criminal decision 2024 12 23 15 29 00

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA DC. CRIMINAL APPEAL NO. 000013769 OF 2024 ALBERT CHARLES .............................. COMPLAINANT / APPELLANT / APPLICANT

VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT

JUDGMENT RWIZILE, J Albert Charles, the appellant, was arraigned at Kigoma District court of incest by males contrary to section 158 (1) (a) of the Penal Code [CAP 16 R.E 2022]. It was alleged that on 16th October 2022 at Matyazo village, Kigoma District and Region, the appellant had carnal knowledge of her daughter, who for the purposes of this judgement will be pseudo named “X” or Pw3. The appellant did not admit the charge. To prove it, the prosecution tendered 6 witnesses. After a hearing, the appellant was found guilty, convicted and sentenced to thirty years imprisonment. He was distressed with both conviction and sentence, hence this appeal with the following 5 grounds: - 1. That, the trial resident magistrate erred in law and fact in convicting the appellant and upholding that the prosecution side had proved its case by the standard required by the trite law that, is beyond reasonable doubt, while there is no watertight evidence proved against the appellant as shown in the copy of judgment.

2. That, the trial magistrate erred in law and fact in convicting the appellant relying on the circumstantial evidence which is not strong to warrant the conviction as there was no eyewitness who is alleged to observe the alleged crime being committed.

3. That the trial magistrate erred in law and fact in convicting the appellant without considering that there were discrepancies on the issue of the names of the victim as shown on the clinic card that no document which supports, such as affidavit of change of names. This kind of fact can’t be believed before the court of law.

4. That the trial Resident Magistrate erred in law and fact in illegally taking the evidence of the victim during the trial and on failure to consider the provisions of section 127 (2) of the Evidence Act [Cap 06 R.E 2002] as amended by Misc amendment Act No. 4/2016. The violation of such section is fatal. see the case of Godfrey Wilson v R, Criminal Appeal No. 168/2018 5. That, the key witnesses were not summoned upon to justify the allegation of Mama Ben, and grandmother were not called to testify before the court of law. Page. 1 Hon. AUGUSTINE RWIZILE At the hearing of this appeal, the appellant was unrepresented while the respondent was under services of Ms Edna Makala, learned state attorney. The appellant had nothing to argue save that, he asked the learned state attorney to start arguments contesting this appeal. Taking on the first ground, the learned attorney submitted that the charge was proved beyond reasonable doubt. Pw1, she made it clear, was the mother of the victim who was the wife of the appellant and tendered a clinic card showing the age of the victim which was admitted without resistance from the appellant. Pw3 the victim, testified that the appellant is her blood father and said was 12 years old. Further, she argued, the appellant admitted commission of the offence at the police station and before the justice of peace, Pw4 and Pw6, respectively. The 2nd

ground was argued that the evidence was direct from the victim as required under section 127 of the Evidence Act. The attorney made it clear that, Pw3 told the court how the offence was committed by the appellant and that Pw3 corroborated the evidence of the victim since he saw the victim calling for help. Her brief argument on the 3rd ground of appeal was that, since the discrepancy in the names of the victim was not questioned at the trial, it cannot be done at this stage. Submitting on the 4th ground, she said, section 127 of the Evidence Act was complied with. And that on the 5th ground, there was no material witness who was not called. She said, X proved her case. I was asked to dismiss this appeal. Following Makala’s submission contesting this appeal, the appellant was afforded a chance to a sort of a rejoinder and said, Pw1 did not prove the case. He said, Pw1 and Pw3 were lying, there is no proof of rape. The appellant further argued, how could the victim leave the neighborhood and go 20 km to report the incidence. He added, Mama Ben was not called to testify. According to him, there was no offence committed, but the case was actuated by grudges with Pw1, his wife who have not lived together for years. This court was asked to allow this appeal. Having heard parties’ oral arguments, I will start my determination of this appeal with the 2nd ground of appeal. It can be

observed that, the trial court found direct evidence of X, which accordingly was corroborated by some other independent evidence. Circumstantial evidence, it can be held is indirect evidence, but that which irresistibly points at the guilty of the accused. In its analysis, the trial court considered the evidence of the victim as the best evidence in sexual offence, the confession made by the appellant before justice of peace and his caution statement at the police station. This, in the view of the trial court was enough to convict. It did not therefore convict based on circumstantial evidence as alleged by the appellant. I find no merit in this ground of appeal. The appellant levelled grievances through the 3rd ground of appeal that names of X were not clear. There was therefore a showing of her names that appeared on the clinic card, different from the charge sheet. But there is no dispute that exhibit P1, a clinic card showed, X is the daughter of the appellant. The issue therefore should not be centered on whether the names were the same in the charge sheet and other evidence procured. In my view, it should be on if X is the daughter of the appellant. There is nowhere in the proceedings the appellant alleged otherwise. This fact was not disputed at the preliminary hearing. Still the evidence of Pw1, Pw2 and Pw3 is good to Page. 2 Hon. AUGUSTINE RWIZILE that effect. The

