NDALUGILIE NASIBU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY AT TABORA CRIMINAL APPEAL NO. 3547 OF 2024 (Arising from the District Court of Tabora, Original Criminal Case No. 22 of2023 NDALUGILIE NASIBU...... ............. ................................... APPELLANT VERSUS THE REPUBLIC ............................... ............. RESPONDENT JUDGMENT Date ofLast Order: 01/07/2024 Date ofJudgment: 29/07/2024 KADILU, J. In the District Court of Tabora, the appellant was charged with the offence of grave sexual abuse contrary to Section 138C (1) (a) and (2) (b) of the Penal Code [Cap. 16 R.E. 2022]. The prosecution alleged that between March 2022 (s/ic) at Ilolangulu Village, within Uyui District in Tabora Region, the appellant did commit grave sexual abuse to the victim, a girl aged 05 years. The facts of the case as narrated by the prosecution display that on 02/04/2022 when the victim was sleeping with her parents at home, her mother noticed a foul smell where they slept. After searching the room for a while, she realized that the smell was coming from the victim's private parts. She informed the victim's father and the two decided to wait until morning. On inquiry from the victim, she could not give any explanations. The next day, the parents took the victim to the pharmacy where they met Ms. Lenes Samwel, a pharmacist. She asked the victim what had happened to her and the victim narrated that in March 2022, the appellant took her from where she was playing with other children to his place. He then undressed her; he rubbed his penis on the victim's vagina several times until i he ejaculated. The victim added that she could not tell her mother about the ordeal because the appellant threatened to kill her if she could tell her mother. The appellant was arrested, charged, and arraigned in court. When the charge was read over to him, he pleaded not guilty. The prosecution summoned five witnesses including the victim, and tendered PF3 of the victim to prove that the appellant committed the charged offence. At the: closure of the prosecution case, the trial court found the appellant with a case to answer. In defence, the appellant fended himself under oath and summoned one witness. He did not tender any exhibit. Ultimately, the trial court found the appellant guilty, convicted him as charged, and sentenced him to twenty (20) years imprisonment. He was also ordered to compensate the victim to the tune of TZS. 500,000/=. Aggrieved by both the conviction and sentence, the appellant filed the instant appeal praying for the court to quash the conviction, set aside the sentence, and release him frorri prison on the following grounds: 1. That, the trial Magistrate erred in law and fact for convicting the appellant based on uncorroborated evidence, 2. That, the trial Magistrate erred in jaw and fact for convicting and sentencing the appellant while the case against him was not pro ved beyond reasonable doubt as required by the la w. 3. That, the trial Magistrate erred in law and fact for convicting and sentencing the appellant based on evidence of the victim which was unsatisfactory to justify the conviction. During the hearing of the appeal, the appellant was represented by Counsel Flavia Francis whereas the respondent was represented by Mr. 2 Steven Mnzava, assisted by Ms. Suzan Barnabas, the learned State Attorneys. Ms. Flavia prayed to add a ground of appeal to the effect that; the charge which led to the conviction and sentence of the appellant was defective. She then proposed to argue the added ground of appeal first and argue the rest grounds jointly. Ms. Flavia submitted that the charge sheet that was used to prosecute the appellant was defective because it shows that the appellant was charged with grave sexual abuse, but particulars of the offence do not show how the said offence was committed. The learned Counsel elaborated that Section 138C (1) (c) of the Penal Code requires the particulars of the offence to show the ingredients of grave sexual abuse. She explained that the ingredients include, a lack of consent and that the accused did the complained act for sexual gratification. She argued that in the instant case, the charge did not show the appellant's part of the body used to commit the alleged grave sexual act and that it was done for sexual satisfaction. Ms. Flavia contended that the omission rendered the charge incurably defective. She referred to the case of Onesmo Ezekiel Fundiv, R.f Criminal Appeal No. 254 of 2021, and AndrewLonjine v. R., Criminal Appeal No. 50 of 2019. The learned Advocate concluded that where some ingredients are missing in the charge, the prosecution cannot be said to have proved the case beyond reasonable doubt. To support her stance, she referred to the case of Khassimu Said 14 R.f Criminal Appeal No. 179 of 2016, Court of Appeal of Tanzania at Dar es Salaam. She added that during the trial, the prosecution did not present any evidence to prove the appellant's sexual gratification. 