IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(IN THE DISTRICT REGISTRY OF KIGOMA)

AT KIGOMA

(DC) CRIMINAL APPEAL NO. 49 OF 2021

(Arising from the District Court of Kasulu at Kasulu in Criminal Case No. 147 of 2021)

UWEZO ZIBWE........................................................................ APPELLANT

VERSUS

REPUBLIC............................................................................ RESPONDENT

JUDGMENT

25/3/2022 & 01/4/2022

F. K. MANYANDA, J.

The Appellant, Uwezo Zibwe, after been distressed by a decision of the

District Court of Kasulu at Kasulu which convicted him with an offence of

incest by males and sentenced him to a term of twenty years

imprisonment on 3/11/2021 has preferred this appeal. He has raised five

(5) grounds of appeal namely: -

1. That the trial court Magistrate erred in law and facts by convicting

and sentencing the appellant without considering the evidence

adduced by PW3 which cannot establish the case against the

Page 1 of 13
 accused because the victim's vaginal bruises were not fresh so it is

difficu/t to prove whether the accused is the one who committed the

offence or not;

2. That the trial; court Magistrate erred in law and facts by convicting

and sentencing the appellant re/ying on victim's evidence only

without corroboration with other reliable evidence;

3. That the trial court Magistrate erred in law and facts by convicting

and sentencing the appellant relying on PW2 who did not prove

whether the victim's door was broken by the accused or not;

4. That the trial Court Magistrate erred in law and facts by convicting

and sentencing the Appellant without taking into consideration PW1

allegations if she could not go to hospital on time due to the fact

that she was unable to walk, how could she manage to got to the

ten-cell leader on time; and

5. That the guilty of the appellant was not proved beyond doubts as

required by the law.

The brief background of this matter is that the Appellant is a biological

son of the victim, who is his biological mother. At the time of commission

of the offence both lived in one home stead but in separate rooms. The

victim is a disabled woman whose legs have a partial paralysis. On

Page 2 of 13 Jwu

T*
22/4/2021 the Appellant allegedly at night time broke the door of his

mother's room and had carnal knowledge of her without her consent. The

victim reported the incident to the ten-cell leader and the later reported

to Police.

On the next day the Police arrested the accused and sent the victim to a

medical hospital where a doctor examined her and found that she had

some bruises in the inner part of her vagina. The Appellant was charged

with incest by males, contrary to section 158(l)(b) of the Penal Code,

[Cap. 16 R. E. 2019].

After full trial he was found guilty, and sentenced to 20 years

imprisonment. He is dissatisfied, hence this appeal.

At the oral hearing of the appeal the Appellant appeared in person

unrepresented. The Respondent/Republic was represented by Mr.

Clement Masua, learned State Attorney.

Being a layman, the Appellant simply adopted the grounds of appeal and

asked the State Attorney to start so that he may reply.

The State Attorney supported the appeal on only one ground that there

is no enough evidence on identification. He was of the views that since

the incident took place at night the victim ought to have explained how

Page 3 of 13
she identified the Appellant. He cited the case of Waziri Amani vs

Republic, [1980] TLR 250.

Having heard the State Attorney supporting his appeal, the Appellant had

nothing to add rather than to pray his appeal to be allowed.

As it can be seen from the grounds of appeal, there is basically one

complaint, that is, whether or not the offence was proved beyond all

reasonable doubts.

In order to determine this question, I will need to re-apprise the evidence.

This being a first appellate court, it is entitled to re-evaluate the evidence

and by following the footprints of my Brother Hon. Galeba, Judge, as he

then was, in Masatu s/o Mjarifu vs Republic, Criminal Appeal No. 21

of 2020, this Court may come to a conclusion which need not necessary

be the same as that of the trial court.

In that case, Hon. Galeba, Judge, after surfing through various

authorities, found the cases of Halid Hussein Lwambano vs R. Criminal

Appeal No. 473 of 2016 (unreported), (CAT at Iringa) and Jumanne

Salum Pazi vs Republic [1981] TLR 246, as useful, then he stated that:

"I will step into the shoes of the trial court and
analyze the evidence and come to a conclusion
which need not c=necessary be the same as that

Page 4 of 13
 the Court. See Halid Hussein Lwambano vs R.
Criminal Appeal No. 473 of 2016 (CAT at Iringa)
(Unreported) and Jumanne Saium Pazi vs R.
[1981] TLR 246, where in the latter case this court
(Kisanga, J.) (as he then was) held that;

(i) this court being the first appellate court must

consider the evidence, evaluate it itself and draw
its own conclusion...;,"

In this appeal, the prosecutions evidence was built on four (4) prosecution

witnesses, the first witness PW1 is the victim who testified that she is a

biological mother of the Appellant. That both the victim and the Appellant

lived in one home stead. On the fateful date 22/4/2021, the Appellant

entered into her room after breaking open first the window then the door

and had sexual intercourse without her consent. She screamed with no

help.

