Daniel Mtasigwa Vs

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CRIMINAL APPEAL NO. 8528 OF 2024 (Appeal from the decision of the District Court of Ukerewe at Nansio (Nyahega, SRM) dated 23rd of February, 2024, in Criminal Case No. 39612 of 2023.) DANIEL S/O JOSIA MTESIGWA ……..……………………...………… APPELLANT VERSUS THE REPUBLIC …………………...……………….………………….… RESPONDENT JUDGMENT 30th July, & 7th August, 2024 CHUMA, J. The appellant was arraigned in the District Court of Ukerewe at Nansio, facing the offence of rape, contrary to sections 130 (1), (2) (e), and 131(1) of the Penal Code, Cap. R.E. 2019. The allegation, as gathered from the charge sheet is that on the 12th day of November, 2023, at about 20:00 hours at Namagubo village within Ukerewe District in Mwanza Region, the appellant did unlawfully have carnal knowledge against DDY (in pseudonym) a girl of seventeen years of age (the victim). The appellant pleaded not guilty to the charge, necessitating a trial that comprised six witnesses of prosecution against one witness for 1 the defence. At the end of trial the trial court convicted the appellant and sentenced to a statutory imprisonment of thirty-years (3O). The trial court’s decision has utterly aggrieved the appellant. He has instituted the instant appeal, challenging both the conviction and the sentence on the following paraphrased grounds: 1. That, the trial magistrate erred in law and fact to convict and sentence the accused on the offence of rape while the prosecution side did not prove the offence of rape to the required standard in criminal cases of beyond reasonable doubts. 2. That, the trial magistrate erred in law and fact to rely on the evidence of PW1, PW2, PW3, and exhibit P1 to prove penetration, but in reality, the evidence of PW1, PW2, and PW3 as well as exhibit P1 did not prove the presence of penetration at all. 3. That, the trial magistrate erred in law and fact to admit in evidence, give weighty, and rely on exhibit P1 in convicting the victim while exhibit P1 was material reliability and authenticity questionable. 4. That, the trial magistrate erred in law and fact when he asserted that the accused person did not deny having raped the victim while the accused denied the accusation of rape meted against him. 2 5. That the trial magistrate erred in law and fact to rely on the evidence of the prosecution witness to convict and sentence the accused person, the evidence which contradicted itself. 6. That, the trial magistrate erred in law and fact for failure to note that the prosecution side failed to call the material witness the owner of the house in which the act happened. The brief factual background of what precipitated this appeal runs as follows. The victim, referred to as DDY, was a seventeen years old girl, on the fateful day, while coming from the mill, the appellant sent three of his peers to take the victim forcefully to his room. It is at this point that the appellant allegedly dragged DDY to his bedroom and raped her. The victim’s mother reported the matter to the police station leading to the apprehension of the appellant on 27.11.2023 and his eventual arraignment in court on 12.12.2023. The medical examination report indicated that there were bruises with a minimal bleeding wound in the victim’s female organ and had enlarged with two (2) digits, inferring that she had been entered. The appellant denied any involvement in the matter but the trial court was convinced that the guilt of the appellant had been established. At the hearing of the appeal the appellant enjoyed the service of Mr. Revocatus Sijaona, learned counsel against Mr. Rumanyika, learned State Attorney who represented the respondent. 3 Submitting in respect of the appeal the appellant’s counsel submitted jointly grounds one, two, three, and five of the appeal, the learned counsel expressed his support to the appellant’s contention in the said grounds that, the trial court convicted and sentenced the appellant into 30 years in absence of tangible proof by the prosecution, he argued that conviction on rape cases to sustain evidence pertaining to the offence has to be watertight and prosecution must prove penetration, but in the trial court, the evidence adduced was not sufficient. The evidence of PW1 has to be expunged on record for being recorded contrary to the law. The most important evidence is that of the victim as per section 127(7) of The Evidence Act Cap 6, R.E 2019 (TEA) as it was re-stated in the case of Seleman Makumba Vs. R. Cr. Appeal No.94 of 1999 The learned counsel further asserted that PW1 by the time of adducing evidence was 17 years of age. The trial court record reveals that the procedure in recording her evidence was that of a tender age as shown on pages 4 to 6 of typed proceedings, which means was taken without an oath, and its effect is that the same ought not to be acted on by the court. Section 127(3) of TEA provides who is a child of tender age, this position was stated in the case of Elisha William Vs. Republic Cr. 4 Appeal No. 5345/2024 at page 6. HC Mwanza