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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CRIMINAL APPEAL No. 20210 OF 2024 (Originating from the District Court of Kyela in Criminal Case No. 000003925 of 2024 Case Reference No. 20240215000003925) JAMES WILSON MWAKYAGA…………...…………..……APPELANT VERSUS THE REPUBLIC…...……………………...……………...…RESPONDENT JUDGMENT Date: 5 September 2024 & 12 November 2024 SINDA, J.: The appellant was charged and convicted of the offence of rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap 16 R.E 2022. The District Court of Kyela (the Trial Court) convicted the appellant and sentenced him to serve life imprisonment. 1 It was alleged that the appellant on between November 2023 at Ipinda village within Kyela district in Mbeya Region, did have carnal knowledge of a girl of fourteen years (the Victim or PW2). It was prosecution evidence that victim was 14 years old. On 1 December 2023, the Victim arrived home late. That, Dominic Lukomano Mwakyendege (PW1) interrogated the Victim and she stated that she went to the appellant. The next day PW1 escorted the Victim to the police station. She was given PF3 and went to the hospital. She was examined and found pregnant. The appellant was arrested. Later on, the Victim observed her mensuration period. They reported the matter again at the police station and were issued with another PF3 for medical examination. The Victim was examined again at the hospital at hospital and she was not pregnant. In all these examinations, the doctor observed that the Victim had no virginity. The appellant on his defense denied to committing the offence. At the end of hearing, the Trial court found that the prosecution proved their case to the required standard against the appellant. The appellant challenges his conviction and the corresponding sentence on the following grounds as follows: 2 1. That the trial court erred in law when convicted and sentenced the appellant without taking into account that if was true Pw2 was accompanied by the appellant freely as in her testimony she didn't testified that the appellant was threatened her being armed with dangerous weapon and kidnapped her this means the trial court failed to considered the credibility of this witness Pw2 since she didn't escaped or ran away raising an alarm in order the rapist to be arrested at the area of crime. 2. That the trial court erred in law when convicted and sentenced the appellant without regarding that failure to Pw2 to reported to Pw1 earliest after the occurring such allegation until when forced by Pw1 the charge against the appellant was not proved as per law and was vitiated the credibility of Pw2. 3. That- the trial court erred in law convicted and sentenced the appellant without regarding that failure to Pw4 to draw a sketch map of the area of the domicile of the appellant to proof the distance of the surroundings neighbours the evidence of Pw2 that she raised an alarm and failed to got support is baseless to rely up on. 4. That the trial court erred in law when convicted and sentenced the appellant without considering that family members witnesses (Pw1 3 and Pw2) their testimonies were lacks corroboration since they have interests with case as family members. 5. That the trial court erred in law when convicted and sentenced the appellant without considering that the evidence of Pw3 was examined twice and found two different findings since hymen perforation is not penetration as per section 130(a)(a) of the penal code cap 16 RE 2022. 6. That the sentence of the appellant is very excessive against the law as Pw2 is above ten (10) years age also is against MSA Cap 90 RE 2022. 7. That the trial court erred in law and fact when convicted and sentenced appellant without considering that if Pw2 and to the appellant without considering that if pw2 and appellant was walking on foot going to the appellant domicile why Pw2 didn’t testified if they met with pass by who were going also to their homes 8. That the defence of the appellant and Dw2 was already shaken the prosecution case as the trial court ignored it and convicted the appellant unlawful as the prosecution failed to proof its case as per law. 4 At the hearing of the appeal, the appellant appeared in person, unrepresented. The respondent was represented by Mr. Salmin Zuberi, learned State Attorney. The appellant opted for Mr. Salmin to begin with his submission and reserved his right to make a rejoinder if any. The respondent started to submit on the eighth ground of appeal that the defence of the appellant was not considered, and the prosecution failed to prove the case beyond reasonable doubt. He argued that the prosecution was required to prove that the appellant committed the offence of rape and the Victim was raped. He argued that the republic proved this case as per page 17 of the proceedings of the trial court (the Proceedings), where the Victim told the Trial Court that the appellant took her to his house and had sex. He added that the appellant did not cross examine the Victim on the issue of penetration. That the Victim evidence was collaborated by the doctor (PW3) who examined the Victim, and found out that the Victim was penetrated with a blunt object. He added that PW3 tendered the PF3 in relation to his examination of the Victim which was not objected by the appellant. It was the respondent view that the case was proved to the required standard. He stated that in this matter the appellant did not provide any defence for the Trial Court not to consider the evidence of the prosecution. 