EDITED AND SIGNED SULEIMAN MSABATO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IRINGA SUB - REGISTRY AT IRINGA CRIMINAL APPEAL NO. 8779 OF 2023 (Arising from the District Court of Iringa at Iringa Original Criminal Case No. 91 of 2023) SULEIMAN GWABUHA @ MSABATO…………………APPELLANT VERSUS THE REPUBLIC………………………………………….RESPONDENT JUDGMENT Date of last Order: 19/06/2024 Date of Judgement: 28/06/2024 LALTAIKA, J. The Appellant herein SULEIMAN GWABUHA @ MSABATO, was arraigned in the District Court of Iringa at Iringa on three counts: 1. Rape c/s 130(1) and (2) (e) and 131 of the Penal Code Cap 16 RE 2022. (2) Transmission of HIV c/s 47 of the HIV and AIDS (Prevention and Control) Act No 28 of 2008. (3) Attempted Rape c/s 132(1) and (2)(a) of the Penal Code Cap 16 RE 2022. He was convicted on all counts and sentenced to life imprisonment for the first count as well as payment of compensation to the Page 1 of 13 13 victim to the tune of 25,000,000/= a fine of TZS 5,000,000/- and 11 strokes. As for the 2nd count, he was sentenced to 10 years imprisonment and payment of compensation of TZS 5,000,000/- to the victim. For the 3rd count he was sentenced to life imprisonment. The judgment was delivered on 20/10/2023. All the sentences were ordered to run concurrently. Dissatisfied, he has appealed to this court by way of a petition of appeal containing the following grounds: 1. That, the learned trial magistrate erred both in law and fact to convict and sentence the appellant relying on weak evidence adduced by PW1 since she failed to mention the exact date and month hence the 1st count in which the appellant’s conviction was based on unknown date and month devoid of merit. 2. That, the learned trial Magistrate erred in law for failure to afford the chance to the appellant to object PF3 during its admission. 3. That, the learned trial Magistrate erred in law and convict and sentence the appellant basing on the caution statement of the appellant without considering that the same was recorded contrary to the law. 4. That, the learned trial Magistrate erred in law and fact to convict and sentence the appellant for failure to demarcate which Page 2 of 13 13 prosecution evidence and exhibit were given against which count among the two which resembles that are rape and attempted rape. 5. That, the prosecution side failed totally to prove the case against the appellant beyond reasonable and meaningful doubts. When the appeal was called on for hearing on the 19th day of June 2024, the appellant appeared in person, unrepresented. The respondent Republic, on the other hand, appeared through Ms. Muzzna Mfinanga, learned State Attorney. The appellant had nothing substantial to add to his grounds of appeal. While reserving his right to a rejoinder should the need arise, he requested that the learned State Attorney proceeds with responding to his grounds. Taking up the podium, Ms. Mfinanga announced boldly that the respondent was objecting to the entire appeal. She proceeded to submit as summarized in the next paragraphs. Ms. Mfinanga addressed the first ground of appeal, where the Appellant complained about the weakness of PW1's evidence, who allegedly Page 3 of 13 13 failed to state the date and month of the commission of the offence. Ms. Mfinanga argued that the charge sheet indicated that the offence was committed on diverse dates between 2022 and 2023, which meant the dates were unknown but within those years. She pointed out that PW1 had explained in her testimony, recorded on page 10 of the trial court’s proceedings, that the first incident of rape occurred in 2022 when she was in class four. Ms. Mfinanga quoted PW1’s testimony, which described the incident in detail and stated that it took place in 2022. PW1 also described the second and third rape incidents in detail on pages 11 and 12 of the proceedings, respectively. Ms. Mfinanga emphasized that the victim's age and inability to remember the exact dates and months were reasonable, and her testimony was sufficient to prove the offence of rape as per the three incidents. Therefore, she prayed that the first ground of appeal be dismissed for lack of merit. Regarding the second ground of appeal, the Appellant claimed he was not granted the opportunity to object to the PF3 when it was tendered. Ms. Page 4 of 13 13 Mfinanga disagreed, citing page 24 of the proceedings, where there was a typographical error after the word "Accused," followed by "The Court admitted PF3 of one Martha Kipalile dated 22nd August 2023 and marked as Exhibit P1." Upon discovering the anomaly, Ms. Mfinanga consulted the original records, which indicated that the Appellant was allowed to object and responded that he had no objection before the PF3 was admitted as Exhibit