3 Concerning the rest grounds of appeal, Ms. Flavia submitted that the prosecution did not prove the case against the appellant beyond reasonable doubt. According to her, the victim testified that she was taken by the appellant to his home, abused her, and returned her home. She did not, however, tell her mother about the incident allegedly because the appellant threatened her. The learned Advocate opined that the evidence contradicts what was stated by PW2 because, on cross-examination, PW2 told the court that the appellant inserted his penis: in her vagina. So, the testimony of the victim was contradictory and unreliable. PW4 testified that the victim resisted mentioning the culprit at the beginning but after she took her into a room, she said she was sexually abused. Nevertheless, the victim did not name the appellant as the perpetrator. PW3 stated that she noticed a foul smell from the victim while sleeping with her parents, but the victim said she used to sleep alone. Generally, the prosecution evidence was inconsistent but the trial court did not consider the contradictions. In DaudiAnthony Mzuka k /?,z Criminal Appeal No. 297 of 2021, it was held that threats to the victim cannot last for life so, the victim was expected to name the appellant at the earliest time. In opposing the first ground of appeal, Mr. Mnzava argued that once the accused understands the nature of the accusation against him, it is sufficient regardless of the defects in the charge. The learned State Attorney argued that the appellant was represented by a Lawyer during the trial so, he was able to understand the nature of the charge against him. He added that during the preliminary hearing, the appellant was able to plead 4 indicating that he understood the charge against him. Mr. Mnzava explained that Section 388 of the Criminal Procedure Act is clear that an error or omission in the charge that does not touch the root of the case should not affect the whole decision of the trial court. He expounded that the victim testified about how the appellant used his fingers and penis on her vagina for sexual gratification. Concerning the victim's consent, the State Attorney explained that Section 138C (1) (d) makes the victim's consent immaterial hence, the argument is baseless. He argued additionally that in sexual offences, the best evidence comes from the victim so, there was no need for corroboration of evidence as argued by the appellant. He cited Section 127 (6) of the Evidence Act which is to the effect that if the court believes the child is telling nothing but the truth, her/his evidence has to be trusted. In the case at hand, the court tested the victim's understanding and satisfied itself that she was telling the truth. Mr. Mnzava supported his stance with the case of SelemaniMakumba v. R.f [2006] TLR 379. He submitted further that the victim named the appellant to a nurse who was the first to attend her. She failed to name the appellant earlier because the appellant threatened to kill her. Mr. Mnzava referred to the case of Marwa Wangiti Mwita and Another v. R. [2002] TLR 39, in which it was held that unexplained delay in naming the suspect is fatal to the witness's credibility. He, however, argued that there is no yardstick to measure the phrase "early opportunity." So, it depends on the circumstances of each case. PW4 stated that the victim failed to name the appellant to her mother but she did so after she stayed with PW4 in private. 5 According to the learned State Attorney, all ingredients of grave sexual abuse were proved. There is nowhere the victim stated that there was penetration by the appellant. The allegation that the previous case against the appellant was withdrawn by the prosecution is true but facts of that case cannot be used herein since the two cases are different and separate. Expert opinion that the victim's condition might have been caused by lack of proper cleaning, is a mere opinion which does not bind the court:. The victim's evidence was sufficient. By way of rejoinder, Ms. Flavia submitted that the learned Counsel conceded that the charge was defective, but he opines that the defect was curable under Section 388 of the Criminal Procedure Act. She disagreed with this stance as the charge is the foundation of any criminal trial. She refuted the allegation that prosecution witnesses proved all ingredients of grave sexual abuse while some of the ingredients were missing in the charge. The Counsel concurred that in sexual offences the best evidence comes from the victim, but not every evidence by the victim suffices to convict the accused. She maintained that the victim's testimony was contradictory and unreliable. Marwa Wangiti'sc&secxXsd by the Counsel for the respondent shows the circumstances in which it can be said that the accused was named early. Ms. Flavia explained that she did not refer to the withdrawn case, but the victim's testimony on page 19 of the proceedings stated on cross- examination that she was once raped by the appellant and later this case was filed against him after the prosecution contemplated that they could not prove rape. She finally opined that since the prosecution called an expert 6 witness to help build their case, there was no reason to urge the court to disregard his evidence. I have carefully reviewed the evidence on record, the grounds of appeal, and the submissions by Counsel for the parties. Now, the issue for determination is whether or not the prosecution proved the case against the appellant beyond reasonable doubt. It is a well-established principle of law that a charge sheet is the foundation of every criminal trial. In the case at hand, the appellant complains that he was charged, tried, and convicted based on a defective charge sheet. The mode of charging offences is governed by Sections 132 and 135 of the CPA. Section 132 requires that the offence be specified in the charge with the necessary particulars. Section 135 (a) (ii) also provides that the charge must contain the essential elements of the offence and the specific: provision creating the offence. In Abiola Mohamed @ Simba v. R., Criminal Appeal No. 291 of 2017, the Court of Appeal at Arusha observed that the specification of the offence in the