5 In relation to the six ground that the sentence of the appellant to life imprisonment is very excessive while the Victim is above 10 years. Mr. Salmin submitted that the Victim was 14 years. He further contended that section 131 (3) of the Penal Code provides that any person who commits an offence of rape to a girl below 10 years, shall be convicted to a sentence of life imprisonment. He agreed with the appellant that the sentence was excessive. That, he should have been convicted to 30 years imprisonment. On the fifth ground, the respondent counsel submitted that at page 26 of the Proceedings, PW3 examined the Victim twice because of the circumstances of the Victim. The first examination found that the Victim was penetrated and pregnant for 29 days. The second examination was conducted in relation to the pregnancy. He added this ground is not in relation to law and can not stand before this court. Regarding the fourth ground that the appellant was convicted relying on the evidence of family member that is PW1 and PW2. He referred the case of Amin Ismail vs. R, Criminal Appeal No. 178 of 2015, the CAT at Tabora (Tanzlii), the CAT stated that the evidence of related witness is credible and there is no rule of practice or law which requires the evidence of relatives to be discredited unless of course good ground for doing so. 6 Regarding the third ground that the Trial Court convicted the appellant without drawing a sketch map to confirm the distance between the Victim and the neighbours. He reiterated what he stated in his submission in ground number eight on issues to be considered when dealing with the offence of rape. He found that the ground lacks merit as it is not a requirement of the law for the offence of rape. On the second ground of appeal, he referred page 17 of the Proceedings, that the Victim told the Trial Court that her dad asked her where she was and she replied that she was at the house of the appellant. Therefore, he argued that the Victim named the suspect at the earliest stage. On the first ground of appeal, he submitted that this ground is not in relation to law and doesn't affect anything which the Victim had to say in relation to the offence committed. He added that in the offence of rape, the Victim was only supposed to explain on the ingredients of rape as per page 17 of the Proceedings. On ground number seven, the respondent counsel submit that the ground of appeal is not in relation to the law as he submitted ground number one. He added that the Victim was only supposed to tell the Trial Court on how he was raped by the appellant. Except for ground number six, he prayed 7 for all the other grounds to be dismissed. That, if the court thinks fit, it should reduce the sentence from life sentence to thirty (30) years imprisonment. In rejoinder, the appellant prayed this court to consider his grounds of appeal and set him free because he didn’t commit the offence. I have considered the court records, grounds of appeal and submission made by the parties. I find the appeal can be disposed under one issue of whether this case was proved by prosecution to the required standard at the Trial Court. It is a position of law that the standard of proof in criminal cases that is required by law is proof beyond a reasonable doubt. The Court of Appeal of Tanzania in several occasions insisted on that. In the case of Mohamed Haruna@ Mtupeni & Another vs. Republic, Criminal Appeal No. 25 of 2007 (unreported) where it was held that; "Of course, in cases of this nature, the burden of proof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence.” 8 Now discussing the above issue of whether this case was proved by prosecution to the required standard at the trial court, this court being the first appellate court I wish to evaluate evidence on record afresh. There was no dispute in this case that the Victim was raped, this is in accordance with the evidence PW3 who examined the Victim that she had no virginity. The issue here is whether evidence in record linked the appellant with the commission of offence. It is a position of law that the best evidence in rape cases come from the Victim. This was provided in the case of Seleman Makumba vs. Republic [2006] TLR 379 which held that: “True evidence of rape has to come from the victim, if an adult, that there is penetration and no consent, and in case of any other women, where consent is irrelevant, there is penetration” In this case the Victim testified as PW2, for easy of reference I wish to reproduce her evidence in chief as provided on page 17 of the Proceedings as follows: “I am a student at Ipinda secondary school. I am in form three now. I am fourteen years old. I was born on the 12.10.2009 at that pagala. He told me that the place was not safe. He thus told me to escort him to his house. He lives in a room. James Wilson Mwakyega’s room has a bed and domestic items. He has no chairs. He invited me to sit onto his bed. He instructed me to undress my gown. I did refuse. He forced to undress my gown. He undressed my 9 underwear as well. He also removed his clothes. He then he had sex with me on that day. It was on December, 2023. The incident occurred on certain Sunday, December, 2023.” ……….. First of all, this evidence from the Victim does not show exactly when the incident happened as stated in the charge sheet. The charge sheet stated that the incident occurred on between November 2023 and December 2023. The Victim evidence indicate that the rape incident occurred on a certain Sunday in December 2023 and not November 2023. She did not state anywhere that the incident occurred in November. I wish to reproduce the charge sheet as follows: “STATEMENT OF OFFENCE Rape Contrary to section 130 (1)(2) and 131 (1) of the Penal Code Cap 16 R.E 2002. PARTICULARS OF THE OFFENCE JAMES S/O WILSON MWAKYAGA on between November 2023 and December, 2023 at Ipinda village within the Kyela District in Mbeya Region, did carnal knowledge of ODM a girl of fourteen years.” It is clear that there is a contradiction which goes to the root of the case between the charge sheet and the testimony of the Victim as to when the incident occurred. 10 Also, there is another date of 1 January 2024, where PW1 asked her daughter why she came late and stated that she is from the appellant place. The Victim and PW1 does not state if the appellant raped the Victim on that date. This is also not reflected on the charge sheet. I therefore find that the evidence of the Victim which was expected to be the true and best evidence in this case failed to link the appellant with the exact date of the commission of the offence he was charged with. I therefore allow the appeal, quash the conviction, and set aside the sentence imposed by the Trial Court. I order the appellant to be released forthwith from prison unless otherwise lawfully held. Right to appeal is explained. DATED at MBEYA on this 12 Day of November 2024. A. A. SINDA JUDGE 11