Registry, although this position cannot bind this court but it is persuasive. Also, in the case of Godi Kasenegala Vs. Republic Cr. appeals no. 10 of 2008 CAT from pages no 19, if the evidence of PW1 will be expunged then the prosecutions remain with no tangible evidence to convict the appellant, the remaining evidence of the rest of the witnesses is hearsay which can not prove the element of penetration. He further contended that the evidence of the PW5 medical doctor is full of contradiction as offence occurred on 12.11.2023 and the examination was conducted on 13.11.2023. However, exhibit P1 (PF3) PW5 did fill it on 21.11.2023 as shown on page 20 of the typed proceedings. Such evidence is not reliable and the court ought not to have relied upon it, there was no explanation on record as to why exhibit P1 was not filled on the examination date. Also, the evidence does not indicate when and where the victim was raped. Hence exhibit P1 along with evidence of PW5 was wrongly relied upon by the court. But still in any how the victim failed to identify the accused, the appellant in this appeal. The victim alleged to have been taken by three culprits to the appellant but failed to identify the appellant despite being familiar with him prior to. No description was given and the extent or intensity of light 5 at the scene of crime. With these shortfalls on the prosecution side, the case was not proved beyond a reasonable doubt. Regarding the testimony of PW2 is that she did examine or inspect the victim but no explanation on how the examination was done a similar statement was made by PW5. Submitting on the fourth ground of appeal, argued that the appellant pleaded not guilty on the first page of the judgment but the very statement goes contrary to the words provided on page 14 of the same judgment. As to the last ground, the learned counsel contended that the prosecution failed to summon a very important witness to testify in court, the landlord of the house where the crime happened and where the accused person resides. So, he could have testified on whether it was true that the accused person was his tenant and whether on that date the offence occurred. He finally prayed for this appeal to be allowed and set the appellants free. On his part, Mr. Rumanyika began by supporting the conviction and sentence passed in respect of the trial count which involved the offence of rape. 6 Submitting in the same fashion as the appellant’s advocate on grounds one, two, three, and five on failure to prove the case beyond reasonable doubt, stated that the record on pages 4 to 6 of the typed proceedings victim’s aged 17 years and according to section 127(3) TEA is all about the evidence of tender age. And that such a witness was regarded as a child of tender age while she was not. But its effect is that such evidence has to be considered as unsworn evidence requiring corroboration which cannot be expunged as it was held in the case of Joachim Sebastian Vs. Republic Cr appeal No 295/2017, and the case of Helman Henjewele Vs. R Cr Appeal No.164/2005 (unreported). In this case, the evidence of PW1 has been corroborated by PW2, PW6 (ten- cell leader), and PW5 a medical doctor. PW5 on pages 19 to 21 explains that he received the victim on 13.11.2023 with PW2 and conducted an examination. And, the evidence of PW2 on pages 8 to 11 on the typed proceedings corroborates the evidence of PW1. She inspected her after being told that she was raped by the appellant and found bruises and blood on the victim's Vaginal, at the same time PW6 a ten-cell leader’s evidence corroborates the evidence of PW1 and PW2 because the victim named the appellant to PW2 and PW6 as the one who raped her. The evidence of PW1 was well corroborated. 7 He argued that the prosecution is required to prove two issues or elements that is penetration and the age of the victim if she was under the age of 18 years. The prosecution proved those elements via the evidence of PW1 on pages 6 and 7 of typed proceedings. The same as PW5 evidence on page 19. As to the issue of age the evidence of PW1 on page 4 gained support by the evidence of PW2 (the victim’s mother) on page 9. that the victim aged 17 years. The prosecution proved the offence beyond reasonable doubt by establishing penetration and age from the evidence of PW1, PW2, PW5, and PW6. Regarding the case of Seleman Makumba explains the position in sexual offences cases that the best evidence is that of the victim. And in this case, the victim at the trial court testified and identified the accused and how the offence occurred. Answering the identification issue, he submitted that the accused was properly identified as per pages 6 to 8 typed proceedings, PW1 identified the accused as he was very familiar to her, first her neighbour and also her mother’s customer. She identified him via star which was so intense in such a way managed to see mattresses, ceiling board, a bag two bottles of beer, and the clothes that the accused wore, hence identification was proper. This position was stated in the case of Mussa Saguda