Kadrana

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA DC CRIMINAL APPEAL NO. 38639 OF 2023 (Originating from Tabora District Court in Criminal Case no. 24 of2023) JUMA MAGANGA @ KADRANA...................................... APPELLANT VERSUS THE REPUBLIC................................................................ RESPONDENT JUDGMENT Date of Last Order: 18/07/2024 Date of Delivery: 01/08/2024 MANGO, J. The Appellant stood charged in the District Court of Tabora at Tabora for the offence of rape contrary to Section 130(1) (2)(e) and Section 131(1) of the Penal Code, [ Cap 16 R.E 2022]. Before the trial Court, it was alleged that on unknown date of December 2022 at Mwinyi within Tabora District, the Appellant did have carnal knowledge of a 16-years-old girl whose name in this judgement is concealed to protect her dignity. She will be generally referred to as the victim. Before the Appellant was arraigned, the victim disappeared to unknown place therefore the trial was conducted in her absence. The prosecution paraded four witnesses with two exhibits; a PF3 and a witness statement. After full trial, the Appellant was convicted and sentenced to serve thirty (30) years imprisonment. i Aggrieved by conviction and sentence, the Appellant lodged the instant appeal by filing a petition of appeal containing five grounds of appeal which read as follows: 1. That the trial Magistrate erred in law and fact by convicting and sentencing the appellant while the prosecution side failed to prove the charge against the Appellant as required by law. 2. That the trial Magistrate misdirected himself by convicting and sentencing the Appellant while mis observed that the Appellant was convicted basing on the objected exhibits (PEI) which was improperly admitted as evidence against the Appellant. 3. That the trial Magistrate erred in both conviction and sentence for failure to consider the evidence adduced by PW2 (doctor) who testified before the Court that he found the victim in normal condition and also he found no pregnancy, no bruises and blood stains. 4. That the trial Court erred in law and fact to convict and sentence the Appellant while there was no cautioned statement tendered before the court to prove the charge against the Appellant. 5. That the trial Court misled in law and fact to convict the Appellant relying on ingredients of prosecution evidence while failed to make deep examination and evaluation of the same, something which is incurably fatal and irregular in providing fair justice. When the appeal was called for hearing, the Appellant featured in person, whereas Ms Idda Rugakingira, learned State Attorney appeared for the Republic, Respondent. When the Court invited the Appellant to submit 2 in respect of the grounds of appeal, he prayed to adopt his grounds of appeal to be his submission and reserved the right to rejoin. On her part Ms Rugakingira, opposed the appeal and opted to start her submission on the second ground of appeal. She argued that, the Appellant challenges admission of exhibit PEI and claims to have objected the same during trial, while record at page 10 of typed proceedings indicates that, the Appellant did not object its admission. On the third ground of appeal, Ms. Rugakingira asserted that rape is proved by mere proof of penetration but not blood stains or pregnancy, she referred to the case of Selemani Makumba vs Republic (Criminal Appeal 94 of 1999) [2006] TZCA 96 (21 August 2006). She further stated that, PW2 testified clearly that the victim had no hymen which implies there was penetration. On the fourth ground of appeal the Attorney pointed out that, the Appellant's cautioned statement was not necessary to prove the prosecution case since the evidence adduced by PW1 and PW2 was sufficient to prove the case against the Appellant beyond reasonable doubts. On the fifth ground of appeal Ms Rugakingira submitted that, the trial Court evaluated well evidence tendered before it as reflected at page 4 to 7 of the judgement. Alternatively, she invited this Court to re-evaluate evidence in record as the first appellate Court has powers to re-evaluate evidence adduced during trial and reach its own findings. She referred this Court to the case of Mosi s/o Chacha @ Iranga & Another vs Republic (Criminal Appeal No. 508 of 2019) [2021] TZCA 598 (22 October 2021) on the powers of the first appellate Court to re-evaluate evidence on record. 3 Lastly it was her contention that, the prosecution case was proved beyond reasonable doubt because PW1 stated clearly that he found the victim with the Appellant in his room. PWl's testimony is supported by PW3 and the doctor PW2 as well as documentary exhibit PEI. Also, PW4 tendered witness statement in which the victim stated that, she had sexual relationship with the Appellant. She was of the view that the grounds of appeal are meritless and the Appellant was properly convicted and sentenced. In his brief rejoinder the Appellant stated that, the doctor observed that the victim was not raped. He alleged that, he was convicted without proof of the case on the required standards. He thus prayed to be set free. I have dispassionately examined the records, grounds of appeal and submissions by the parties and found there is only one crucial issue that calls for determination in the instant appeal, that is whether the prosecution case was proved beyond reasonable doubt. Firstly, I will start examining the witness statement which is the main evidence that suggests that the victim was raped and it was the Appellant who raped her. In this I will examine the procedures employed in admission of the statement. For quick reference, Section 34B (2) of the Evidence Act [Cap. 16 R.E 2019] is hereby reproduced: "(2) A written or electronic statement may only be admissible under this section (a) where its maker is not called as a witness, if he is dead or unfit by reason of bodily or mental condition to attend as a witness, or if he is outside Tanzania and it is not reasonably practicable to call