PETER LINUS SANGU VS REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF SUMBAWANGA AT SUMBAWANGA CRIMINAL APPEAL NO. 22512 OF 2024 [Appeal from the Judgment of Sumbawanga District Court (Hon. G. William SRM) in Criminal Case No. 3195 of 2025] PETER LINUS@SANGU @KAPYELE................................................. APPELLANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT ^^JUDGMENT MWENEMPAZI, J. The appellant was arraigned in the District Court of Sumbawanga at Sumbawanga, hereinafter referred to as trial Court, for committing an Unnatural offence contrary to section 154(1) (a) and (2) of the Penal Code, [Cap. 16 R.E.2022]. It was alleged by the prosecution that the accused person (appellant herein) on the 10th day of January, 2024 at Sumbawanga Asilia area within Sumbawanga Municipality and Rukwa Region did have Carnal knowledge of on AX (name withheld) a boy aged six (6) years old against the order of nature. At the plea taking session the accused distanced himself with the offence. He denied that he committed the offence as alleged by the prosecution. However, upon hearing of the case against the accused person, whereby the prosecution called five(5) witnesses and the defence called one witness, the trial court found the prosecution has proved the charge of Unnatural offence against the accused person beyond reasonable doubt and convicted the accused as charged.The accused (now a convict) was sentenced to serve a sentence of life imprisonment in prison. In addition, the trial court ordered the convict to pay compensation to the tune of TZS 2,000,000/= to the victim. The appellant is aggrieved by the decision of the court hence this appeal. At first the appellant on the 24th July, 2024 prepared the petition of appeal and filed in court. He later instructed Mr. Samwel Kipesha, learned Advocate to represent him, who on the 26th day of September, 2024 prayed for leave to amend the Petition of Appeal. The prayer was granted and the amended Petition of appeal was filed. The same contains six grounds of appeal as follows: 1. That the trial court erred in law and fact by improperly recording evidence of witnesses during cross examination leading to mistrial. 2. That the trial court erred in law and fact by admitting PF3 as an Exhibit P1 which was not properly identified before tendering it. 3. That the trial court erred in law and fact by admitting a caution statement as Exhibit P2 which was illegally procured. 4. That the trial court erred in law and fact by convicting the accused based on testimony of PW1 and PW4 who are minors without conducting properly the voir dire test. 5. That the trial court erred in law and fact by failure to rely on the testimony of PW4 which material of which is based on hearsay. 6. That the trial court erred in law and fact by convicting and sentencing the accused person while the case was not proved on the required standard. The appellant prayed that this court allows the appeal, quashes the Judgment of, and conviction by, the trial court, sets aside the sentence and the appellant be set free. At the hearing of the appeal, the appellant was present and he was being represented by Mr. Samwel Kipesha, learned Advocate; the Respondent was being represented by Mr. Mathias Joseph, learned state Attorney. Mr. Samwel Kipesha, learned advocate for the appellant prayed that they will abandon ground 4 and 5 and submitted on the appeal for ground 1,2,3 and 6. The learned counsel for the appellant prayed to commence his submission with ground 6 of an appeal. He submitted that in ground 6 of an appeal, they are faulting the trial court for convicting and sentencing the appellant while the case was not proved to the required standard. The counsel submitted that after going through the judgment of the trial court, they discovered that the trial magistrate convicted the appellant relying on evidence not tendered in court. It is the legal position that decisions of the court must base on evidence which was tendered. In our case, the trial court added evidence which was not tendered by witnesses. That was wrong or a serious error which touches the root of the case. That stance was explained in the Court of Appeal decision in the case of AthanasJuliusVs.Republic,Criminal Appeal No. 498/2015, Court of Appeal of Tanzania sitting at Mbeya. That decision was also discussed in the case of JohnEdward@ BabuVs.Republic,CriminalAppealNo.112of2022 where at page 16 it was observed that “...the addition of extraneous facts is fata”'. Also, the High Court of Tanzania at Sumbawanga referred the decision in the case of IsackNamungu Vs. ChrispiniRaphael, LandAppealNo. 43 of2023, High Court of Tanzania at Sumbawanga at page 15: "In AtiianasUuiiss vsRepubic, CriminalAppealNo. 