BEATUS MANONI Taking evidence in bullet form

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL APPEAL NO.21025 OF 2024 (Arising from Criminal Case No. 6386 of 2024 of Maswa District Court Before: A.M. Khamis RM) BEATUS MANONI ……………………………………………APPELANT Versus REPUBLIC…………………………………….…………RESPONDENT JUDGMENT 3rd & 17th September, 2024. MASSAM, J In the District court of Maswa at Maswa appellant one Beatus Manoni was charged with the offence of Rape contrary to Section 130 (1), (2) (e) and 131 (1) of the Penal Code, Cap. 16 R.E 2022. It was alleged that on the material date that on 1st day of January, 2024 at Zanzui village within Maswa District in Simiyu region the accused person did have carnal knowledge with a girl aged 14 years. The trial court after heard the case found accused guilty as charged and he was convicted and sentenced to 30 years imprisonment. Aggrieved with such conviction and sentence appellant preferred this appeal with five grounds of appeal as follows, First, That the Page 1 of 12 conviction against the appellant was bad in law being that it proceeded on evidence of a victim PW1 a child of tender years whose age evidence was taken in contravention of the law. Second, That the trial learned magistrate erred in law and facts to convict the appellant grounded on unreliable and shack prosecution witnesses evidence in particular the victim (PW1) who gave inconsistence evidence with that of PW2 the first person she met. Three, the trial magistrate erred in law and fact to hold that there was some contradictions in the defense case and therefore created doubt that the accused might have committed the offence whereas in fact the prosecution evidence itself was weak and the case was not established beyond shadow of doubt. Fourth, the trial magistrate failed to appreciate authentic of PF3 and there was no truth in allegation levelled against the appellants shoulders on the fact that according to the document, medical details reveal that PW1 went to hospital on 2/1/2023 followed by doctor’s remark on same date while the offence was committed in the year 2024 on 1st January. Firth That the appellant having been aggrieved promptly filed notice of appeal and later petition of appeal in the High court which however was withdrawn with leave to refile and notice of appeal been intact. A copy of the order in Criminal Appeal No. 17272 of 2024 is appended hereto and marked A ‘’1’’ to form part of appeal. Page 2 of 12 During hearing of this appeal, the Republic was presented by Mr. Goodluck Saguya learned State Attorney while the appellant was represented by Mr. Masige the learned advocate. Before hearing of this appeal this court finds out some irregularities which was conducted in recording of the court proceedings as it was recorded in the bullet way instead of narrative way, so this court invited the parties to address concerning that errors. Submitting to that issue Mr. Masige for appellant stated that it is true that the said proceedings were recorded in bullet way, instead of narrative way as the law requires. So, he pray to this court to set aside conviction and sentence, quash proceedings and judgment and left appellant free. He supports his argument with the case of Mangalu Maduhu vs Republic Criminal Appeal No. 158/2022. He added that in situation like this re trial will not be a best option, he cemented his prayers with the case of DPP Vs Semeni Gwema Mswila in Criminal Appeal No. 601/2022 Court of Appeal Mbeya where the court held that re trial is not a best option where there was insufficient evidence, and by ordering the same prosecution will be given a chance to fill the gaps and bring injustice to the appellant. He added that as per the evidence in record show that victim was not credible and reliable witness as she testified a Page 3 of 12 different evidence to different witnesses that she was raped but after met PW2 she changed and say that she was kidnapped, but to PW3 she said that she was forced by appellant to be married, so if this appeal will be ordered to be re tried the prosecution will fill the gaps, he cemented his argument with the case of Mwakunda Vs Republic page No. 389. Again, he said that victim when testifying said that the said date he was with her sister but the said sister was not called to testify to the court, failure to call material witness without sufficient reasons an adverse inference may be drawn against the party. See the case of Ahmed Salum vs Republic in Criminal Appeal No 386 of 2021. Again, he said that the principle of the best evidence in sexual offences comes from the victim but this principle was interpreted in the case of Pembe Abdala Mkali Vs Republic where the court held that the evidence of the victim is only the best if the credibility of that victim is not questionable. Also, he said that the PF3 tendered by prosecution creates some doubts compared with the facts of the case which says that the offence was committed on 2024 while the PF3 shows that the offence was committed on 2023. He added by saying that if this court order the case to be re tried will give chance prosecution to correct the said PF3, he pray to this court to left him free. Page 4 of 12 In his reply Mr. Saguya submitted that he is supporting the appeal because of the irregularities which conducted in the trial court when recording the evidence. He added that Section 210 (1) and (b)was not complied with as the trial magistrate recorded the evidence on bullet way instead of narrative way, which make it difficult to get the truth of the answers of the witnesses. Also, he said that there was inconsistences and contradictions of the prosecution witnesses PW1 testified three different stories to PW2 and PW5 victim told the PW2 and PW5 that appellant detain her with intention to marry her but later on she said that she was kidnapped and lastly, she said she was raped. He added that there is no doubt that contradiction cannot be avoided but, in this case, the same goes to the root of the case. Again, appellant stated that prosecution failed to call material witnesses who was victim’s sister as in her testimony victim said that she was with her. Mr. Saguya stated that the said piece of evidence creates some doubt to link appellant in the commitment of the offence. Also, he said that the said PF3 was filled in the manner which creates doubts as the offence was committed on 2024 but the PF3 was filled on 2023. According to that discrepancies he agreed that if the court order re trial they will get the chance to fill the gaps. He prayed to this court to Page 5 of 12 left appellant free. The appellant’s counsel replied briefly by praying to this court to left appellant free. Having gone through the submissions from both parties, I will now make a determination on the merit of this appeal as I find out that, the major dispute between the parties is whether the evidence of the witnesses were well recorded as per requirement of the law. It is trite law that the evidence of the witnesses