P1. She argued that these human errors should not be used to defeat justice and that the Appellant was not prejudiced in any way. Therefore, she prayed that the second ground of appeal be dismissed. Addressing the third ground of appeal, the Appellant claimed that he was wrongly convicted based on his cautioned statement, despite the violation of the law during its recording. Ms. Mfinanga disagreed, pointing out that when PW4, who recorded the statement, prayed to tender it in court, the Appellant was invited to object but stated he had no objection whatsoever. The statement was admitted as Exhibit P4. Ms. Mfinanga argued that trying to object at the appeal level was an afterthought and cited the case of Emmanuel Lohay & Another v. R. Crim App No 278 of Page 5 of 13 13 2010 CAT, Arusha (unreported), which stated that objections to the admissibility of a statement must be raised before it is admitted at the trial. Therefore, she prayed that the third ground of appeal be dismissed. On the fourth ground of appeal, the Appellant complained about the failure to demarcate the evidence adduced to support rape from those adduced to support attempted rape. Ms. Mfinanga argued that the witnesses clearly pointed out the evidence for each offence. She cited pages 8-9 of the proceedings, where PW1 described the attempted rape incident on 21/8/2023, and pages 10-12, where PW1 described three counts of rape. PW3's testimony on pages 20-21, where he examined PW1 and found no hymen in her vagina, corroborated PW1’s evidence of rape. Therefore, she prayed that the fourth ground of appeal be dismissed. Finally, on the fifth ground of appeal, the Appellant claimed that the case was not proved beyond reasonable doubt. Ms. Mfinanga argued that all the grounds were proved beyond reasonable doubt. She stated that for the offence of rape, the prosecution needed to prove penetration, the identity of the culprit, and the victim’s age. PW1's testimony on pages 10- Page 6 of 13 13 12 proved penetration, and PW3’s testimony on pages 20-21 corroborated this. PW1 also identified the Appellant as the culprit on page 13, and PW2, the victim’s mother, confirmed the victim's age on page 14. Ms. Mfinanga cited the case of Mawazo Anyandwile Mwaikaja v. DPP Crim Appeal No 455 of 2017 CAT, Mbeya (unreported), which stated that the best evidence of rape comes from the victim. Regarding the second count of transmission of HIV, Ms. Mfinanga argued that the prosecution needed to prove the intention to transmit HIV, the action of transmission, and the identity of the culprit. She cited page 49 of the proceedings, where the Appellant confessed that he was HIV+ and was receiving medication. The act of rape by the Appellant, as described by PW1, proved the transmission. PW3’s testimony about the tests conducted on the Appellant, victim, and her mother further corroborated this. For the third count of attempted rape, Ms. Mfinanga cited the elements discussed in Boniface Fidelis @ Abel v. R. Crim Appeal No 301 of 2014 (unreported), pages 13-14, which included proof of intention, Page 7 of 13 13 evidence of the means employed, overt acts, and an intervening event. PW1’s testimony on pages 8-9 of the proceedings described the incident on 21/8/2023, where the Appellant attempted to rape her but was interrupted. Ms. Mfinanga concluded that all three counts were proved beyond reasonable doubt and prayed that the entire appeal be dismissed for lack of merit and that the decision of the trial court be upheld. The appellant on his part, stated that he could not be as thorough as the learned lawyer and was not good at speaking. He observed that on the date mentioned for the attempted rape, he was already incarcerated, and the court never took the trouble to prove the allegations. He was never given a chance to object to anything, including the PF3, and it was falsely recorded that he accepted. His version of the story was never documented. The appellant's main reason for appealing was that he was not fairly treated and was sentenced without ever committing any offence. He claimed he was forced into the situation and taken advantage of due to his inability to read and write. In response to court questions to establish the events before and after Page 8 of 13 13 the incident, the appellant stated that he was a resident of Idodi and not related to the victim. He had lived there for three years prior, having moved from Morogoro to find a place to cultivate. He lived in his friend’s place without any family and was 78 years old. Before leaving Mauninga, he had checked his health and continued to receive services in Idodi. The appellant explained that the parents of the victim were his fellow villagers, living in different streets. They knew each