appellant as well admitted it so. I find no merit in this ground of appeal as well. Taking on the 4th ground of appeal, it is clear to me that section 127 (2) of the Evidence Act, provides the procedures of taking evidence of a child of tender age. The import of this section is that the child of tender age, who for that sake his apparent age is below 14, has, before giving evidence promise to tell the truth to the court. It is provided that; “A child of tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell any lies.” It is true, the case of Godfrey Wilson v R, Criminal Appeal No. 168 of 2018, provided the way to go about in terms of the procedure. That the child should at least be asked three things; age of the child, religion which the child professes and whether he/she understands the nature of oath and whether or not the child promises to tell the truth and not to tell lies. The record is explicit that Pw3 testified upon being interrogated by the trial court. She was asked her name, class she was in, name of class teacher, she also was asked if she knows the meaning of oath and lastly gave the promise to tell the truth but still, she took oath. The appellant has complained of no compliance of the law, when the evidence of X was being taken. Apparently, the record

shows, Pw2 as well, is a child of tender age younger than X. Her evidence, it is clear to me was also taken in compliance of the section and the practical directed obtained in the cited case of Godfrey Wilso v R (supra). I find no merit in this ground appeal too. The 5th ground of appeal complained that the key witnesses were not called. According to him, such witnesses included Mama Ben and grandmother. It is now settled that when a key witness is not called, an adverse inference may be drawn against the party who did not call him. This was the position in the case of Boniface Kundakira Tarimo vs. Republic, (CAT), Criminal Appeal No. 350 of 2008. "It is thus now settled that, where a witness who is in better position to explain some missing links in the party's case, is not called without sufficient reason being shown by the party, an adverse inference may be drawn against that party, even if such inference is only permissible." Based on the ratio as cited above, I see nothing suggesting that Mama Ben and grandmother were key witnesses. It is not record that the two were present when the offence was committed. But still, the prosecution may be in the position to know which witness is key in order to prove its case. After all, in sexual offences, I would hold, the key witness is the victim and, in this case, X was present and made her case. There is no reason to suppose that

the two persons named were key witnesses. The 5 ground is meritless. It is dismissed. Lastly, is the 1st ground of appeal which is, if the charge was proved. Basically, incest by males cannot be proved without first establishing that the male person has had prohibited sexual intercourse with a female person, who is to his knowledge his granddaughter, daughter, sister or mother. It has been shown that X is the daughter of the appellant. Therefore, it falls within the prohibited sexual intercourse, worse still, she was 12 years. In terms of evidence, the prosecution, brought six witnesses; Pw1 mother of the victim showed how the appellant informed her that the victim run away from home and also said, she is a biological child of the appellant, she tendered a clinic card exhibit P1. Page. 3 Hon. AUGUSTINE RWIZILE Pw2 a child of 7 years of age, showed how the appellant arrived at home with buns and gave them some to eat. They left him with X who after a moment was seen holding her clothes from the house running away. Pw3 testified on how she was raped by the appellant. Pw4 a justice of peace recorded the extrajudicial statement of the appellant exhibit P2. Pw5, a Medical doctor, examined Pw3 and tendered a PF3, exhibit P3. Pw6 an investigator, recorded a caution statement exhibit P4 and drew a sketch of the crime scene exhibit P5. In his defence, the appellant said, the case was

concocted by his wife who are in conflict and have not been living together for a long while. This allegation puts to question credibility of the evidence of the witnesses especially Pw1, Pw2 and Pw3 who are from the same family. But apart from their evidence, still there is an extrajudicial statement exhibit P2, made before justice of peace. It was recorded by Pw4 on 18th October 2022. Before that, there was a caution statement exhibits P4 recorded by Pw6 on 17th October 2022. There is no evidence from any single witness for the prosecution stating when the appellant was arrested. Recording of the caution statement, is governed by section 50,57 and 58 of the CPA. Section 50(1) of the Act among other things enjoins the officer recording an interview to do so in 4 hours following the arrest of the suspect. It is cardinal, the prosecution is cast with the duty to prove the evidence tendered was obtained not in contravention of the law. It was important for the prosecution to prove when the appellant was arrested to justify the time of recording an interview. Pw6 told the trial court that he recorded the statement on 17th October 2022 at 1200hrs to 1330hrs. Exhibit P4 which Pw6 said recorded, shows explicitly that it was recorded on 17th October 2022 at 1400hrs to 1500hrs, while in exhibit P2 an extrajudicial statement, the appellant said was arrested at 7.00am. This assertion

