MAIKO SYLVESTER V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA SUB REGISTRY) AT ARUSHA CRIMINAL APPEAL NO. 125 OF 2023 (C/F District Court of Arumeru at Arumeru, Criminal Cave No 37/2023) BETWEEN MAICO SILVESTER................................................................................. APPELLANT VERSUS THE REPUBLIC..................................................................................... RESPONDENT JUDGMENT 06/09/2024 MWENDA, J MAICO S/O SILVESTA, the appellant herein above, was, before the District Court of Arumeru, charged and convicted for rape, contrary to Section 130(1) (2) (e) and 131 of the Penal Code, [Cap 16 R.E 2022]. The prosecution alleged that on unknown date in January ,2023, at Olmonit-Moshono area within the District of Arumeru, the appellant did have sexual intercourse with "MG" a girl of ten (10) years old. As the appellant entered a plea of not guilty to the charge, the prosecution was called on to prove its case. In so doing, the prosecution summoned four (4) witnesses (the victim inclusive) and tendered one documentary exhibit, the victim's PF-3 which was admitted as exhibit P.l without any 11 P a g e objection from the appellant On hrs part, the appellant defended hrmself after the ruling of the trial court found him with a case to answer. At the end of the judicial day, the trial court, having analyzed the evidence from both sides, found the appellant guilty as charged. It then convicted and sentenced him to serve a term of thirty years jail imprisonment. On top of that, the appellant was ordered to pay the monetary compensation to the victim, to a tune of TZS 2,000,000/=. Aggrieved by the conviction and sentence passed against him, the appellant, through the services of Mr. GOODLUCK MICHAEL, learned advocate from GOOD MARK ATTORNEY preferred the present appeal with eight (8) grounds. The said grounds read as follows, that: 1. That, the trial Court erred in law and in fact by failure to consider the whole procedure of arraigned the appellant herein before trial Court whether were made accordance with the laws. (Sic) 2. That, the trial Court erred in law and fact by convict and sentence the Appellant herein despite the facts that no evidence (oral or documentary) adduced by Prosecution to prove on the alleged bruises, discharge and broken hymen was caused by Appellant herein or was caused by Victim's uncle someone Hashimu as she 2 | Page alleged that was raped prior by Hashimu (Victim's Uncle) and followed by Appellant herein both in January 2023. (Sic) 3. That, the trial Magistrate erred in law and fact for failure to analyze, evaluate the evidence's adduced by both parties so as to ascertain whether there was evidence against the accused persons (Appellants) adduced by the prosecution to warrant conviction and sentence. (Sic) 4. That, the Trial Court erred in law and fact by (Sic) convict and sentence Appellant herein based on contradictory evidences adduced by Prosecution side. 5. The trial Court erred in law and fact to convict and sentence the appellant herein without arraign credible witnesses to prove the case beyond reasonable doubt. (Sic) 6. That, the Trial Magistrate erred in law and fact by (Sic) convict and sentence Appellant herein based on evidence of PW2 who failed to explain what was (Sic) penetrated to her. 7. That, the Trial Court erred in law and fact for the Prosecution side failure to prove before trial Court whether it conducted identification parade for the victim to identify the accused person while (Sic) the alleged offence was committed at night. 31P a g e 8. That, Trial Court erred In law and in fact by (Sic) convict Appel without prove who committed the alleged offence of rape between Appellant and victim's uncles someone Hashimu. (Sic) When this appeal was called on for hearing, the appellant was m attendance. He enjoyed the legal services from Mr. Goodluck M.cbael. learned counsel. On the respondent's side, the Republic was represent by Mr. Charles Kagirwa, the learned Senior state Attorney. At the outset, the learned Counsel for the appellant dropped the the 7th grounds of appeal. As for the remaining grounds, he opted with the 2nd ,5th and 8th grounds together and the rest, separately. Regarding the 2nd ,5th and 8th ground of appeal, Mr. GOODLUCK submitted that from the record, it is unclear as to who raped the victim between the appellant and one HASHIM S/O RASHID. His reasoning was that the victim (PW2) testified that she was raped by one "MKENYA", whom she alleged was in the court room but, during