JUDGEMENT AMRAN ABUBAKARI MUHINA

THE UNITED R EPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CRIMINAL APPEAL NO. 19786 OF 2024 (Originating from the District Court of Rungwe at Tukuyu in Criminal Case No. 68 of 2023) AMRAN ABUBAKARI @ MUHINA…………………..……APPELANT VERSUS THE REPUBLIC…...……………………...…………...…RESPONDENT JUDGMENT Date: 05 September 2024 & 4 November 2024 SINDA, J.: The appellant in this appeal at the District Court of Rungwe at Tukuyu (the Trial Court) was charged with the offence of rape contrary to section 130 (1) (2) (e) and 131 (1) (3) of the Penal Code R.E 2022 (the Penal code). The appellant was sentenced to serve 30 years imprisonment and to pay the Victim compensation of Tanzanian Shillings Three Hundred Thousand (TZS 300,000/=). 1 It was alleged on the particulars of offence that the appellant on 20 June 2023 at Ushirika Area within Rungwe District in Mbeya Region did have carnal knowledge of a child of four (4) years old (the Victim or PW3). It was the prosecution evidence that on the material day the mother of Victim (PW1) heard the Victim crying. She inspected her sexual parts and found some blood. She asked the Victim who was responsible for that act. The Victim replied a man at the road. They went at the road but didn’t find the person. The Victim showed PW1 where the incident took place near the church. The Victim was sent to the Hospital and upon examination the doctor found that the Victim had no virginity and had bruises in her vagina. On 22 July 2023, the victim was playing with other children and informed her sister Rhoida (PW4) by pointing to the appellant as the person who injured her. PW4 reported the incident to PW1 who reported the incident to the village authority. The appellant was arrested. He was interrogated and admitted to committing the offence. The appellant on his defence in examination in chief he denied to committing the offence. During cross examination he stated that he raped the Victim on 20 June 2023 not 16 June 2023. At the end of hearing the trial court find that prosecution proved the case to the required standard. 2 Aggrieved by the decision of the trial court, the appellant filed appeal at hand on the following grounds: 1. That: - The trial Court erred in law point and fact by convicting and sentencing the appellant despite the fact that the prosecution side failed completely to prove its charge against the appellant beyond reasonable doubt as the mandatory requirement of the law. 2. That: - The trial court erred in both law and fact to convict the appellant without medical test conducted for the appellant to prove that it was the appellant who had sex with the victim. 3.That: -the trial Court erred in both law and fact to believe all witness from prosecution side without sufficient evidence that no one among of them who see the appellant commit the offence. 4.That: - The trial Court erred in law point and fact in relying on the unsworn evidence of PW3. During hearing of appeal, the appellant appeared in personal while the respondent was represented by Salmin Zuberi, S.A. The appeal was argued orally. The appellant opted for the respondent to begin and reserved the right to make a rejoinder. 3 Mr. Salmini submitted the first and third grounds together. He argued that the prosecution proved the charge beyond reasonable doubt. That the republic was to prove three ingredients for the offence of rape i.e. penetration, that the appellant is the one who committed the offence and the age of the victim. He referred to page 8 of the proceedings of the trial court (the Proceedings) that PW1 stated that she is the mother of the Victim and said the Victim was four (4) years old. The appellant did not cross examine PW1 on the issue. Also, the Doctor (PW2) at page 11 of the Proceedings, stated that he examined the victim and found that she had bruises and had no virginity. PW2 also tendered PF3 which was not objected. He also referred at page 14 of the Proceedings that the Victim also said she knew the person who raped her and pointed to the accused in court. That, at page 19 of the Proceedings, that the Chairman of Katumba Hamlet (PW6) told the court that he caught the appellant and interrogated him on raping the victim. The appellant said it is true that he raped the Victim and asked for forgiveness. The appellant didn’t object to the testimony of PW6. Therefore, he conceded to what PW6 told the Trial Court and also admitted to committing the offence. He argued that the 4 trial court was proper in convicting the appellant as the case was proved beyond reasonable doubt. He referred to the case of Nyerere Nyague vs. Republic, Criminal Appeal No. 65 of 2010 (Tanzlii) on effect of failure to cross examine amount to acceptance. Mr. Salmin objected the second ground and submitted that by using common sense it is impossible to test the appellant who committed the offence. He prayed that this ground is also dismissed. Regarding the third ground that the appellant was not seen at the scene of crime. He reiterated his submission on the first ground of appeal. On the fourth ground of appeal that the trial court erred in law and fact in relying on the evidence of PW3 without giving an oath. He submitted that at page 14 of the Proceedings, when PW3 was giving her evidence, she said she was three years old. PW1 told the court that PW3 is three years. At page 14 and 15 of the Proceedings, the court made an inquiry and complied with Section 127 (2) of the Evidence Act. He prayed that the ground is also dismissed. However, it was his opinion that because the appellant raped a four (4) years old child, he was to be sentenced for life imprisonment and not 30 years imprisonment. 5 In rejoinder the appellant prayed to continue with the previous sentence of 30 years imprisonment because he is young. 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.” 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. 6 There was no dispute in this case that the Victim was raped, this is in accordance with the evidence from doctor who examined the Victim. He testified at the trial court that after examination, he found the Victim 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 PW3, for easy of reference I wish to reproduce her evidence in chief as follows: “I am schooling at MAMANEMA. I stay at home with RHOIDA and P11. The person standing here I do not know his name but “anakaa kule” this person raped me huku (she shows her pubic places). After he raped me, I did not tell any one. Nilijisikia kitu kimoja. (emphasize is mine)”. First of all, this evidence from the Victim does not show if the person standing there was the appellant. Mr. Salmin in his submission stated that 7 the Victim said she knew the person who raped her and pointed to the appellant in the trial court. This argument is not correct. The records speak louder that the appellant was not pointed by the Victim. The Victim stated that she was raped by the one standing here. There was no evidence which showed that the person standing there was the appellant here in. The records are silent. In that regard, I find that it is illogical or unreasonable to assume that the one who was standing was the appellant as referred by the Victim. At list there should be some fact in record which show that the Victim pointed at the appellant, unfortunately that does is not clearly expressed in the records. I find that evidence of the Victim (PW3) which was expected to be the true and best evidence in this case failed to link the appellant with commission of offence he was charged with. Also, the Victim stated that after that person raped her, she didn’t tell anyone. This evidence contradicts with the evidence of the sister of the Victim Rhoida (PW4) who stated that the Victim told her and showed her that the appellant is the person who raped her, when they were playing at Sarah’s home. This is the fact which made the appellant to be arrested. 8 I find the contradiction is material which go to the root of the case as it shake the credibility of these two witnesses PW3 and PW4. In her evidence PW3, didn’t not tell the trial court that at a later point she told and showed her Sister Rhoida (PW4) that the appellant is the one who raped her. Therefore, the effect is to expunge the evidence of PW4 and remain with evidence of Victim which did not point to the appellant. Based on the above explained circumstances, I find that this case was not proved by prosecution beyond the reasonable doubt. 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 explained. DATED at MBEYA on this 4 day of November 2024. A. A. SINDA JUDGE 9