other. He claimed that he was arrested while looking for essentials, encountering the mother and the victim. The mother narrated that she wanted to catch him with her daughter and reported him to the village. He stated that nobody asked him about his HIV+ status initially, but the doctor knew him as a customer. When he was suspected of rape, the doctor confirmed his identity. The next morning, they took blood tests from both him and the victim without his consent. He found the process difficult to understand due to his lack of education. The appellant mentioned that he had a conflict with the mother of the victim, who failed to pay him for work done, leading to animosity. He Page 9 of 13 13 questioned the possibility of committing the alleged rapes multiple times at his age without the victim reporting to her mother. I have dispassionately considered the grounds of appeal, objection by the learned State Attorney and I have thoroughly examined the lower court records. I have noted that the appellant was charged with both attempted rape and rape to the same person. This does not rhyme well with the art and craft of drafting criminal charges/information. The learned State Attorney tried to defend the practice, but I think she may be advised to revisit the tradition. Be it as it may, failure to establish specific date of the offence and ending up indicating on various dates in the charge added salt into injury. The charge sheet indicated that the offence was committed on diverse dates between 2022 and 2023. However, the testimony of PW1 was vague and did not provide a clear timeline. This lack of specificity undermines the prosecution's case. This shows that the whole charge was unfairly inflated. The Appellant argued that he was not granted the opportunity to object to the admission of PF3, a crucial piece of evidence. The Respondent Page 10 of 13 13 contended that this was a typographical error, but the original records allegedly showed the Appellant had no objection. This court has insisted many times that reference to some obscure handwritten proceedings to remedy defects in their typed counterparts should be left to anthropologists and historians. The learned State Attorney has, with much respect, failed to make a compelling reason for not expunging the PF3 from the court records. The same is hereby expunged. More reasons to follow soon. The Appellant contends that his cautioned statement was admitted in violation of the law, as it was recorded without adherence to the necessary legal safeguards. The failure to do so at the trial should not preclude raising the issue on appeal if procedural irregularities or coercion are alleged. The Appellant’s claim of being forced and not having his version of events recorded necessitates a closer examination of the voluntariness and legality of the statement’s admission. The Appellant's advanced age (78 years) and lack of education (illiteracy) were not sufficiently considered by the trial court. His vulnerability and the possibility of misunderstanding or being coerced into Page 11 of 13 13 making statements or not objecting to evidence due to his educational disadvantages must be considered. To finalize my analysis, the Appellant argued that he was tested for HIV without his consent, raising questions about the legality and ethicality of such medical procedures. More importantly, there is sufficient evidence that the medical practitioner abused his position by exposing information on HIV status of the appellant against his will. The prosecution’s reliance on such evidence without clear consent violates the Appellant’s rights to privacy. The legal standard requires that the prosecution’s case be free of reasonable doubt. The lack of precise dates, combined with procedural and evidentiary issues, creates substantial doubt about the guilt of the Appellant. The principles of justice and fairness mandate that the Appellant be afforded the benefit of any reasonable doubt, as the prosecution has not met the high standard required for a criminal conviction. In the upshot, I allow the appeal. I hereby quash conviction and set aside the sentence. I order that the Appellant SULEIMAN GWABUHA @ Page 12 of 13 13 MSABATO be released from prison forthwith unless he is being withheld for any other lawful purpose. It is so ordered. E.I. LALTAIKA JUDGE 28.06.2024 Court This judgement is delivered under my hand and the seal of this court this 28th day of June 2024 in the presence of Mr. Sauli Makori, learned State Attorney for the Respondent and the Appellant who has appeared in person, unrepresented. E.I. LALTAIKA JUDGE 28.06.2024 Court The right to appeal to the Court of Appeal of Tanzania is fully explained. E.I. LALTAIKA JUDGE 28.06.2024 Page 13 of 13 13