him as a witness, or if all reasonable steps 4 have been taken to procure his attendance but he cannot be found or he cannot attend because he is not identifiable or by operation of any law he cannot attend; (b) if the statement is, or purports to be, signed by the person who made it; (c) if it contains a declaration by the person making it to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that if it were tendered in evidence, he would be liable to prosecution for perjury if he willfully stated in it anything which he knew to be false or did not believe to be true; (d) iff before the hearing at which the statement is to be tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings; (e) if none of the other parties, within ten days from the service of the copy of the statement, serves a notice on the party proposing or objecting to the statement being so tendered in evidence: Provided that, the court shall determine the relevance of any objection; (f) if, where the statement is made by a person who cannot read it, it is read to him before he signs it and it is accompanied by a declaration by the person who read it to the effect that it was so read, '(emphasis added) For a statement of a witness to be tendered under section 34B, a party wishing to tender the statement should comply with all conditions set therein. The Court of Appeal insisted on the importance of satisfying all conditions of section 34B in many cases including the case of Manyanda Ncheya vs Republic (Criminal Appeal 437 of 2017) [2021] TZCA 409 (25 August 2021), in which the Court stated that: 5 "It is now common knowledge that all the conditions stipulated in the sub section are cumulative and must be satisfied by the prosecution before the statement is admitted in evidence." In the light of the stated position of the law, the question to be answered now is whether or not the victim's statement tendered and admitted before the trial Court met the requirements set forth under section 34B of the Evidence Act, [Cap. 6 R.E 2022], The response is in negative because, prior to tendering of the witness statement at the trial, notice was not served to the Appellant so as to enable him to exercise his statutory right to object to its being tendered as evidence against him. Record show that on 8th July 2023 the prosecution filed a notice to produce a statement of Hadija d/o Ramadhani under section 34B of the Evidence Act. Though the notice indicates that, the statement is attached to the notice and the notice will be served to the accused person, no evidence was tendered to establish that, the notice and the statement was served to the accused person. To the contrary, on 18/07/2023 the prosecution prayed before the trial Court to file notice to produce a statement of untraceable witness. The prayer was instantly granted and PW4 proceeded to testify and tender the victim's statement which was admitted as exhibit PE2. Section 34B (d)&(e) requires that, the notice be served to the adverse party and incase the adverse party wishes to object or oppose tendering of such statement, he should file a notice proposing such objection within ten days after being served with the notice. Given the fact that, the Appellant was not served with the notice and copy of the statement prior to its 6 tendering, the admission of the statement contravenes the provisions of section 34B (d & e). Despite noncompliance with the provisions of section 34B during tendering of a vital piece of evidence, the prosecution also failed to prove age of the victim which is necessary element for the offence of rape under section 130(l)(2)(e) of the Penal Code, [Cap.16 R.E 2022]. For rape under the provision of section 130(l)(2)(e) of the Penal Code to be proved on the required standards, the victim girl should be below 18 years old. See the decision of the Court of Appeal in the case of Cosmas Herman vs Republic (Criminal Appeal No. 211 of 2020) [2024] TZCA 393 (3 June 2024). Unfortunately, my perusal of Court record, I found neither a witness who has testified on the age of the victim nor any other piece of evidence that establishes the age of the victim. In such circumstances the Court cannot presume that the age of the victim is 16 years as stated in the charge or 17 years as it was recorded in the PF3. In absence of prrof of age of the victim, the prosecution cannot be considered to have managed to prove the case against the Appellant. Before I pen off, I find it necessary to write a bit on the neglected societal and parental duty to raise and guide children. The case at hand presents a vivid example of neglect of such crucial duty by some parents and or guardians. According to PW1, a guardian of the victim, he noted change of behavior of the victim and he suspected that she has been engaged in sexual affairs while still a student, a form four student at Bomba Mzinga Secondary school. Instead of counselling the victim to stop such behavior, he merely set a trap against the Appellant at the expense of the victim's welfare. As a result, the victim could not finish her secondary education as 7 she disappeared to unknown place. All these would have been prevented if PW1 would have given the victim parental care and guidance. It should be noted that, penal laws have been enacted to deal with those who commit criminal offences including sexual offences but they have not dispensed parents and guardians from their parenting duty. Since the prosecution failed to prove the age of the victim and involvement of the Appellant in the alleged rape, I find the case against the appellant was no proved beyond reasonable doubt against the offence of rape. In the event, this appeal is allowed. The Appellant's conviction is hereby quashed and the sentence meted against him is set aside.I order the immediate release of the Appellant from custody unless, held for other lawful reasons. The right of further appeal is hereby explained to whoever aggrieved with this decision. Dated at Tabora this 1st day of August 2024 Z. D. MANGO JUDGE 8