charge with the necessary particulars is vital to enable the accused to understand clearly the charge against him so that he can prepare his defence. The particulars of the offence in this case as may be inferred from the charge sheet go as hereunder: "Ndalugilie s/o Nasibu, between March 2022 at Ilolangulu Village, within Uyui District in Tabora Region, did commit grave sexual abuse to one RY, a gid aged 05years old." It is apparent from the above extract that the charge sheet does not disclose the date and time of the complained incident, and neither does it contain any ingredient(s) of the alleged offence. It only indicates that the 7 incident occurred in March 2022 without mentioning any specific date. The requirement to indicate the date(s) as to when the offence was committed is, in my view, a mandatory requirement in proving a criminal charge. Mere variation between the dates specified in the charge and the evidence adduced renders the anomaly fatal and incurable as was held in Justine Mteluie K /?-/ Criminal Appeal No. 482 of 2016, Court of Appeal at Iringa. Therefore, a total omission to show the date(s) as was the case in this appeal, cannot have a lesser effect. On a separate but equally important aspect, I have also observed that there was an unexplained delay in charging the appellant. The charge displays that the offence was committed in March 2022, but the appellant was charged on 10/07/2023 and arraigned in court on 13/07/2023. It took the prosecution over fifteen months to charge the appellant and the proceedings are silent about where the appellant was and what was he doing for nearly sixteen months between the arrest and arraignment in court. In Juma Shabani @ Juma v. R., Criminal Appeal No. 168 of 2004, the Court of Appeal observed as follows: "... the issue about the unexplained delay in arresting the appellant was not addressed by the trial magistrate and the learned Judge on appeal as well. It is an important aspect which if not resolved casts doubt on the veracity of the witnesses." In the instant matter, the record is silent as to when the appellant was arrested, but as shown above, there was a long delay between when the incident occurred and the charge. Concerning the ingredients of the charged offence, the appellant was charged with grave sexual abuse contrary to Section 138C (1) (d) and (2) (b) of the Penal Code which reads as follows: 8 "Any person who, for sexual gratification, does any act, by the use of his genital or any other part of the human body or any instrument or any orifice or part of the body of another person, being an act which does not amount to rape under section 130, commits the offence of grave sexual abuse if he does so in circumstances falling under any of the following descriptions, that is tp say- (d) with or without the consent of a person who is under the age of eighteen years. (2) Any person who- (b) commits grave sexual abuse on any person under eighteen years of age, is liable on conviction to imprisonment for a term ofnot less than twenty years and not exceeding thirty years, and shall also be ordered to pay compensation of an amount determined by the court to any person in respect of whom the offence was committed for injuries caused to that person. From the above, it is clear that the ingredients of grave sexual abuse within the facts of this case would include the appellants rubbing of his genital part on the victim's sexual organ, for sexual gratification. As hinted, these ingredients were not included in the particulars of the offence. Apart from admitting that the charge did not comply with the provisions of the CPA, the learned State Attorney argued that this: court should not find it to be fatal since the defect is curable under section 388 (1) of the CPA. In the case of Mussa Nuru @ Saguta v, R.f Criminal Appeal No. 66 of 2017, it was held that a defective charge renders the proceedings and the resultant decision a nullity. l am unable to agree with the argument by the learned State Attorney that the defect is curable. This court's finding is that the defect prejudiced the appellant as it prevented him from comprehending the substance and gravity of the offence he was facing. In Andrew LonjUe ir. R., Criminal Appeal No. 50 of 2019, the Court of Appeal at Dodoma held that: 9 "... the prosecution cannot be taken to have proved the offence of grave sexual abuse beyond reasonable doubt when essential ingredients of "for sexual gratification" and "lack of consent" were neither included in the particulars of the offence nor was there evidence presented to prove these ingredients. For reasons that the two courts below misapprehended the totality ofingredients constituting the offence ofgrave sexual abuse, we shall allow the first ground of appeal contending that prosecution case was not proved beyond reasonable doubt." I am bound to follow the same course in the instant appeal. I, thus, allow the added ground of appeal for being meritorious. Having established so, I see no reason to deal with other grounds of appeal since doing so will not serve any useful purpose. The discussed ground of appeal is sufficient to dispose of the whole appeal. In view of this, I allow the appeal, quash the conviction, and set aside the sentence imposed against the appellant. I order his immediate release from prison unless he continues to be held for other lawful cause. Order accordingly. JUDGE 29/07/2024 Judgment delivered in chamber on the 29th Day of July, 2024 in the presence of the appellant and Ms. Suzan Barnabas and Steven Mnzava (State Attorneys) for the Respondent. MJ. JUDGE 29/07/2024 io