mohamed rashid

IN THE HIGH COURT OF TANZANIA MOROGORO SUB-REGISTRY AT I3C MOROGORO DC CRIMINAL APPEAL NO. 26448 OF 2024 (Originating from the District Court of Ulanga at Mahenge, Criminal Case No. 15238 of 2023 Hon. Christopher Bwakila, SRM.) MOHAMED RASHIDI RASHID APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGEMENT 29"' November 2024 MANSOOR,J. The appellant, Mohamed RashidI Rashid, herein shall be referred to as "the appellant" was arraigned before the District Court of Uianga at Mahenge facing two charges both of Incest by Male contrary to Section 158(1)(a)of the Penal Code, Cap 16 R: E 2022. The particulars of the offence stated that on 22"=" July 2024 and on 17^ February 2024 at MIola Village within Uianga District in Morogoro Region, the appeiiant had prohibited sexuai intercourse with his daughter,the girl of 14 years old. (name withheld). The Trial Court, after hearing the evidence of Page 1 of20 PWl, D/SGT Yusuph PW2, Ashura Rashid Mawalanga, mother of the victim, PW3, the victim, and PW4, Doctor Said Said Nguyuiai who examined the victim, as well as considering the Cautioned Statement of the appellant, and the PF3 of the victim, which were admitted as Exhibit 'PI' and 'P2' respectively, convicted the appellant for the two counts, both of Incest by Male contrary to Section 158(1)of the Penal Code, Cap 16 R:E 2022, and sentenced him to 30 years imprisonment for each count, and had ordered that the sentences are to run concurrently. The appellant was aggrieved by the conviction, he filed an appeal and raised eight(8) grounds of appeal, as follows: 1. The trial Magistrate erred in law and facts convicting appellant basing on coached and inconsistency testimony of PW3. 2. The Trial magistrate erroneously admitted the Caution statement, exhibit PI which were illegally and improperly obtained; . Page 2 of20 3. The testimony of PWl and PW2 are hearsay evidence which are- not credible to warrant conviction whose admissibility affected the appellant. 4. Prosecution failed to call key witness FARIDA ABDALAH who was mentioned by both prosecution and appellant, the omission which occasioned failure of justice; 5. Prosecution failed to tender electronic evidence to collaborate the testimony of PW2 and PW3; 6. The trial Process was not fair as appellant was forced to testify despite my sickness as I failed to properly cross examine prosecution witnesses. 7. That the trial Magistrate failed to consider the defence of the appellant which shows that PW2 his ex-wife, who is the victim's mother had framed him of this offence for she was jealousy. 8. The case was not proved beyond reasonable doubts to warrant conviction. During the hearing of the appeal, the appellant appeared unrepresented, and had nothing to say except that he adopted all grounds of appeal. The State was represented by the Learned State Page 3 of20 Attorney Daniel Makailo who opposed the appeal and submitted-at- lengthy on the grounds of appeal. Regarding the first ground of appeal, In which the appeilant argues that the victim's evidence was contradictory, and that she was coached to teli lies. The Learned State Attorney refers to the testimony of the victim at trial who said that the appeliant is her bioiogical father and that he had sexual intercourse with her twice at their home in the appeilant's bedroom. PW2,the ex-wife of the appeilant who is also the mother of PW3 corroborated the evidence of the victim. The Counsel argues that In sexual offences cases, as held in the case of Selemani Makumba vs Republic, 200 TLR 379, and the case of Meedrage % Mohamed Nabeka vs R Criminal Appeal No 391 of 2022, the Court of Appeal stated that the evidence of the victim in sexual offences cases is enough to convict the accused. The Counsei for the State argues that in the instant case, the evidence of the victim was credible and reliable and can safely be used to convict the accused/appeilant. Page 4 of20 On the second ground of appeal, on the cautioned statement of the appellant, the Counsel argues that the appellant was given the right to call a witness before recording his confession before the police officer, and had called his stepfather. Responding to the appellant's argument that the witness was made to understand that he Is signing documents for ball, he did not know that, he Is a witness to the cautioned statement, the learned state argues that PWl, the police officer who recorded the confession of the appellant tendered the cautioned statement in court which was admitted as Exhibit 'PI' and when the statement was being tendered In court by PWl,the appellant did not object the admission of the cautioned statement. The Counsel refers to page 9 and 10 of the proceedings and to support his arguments the counsel refers to the case of Herman Muhe vs R, Criminal Appeal No. 113 of 2020, Court of Appeal sitting at Mbeya, also the case of Rafael Plus Gwesso and Richard lakobo Tablnga vs R,Criminal Appeal 377 of 2021, the Court of Appeal said that the cautioned statement Is confession and the confession corroborated the evidence of PW3,the victim. Page 5 of20 The Counsel argues that, not only that the appellant did not object the admission of the cautioned statement, but he did not cross examine PWl on the point that the police officer did misrepresent to his stepfather about granting police bail and that the papers he was signing was for granting the baii to the appellant. On this point the Counsel refers to the case of Mangalu Maduhu vs Republic, Criminal Appeal No 158 of 2022, Court of Appeal sitting atlabora, where the Court Insisted on cross examination of witnesses, and said the court stated that the cross examination Is the engine