According to the testimony of PW2, Joseph Amos @ Mbaye, a ten-cell

leader who knew well the Appellant as a son of the victim is that on the

morning of 23/4/2021 saw the victim (PW1) at his home complaining of

been raped by the Appellant.

He escorted her to Muyama Police Station where she was given PF-3 and

escorted her to Muyama Health Center. He witnessed the broken doctor

of the victim room.

Page 5 of
PW3 was Muyama Health Centre human being doctor who examined the

victim and found her having signs of been penetrated a day ago. PW3

also medically estimated the victims age to be 70 years old and she had

paralyzed lower limbs. The said doctor filled the PF3. Witnessing her

findings of penetration in Exhibit Pl, the PF-3, she stated follows;-

"There is obvious visible signs of penetration

due to presence of hyperemic bruised inner

vaginal wail..."

PW4 was the Police officer who investigated the case he testified that the

victim is a disabled, she named the Appellant as a person who raped her

hence, he arrested him.

In his defence, the Appellant testified as DW1, he admitted that the victim

is his biological mother. He also admitted to have been living with her at

one home stead. He denied to have carnally known his mother. He stated

that he was in dispute with her over farms left to him by his late father.

In short, that is the evidence of the incident. As it can be seen, there is

no dispute that the Appellant is a biological son of the victim with whom

they lived together in one compound. The Appellant admits that on the

incident day 22/4/2021 was at their home.

Page 6 of 13 Am.,
The testimony of the victim is that at the fateful night, the Appellant broke

the door of her house and entered into her room house where he had

carnal knowledge of her. She did not consent.

As far as penetration is concerned, the victim (PW1) is corroborated by

PW3 the medical doctor that she was carnally known. PW3 testimony

through PF3 is that the victim was penetrated a day before she examined

her. The incident took place on 22/4/2021 and PW2, a ten cell who helped

the victim to hospital after obtaining the PF3 shows that the victim is a

disabled whose legs are loose therefore, she could not resist the assault.

This fact of the victim's legs to be lame is supported by PW3.

The trial court believed the evidence of the prosecution witnesses that the

victim was carnally known. My examination of the evidence I have

described above makes me believe the same, that the victim was

penetrated on the incident day 22/4/2021.

I am also fortified by the authority in the case of Suleimani Makumba

vs Republic [2006] TLR 357 where it was held as follows: -

71 medical report or evidence of a doctor may help to

show that there was sexual intercourse but it does not

prove that there was rape, that is, unconsented sex,
even if bruises are observed in the female sexual organ.
True evidence of rape has to come from the victim, if an

Page 7 of 13 Au.
 adult, that there was penetration and no consent, and in
case of any woman where consent is irrelevant, that
there was penetration."

In the instant matter, PW1, the victim testimony is that she was raped by

son, in this matter, the offence becomes incest by males in which consent

is immaterial because it is a prohibited sexual relationship.

The question is whether the evidence implicates the Appellant. From the

evidence summarized above, the victim named a person who raped her

to be the Appellant, her own son. She stated as follows: -

"The accused entered the house then to my room by

breaking the window then the door to my room where I
sleep and raped me the same way his father used to do to
z/
me...

Although the victim did not demonstrate the penetration in my opinion

the words "the same way his father used to do to me" connotes the

penetration of a male organ inter the female member of her. The Court

has accepted indirect descriptions of acts of sexual intercourse. In the

case of Haruna Mtasiwa vs Republic, Criminal Appeal No. 206 of 2018

it was held that:-

"Gone are the times in this jurisdiction when the victim

was expected to graphically explain that the ravisher

inserted his penis in her vagina."

Page 8 of 13
Moreover in cross examination by the Appellant the victim made it even

clearer when she stated as follows: -

"Z was only hut because you inserted your penis into my

vagina".

