ALFANI HAMZA HAMISI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF DODOMA

AT DODOMA DC CRIMINAL APPEAL NO. 47 OF 2023 (Originating from the District Court of Iramba at Kiomboi in Criminal Case No. 4 of2023) ALFANI HAMZA @ HAMISI.................................................. APPELLANT

VERSUS

THE REPUBLIC RESPONDENT

JUDGMENT Date of Last Order: 26/06/2024 Date ofJudgment: 04/09/2024 KHALFAN, J. The above-named appellant was initially, on 09/01/2023, charged at Iramba district court (hereinafter the trial court) for sexual harassment c/s 138D of the Penal Code [Cap 16 R: E 2022] (hereinafter the PC). However, after the preliminary hearing, by the leave of the trial court, the prosecution on 21/02/2023 substituted charges. The appellant was now charged with two counts of rape c/s 130(1) (2) (e) and 131(1) and sexual harassment c/s 138D both of the PC. On the first count, it was alleged by the prosecution that the appellant, on 28/12/2022, during day hours at Lunsanga Village within Iramba District in Singida Region had sexual intercourse with a girl of 17 years old a student of Mtenkete Secondary School. On the second count, it was alleged by the prosecution that on 03/01/2023 during day hours on the same area mentioned on the first count, the appellant unlawfully and wilfully touched the private parts of the said girl mentioned in the first count. The appellant having denied all the charges, the matter proceeded to full trial where by the prosecution fronted six witnesses supported by three exhibits. On the defence side, it was the appellant himself, DW1 and one Idrisa Ramadhan, DW2 who fended the case. In aiming at protecting her modesty, in this case, the victim shall be referred to as

PW2 or merely the victim. The brief factual background of this case is that on 03/01/2024 at about 6 am, acting on the information from one of his daughters that the victim was taken by the appellant, PW1 (Athumani Jumanne) invited his young brother who is a militia man, PW3 (Saidi Jumanne) and stormed the appellant's house. In that house, they caught the appellant red-handed with the victim. The victim, PW2 in her evidence, stated that having noticed her parents were outside, she decided to wear her clothes. She stated further that prior to the incident day that is on 28/12/2022, she had sexual intercourse with the appellant. 2 The matter was reported to the Village Executive Officer (VEO), PW4 who referred it to Ndago Police Station. In their investigation, the police sent the victim to Ndago Health Centre. In his medical examination, PW5, the doctor, found that despite the absence of hymen, the victim was not raped as she had no bruises in her private parts. In his defence, DW1, the appellant, stated that when he was in his room in the morning of 03/01/2023, the victim came into his room without his consent asking him about his motorcycle which by then it was not around. Then suddenly, his door was violently opened from outside and PW1 and PW3 stormed in and handcuffed him. DW2, Idrisa Ramadhan on the other hand, stated that on the eventful date, he arrived at the scene in

response to the screams from the appellant's home. That, upon his arrival at the appellant's home, he found PW1, PW2 (the victim) and PW3. DW2 narrated further that upon interrogation by PW4 (VEO), both the victim and the appellant, denied to have had sex on that day. It was upon this evidence that the trial court, on the first count, found that the prosecution failed to prove the offence of rape as it failed to prove on penetration as on 03/01/2023. However, on the second count, the trial court found that the prosecution evidence instead of proving the offence of sexual harassment which he was charged with, it proved on the offence of attempted rape c/s 132(1) of the PC. Having been so satisfied, the trial court invoked section 300 (1), (2) and 301 of the Criminal Procedure Act [Cap 20 R: E 2022] (hereinafter the CPA) and convicted the appellant with the offence of attempted rape c/s 132(1) of the PC and sentenced him to serve a 30 years jail term. Dissatisfied with the conviction and sentence, the appellant is appealing against them before this court relying on six grounds of appeal. I will reproduce only the first ground of appeal for the reason that will be shown shortly. The first ground of appeal reads; 'That the learned trial court magistrate grossly erred in law and facts by convicting the appellant on the offence which its essential ingredients were not proved to the

standards required in proving criminal cases." Parties were ordered to dispose this appeal by way of written submissions. In his submission, the appellant had the legal services of Ms. Vannessa Msangi-Learned Advocate whereas the respondent by had the legal services of Geofrey Mlagala-Senior Learned State Attorney. In her submissions, Ms. Vannessa submitted only on the first ground of appeal with the reason that other grounds of appeal would be covered along the way in the discussions in respect to the first ground. 4 In her submission in chief, Ms. Vanessa contended that the trial court, in invoking section 300 (1) of the CPA signified that the offence of attempted rape was a minor or cognate offence to the offence of rape and sexual harassment. It was her contention that, the trial court's view was wrong as section 134 (1) of the CPA provides for minor offences of rape and attempted rape to be sexual assault under section 135, procuring rape under section 140 and incest by males under section 158 both of the PC. She averred that the said provision that is section 134 (1) of the CPA allows the court to convict the offender with the said minor offence (s) if it is of the opinion that he is guilty of that offence(s) although he was not charged with it but the major offence(s). To buttress her position, Ms. Vanessa referred this court to Lucas Samson vs. The Republic, Criminal