cross examination she said one HASHIM started to rape her first. Further to that, the learned counsel submitted that the victim failed to mention the date of occurrence of the incident and, despite mentioning one "MKenya "as her assailant, that name does not feature anywhere in the charge sheet. According to him, that is a variance between the evidence nf t-hQ • *• evidence of the victim ,n the proceedings and the 4/1' charge sheet as nowhere in the proceedings, it was said that both names refer to the same person. Regarding the 3rd ground of appeal, the learned counsel for the appellant submitted that the trial court failed to analyze the evidence before convicting the appellant. According to him, at page 6 and 7 of the copy of judgment, the court just summarized the appellant's evidence before entering conviction. The learned counsel impressed that the court is enjoined to analyze the evidence from both sides before deciding the fate of the accused person. In support to that position, he cited the case of ABEL MASIKITI V. THE R. CRM. APPEAL NO. 24 OF 2015 at page 7. On the 4th ground, the learned counsel pointed out that there is a contradiction on the prosecution's evidence regarding the date of occurrence of the incidence. He said that while PW3 failed to specify the date of occurrence during testimony in chief, during cross examination said that she was raped by the appellant on 29 without specifying the month and the year. According to him, such contradiction dents the prosecution's case. 5|Page this appeal to be allowed, conviction quashed, and the sentence be set aside. Responding the submission b\ the learned counsel for the appellant, the republic through MR CHARLES KAGIRW A, SSA opposed this appeal. Responding to the 2nd, 5th and 8th ground of appeal, the learned state attorney said"MKENYA" is the appellant because in the proceedings, the victim said, one Mkenva was before the court. According to him, when the victim said at page 6 that "I didn't shout because you had covered my mouth"', "even you I also implicate you"(sic)during cross examination, and, the fact that soon after rape she informed PW2 that she was raped bv "accused mkenya", then the said name (MKENYA) refers to the appellant. though the teamed senior State Attorney conceded that in the charge sheet, the name of "Mkenya" Is not appearing, he believed such failure „ot occasion any injustice. He added in that if the court finds the anomaly fatal, then the same is curable under section 388 of CPA. Regarding the argument by the learned counsel for the appellant that It ,s not clear as to «ho exactly raped the victim beMeen the appellant and 6\V a ge HASHIM, the learnaH c • ' c 'earned Senior State ttorneY submitted that it is the appellant who did so Arr^a 9 o him the victim was credible witness as ow she was raped by the appellant whom she mentioned by the name "MKENYA" ■ The learned Senior State Attorney further tted that the victim s evidence was also supported by the doctor ( Wl) who testified that the victim was raped and, tendered the PF-3 as exhibit. In support, the learned senior State attorney cited the case of SELEMANI MAKUMBA (supra). Regarding the trial court's failure to analyze the evidence of the accused person, the learned Senior State Attorney said that, in the second line of the typed copy of judgment, the trial court analyzed the evidence of accused person. On the other hand, he believed if the court finds the said anomaly existed, it may step into the shoes of the trial court and consider it. In support to this, he cited the case of SHAABAN HARUNA @DR. MWAGILO V. R, CR, APPL NO, 396B OF 2017. Regarding the submission by the learned counsel for the appellant that the prosecution s evidence is tainted with contradictions, the learned Senior State Attorney submitted that none exist because the victim did not mention the fateful date of occurrence of the crime. 