for finding truth on the witnesses' testimonies. Regarding the third ground of appeal and seventh ground of appeal, which challenges the evidence of PW2,stating that the appeilant's ex- wife had coached PW3, the victim to speak lies, since she was not happy of the divorce, she was still jealousy. The State Attorney argues that these grounds are afterthoughts as the evidence of PW2 was a resuit of his own confession before the police, and the evidence of PW2,the mother of the victim and that of PW3,the victim, cannot be termed as hearsay evidence. He argues further that the evidence of Page 6 of20 PW2,the mother of the victim is information received from the victim herseif hence a credibie and reiiable evidence. Regarding the fourth ground of appeal, the Learned State Attorney argues that it was not necessary for the prosecution to caii Farida Abdallah, the wife of the appellant as the witness. The Counsel refers to page 8 of the impugned judgement, where the trial court explained that Farida is the wife of the appellant and the story of Farida Abdallah is the hearsay evidence. The Counsel argues further that the prosecution is not compelled to call this witness for proving the offence. To fortify his arguments, the Learned State Attorney refers to the case of Abubakar Sadiki Mangi vs Republic,Criminal Appeal No 311 of 2022 reported on tanzlii, the Court of Appeal sitting at Mwanza, in which the Court said the prosecution is not compelled to call a witness or a certain number of witnesses for proving an offence. On the fifth ground of appeal, which challenges the PF3 stating that it did not state whether there were bruises or blood in the girl's vagina, the State Attorney submits that it is the evidence of the victim that is Page 7 of20 required to prove that the occurrence had occurred and in the present matter, the victim has explained how she had sexual encounter with the appellant. PW4, the Doctor had examined the victim and there was proof of penetration and explained how the victim was active to sex. The Attorney therefore submits that the medical report had corroborated the evidence of the victim. Regarding the sixth ground of appeal, the electronic evidence which was vital in proving the offence was not tendered in court. The State Attorney thinks that this ground is misplaced as the prosecution do not know what electronic evidence the appellant was talking about, as there was no electronic evidence to be tendered in court by the prosecution. Regarding the eighth ground of appeal, which states that the trial processes was not fair as the appellant was not given a chance to call witnesses, and that he was forced to continue with trial even though he informed the court that he was sick, and in response to this ground of appeal, the Learned State Attorney refers to page 30 of the typed Page 8 of20 proceedings, which shows that before the ciosing of prosecution case;" on 24"^ Juiy 2024, the prosecution had fronted its two witnesses, the appeilant did not attend to court and had sent his sureties to state that he was sick, the court asked the sureties to caii the appeliant to ascertain whether he was sick, but when caiiing him, there were two contradicting stories. Then,the court adjourned the triai and asked for medical proof of his sickness. On the adjourned date on 29th July 2024, the medical chit presented to court had no official seal of the hospital, and the bail was cancelled. The State Attorney argues that the prosecution closed its case, the Court had addressed the appellant of his rights to defence, the appeliant said he will bring one witness and shall give his evidence on oath and also prayed for adjournment. The Court had given the appellant his right to defend and there was fair triai as the day he alleged to be sick the trial was adjourned. The Learned State Attorney argues that this is a mere assertion from the appeliant as he did not show any circumstances or element that shows that the appellant was denied his rights of fair trial. On this point, the Learned State Attorney refers to the case of Ipyana Mwambete vs R,Criminal appeal No 105 of 2022,the CAT at Mbeya in which the Page 9 of20 Court had referred to the case of Republic vs Abdallah Saium Haji, Criminal Revision No 4of 2019,OA,in which it was held that when alleging unfair trial, the appellant must show the circumstances of unfair trial. Ending his submissions, the Learned State Attorney urged the Court to dismiss all grounds of appeal. In his rejoinder, the appellant simply prayed for justice. In determining this appeal, I will start with the fourth ground of appeal, that whether Farida Abdallah, the wife of the appellant was an important and key witness to the prosecution case, and whether it was necessary for the prosecution to call her as their key witness. From the story narrated by PW2, Ashura Rashid Mawalanga, the ex-wife of the appellant and a mother of the victim Is that she was not there when the incident happened but it was the wife of the appellant Farida Abdallah who informed her by a phone call that the appellant herein has been sleeping with the victim, and that she is the one that had actually seen the appellant and the victim locked themselves in the Page 10 of20 M bedroom. That, it was Farida Abdalla, the wife if the appellant-whi- knocked the bedroom door but since the appellant was not dressed up, he did not open it, but afterwards he opened and found the victim and the appellant in the bedroom. This is the crucial fact which needed to be proved by the prosecution and only Farida Abdallah who is the eye and key witness for the prosecution who could have proved if it is true that she had called the