Appeal No. 342 of 2018. Reference was further made to Mohamedi Abdallah Ngungwi vs. The Republic, Criminal Appeal No. 107 of 2020 on point that in order to be convicted of a lesser or minor offence, the offence should be on the face of it, minor or cognate in character to the greater offence to which the accused person was initially charged with. In the Kenyan case of Robert Ndecho and Another vs. REX [1951] 1 E.A.C.A 171 the East African Court of Appeal stated; "Where an accused person is charged with an offence he may be convicted of a minor offence although not charged with it, if that minor offence is of a cognate character, that is to say of the same genus or species." In another note, the learned counsel further averred that the substituted offence of attempted rape was not explained to the appellant. She submitted that in the case of Lucas Samson (supra)tt\e Court of Appeal stated that the failure to explain to the appellant the substance of the substituted offence was a fatal irregularity which was prejudicial to him as he could not have been in a position to know and give or make an informed defence. It was her prayer that this court allow this appeal by nullifying and quashing the conviction and sentence imposed by the trial court as the Court of Appeal did in Lucas Samson {supra). On allegations that the appellant had sex with the victim on 28/12/2022, Ms. Vanessa

contended that, the testimonies of the victim were doubtful for failure to report anywhere at the earliest possible time. The learned counsel was of the view that reporting the rape incidence of 28/12/2022 on 03/01/2023 after the aftermath of the aborted second rape, was meant to exaggerate as there was no proof of rape, sexual harassment and attempted rape. The counsel referred this court to the case of Wangiti Mansa Mwitana and Others vs. The Republic, Criminal Appeal No. 6 6 of 1995 cited in the case of Kirumi vs. The Republic [Criminal Appeal No. 25 of 2016) [2016] TZCA 25, where the Court of Appeal held; "7776’ ability of the witness to name a suspect at the earliest opportunity is an all-important assurance of his reliability in the same way as an unexplained delay or complete failure to do so should put a prudent court into inquiry" Ms. Vanessa further submitted that finding the victim naked in the room of the accused was vague as there was contradiction between the evidence of the victim and PW3. This is because, while the victim stated in her evidence that she dressed up after noticing her parents were outside, PW3 stated that he saw the victim and the appellant naked through the window. Ms. Vanessa doubted as PW3 did not describe the said window to enable an outsider to see what was inside the room. She further contended that someone being naked does not amount

to attempted rape or rape. The learned counsel referred to the case of Magendo Paul and Another vs. The Republic [1993] TLR 219 and argued that the prosecution evidence was not strong against the accused. Submitting in reply, Mr. Mlagala supported the decision of the trial court in convicting the appellant with the offence of attempted rape c/s 132(1) of the PC despite the fact that he was charged with the offence of rape 7 and sexual harassment. His submission was premised on the fact that section 301 of the CPA allows for the trial court to convict the accused person with an attempted offence when the prosecution evidence does not prove the offence which he was charged with but an attempted offence. Mr. Mlagala argued that in the instant case, section 304 (1) of the CPA was inapplicable since the offences of rape and sexual harassment which the accused was charged with were not committed by the appellant. He submitted that since the offences charged were not committed by the appellant, then he could not have been convicted for sexual assault under section 135 or for procuring rape under section 140 or for incest by males under section 158 both of the PC. In another note, Mr. Mlagala admitted that the offence of attempted rape is not a minor or cognate offence of rape and that it was wrong for the trial court to combine section 300 (1) and (2) of the CPA and 301 in convicting

the appellant for attempted rape. He submitted that the proper provision was only section 301 of the CPA as section 300 (1) and (2) of the CPA are used when the court is of the opinion that the prosecution evidence does not prove the offence which the accused was charged with but a minor offence. He contended that in the instant case, the appellant 8 was convicted with attempted rape as a major offence and not a minor or cognate offence to rape. He added that there was no way the appellant was prejudiced by such an error. With regard to cases of Ngungwi and Ndecho (supra) referred to by the appellant counsel, Mr. Mlagala contended that they are inapplicable in this case as they could only be applicable if the offence of rape against the appellant would be having some ingredients and lacking others. And on the cases of Magendo, Wangiti and Dago (supra), Mr. Mlagala contended that they would have been useful if the appellant was convicted based on the incidents of 28/12/2022, but since he was convicted basing on the incidents of 03/01/2023 which proved the parties were on the verge of engaging in sex, then they were not useful. Rejoining, Ms. Vanessa, contended that since the prosecution initially substituted the charge by adding the offence of rape, then it meant that it aimed at proving the offence of rape. It was her submission that having found that its evidence adduced