remained intact. It was not controverted by any other evidence. It is therefore clear to me that the evidence of Pw6 and the statement he recorded are in conflict on when it was recorded. Was it at 1200hrs to 1330hrs or 1400hrs to 1500hrs. It is trite that any evidence obtained illegally ought not be admitted, but if as I have shown, an exhibit that ought not be admitted was so admitted and worse considered to found conviction, it must be expunged from the record. Exhibit P2 a caution statement is expunged for the reason that it was recorded in contravention of section 50(1) of CPA, it was recorded after 4 hours of arrest without assigning any reasons, even though; the appellant did not object its admission. Having excluded exhibit P4, there remains an extra-judicial statement allegedly recorded before the Justice of Peace, Pw4 a magistrate at the primary court of Mwandinga. She said, she recorded the statement on 18th October 2022. It was admitted without objection from the appellant. The point to determine is if it complied with the law. Under Section 56(2) of the then Magistrates’ Court Act, 1963 Cap, 537 which is pari materia with Section 62(2) of the current Magistrates’ Courts Act, Cap 11. RE. 2002 (henceforth the MCA) the Chief Justice, who is the appropriate judicial authority as per section 2 of the MCA, is empowered to issue instructions to the Justices of Peace for

the better undertaking of their duties. The section reads:- 52(2) The appropriate judicial authority may, from time to time, issue instructions, not inconsistent with any law for the time being in force for the guidance and control of justices of the peace in the exercise of their powers, functions, and duties and every justice of the peace shall comply with and obey such instructions. Page. 4 Hon. AUGUSTINE RWIZILE ?A Guide for Justice of Peace” came into force on 1st July 1964 the date when the MCA, 1963 came into force. (See Hatibu Gandhi & Others v R [1996] TLR 12). Though the MCA, 1963, was repealed and replaced by the current MCA, Cap. 11, by virtue of saving provisions as contained in Section 72(3) of the current MCA, those regulations are taken to have been made under the current MCA. So, “A Guide for Justice of Peace” are part and parcel of the laws of this Country. In Japhet Thadei Msigwa v R Criminal Appeal No. 367 of 2008 (unreported) the Court observed: - ?So, when Justices of the Peace are recording confessions of persons in the custody of the police, they must follow the Chief Justice’s Instructions to the letter. The section is couched in mandatory terms.” The Court observed further that:- ?The Justice of the Peace ought to observe, inter alia, the following:- (i)The time and date of his arrest. (ii)The place he was arrested. (iii)The place he slept before the

date he was brought to him or her (iv)Whether any person by threat or promise or violence he has persuaded him to give the statement. (v)Whether he really wishes to make the statement on his own free will. (vi)That if he makes a statement, the same may be used as evidence against him.” As to why the Justices of the Peace are required to follow the Chief Justice’s Instructions, the Court held:- ?We think the need to observe the Chief Justice’s instructions are two-fold. One, if the suspect decided to give such statement, he should be aware of the implications involved. Two, it will enable the trial court to know the surrounding circumstances under which the statement was taken and decide whether or not it was given voluntarily.” Pw4 was clear that she recorded the statement alone with the appellant and that he was in good health condition. I have examined the record, and I have no doubt the instructions were complied with. There is no reason to suppose that what is in exhibit P2 is not true. Apart from exhibit P2, there is other ample evidence against the appellant. For instance, the evidence of Pw3 or X was clear on what happened to her. Pw2, supported Pw3. Pw1 as well showed that X is the daughter of the appellant. Then Pw5 gave a medical report that showed X was not a virgin even though there were no direct signs of penetration. There was no blood and no bruises. But bruises

to my knowledge are not a conclusively prove penetration. Absence of bruises does not mean no rape. X having no virginity it means she may have been doing sex before. It is clear to me that no matter how hard or slight penetration was as stated by Pw3, it was enough to prove the charged offence. It is therefore clear to me that the prosecution proved its case. There is no merit in this Page. 5 Hon. AUGUSTINE RWIZILE ground of appeal as well, it is dismissed, so is the entire appeal. Dated at KIGOMA this 12th of November 2024 . A. K RWIZILE

JUDGE OF THE HIGH COURT Page. 6 Hon. AUGUSTINE RWIZILE