ex-wife of the appellant and told her the story. Farida Abdallah was an Important witness to the prosecution case and ought to have been called in the stand to testify so as to corroborate the story given by PW2,otherwise PW2 evidence becomes hearsay and cannot be believed. I understand and as submitted by the Learned State Attorney that the Evidence Act, [Cap 6 R.E 2022] has conferred the right upon prosecution to decide which witnesses should be produced; it is not bound to produce all of them or a particular percentage of them. If the Magistrate finds it necessary in the interest of justice to take the evidence of any one or more of other witnesses for the prosecution, he is empowered to take their evidence also, but the prosecution is not Page 11 of20 obliged to produce them. Since the prosecution opted not to caii this important witness, the court has to decide the case on the basis of the evidence recorded and such there is no direct evidence to support the facts which can be used for proving the offence; It is logical to argue that if a fact exists, the prosecution ought to prove that fact by a witness. The prosecution alleges that it was the wife of the appellant that has seen the appellant committing incest to his daughter and that it was her that had informed the ex-wife of the appellant of the incidence. This was an important fact which was alleged to have existed and could only be proved by the wife of the appellant. This was an eye-witness; she should have been examined to corroborate the evidence of PW2 although the law does not compel this; I understand that section 143 of the Evidence Act clearly lays down that "no particular number of witnesses shall in any case be required for the proof of any fact." Similarly, the law requires that the hearsay evidence must be corroborated to ascertain that a given fact which was alleged to exists, it existed. Since the evidence of PW2 was hearsay and not corroborated, it cannot be believed. Page 12 of20 Now we have on the record, the evidence of the victim alone, the appellant in ground No. 1 of his appeal contends that PW2,the mother of the victim child tutored the victim girl (PW.3) and foisted the false case against the appellant. Further, the medical evidence (PW.4) has not supported the case of the prosecution. The Doctor (PW.4) who conducted medical examination on the victim child has clearly stated that there was no injury or bruises in the private part of the victim girl (PW.3) but the hymen was raptured previously and opined that the victim child (PW.3) has experience in sex. The Learned State Attorney would submit that the victim child was examined as PW3 and she has clearly stated about the occurrence. Though there is no eye witness in this case who was mentioned to exist but did not testify, the victim child (PW.3) herself has narrated the occurrence to her mother(PW.2), in turn the mother reported the incidence to the police. Though the Doctor(PW.4) has stated that there was no injury and that the victim girl has experience in sex, it is not the case of the prosecution that the victim girl sustained any injury on her body and Page 13 of20 only required to prove recent penetration. The Doctor's Report clearly- states that the hymen was raptured previously, he did not say It was recently raptured. The case of the prosecution is that at the time of occurrence, the victim child (PW3) was only 14 years of age and she was a minor. That It was the victim child herself that had narrated the story to her mother (PW2) that her father was applying traditional medicine and honey on her and was raping her telling her that he was treating her and told her that she should not say this to anyone. On 17.02.2024, the wife of the appellant was not at home but when she went back home she found the victim girl and the appellant in their bedroom and the bedroom door was locked. That the wife of the appellant knocked the door but the appellant did not open it until he dressed up and when she enquired the victim, she informed her about the occurrence. The wife of the appellant who is the stepmother of the victim girl Informed the occurrence to the mother of the victim (PW2)and mother of the victim PW2 went to Police Station and lodged a complaint. Page 14 of20 Though the evidence of PW2 is hearsay witnesses, PW2, the mother of the victim chiid has stated about what her daughter (PW.3) informed to her and PW2, the mother of the victim chiid has stated about what the wife of the appeiiant informed to her. There were no materiai contradictions between the evidence of the victim chiid (PW3), and the evidence of the mother of the victim who testified as PW2. The victim's evidence was therefore to be beiieved and could safely be used to convict the appeiiant. Regarding the cautioned statement of the appeiiant which was recorded before the police officer who testified as PWl,the statement was admitted in court, and I have had the opportuning to see it. The proceedings also show that the statement was admitted in court and there was no objection raised on its admission. The appellant opted to call his stepfather as his witness during the recording of the statement, and according to PWl,the stepfather was informed by the police that he is witnessing the recording of the statement by the appeiiant. The stepfather who witnessed the statement was called Twahibu Mshamu, but he was not called to testify. Again, as held herein above the law Page 15 of20 has conferred the right upon prosecution to decide which witnesses shouid be produced; it is not bound to produce aii of them or a particuiar percentage of them. Suffice it to say that in the cautioned statement the