IN THE UNITED REPUBLIC OF TANZANIA

JUDICIARY
IN THE HIGH COURT OF TANZANIA
SUMBAWANGA DISTRICT REGISTRY
AT SUMBAWANGA
CRIMINAL APPEAL NO. 60 OF 2020
(Originating from Mpanda District Court Criminal Case No. 184 of 2019)

SAID SELEMAN........ .................................... APPELLANT

VERSUS
THE REPUBLIC......... ........................................ RESPONDENT

JUDGMENT

Date of last Order: 06/10/ 2021

Date of Judgement: 11/ 11/ 2021

NDUNGURU, J.
This appeal arises from the decision of the District Court of Mpanda

at Mpanda (henceforth the trial court). The appellant Said Seleman was

arraigned in Criminal Case No. 184 of 2019 for the two counts. The first

count is offence of abduction contrary to section 133 of the Penal

Code, Cap 16 RE 2019. The second count is rape contrary to section

130 (1) and (2) (e) and 131 (1) of the Penal Code, Cap 16 RE

2019. He was found guilty, convicted and sentenced to serve thirty (30)

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years imprisonment in respect of each count which was to run

consecutively.

Aggrieved by the trial court decision, the appellant lodged to this

court five (5) grounds of petition of appeal. However, after I read them

between lines, I found basically the appellant's complainant is that the case

against him was not proved beyond reasonable doubt.

At the trial court the prosecution alleged that on diverse dates

between 23rd day of November 2019 and 14th day of December 2019 at

Msasani area within Mpanda District in Katavi Region with intent to marry

the appellant did unlawful take away the against her will and had sexual

intercourse with one Tumsime Mathias @ Ngemera a Child of 16 years of

age.

The appellant was arrested and as earlier stated charged before

District Court of Mpanda. After full trial he was found guilty, convicted in

respect of the two counts and accordingly sentenced as hinted upon.

When the appeal was called on for hearing, the appellant appeared in

person, unrepresented whereas the respondent cum republic had the legal

service of Mr. Simon Peres - Learned State Attorney.

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 Arguing in support of his appeal, the appellant prayed for the court to

adopt his grounds of appeal he has lodged and the appeal be allowed.

In reply thereto, Mr. Simon Peres learned state attorney resisted the

appeal. Submitting in respect of the first count Mr. Peres submitted that

the offence was proved, however the sentence was excessive. Mr. Peres

informed this court that the punishment for the offence of abduction is 7

years but the appellant was sentenced to serve 30 years in jail. He

submitted that the evidence pertaining the offence was watertight. He said

the offence was proved based on the evidence of PW1. The victim told the

court the way she was taken by the appellant out of the custody of her

parents from 21/11/2014 up to 03/12/ 2019 for the purpose of marrying

her. The victim told the court various places where she was hidden and

various efforts the appellant took to hide her, including his intention of

sending her to Mororgoro.

Mr. Peres stated that the evidence of PW1 is supported by the

evidence of PW2 who told the court on how PW1 disappeared, the effort

PW2 used till the arrest of the appellant who was together with the victim.

Mr Peres concluded that the evidence proved the 1st count of abduction as

the appellant retained the victim for 3 weeks from the custody of the
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parents, and it was against her will because the victim was below 18 years.

Thus, he therefore was of the view that the sentence given was proper.

As regards the second count, Mr. Peres submitted that the offence

was proved beyond reasonable doubt. He stated that PW1 is under age

and the same is proved by PW1 and PW2, the mother of the victim who

tendered birth certificate Exhibit - P2. Mr. Peres said such proof of age

removed the requirement of consent.

Further, Mr. Peres as regards the question of penetration, which is

the ingredient of the offence of rape as required by section 130 (4) of the

Penal Code submitted that PW4 the Medical Doctor examined PW1 and

found no hymen and opined that PW1 was penetrated by blunt object.

That piece of evidence is corroborated by the evidence of PW1 who is the

victim, thus he said her evidence is the best one as per the case of

Seleman Makumba's Case. Mr. Peres stated that PW1 told the trial court

that during all the time she was under the custody of the appellant was

doing sexual intercourse.

Mr. Peres was satisfied that the appellant's case was proved beyond

reasonable doubt as decided by the trial court, thus he prayed for the

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appeal be dismissed, the conviction and sentence for the 2nd count be

upheld and for the 1st count, the sentence be corrected.

In rejoinder, the appellant having heard what learned state attorney

has submitted responded that there was no evidence that he sent the

victim to Makanyagio, Kawejense and Msasani. He further argued that

there was no independent witness from those area. He submitted that PW1

and PW2 are daughter and mother respectively, thus he said it is very easy

for them to conspire. As regards the evidence of PW4, a medical doctor the

appellant argued that he has never told the court that PW1 was raped,

thus he prayed his appeal be allowed.

I have keenly followed the arguments of the appellant and that of

Mr Simon Peres for the respondent cum republic during the hearing of this

appeal. I have as well read between the lines the appellant's grounds of

complaint and the entire proceedings of the trial court. The question to

determine is whether the appeal has merit.

