3 was proper and the appellant was given his rights. He stated that, he had no objection for that exhibit to be admitted. Even if that evidence was not properly admitted, that could not be conclusive evidence to convict an accused person. Therefore, she submitted that the appellant's argument that the nurse who tendered the PF3 is not qualified, cannot be raised now because anything which was not disputed at the trial court cannot become an issue at the higher court (appellate). The appellant was given right at the trial court but he did not dispute the tendering of that evidence and therefore cannot do it now. Page 5of13

Regarding the sixth and seventh grounds of appeal the learned

• State Attorney submitted that the defence case was considered C and analyzed by the trialcourt. However the appellant need to know that, the accused is not convicted basing on the weak defence case but, on the fact that, the prosecution proved its case beyond reasonable doubt. Finally she insisted that, the grounds of appeal submitted before this court are baseless and the trial court was right to convict the appellant. Having gone through the grounds of appeal and submissions thereto, I find it important to state at the outset that the first ground lacks merit as the plea of not guilty is not the sign of innocence, but only posses the burden to the prosecution to prove the allegations against the accused. On the second ground, the appellant condemned the trial court that it was an error to convict him basing on the witnesses who are relatives. It should be noted however that, there is no law which precludes relatives to testify as rightly submitted by the learned state attorney. What the court considers is the value and weight of evidence. Further more on the third ground the appellant alleged that there was no eye witness thus he should not been convicted. It is my considered view that, some offences including rape are done secretly, and it is almost impossible to have an eye witness, that is why the court looks on the circumstances and that the only essential evidence is Page 6 of 13

that of the victim as it was stated in the case of Selemani Makumba Vs. Republic (supra). On the fourth and fifth grounds the appellant disputes the legality of an exhibit, a PF3, alleging that, it was wrongly admitted as he was never told his rights, and also the one who filled had no qualification. The law requires the accused to be afforded the right whether he require the doctor who made the report to be called. In this case the one who filled the said document was also called and testified before the court, it will be absurd if it can be concluded that, the accused/appellant was prejudiced his rights. There is no doubt that, it was filled by a nurse who was also called to testify as a witness and the records further show that, PF3, was admitted without objection. Important thing to consider here is whether the rights of an accused/appellant were prejudiced during admission of FF3. On the face of records I see no problem regarding the fact that, the said PF3 was not conclusive evidence to which conviction was based. The trial court considered that the victim was able to state how she was raped. Thus for the foregoing arguments, this ground is unjustifiable. Coming to seventh ground of appeal regarding the defence evidence, I have taken time to go through the records particularly, the trial court's judgment, the trial magistrate made a clear analysis of defence evidence. The appellant amongotherthings raised the defence of alibi, and it was Page 7 of 13

Consideration on this aspect should be on the elements of the offence as provided under Section 130 (4) (a) and (b), of the Penal Code, Cap 16, R.E. 2002, that: Penetration however slight is sufficient to constitute the sexual intercourse necessary to the offence; and Evidence of resistance such as physical injuries to the body is not necessary to prove that sexual intercourse took place without consent. In this case at hand the only relevant element is penetration, as it is a statutory rape no need of consent. The best evidence is that of the victim herself as it was held in the case of Seleman Makumba Vs. Republic. Regarding the fact that, no one apart from the victim who knows better how the act was done, she was duty bound to explain how the accused actually did. In the case of Mohamed Juma and Two Others Vs. Republic, Criminal Appeal No. 25 of 2009 (unreported) it was held that: in proving rape, one of the ingredients that must be established is, penetration. In doing so, it is not enough to say such and such a person raped so and so. Such a statement is too general. The complainant is expected to be more specific in her evidence and clearly point out what the accused person actually did and where". Also in the case of Burundi slo Deo Vs. Republic, Criminal Appeal No. 33 of 2010, (unreported), PW1 who was the victim was quoted to say that: Page 9 of 13

Likewise the case at hand is not exceptional to the above elements to prove the offence of rape. In this case PW5, who is the victim, testified that: a later on Mkili sexed me, he ordered me to undress the short trouser 'underpants'. Mkili also undressed his short trouser, he undressed his short trouser half way, Mkili sexed me here..... PW4, who is her mother, testified that, she required the victim to show where she was sexed, she pointed her vagina, she also observed it and seen bruises and blood. Her evidence was also supported by PW2, a nurse who examined the victim. He stated that, he examined the vagina of the victim and noted that, there were bruises, and that, he further examined whether she had virginity and found that virgin was already removed. In my view, the evidence of PW5 proved penetration as per the decision of the quoted case above of Hassan Bakari where the court explained the reason why witnesses or even the courts for that matter would avoid using direct words like penis, vagina and the like, due to cultural background, upbringing, religious beliefs, the type of evidence, age, etc. The court went on stating that such restrictions are understandable as long as the intended party grasps the meaning of what is meant. In the current case when the victim (PW5) testified that the appellant sexed her, the appellant did not fault that evidence during Page 11 of 13

cross examination. Impliedly, he was satisfied with that evidence. Being a child PW5 (victim) gave the evidence which I do not entertain any doubt that the appellant understood it. The evidence of PW2, and PW4, only corroborated the evidence of the victim. Therefore for the foregoing reasons, it is clear that, the offence of rape was proved beyond reasonable doubt by the prosecution. The appeal at hand has no merits the same is hereby dismissed. Dr. vira Judge 22/08/2017 Page 12 of 13

Date: 22/08/2017 Coram: Hon. Dr. M. C. Levira, J Appellant: Present Respondent: Mr. Mtenga - State Attorney C/C: Margareth Mhagama Mr. Mtenga - State Attorney: Hon. Judge, the matter is coming for judgment, we are ready. Court: Judgment delivered in the presence of Mr. Mtenga learned State Attorney and the appellant this 22 nd day of August, 2017. Right of Appeal Explained. * Dr. M. C. Levira Judge 22/08/2017 Page 13 of 13