Charles Kasuke vs Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) AT IRINGA CRIMINAL APPEAL NO. 8573 OF 2024 (Originating from Criminal Case No. 8 Of2023 ofthe District Court of Kiiolo at Kilplp before Hon. T.G. Maieko, SRM) CHARLES RICHARD KASUKE ................. ........................ APPELLANT VERSUS REPUBLIC ................ .......... . RESPONDENT JUDGMENT 14h & 2H September, 2024 D.B NDUNGURU, J Before the District Court of Kiiolo, the appellant was charged and convicted of rape contrary to section 130(1), 2(e) and 131(3) of the Penal Code [Cap. 16 R.E 2022], It was alleged by the prosecution that on 24th February 2023 at Ruaha Mbuyuni village within Kiiolo District, Iringa region, the appellant had carnal knowledge of the victim aged 5 years. The trial court convicted the appellant to the mandatory sentence of life imprisonment and ordered him to compensate the victim Tshs. 500,000/=. Briefly the prosecution evidence is that on the material day at around 20:00 hours, the mother of the victim (PW1) was searching for the victim. She then saw the victim coming from an uncompleted building. The victim i upon being threatened by her mother stated that she was with the appellant. PWI then inspected the victim's private parts and observed that the victim's vagina was wet with elastic slippery fluid. PWi then informed the father of the victim (PW5). The matter was then reported to the police station. The victim was taken to the hospital where she was examined by a Medical Officer (PW7). PW7 observed that the victim's labia minora and majora were reddish in colour and her vagina was wide open. The appellant was eventually charged with the offence of rape. The appellant on his part strongly resisted the accusation. He stated that at the material time he was not at his work place as there was no electricity. He testified that the charge against him is a frame up as he had conflicts with the mother of the victim, PWI. Dissatisfied by both the conviction and sentence, the appellant filed his appeal to this court based on eight grounds. All grounds, however, can be consolidated into one major complaint that the prosecution failed to prove the charge beyond reasonable doubt. The grounds for the complaint are: one, the prosecution evidence was not properly evaluated. Two, prosecution evidence has contradictions and inconsistency. Three, the appellant's defence was not considered. z In the hearing of the appeal, the appellant appeared in person whereas Mr. Hubert Ishengoma, learned State Attorney appeared for the respondent. The appellant offered his right to begin to the prosecution and reserved his right of rejoinder. Mr. Ishengoma supported the appellant's appeal. He argued that the charge against the appellant was not proved beyond reasonable doubt. He based his argument on the appellant's identification. He contended that according to PW1 the incident occurred at night at 20:30pm. Thus, in his view, the victim ought to have testified how she identified the appellant. To bolster his argument, he cited the case of Shabani Bakari vs Republic, Criminal Appeal No. 118 of 2015, Court of Appeal - Dodoma (unreported). He concluded that since the victim had not stated how she identified the appellant, the charge against him was not proved beyond reasonable doubt. In rejoinder, the appellant conceded with the submissions by the learned State Attorney and left it to the court to decide. I have considered the grounds of appeal and the parties' submissions; The issue for my determination in this appeal is whether the charge against the appellant was proved beyond reasonable doubt. 3 I begin with the appellants identification as submitted by Mr, Ishengoma. The victim in her evidence testified that she is familiar with the appellant and that he is the One that raped her. However, she did not describe what made her identify the appellant at the crime scene considering that the incident happened during night hours. This was necessary so as to eliminate any possibility of mistaken identity. The testimony of PW3 is that he saw the victim in front of the appellant's saloon but did not follow up what happened next as he was destructed by other activities. PW3 did not testify to have seen the appellant and the victim together going at the back of the building. Therefore, there is ho evidence to support the appellant's identification. This creates doubts on the appellant's identification at the crime scene. The victim testified that the appellant had raped her many times and that after the incident, she told her mother (PWI) and her mother told her not to repeat again. However, the mother did not testify on this information at all. PWI only testified that on the material day after the victim missing and finding her later on, she inspected the victim's vagina and observed that her vagina was wet. Again, the victim testified that PWI found her at the bush where the appellant was raping her. PWI testified to 4 have found the victim coming from an uncompleted building. Looking closely at the testimonies of PW1 and the victim, there are gaps on material facts. This creates doubts on the reliability and truthfulness of the evidence of PW1 and the victim. I therefore, discredit their evidence. Having discredited the victim's evidence, there is no other evidence to prove that it is the appellant who raped the victim. PW7, the medical doctor only observed that the victim's vagina was wide open and that she was penetrated by a blunt object however, there is no evidence that it was the appellant who penetrated her. For the foregoing, I hold that the charge against the appellant was not proved beyond reasonable doubt. The appellant was improperly convicted. I accordingly quash his conviction and set aside the sentence. I order his immediate release from prison unless otherwise lawfully held for another cause. D.B. NDUNGURU JUDGE 02/09/2024 5