appeliant confessed that he has used his penis to inject some traditionai medicine on her daughter's vagina but had not ejacuiated since the purpose was to treat her, as the victim was randomiy sieeping with men. Regardiess of the intention of why and how he inserted his penis into the girl's vagina, the cautioned statement constitutes a confession, the confession which had corroborated the version of the victim girl, hence there was no contradiction in the narration of the evidence of the victim PW3, and the cautioned statement was recorded in accordance with the requirements of the law. The seventh ground of appeal is obviously misplaced as there were no electronic evidence presented by the prosecution during trial, and regarding the 8th ground of appeal, I entirely agree with the prosecution that there were fair trial and the records of the trial court cannot easily be impeached without concrete proof. As can be seen at Page 16 of20 page 30 of the typed proceedings, when the appellant did not appear- in court for his was sick, the case was adjourned and the court had asked for his medical chits. The records also reveal that the prosecution closed its case, and the Court had addressed the appellant of his rights to defence, the appellant said he will bring one witness and shall give his evidence on oath and also prayed for adjournment. The Court had given the appellant his right to defend and there was fair trial as the day he alleged to be sick the trial was adjourned, as stated in case of Ipyana Mwambete vs R, Criminal (supra) the appellant ought to have given the circumstances which shows that there was unfair trail, and upon going through the records, the trial was conducted fairly and in accordance to the law. Having said that, this appeal lacks merits, and I would have dismissed it, if what will be observed below did not occur. Before I pen off, I would like to speak about the way the charge sheet was drafted. The Charge Sheet contained two counts of similar offence. The first offence was incest which was committed to the same Page 17 of20 A-.- victim by the same accused, and the second count was aiso committed by the same accused to the same victim. The only differences are the dates of the commission of the offence. This led to double conviction of the same offence. It is to be noticed that repeating of the same offence to the same victim does not constitute distinct offences, and does not permits the framing of a two distinct charges or distinct counts in the charge sheet. Single count would have sufficed which could have specified the two dates in which the offence was committed. The accused was to be charged for one offence only. There should have been a single charge containing a single count for the offence of Incest by Male since the offence was alleged to have been committed by the same appellant to the same victim but on different dates. Charging the appellant for the same offence twice is double jeopardy and has resulted into punishing the appellant twice for the same offence. Even after the prosecution frames the charges for the same offence twice, the court cannot try the accused on the same offence twice. The trial court wrongly tried the appellant for the two counts which are for the same offence, and wrongly convicted the appellant for two counts which are for the same offence. This is to Page 18 of20 charge a man twice for the same offence which is not permitted in iaw. It is not iike he committed different offences or a series of acts so connected together as to form the same transaction, but it is the same offence committed on the same victim on different dates and he should have been charged only once. The Constitution of the United Republic of Tanzania prohibits a person from being prosecuted and punished for the same offence more than once. This is the principle of double jeopardy which prevents people from being subjected to multiple trials or punishments for the same offence. It was stated In the case of Gosho Gorobani@ Bonge Juma & others vs Republic Criminal Appeal No.92 of 2019 HC at Arusha, unreported in which the case of Jackson Venatus Republic Criminai Appeal No. 118 of 2018 CAT was referred, that the misjoinder of charges cannot be cured under section 388 of the Criminal Procedure Act. The charging of a person of the similar offence twice Is not only against the provisions of the Constitution of the United Republic of Tanzania but renders the charge defective and as held in the case of Emmanuel Maghembe and 3 others vs Republic Criminal appeal No. 35 of 2018(CAT at Shinyanga, the court discussed an issue of a defective charge and Page 19 of20 ruled that for convicting and sentencing the appellants on a defective charge, the appellants were not fairly tried, the court found that the trial was Illegal thus It quashed the proceedings and judgement and set the appellants free. Similarly, in this case, the doubie charging of the same offence is iliegai and renders the charge defective and the defect cannot be cured under section 388 of the Criminal Procedure Act, and the consequence is to nuiiify the proceedings, quash and set aside the conviction and the sentences imposed as the defective charge sheet denied the appellant the right of a fair trial. For this reason of a defective charge and double jeopardy, I find the whole trial a nullity, I nuiiify the whole trial, quash the conviction entered In both counts and the sentences Imposed in both counts, and I hereby set free the appellant, unless held for any other lawful cause. DATED AND DELIVERED AT MOROGORO THIS 29™ DAY OF NOVEMBER 2024 o Of O A •:z: UJ X ' ., L. MANSOOR sm / JUDGE 29™ NOVEMBER 2024 Page 20 of20