The appellant herein was charged with two counts, first count is

abduction contrary to section 133 and, second count is rape contrary to

section 130 (1) (2) (e) and 131, all sections of the Penal Code, R:E

2019.
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 However, for the offence of rape, it is now a trite law that in sexual

offences the most important evidence is that of the victim of crime as

reflected under section 127 (7) of the Tanzania Evidence Act, Cap 6 RE

2019. Also, the position was reinstated in the case of Seleman

Makumba, Criminal Appeal No. 94 of 1999, unreported. The statutory law

and the case law, all insists that for the offence of rape, the best evidence

has to come from the victim of crime.

Again, for the purpose of proving the offence of rape, section 130

(4) (a) of the Penal Code is of paramount to be considered, which reads;

(4) for the purposes ofproving the offence of rape

(a) Penetration however slight is sufficient to constitute the

sexual intercourse necessary to the offence, [emphasis added].

In this case at hand, the offence of rape was alleged to be

committed between 23rd of November 2019 and 14th of December 2019 at

Msasani area within Mpanda District in Katavi by the appellant. The key

evidence by the prosecution was that led by the victim herself (PW1) who

when was testifying in this case, she had this to tell the trial court:

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"J study at St Mary's Secondary School in form IVB. I
recall 1st September 2019 we were at school where the

school in the end of September was dosed for 2 weeks.

I know SAID SELEMAN as my boyfriend, since

September 2019 when the school was dosed. We were

friends for 3 months we were doing sexual act at

Msasani street in the room of SAID SELEMAN. When the

school was opened, I was a day scholar. The said SAID

SELEMAN is a bodaboda driver he is here in the dock. IVie

were meeting on weekends. I was staying at Kasimba

street. We have done sexual act several times with the

accused person since September 2019 to November

2019. On 21/11/20191 agreed with the accused person

that I should cheat my parents that I am going to school

while himself was waiting for me at mwangaza

Secondary school area. The accused person was waiting

me there. He said he wanted to send me to Morogoro

wher he could marry me there. He took me at Mwangaza

and sent me to Makanyagio area to his relatives. The

accused person had his relatives at Makanyagio, he once

sent me there before that date. When we reached there,

I found his relatives which he introduced me to them.

He told me to remain there white he was processing for

getting ticket. I stayed at Makanyagio for 4 days. We did

not go to Morogoro, the accused person transferred me

from Makanyagio street to Kawajense to his friend

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called DAUDI where we stayed for one week, he agin

transferred me from Kawajense to Msasani to his room.

He told me that he transferred me from Makanyagio to

Kwajense because the police were tracing us. I stayed

at Msasani to the accused person's room for 3 days

there after the police arrested us at Msasani at 11:00hrs

night. AH this time I was doing sexual act with the

accused person. There is a family house at Makanyagio

wher the accused person had a room too. He was

locking me in the room at Makanyagio I was being given

food, he promised me to send me to Morogoro. At

Kawajense also there is a big house which has rooms

where we used to sleep in one of the rooms. At Msasani

the accused person has rented a room. There are many

tenants. Inside his room there is a bed, subwoofer, fan,

mirror and a table. I had some past papers, school

clothes, casual clothes and a bag. I had a pen, black T-

shirt, coat, 2 pairs of sandals, black gown, blouse, body

spray and other underwear. The accused person bought

a spray and T-shirt for me, other clothes were bought by

my parents. The accused person was giving me some

money and chips. I used to move with the said bag even

when we were arrested. I had the said bag it is purple

green if will be shown the said bag I can identify it"

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 Looking at the quoted testimony of the victim above, am doubtful, if

the prosecution did prove the ingredient of the offence of rape; that is

penetration. PW1 testified well how she became friend with the appellant

while she was still at school, her decision to cheat parents and how she

was taken by the appellant who was bodaboda and their movement from

one place to another in different houses so as to hide themselves and how

they slept together doing sexual acts until when they were caught and

arrested by the police. It is the question of this first appellate court that,

was the statutory rape really committed in these circumstances?

One of the ingredients of the offence of rape is penetration of male

organ into the female organ as hinted above. Was there any evidence of

penetration? PW1, the victim of rape, merely gave a bare statement that

she was doing sexual act with the appellant. In her evidence in chief, she

narrated: -

we have done sexual act several times with

the accused person since September 2019 to November

2019............"

PW2 and PW3 in their testimonies did not witness any incident of

raping committed between the victim (PW1) and the appellant. PW4 who is

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clinical officer also testified that on 5th of December 2019 at about 9:30 hrs

night he received a victim who had a PF3 alleged to be raped. He

examined the victim and found that her hymen was perforated, but neither

bruises nor mucus he found and he therefore opined that the victim was

penetrated by blunt object. It is on records that the victim and the

appellant were arrested on 4th December 2019 at ll:00hrs pm and the

victim was examined by PW4 on 5th December 2019 at 9:00hrs at night,

almost 23 hours has elapsed. With such duration of time, the result of the

examination as conducted by PW4 might not be realistic to prove

penetration in my view. Therefore, the testimony of PW4 alone is incapable

of incriminating the appellant with the offence of rape.