Vs. R Cr. Appeal No. 440 of 2017 on page 17 the court referred 8 a case of Kenga Cheya Thoya Vs. R Cr. Appeal No. 375 of 2006. It is without doubt the accused was well-recognized by the victim. Based on PW5 evidence, submitted that there was no contradiction in his evidence because he received and attended to the victim on 13.11.2023 for treatment and filled exhibit P1 (PF3) on 21.11.2023, and there was evidence of penetration. The trial court was right in its evidence analysis in reaching the final verdict. How PW2 conducted an inspection is well stipulated on page 9 of the court record, PW5 explains how he examined the victim on page 19 of the typed proceedings. Answering on the fourth ground, he argued that there is nowhere the appellant was recorded denying the offence apart from arguing that he never knew the victim in his defence. There is a difference between plea-taking and adducing evidence. The court referred to the evidence of the accused and said that he never said anything regarding the commission of the offence and not plea-taking. Concerning the last ground on failure to call upon a crucial witness (landlord), the said witness was not an important witness to testify in court as he was only asked about the whereabouts of the accused person. The very ground lacks merit. That the prosecution proved the case beyond 9 reasonable doubt so all ground of appeal lacks merit. Prays the trial court decision to be upheld. In his short rejoinder, Mr. Sijaona reiterated his submission in chief and asserted that plea-taking leads to the inducement of evidence, and the appellant denied committing the offence. As for the matter of the landlord, he was an important witness to explain if prosecution witnesses indeed went to the house asking and if the appellant was there on that date. Apart from PW1, PW2 to PW6 did not witness the alleged crime but explained how the examination was conducted, on how the victim sustained bruises and blood. The cited case of Joachim Sebastian is distinguishable because it is all about the voire dire test which was not done and such corroboration was from the one who saw the offence, in the case at hand there was no need for voire dire test. The unsworn evidence is invalid, and the cited case is overtaken by the case of Godfrey Wilson Vs. R, Cr. Appeal No. 168 of 2018 while the case of Joachim Sebastian is of 2017, hence the current one has to be taken into consideration, such position was adduced on page 14 of the judgment that the unsworn evidence is invalid. For those reasons, the evidence of PW1 was of no value. On identification the event happened during the 10 night but didn’t explain how he identified it, the intensity of light was not described. He finally submitted that the instant appeal had merit and prayed it to be allowed. Having heard the parties’ respective submissions, I turn to consider the merits or otherwise of the appeal, and the pertinent question to be resolved is whether the instant appeal raises any sufficient grounds which may justify the appellant’s prayer to fault the trial court’s findings. I will dispose of this appeal following the sequence in which the grounds of appeal were argued. The appellant’s grievances on grounds one, two, three, and five is that the prosecution failed to prove the accusation beyond reasonable doubt. It is a cardinal principle in criminal law, that proof of the accused’s guilt in a criminal case is a burden that has to be borne by the prosecution, and, save for a few exceptions, the standard of proof in such a case is beyond reasonable doubt. This position has been underscored in a multitude of court decisions across jurisdictions. In George Mwanyingili Vs. Republic, CAT-Criminal Appeal No. 335 of 2016 (Mbeya-unreported), the Court of Appeal of Tanzania guided as follows: 11 “We wish to re-state the obvious that the burden of proof in criminal cases always lies squarely on the shoulders of the prosecution unless any particular statute directs otherwise. Even then, however, that burden is on the balance of probability and shift back to prosecution.” See also: Jonas Nkize Vs. Republic [1992] TLR 213. The question that arises immediately is whether this burden was discharged by the prosecution in the course of the trial proceedings. In answering that. I will confine my analysis and evaluation of the trial court’s proceedings ascertaining the question of whether the offence was proved. In this case, the victim’s age has been quoted in the charge sheet as seventeen (17) years of age, this is also reflected on pages 4 and 9 of the trial court’s proceedings when the PW1’s mother testified about her age and a detailed proof was given on particulars such as date, month and year of birth (5.4.2006) which would show that the victim was indeed aged seventeen years of age and this is what landed the appellant in trouble. As rightly contended by the appellant’s advocate the victim at the time of the trial when she gave her evidence, was 17 years old, but her evidence was recorded as of a tender age which is not correct as per