On top of these words in cross examination, the victim confidently was

telling the trial court that she vividly identified the Appellant because he

is her son with whom she was living together all the time of their life from

his childhood to adulthood having grand children to her.

The State Attorney opined that the victim might have mistaken identity,

however, he did not pin point elements of mistaking identity apart from

contending that the victim did not explain how she identified him.

In my opinion, just as the trial court found, the circumstances of this

matter assure identification of the Appellant by the victim because of the

high degree of familiarization they had. Secondly, the act of rape took a

considerable long time from breaking the window, breaking of the door

and then entrance into her room, to commission of the rape and then

leaving the room.

Page 9 of 13
Moreover, the victim was helpless at night but named the Appellant to

PW2 immediately in the morning where she went to report. PW3

testimony is to the effect that the victim named the Appellant.

Also, there is evidence that the Appellant was arrested after fleeing from

their home to his cousin's home.

Another piece of evidence is that there is no plausible explanation as to

why the victim, an adult of 70 years who bore the Appellant reared him

to adult hood and she was still raring him and his children, who are

grandchildren, would frame him with a serious offence of raping her; the

contention of dispute over land is not substantiated by the evidence.

I have also examined the fact that a woman of the age of the victim can

not easily volunteer to invent a fake story of rape., in particular of incest,

which also tarnishes her social status. In my firm opinion the victim (PW1)

evidence is reliable.

In law, once the evidence of a victim of rape once is found reliable and

believed to be true, and nothing but truth, suffices to found a conviction

without even corroboration. This is per the provisions of the law under

section 127 (6) of the Evidence Act, [Cap. 6 R. E 2019] which reads as

follows: -

Page 10 of 13jdwU
 "Notwithstanding the preceding provisions of this
section, where in criminal proceedings involving sexual
offence the only independent evidence is that of a child
of tender years or of a victim of the sexual offence,
the court shall receive the evidence, and may, after
assessing the credibility of the evidence of the child of
tender years of as the case may be the victim of sexual
offence on its own merits, notwithstanding that

such evidence is not corroborated, proceed to convict, if

for reasons to be recorded in the proceedings,

the court is satisfied that the child of tender years or the

victim of the sexual offence is telling nothing but the

truth".

Like, the trial court, I don't see any reason to differ from its findings that

PW1, the victim's testimony is reliable and it gives the true account of

what happened on the fateful day 22/4/2021 when she was raped by the

Appellant.

The Appellant complains that the evidence of PW3 that the bruises were

not fresh is of no importance because PW3 testimony shows that she

examined the victim just a day after and her findings are that she was

raped on day before as she found bruises inside the vagina.

I have adequately covered the complaint in ground two that the victim's

evidence has no corroboration that the Appellant raped. That a conviction

Page 11 of 13
may be found based on sole evidence of the victim of sexual offence if is

believed to be credible and true as per section 127 (6) of the Evidence

Act.

The Appellant's complaint in ground three that PW2 did not witness a

broken door in the house of the victim is an afterthought. PW2 stated in

cross examination by the Appellant stated as follows;-

"She came in the morning because of her disability to

work and she was scared of being beaten with dogs,

she slept in the forest because it was dark outside I did

took (sic) her to the Police Station; you broke her door
and enter her room, I went to the scene and saw
the door was broken", (emphasis added).

In ground four the Appellant complains that the victim been incapable of

walking could not go to hospital. I have examined the evidence, I could

not find such evidence that the victim was incapable of walking. Instead

there is evidence from the victim and PW2 that she was capable of moving

though she is a crippled, such movement enabled her to reach at PW2

house and then to hospital via police.

In the result I find that the charge of incest by males was proved by the

prosecution beyond all reasonable doubts.

Page 12 of 13
I disagree with the submissions by the State Attorney that identification

was not established. It was established as explained above. The appeal

in dismissed.

However, I found an anomaly in the judgment as there is no conviction

entered.

Having found that the offence was proved, just as the trial court did, I do

hereby direct that the trial court's file be remitted to the trial court for it

to enter the conviction in accordance with the law.

For clarity, the trial court must, for keeping the record in order; record

that it has "convicted" the accused, not only finding him guilty. The

accused must be summoned and be present when conviction will be

entered. Order accordingly.

F.K.M^nVaNDA

JUDGE

01/4/2022

Page 13 of 13