7 | Pa ge ^~Mhetearne^n.iorState to be dismissed and the R*> “* PrKentappeal and'the^10n «sentence to teupheld. e that it is the appellant who committed the offence. He said that the ev witness but could not say it is MICHAEL SYLVESTER who • Instead, she said it was "Mkenya." According to him the entails perpetrator is not the one who was charged. In conclusion, he reiterated to his previous prayer to have this appeal allowed, conviction quashed, and sentence set aside. That being the summary of the rival submissions from both sides, the court is now able to determine the merits or otherwise of this appeal. To do so, the court is going to answer the issue which is whether the prosecution proved its case to the required standard, which is beyond reasonable doubt. At the outset, I find it pertinent to point out that since the appellant was charged for rape, the onus of proof was on the prosecution which was bound to prove the charge beyond reasonable doubt. This is a common principle adumbrated in various authorities. In the present matter, while convicting the appellant, the trial Court Magistrate relied on the victim's evidence and satisfied that she was credible and described her evidence S|Page as best evidence. The trial magistrate believed her testimony to have sufficiently proved penetration and the person responsible. On the other hand, the appellant denied any involvement In the alleged crime His defense was considered by the trial court but at the end, it was found to have failed to raise reasonable doubt. This court is mindful that, in rape cases, true evidence comes ro victim who is better placed to tell how the offence was committed and the person responsible. This position was stated in the of ALLY NGOZIV. THE REPUBLIC, CRIMINAL APPEAL NO. 216 CAT (Unreported). It is however important to note that the prindP hereinabove depends on the victim’s coherence and credibility. The reason for that was stated in the case of IMAN! 3OSEPH@MSALI V. THE REPUBLIC, HC, CRIMINAL APPEAL NO.80 OF 2022 where the court, having paraphrased the said principle, heid inter alia that; ■The principle above depends on the victims coherence and credibility. The take from it is that not every victim's testimony can be accorded weight without firstly subjecting it to scrutiny regarding its weight." I In the present matt victim who stood in chief said that it wae ». S ^ur'n9 her testimony was the person called "mkenya- k residence, lured her KENYA who came at their house wh enn9 b'SCUItS and later' t00k her inside the ^sheyyas raped. Further to that, she^ton to testify^ the said "MKEnya" ie r • lv|ng there but he was before the court. After 9 er testimony in chief, she changed the story during cross amination. At that point she started by mentioning another person named HASHIM as the one who started to rape her first and later, she insisted on using the words "it is you"& "Even you raped me, I also implicate you "to the appellant. With this type of evidence, the learned senior state Attorney believed that the victim properly described her assailant as being the appellant. With due respect I disagree with him on the following reasons. Firstly, by giving two versions of story, one that it was MKENYA who raped and later mentioning one HASHIMA as another person who is responsible, dents her credibility thus, the principle in the case of ALLY NGOZI V. THE REPUBLIC (supra) cannot apply- Secondly, despite mentioning her assailant as one MKENYA, the records are silent as to whether MKENYA is also the appellant's name. Even the record does not suggest that there was any dock identification made by the victim against the so called 10 | P a g e MKENYA. This by itself is variant u e between the charge sheet and the evidence which stood uncorrected until the end of the trial. Having realized that the charge was at variance with the evidence, the prosecution ought to have either, utilized the option under Section 234(1) of CPA, to amend the charge so as to accommodate the new name of MKENYA or, bring in evidence to show that MAICO SYLVESTER is also known as MKENYA. The effect of such failure was stated in the case of JOSEPH MASHIMBA@DOGO J V. THE REPUBLIC, CRIMINAL APPEAL NO 172 OF 2021, CAT (Unreported) where the court held inter alia that: "It was incumbent upon the prosecution having realized charge was at variance with the evidence, to have utilized the op under section 234 (1) of the CPA, to amend the charge to accommodate the evidence. That was not done. The resulting effect is that the charge and the evidence speak in contradiction of the other. In the circumstances, as rightly conceded to by Mr. Ndamugoba, in the absence of an amendment, the charge is rendered defective, hence, not proved beyond reasonable doubt, [emphasis added] From the foregoing reasons, this court is of the view that the proecution failed to prove its case beyond reasobale doubt, thus this appeal succeeds 111 p; by quashing the viction and, setting aside the sentence and the compensation order it ic also ordered that the appellant be relezed immediately from prison unless he is lawfully held. Right of appeal is fully explained. It is so ordered. 06/09/2024