section 127 (4) of TEA, which state as follows: - 12 “For the purposes of subsections (2) and (3), the expression “child of tender age” means a child whose apparent age is not more than fourteen years.” This means the requirement of section 127 (2) of TEA did not apply to the victim because she was above fourteen as what the trial court did, so she was wrongly subjected to the procedure governing evidence of children of tender age, meanwhile, the trial court was supposed to follow the rule of evidence as stipulated under section 198 (1) of the Criminal Procedure Act, Cap 20, R.E 2019, states as follow: - “Every witness in a criminal cause or matter shall, subject to the provisions of any other written law to the contrary, be examined upon oath or affirmation in accordance with the provisions of the Oaths and Statutory Declarations Act.” The effect of such default according to the State Attorney is to consider the evidence as unsworn evidence which needs collaboration. However, I decline to side with his contention basing my stand on the decision of the Court of Appeal in the case of Simon Shauri Awaki@ Dawi Vs. Republic Criminal Appeal No 62/2020 where the court held that the evidence taken in breach of section 198 (1) of CPA lacks evidential value. A similar stance is also reflected in several cases including Nestory 13 Simchimba Vs. Republic, Criminal Appeal No. 454 of 2017 Godi Kasenegale Vs. Republic, Criminal Appeal No. 10 of 2008, and Salum s/o Said Kanduru Vs. Republic, Criminal Appeal No. 122 of 2018. Guided by the above authorities I as well discard the evidence of PW1. Be that as it may, the evidence to support that of the victim is the evidence of a Medical doctor and the victim’s mother, who examined and inspected the victim, at page 9 of the typed proceedings PW2 stated that she inspected the victim who was not walking straight, also found blood coming out of her vagina, sperm, and bruises, while the Medical doctor PW5 stated that there was blood coming from the bruises and stains of dry blood but there was no sperm. This explanation reflected in Exhibit P1 that there was penetration, this could be enough to entail that rape was proved, however looking at Exhibit P1 along with the PW5 evidence that he filled the form on 21.11.2023 while the examination was conducted on 13.11.2023, this court is very much aware of the practice in filling the PF3 that in case the victim is still receiving or undertaking treatment then the form will be filled on the last day of the treatment but circumstance of the instant case is different as PW5 stated that he gave the victim medicine to prevent her from HIV, pregnancy and to release pain then continued with his duties till 21.11.2023 when he did fill the PF3 concerning the victim’s examination conducted on 13.11.2023 about 9 14 days later. This raised doubt as to why it took so long to fill out the form and it remained that way without any explanation. The next issue for consideration is on allegation that the prosecution evidence was contradictory. PW2 in her evidence alleged to have seen sperm in the victim's vagina which goes contrary to the evidence of PW5 who did not see it but spotted stains of dry blood. The prosecution evidence failed to justify or explain why it took so long to arrest the accused person from 12.11.2023 to 27.11.2023. This again creates doubt on the prosecution side. It is then without doubt that the evidence of PW1 is crucial to the occurrence of the offence and identification of the appellant because there is no other independent evidence to associate the appellant with the entire offence. Now from the foregoing analysis of the evidence no doubt since the evidence of PW1 was treated as evidence with no evidential value and discarded, there is no other tangible evidence to associate the appellant with the offence convicted of due to shortcomings herein above pointed. The remaining prosecution evidence might have raised suspicion but however strong its cannot be a base to sustain conviction as was observed in the case of Hakimu Mfaume Vs. R (1984) TLR201. What is required is a proof beyond reasonable doubt. 15 Given the foregoing, I am of the view that the prosecution’s case was not proved beyond reasonable doubt. I find merit in the appellant’s challenge who managed to create doubt worth enough to shake the prosecution evidence. Disposal of this ground goes as far as resolving all the remaining grounds of the appeal as the substance of their contention touches on the sufficiency of the evidence which was used to convict the appellant. In the upshot of all this, I allow this appeal. Accordingly, I set aside the conviction and sentence meted out by the trial court. I therefore order the appellant’s release from custody unless he is held for some other lawful reasons. It is so ordered. Right of appeal explained. DATED at MWANZA this 7th day of August 2024. W.M. CHUMA JUDGE 16 Judgment delivered in court before the appellant in person and Ms. Brenda Mayala State Attorney this 7th day of August 2024. C. KISONGO DEPUTY REGISTRAR 17