MAJALIWA JUDGMENT proofread

IN THE HIGH COURT OF TANZANIA GEITA SUB-REGISTRY AT GEITA CRIMINAL APPEAL NO. 18649 OF 2024 (Original Criminal Case No. 3792 of 2024 of Mbogwe District Court at Mbogwe before A. Fungo SRM) MAJALIWA RAMADHANI-----------------------------------------------------APPELANT VERSUS THE REPUBLIC -----------------------------------------------------------RESPONDENT JUDGMENT Date of last Order: 15/10/2024 Date of Judgment: 15/10/2024 K. D. MHINA, J. At the District Court of Mbogwe, the appellant, Majaliwa Ramadhan, a 62 years old man, was sentenced to life imprisonment after he was found guilty of Rape, contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap 16 R: E 2022. The trial magistrate also ordered “The accused to pay TZS. 500,000/= compensation to the victim.” 1 In the charge against the appellant, it was particularized that the appellant, on the diverse days and times between August and November 2023 at Masumbwe village within Mbogwe District in Geita Region, did have carnal knowledge of the victim, a girl child aged 6 years, standard one student at Masumbwe Primary School, who, for purposes of concealing her identity will be referred to, in this judgment, as the victim. At the trial, the prosecution evidence, which the trial court found sufficiently proved the charge against the appellant, was characterized by five witnesses and briefly was as follows; On the morning of 17 November 2023, around 08:00 hours, when PW5 (WP 5982 Detective Sergeant Grace), the investigator of the case, was in the office at Masumbwe Police Station, she received a woman named Sophia Anton, who was with her granddaughter. That woman complained that the appellant, whom she named Mzee Majaliwa, who was selling coffee near the gold market at Masumbwe, had raped her granddaughter, named Angela. Upon PW5 interrogating that granddaughter in the presence of the social welfare officer, she admitted having been raped by the appellant. Further, she revealed that the victim in this case was raped by the appellant 2 as well. That information triggered PW5 to search for the victim and the arrest of the appellant, who was arrested on the same day by PW4 (F 630 Sergeant Abdallah). According to PW5, after they found the victim and interrogated her, she revealed that she was raped by the appellant. In her evidence, the victim, who testified as PW1, testified that the appellant used to rape her in his house. For the first time, the appellant lured her to his house while he was alone, undressed and raped her on the floor. When the appellant finished, he gave her TZS. 200/=. According to the victim, despite the pain, she wore her clothes, went home and took a shower. She did not inform her mother because she was afraid to be beaten. After two days, she informed Jack, who in return informed the victim that she was too raped by the appellant. After that, she used to visit the appellant, who raped her and gave her money. The ordeal stopped when Jack informed her mother. Later, she was taken to the hospital for examination. 3 In her evidence, PW2 (the victim's mother) stated that the appellant was her neighbour. In November 2023, PW5 informed her that her daughter (the victim) had been mentioned by Angela as one of the girls raped by the appellant. At the police station, the victim admitted that the appellant had raped her several times, and normally the appellant gave her TZS. 200/= or 500/=. The victim also said she was afraid to tell her because the appellant threatened her to stop giving her money. In her further evidence, PW2 stated that when the victim was examined at the hospital, she was found carnally known. PW3, Datus Mahatane, the medical practitioner who examined the victim on 17 November 2023, found bruises in the vagina. When he touched the inner part of the vagina, she found no hymen, and the victim experienced pain. In his findings, he said the victim was carnally known, and he tendered the PF3 (Exhibit P1). He added that the act was done days before the medical examination. In his defence, the appellant pleaded a general denial in committing the offence. He raised the point that the prosecution's evidence was hearsay. Even the victim was told by her mother to mention him. 4 Undaunted, the appellant filed this second appeal to this Court and conducted it himself before me. On behalf of the Republic, in response, was Ms. Verena Mathias, learned State Attorney. In faulting the trial court’s judgment, the appellant lodged the following grounds of appeal; i. The trial magistrate court erred in law and facts to convict the appellant by using hearsay evidence given by the prosecution side. For example, the witnesses' and explanations given by PW1, PW2, PW3, PW4, and PW.5 did not prove beyond reason doubt that they saw the appellant committing the offence of rape. ii. The trial magistrate court erred in law and facts to convict the appellant by using the evidence brought by the prosecution side and failed to state the date, time and days that the appellant raped the victim. iii. The trial magistrate court erred in law and facts to convict the appellant without considering the defence given by the appellant. iv. The trial magistrate court erred in law and facts to convict the appellant of an excessive sentence of life imprisonment without committing the offence of rape. v. The trial magistrate court erred in law and facts to convict the appellants without any documentary