required to be recorded as per requirement of Section 210(1) and (b) of CPA but according to the submission from both parties there is no doubt that the witnesses evidence was not recorded as per the requirement of the law and noncompliance of it make the court not getting the truth of the answers of the witnesses, this court is in support with the submission from the respondent that according to the said irregularities there was no enough evidence to convict appellant. Coming to the issue whether this offence has been proved beyond reasonable doubt. As per Section 3 (2) (a) of The Evidence Act provides the standard of proof that "A fact is said to be proved when - (a) in criminal matters, except where any statute or other law provides otherwise, the court is satisfied by the prosecution beyond reasonable doubt that the fact exists;'' Page 6 of 12 Again, Section 110 (1) provides that, "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist” To be satisfied if the case at hand was proved beyond reasonable doubt, we are looking at Sections 130 (1) (2) (e) whereby basic ingredients of the offence of rape is provided for, while punishment thereon is under Section 131 (1) of the Penal Code Cap. 16 R.E 2022. For clarification, Section 130 (1) provides that "it is an offence for a male person to rape a girl or a woman. (2) A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances failing under any of the following descriptions: - (e) with or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man." Therefore, it is clear that for the offence of rape to be established, the following ingredients should be proved beyond reasonable doubt: That, there was male penis penetration to a girl reproductive organ; second if a girl was below the age of 18 years, it is immaterial whether Page 7 of 12 the girl gave consent or otherwise. If a woman was above the age of majority, that is, above 18 years old, then such penetrations should be without her consent to constitute rape. Back to our case, I will start with the issue of penetration of the male organ to the girl reproductive organ As this goes to the root of the whole case of rape, the question herein is whether there was a proof of penetration to the victim by appellant. According to the submission of both parties conceded that there was inconsistences and contradiction of the prosecution witnesses as we all knows that in sexual offences cases the best evidence comes from the victim but unfortunately in our case victim testified three different stories to PW2 and PW5 in relation to the commitment of the offence ,at first she said that she was raped by the appellant, second stories she said that she was kidnapped by the appellant and the last story she said that appellant detain her with intention of marrying her. This court failed to assess the demeanor of this witness, this court is aware that contradiction by witnesses cannot be avoided especially if the time elapsed but this one goes to the root of the case and this court is in view that the said contradiction creates some doubts if this offence was committed. According to that this court is in support of the submission from the Mr. Page 8 of 12 Masige that the best evidence in sexual offences comes from the victim but the same will be only the best if the credibility of that victim is not questionable. Also victim testified that the said date she was with her sister but prosecution failed to call her as the witness as we know that the said witness if called could help to explain some missing links, they failed to do so also to give any sufficient reasons why they did not call her ,so failure to call that witness an adverse inference may be drawn against them even if such inference is only permission. This is supported with the case of Ahmed Salum Vs Republic (supra). Lastly this court found out that the PF3 which was tendered by prosecution side as exhibit creates a lot of doubts as it contradicts the with the facts of the case, which said that the offence was committed on 2024 but the PF3 was filled on 2023 this one creates some doubts when this offence was committed. Having observed those irregularities, I don’t see the reason of embarking other grounds of appeal of the appellant since the non- compliance of the provision of law suffice to render the entire proceeding and judgment nullity as the trial magistrate, in my considered view failed to comply with the provision of the law. Page 9 of 12 In the circumstance I am satisfied that the appellant’s conviction and sentence was not properly done as the trial court failed to notice these irregularities which lead to injustice on the part of the accused person who is now the appellant. It is well settled principle that in some cases such irregularities may warrant the court to order trial de novo but in my considered view the circumstance of this case at hand does not warrant this court to do so as after the evidence of PW1(Victim) was contradictory and inconsistences which creates doubt if that offence was committed ,even the PF3 which was the important exhibit to support what victim testified was wrongly filled and contradicts with the facts of the case, as there was no other evidence to prove that the appellant was the one who raped the victim as the remain evidence was hearsay evidence. See the case of Fatehali Manji V Republic [1966] EA 343 where the court of Appeal of East Africa restated the principle upon which the court should order retrial. It said; “In general a retrial will be ordered only when the original trial was illegal or defective, it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill the gaps in its evidence at the first trial, even where a Page 10 of 12 conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case came must depend on its particular facts and circumstances and an order for retrial should only be made where the interest of justice require it and should not be ordered where it is likely to cause an injustice to the accused person….” Having said so, basing on Section 388 of the Criminal Procedure Act, Cap 20 the irregularities are immense that does not favour this court to order retrial or trial de novo and the interest of justice does not require to do so. Also, the evidence given by witnesses especially PW1 was contradictory and weak to convict the appellant as PW1 who was the best witness testified three different evidence concerning the commitment of the offence. Also, the exhibit which required to support what victim testified PF3 was wrongly filled, as the facts of the case said that the offence was committed on 2024 while the said exhibit said that the offence was committed on 2023. With all these observations, I find this appeal to have been brought, with sufficient cause, I quash the conviction and set aside the sentence Page 11 of 12 and order the appellant's immediate release from custody unless otherwise lawfully held. It is so ordered. DATED at SHINYANGA this 17th day of September, 2024. R.B. Massam JUDGE Page 12 of 12