before the trial court was in variance with the charge but proving the offence of attempted rape, it ought to have amended its charge sheet under section 234 (1) of the CPA in order to suit such evidence. To buttress her argument, she made reference to Frank Charles @ Sumbuka vs. The Republic, Criminal Appeal No. 9 678/2020 and Ramadhani Hamisi Mkwembya vs. The Republic, Criminal Appeal No. 396 of 2021. She finalised by submitting that failure to amend the charge sheet, the charge of rape remained unproved and to convict the appellant with an offence which he did not plead (of attempted rape), was fatal and prejudicial to him warranting this court to quash the conviction and set aside the sentence imposed. Having gone through the grounds of appeal, the submissions and the records before this court, the main issue for determination I find to be whether the trial court was right in its decision. Starting with the first count with which the appellant was charged with, I find that despite the fact that the trial court was right in its decision that the prosecution failed to prove it, however, it was wrong to base its decision on the fact that the failure was due to the absence of bruises on the victim's vagina on 03/01/2023. It is on record that the offence of rape was alleged to have been committed on 28/12/2022 and the doctor, PW5 examined the victim on 03/01/2023 when she was

apprehended at the appellant's room. I am of the settled opinion that it doesn't need rocket science to find out that bruises in a vagina caused by a flesh organ such as penis may not exist for such a longer period of about seven days unless it was a wood. io Going through the evidence of the victim, it appears that the appellant was taking her against her will in order to have sexual intercourse with her. In her evidence she stated; "...(9/7 03/01/2023, at about 05:00 hours (am) during the dawn, Atfani Hamza the accused of this case came at our home and he took me up to his house..." In the cross-examination she replied; "You compelled me to follow you at your home on 03/01/2023 at 05:00 hours (am) during dawn." In light of this evidence, it is my settled view that the trial court would have asked itself if at all the victim was being forced. This is because, why didn't she report her ordeal to any person until when she was apprehended on 03/01/2023? Had she reported earlier when she was raped on 28/12/2022; definitely, the doctor would have seen the bruises and possibly sperms. Failure to report at earlies possible time leaves a lot to be desired. See Wangiti Mansa Mwitana {supra). Considering the doctor's that is, PW5 evidence that despite the fact that the victim had no bruises in her vagina, she also lacked hymen to signify that she was sexually active and considering the

evidence of the appellant that the victim came into his room without his consent asking him about his motorcycle, one would think that the victim was being involved in sexual intercourse with other men apart from the appellant, but upon being apprehended at the appellant's house on 03/01/2023; she decided to back date him on the sexual intercourse of 28/12/2022. It goes by the Kiswahili saying that; "aliamua kumuangushia jumba bovu mrufani"w\\h aim that 77/ionekane aliyekutwa na ngozindiye ka/a nyama" It is due to these doubts, I find that the prosecution failed to prove the first count of rape beyond reasonable doubts. Coming to the second count of sexual harassment, I find this should not detain me much. As alluded above, the trial court, having found that the prosecution evidence was leading to the proof of attempted rape, it decided to invoke section 300 (1) and (2) and 301 of the CPA and convicted the appellant for attempted rape. I am in line with the parties' submissions that it was wrong for the trial court to invoke section 300 (1) and (2) of the CPA as the offence of attempted rape is neither a minor nor a cognate to the offence of sexual harassment. Again, on the offence of rape, it was alleged to have been committed on 28/12/2022 meaning it could have not been referred to the offence of attempted rape as the evidence was referring to the incident that occurred on

03/01/2023let alone the fact that the offence of attempted rape is not a minor or cognate to the offence of rape. See Lucas Samson vs. The Republic {supra). Furthermore, with respect to section 301 of the CPA, it reads; "Where a person is charged with an offence, he may be convicted of having attempted to commit that offence although he was not charged with the attempt." The above provision emphatically allows a court to convict an accused person of an attempted offence if he was charged with an offence. It is on record that the appellant in this case was charged with the offence of rape which was alleged to have occurred on 28/12/2022 and sexual harassment of 03/01/2023. However, as alluded above, there was no evidence at all with regard to the offence of rape as on 28/12/2022 apart from the victim's allegations. But the evidence adduced attempted to prove the incident of attempted rape of 03/01/2023. Since the appellant was not charged with rape basing on the incidents of 03/01/2023, it is my considered view he could not have been convicted with an offence of attempted rape. It is my further considered view that having seen that the prosecution evidence was proving the offence of attempted rape of 03/01/2023, the prosecution then ought to have invoked section 234 of the CPA by substituting its charge to suit its evidence- an act which would have 13 enabled the trial court to

record the appellant's plea. Failure to do that, as argued by Ms. Vannessa, was fatal and prejudicial to the appellant warranting this court to quash the conviction and set aside the sentence imposed. That said, it is the finding of this court that this appeal has merits. In the circumstances, this appeal is allowed; the conviction is quashed and sentence imposed by the trial court is set aside. It is further ordered that the appellant be released from prison forthwith unless held for another lawful course. Ordered accordingly. Delivered at Dodoma this 4th day of September, 2024. fc'ft. khalfan

JUDGE 4/9/2024 14