evidence or any explanation of parents about the age of the victim. In the course of composing the judgment, precisely the 2nd ground of appeal, I discovered that the charge sheet and the evidence adduced at the 5 trial differ in when the offence was committed. Therefore, I raised the issue suo motu and invited the parties to address the court. On her part, Ms. Mathias addressed this Court very briefly. She submitted that the charge sheet, specifically in the particulars of the offence, it was indicated that the appellant raped the victim from August to November 2023. While on the other hand, PW1 (the victim), in her evidence, testified that the appellant raped her from July to August 2023. From that revelation, Ms. Mathias conceded that there was variation between the charge and prosecution evidence on when the appellant raped the victim. However, she submitted that the variation did not prejudice the appellant because the month of August appeared in both the evidence and the charge. Further, the appellant did not cross-examine the victim on that issue. On his side, the appellant had nothing useful apart from stating that the dates of when the offence was committed in the charge differed from those in the evidence. 6 Straight away, I will start with what was contained in the charge on when the offence was committed. On when the offence was committed, the charge sheet indicated that I quote; “…on diversity days and time between AUGUST to NOVEMBER 2023”. On this, the Court of Appeal has already held that the absence of exact date (s) when an act is done is not fatal as long as the evidence proved that the date testified by the witnesses falls within the period indicated in the charge sheet. This is a position in Paschal Aplonal vs. Republic, Criminal Appeal No. 403 of 2016 (Tanzlii), where it was held that; “Regarding the complaint on the absence of exact dates when the two had sexual intercourse, we find the complaint baseless. We say so because at page 15 of the record of appeal at the trial, the victim stated as follows: " Me and the accused person used to have a sexual relationship, and we used to have sexual intercourse sometime in June 2013." The month of June 2013, as recounted by the victim, squarely falls between June and October 2013, being the period during which the appellant raped the victim, as stated in the charge sheet”. 7 Therefore, the period when an act was done was mentioned in the charge sheet was between August and November 2023. Thus, there is nothing wrong with the charge sheet. Flowing from above, I revisited the evidence of PW1 (the victim) on when the offence was committed. In her evidence, she stated that the appellant raped her between July and August 2023. Thus, there is a problem with the evidence as to when the offence was committed. In her submission, Ms. Mathias admitted that there was a variance. However, he stated that the variation did not prejudice the appellant because the month of August appeared in both the evidence and the charge. That being the case, two issues arise; One, is the credibility of the victim’s evidence on when the offence was committed and Two, whether the evidence on when the offence was committed supported the charge of rape. 8 The above two issues are crucial in determining whether there was a variance, and whether or not there was a variance did not prejudice the appellant. In discussing the first sub-issue, it is trite as per the cited case of Seleman Makumba (Supra) and Nimo Samu vs. Republic, Criminal Appeal No. 31 of 2019 (Tanzlii); the best evidence of sexual offences comes from the victim. However, the Court of Appeal in Mohamed Said vs. Republic, Criminal Appeal No. 145 of 2017 (Tanzlii), cautioned that such kind of evidence must be subjected to scrutiny for the court to satisfy itself on the coherence of the evidence. The Court held that; “We wish to emphasize the need to subject the evidence of such victims to scrutiny in order for courts to be satisfied that what they state contains nothing but the truth.” On the ways in which the credibility of a witness can be assessed, the Court of Appeal in the cited case of Nimo Samu (Supra), while citing its earlier decision of Shabani Daudi vs. Republic, Criminal Appeal No. 28 of 2001(unreported), held that; 9 “The credibility of a witness can also be determined in other two ways, that is one, by assessing the coherence of the testimony of the witness, and two, when the testimony of the witness is considered in relation to the evidence of other witnesses”. As already alluded, at the trial, PW1 stated that she had sex with the appellant between July and August 2023. In his evidence, PW3, the medical practitioner, who examined the victim on 17 November 2023, found bruises in the vagina, and when touched the inner part of the vagina, the victim experienced pain. In his findings, he said the victim was carnally known, and the act was done days before the medical examination. Therefore, One, if we believe the evidence of PW1 that she was raped by the appellant between July and August or, Two, the submission by Ms. Mathias that since the month of August is within both the evidence and the charge; It means the bruises and pain remained from July and August up to 17 November 2023, when she was clinically examined by PW3. On this, I was able to find a short article by Seattle Children’s (Hospital, Research, Foundation) on genital injuries for females titled:- 10 “Is this