In Mathayo Ngalya @ Shaban vs Republic, Criminal Appeal

No. 170 of 2006, unreported) the Court observed: -

"The essence of the offence of rape is penetration of the male

organ into the vagina. Sub-section (a) of section 130 (4) of the
Pena! Code Cap 16 as amended by the sexual offence (special
provisions) Act, 1998 provides: - for the purpose of proving the
offence of rape, penetration, however slight is sufficient to
constitute the sexual intercourse necessary for the offence. For
the offence of rape, it is of utmost importance to lead evidence
of penetration and not simply to give a general statement
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 alleging that rape was committed without elaborating what
actually took place. It is the duty of the prosecution and the
Court to ensure that the witness gives the relevant evidence
which proves the offence."

In Ex B. 9690 SGT Mshambala vs Republic, Criminal Appeal

No. 183 2004, unreported the Court also underscored the importance of

the need to lead evidence of penetration of a male organ into the female

organ.

In the above cited case, the victim of the alleged rape like of this

case at hand merely stated the appellant forced her to lay on the ground,

he took underwear and raped her. The Court said; -

"JVe think, if at all PW1 was raped, she ought to have

gone further to explain whether or not the appellant

inserted his penis into her vagina, whether or not the

penetration, was slight etc."

In order to prove the charge against the appellant in this case, the

prosecution had a duty to lead "Unshakeable evidence to prove

perpetration. See Joseph Mkumbwa & Another V. Republic, Criminal

Appeal No 94 of 2007 ACT (Unreported, and Mbwana Hassan V.

Republic, Criminal Appeal No. 98 of 2009 CAT (Unreported).

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 In the latter case at page 7 the Court had this to say:

In order to prove the charge against the appellant in this

case, the prosecution had a duty to lead "Unshakeable

evidence to prove penetration."

In the case at hand, there is no dispute that no person witnessed the

appellant inserting his penis into the vaginal of G.G. (the victim). It was the

victim herself who was in a bitter position to prove the court that there was

penetration however slight. This is because the best evidence in sexual

offences comes from the victim. (See Seleman Makumba's case

supra). In the present case, the victim when testifying was 17 years old.

To that age I am convinced that the victim was able to tell the court clearly

and unequivocally and unambiguously what took place.

With the above position of the law, it goes without doubt that, in the

instant case the victim and her witnesses did not state that the appellant's

male organ penetrated into the vagina of the victim PW1. The testimonies

available as per the trial court records shows only bare assertion that

victim PW1 had sexual act with the appellant. The evidence of PW1 above

and her witnesses and in terms of section 130 (4) of the Penal Code

(supra) and on the authority of Seleman Makumba, Criminal Appeal

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No. 94 of 1999, unreported, it is very clear that the evidence led by the

prosecution did not prove the offence of rape, that is a penetration of the

appellant penis into the victim vagina. In the case of Seleman Makumba

(supra) it was held thus;

"True evidence of rape has to come from the victim if an

adult, that there was penetration and no consent and in

case of any other women where consent is irrelevant

that there was penetration"

With this short fall on the part of the prosecution case, it can be said

that the offence of rape against the appellants was not proved to the

standard required by the law.

As regards the offence of abduction, in her testimony the victim

stated that: -

"............... on 21 /ll/ 2091 I agreed with the

accused person that I should cheat my parents that I am

going to school.........He took me at Mwangaza and sent

me to Makanyagio area to his relatives. The accused

person had his relatives at Makanyagio, he once sent me

there before that date. When we reached there, I found

his relatives which introduced me to them. He told me to

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 remain there while he was processing for getting

tickets. I stayed at Makanyagio for 4 days.....................i

stayed at Msasani to the accused's room for 3 days

there............he was locking me in the room at

Makanyagio......."

That piece of evidence by the PW1 (victim) was corroborated by the

evidence of PW2, mother of the victim who testified that on 21/11/2019

PW1 went to school, she had a school bag too. It was during end of term

examinations. She left home at 6:30 going to school and at 9:00am hei

school teacher MAX called me and told me that Tumsime was not in the

examination room. He tried to trace her but could not find her. On

3/12/2019 he got information that her daughter has been found to the

room of the accused person and that victim and the accused were arrested

and sent to the police station. The other corroborating evidence is that oi

PW3 who testified that on 4th December 2019 he was assigned to search

the house of the accused person who was arrested previous night with the

student (victim) in his room. PW3 stated he successfully retrieved the

clothes of the victim in the accused's room.

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 With the above evidence, there is no gainsaying that the appellant

abducted the victim as per the provision of section 133 of the Penal

Code, [supra]. Hence the offence was proved beyond reasonable doubt.

For the foregoing reasons, I quash the conviction and set aside

sentence in respect of the second count of rape as it was not proved to the

required criminal standards of proof. However, I find that the appellant

charged guilty in respect of the first count of abduction. The appellant

sentence to serve 30 years in jail is quashed and thereof substituted to

serve 7 years in jail. The sentence runs from the day he was convicted by

the trial court.

It is so ordered.

D. B. NDUNGURU

JUDGE

26. 10. 2021

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