your child’s symptom? Accessed at https://www.seattlechildrens.org/conditions/a-z/genital-injury-female/, It was written that cuts, scrapes, and bruises often heal quickly. That means it is difficult for bruises and pains to remain from August to November 17, 2023. Flowing from above and having directed my mind to the cited case laws versus the scrutiny of PW1’s evidence in relation to the evidence of PW3, I find that the evidence of PW1 is not coherent and certain. Further, I don’t have a reason for not believing the evidence of PW3 and his findings that the victim was carnally known days before he clinically examined her. But the issue is the evidence of PW1 on when the appellant raped her. There is a possibility that there was another person who raped the victim days before she was clinically examined. Furthermore, on the scrutiny of PW1 evidence in relation to other prosecution witnesses, there was nothing on when the offence was committed. Neither PW2 (the victim’s mother) nor PW5 (the investigator) testified when the offence was committed. Further, according to PW5, the one who told her that the victim was raped by the appellant was a girl named 11 Angela, who was sent to the police station by her grandmother for the allegations that he was raped by the victim. During questioning, Angela revealed that the victim was also raped by the appellant. However, at the trial, Angela was not called as a witness, at least to testify about when the appellant raped the victim. In the absence of that witness, the uncertainty of when the appellant raped the victim became of a “high degree”. In finalising this sub-issue, I consider the age of the victim to be six years; therefore, there was a possibility of mixing on when the offence was committed. However, a similar issue has already been decided by the Court of Appeal in Amour Mbaruck @ Aljeb vs Republic (Criminal Appeal No. 226 of 2019) [2021] TZCA 316 (19 July 2021)(Tanzlii). In this appeal, the first appellate court held that contradictions in the evidence of a child should be understandable because of the age. However, the Court of Appeal held that; “….do not think it justifies us supplementing the evidence of the child witnesses where it leaves doubts. We wish to emphasize that always the prosecution has a duty to prove cases beyond reasonable doubt, even where the victims happen to be children”. 12 From above, as alluded to earlier, the evidence of the victim and other prosecution evidence on when the appellant raped the victim was not coherent. This finding led me to the second-sub issue of whether the evidence on when the offence was committed supported the charge of rape. On this, it is clear that the evidence of when the offence was committed was at variance with the charge. In the case of Abel Masikiti vs. Republic, Criminal Appeal No. 24 of 2015 (Tanzlii), the Court of Appeal held that; "In several cases in the past, this court has held that it is incumbent upon the Republic to lead evidence showing that the offence was committed on the date alleged in the charge sheet, which the accused was expected and required to answer. If there is any variance and uncertainty of the date, then the charge must be amended in terms of section 234 (1) of the CPA. Further, the Court of Appeal in Thabit Bakari vs. Republic, Criminal Appeal No. 73 of 2019 (Tanzlii) elaborated that it is expected for the prosecution to seek leave to amend charge (s) when they become or are made aware of the variance between the charge and evidence. However, at the trial, that was not done. The trial proceeded to its finality; the judgment was read, and the appellant was convicted and 13 sentenced, while there was a variance between the charge and the evidence on the dates of the commission of the offence. The consequence of failure to amend the charge sheet, which has a variance, is fatal. In the cited case of Abel Masikiti (Supra), it was held that: - “if this is not done, the preferred charge will remain unproved, and the accused shall be entitled to an acquittal, short of that failure of justice will occur." Therefore, in this case, it was necessary to amend the charge because the evidence did not support the charge regarding when the offence was committed. The effect of that omission was to water down the prosecution evidence. Further, the Court of Appeal in Ntobangi Kelya and another vs. Republic, Criminal Appeal No. 256 of 2017 (Tanzlii) “It is well settled that in such a situation, failure to amend the charge sheet is fatal and prejudicial to the appellant. This is because such anomaly leads to serious consequences to the prosecution case”. From the above discussion, it is clear that the trial proceeded with evidence of when the offence was committed that was contrary to what was 14 preferred in the charge and that it was fatal, which means the offence was not proved. The effect of that fatality is the acquittal of the appellant. In the final analysis, I nullify the proceedings and judgment of the trial Court. Since the issue I raised suo motu suffices to dispose of the appeal, I find no need to determine the grounds of the appeal. Accordingly, I quash and set aside the appellant's conviction and sentence. Consequently, I order that the appellant be released forthwith unless he is otherwise lawfully held. It is so ordered. K. D. MHINA JUDGE 15/10/2024 15 Court. The right to appeal fully explained to the parties. K. D. MHINA JUDGE 15/10/2024 16