498 of2015 (unreported) the Court of Appeal of Tanzania was of the view that: ".....iccisiion in judgments of facts which were not in the recorded evidence in the proceedings is a fatal irregularity that vitiates the entire proceedings, of a trial court." After establishing the position of the law, the counsel prayed to show facts which were included but not testified. In so doing, he commenced with the testimony of PW1. In the testimony of PW1 as reproduced at page 2 of the judgment, the trial magistrate wrote: “theaccusedtoldhimtoopenhis legs”. But in the typed proceedings at page 7 reads “Kapyelatoldmeto expandmyanus”. A look at it these are two different statements. At page 8 of the judgment when reproducing testimony of PW1 and PW4, the trial magistrate wrote as follows: “WhilePW4watchingvideo,theaccusedpersondidundress the victim and inserted his penis at the anus. This was testified by prosecution witness PW1 and PW4, the evidence was never cross examined by the accused person'. If you look at the typed proceedings, the testimony of PW1 and PW4 at pages 7 and 14, there is no any area where it was recorded that the accused undressed the victim. On the testimony of PW4, the trial magistrate in the judgment recorded that PW4 was a witness at the scene of crime. At page 14 PW4 said: “Then Faridi told me that Mr Kapyeie asked him where is the anus...” Also, if you look at page 7 of the typed proceedings. PW1 also says he told: “Thefactthat“PW4isaneyewitnesshasbeenadded”. The counsel submitted that looking at the testimony of PW2, at page 8 of the typed proceedings says after receiving information she called the teacher. I did call the teacher who is my father's neighbor...” The trial magistrate at page 3 of the judgment recorded that: "She called leader who is her neighbor...” PW2 testified that on 13/01/2024 she was at the market when she received information from Boniface of3 it is reproduced that on the 10/10/2024 she was on the market and received information from Bony. At page 4 of the Judgment the trial magistrate wrote “'Then later the victim tod the PW4 that the accused person had raped him in the buttocks” While at page 14 in the testimony of PW4 the testimony was different. As to PW3 at page 4 of the judgment the trial magistrate wrote at paragraph 1: “ThenPW3didgivetheexhibitP1tothevictimtohandoverto thepolice”. The aim was to establish chain of custody. But PW3 has never said the words. Also, at page 3 of judgment last paragraph. When reproducing the evidence of PW3 said the victim went with the police while the witness has never explained that; in reality examination was not done even on 16/1/2024 exhibit P1 shows the examination was conducted on 14/01/2024. The counsel for the appellant submitted that based on the sixth ground, and since the trial magistrate made a decision relying on extraneous facts, they are praying for the ground to be allowed. Apart from the addition of extraneous matters, still the evidence is contradictory. It is the decision of one person he admitted and ruled that it is sufficient. In the case of Shaban Daudi Vs. Republic, Criminal Appeal No. 28/2021 (Tanzlii): “Credibilityofthewitnesscanbedeterminedintwoways.Onewhen assessing the coherence of the testimony of that witness, two the testimonyofthatwitnessisconsideredinrelationwiththeevidenceof otherwitnesses”. If we analyze star witness PW1 and PW4 their account differs on the way the event occurred; PW1 at page 7 (paragraph 3) and PW4 at page 14 (last paragraph). At page 2 of the judgment the trial magistrate reproduced the testimony of PW1 stating that: “ The accused told him to open his legs and he inserted his penis” Also, at page 4 of paragraph 2 “The victim tod the PW4 that the accused person had rapped". In general, the evidence as a whole creates doubt that the event occurred. Everyone comes with his own version of the way the event occurred. The counsel submitted that on the first ground appeal they are faulting the recording of evidence of witnesses during cross examination leading to mistrial. The counsel invited this court to refer the case of Mangalu MaduhuVs.TheRepublic,CriminalAppealNo.158of2022,Court ofAppealofTanzaniaatTabora and HJORDISFAMMESTADVS. ABSABANKTANZANIALTD,CivilAppealNo.30/2020Courtof AppealofTanzaniaatArusha. The improper recording is obvious at page 9, 24, 25. The recording occasioned mistrial, the counsel prayed the decision and proceedings be quashed. Submitting on ground 2 of the appeal, the counsel for the appellant stated that the PF3 was admitted as exhibit P1 without being properly identified before tendering it. This clear in the testimony of PW3 at pages 11 and 12. The witness named the identifying marks but did not identify in the exhibit. The same was not properly identified. The counsel prayed that the document, exhibit P1 be expunged. On ground 3 of the appeal, the trial court erred in law and fact by admitting a caution statement as an exhibit P2 which was illegally procured. Caution statement was recorded in presence of other police officers. He invited this court to refer the case of Friday Mbwiga @ Kameta Vs. The Republic, Criminal Appeal No. 514 of2017, Court ofAppeal of Tanzania at Mbeya page 11-12. The counsel opined that the trial court should not have admitted the exhibit. He prayed the exhibit be expunged. And that as a whole the counsel prayed for an appeal to be allowed, judgment be quashed, sentence set aside and accused be released. Mr. Mathias Joseph - State Attorney submitted in reply for the respondent. He submitted that they have heard the submission on the appeal and their stance is that they are opposing the appeal. In their opinion, the appellant was rightly convicted and sentenced. He prayed to submit following the sequence as submitted by the counsel for the appellant. On ground six (6) of appeal he submitted the accused was charged for committing Unnatural offence contrary to section 154(1) (a) and (2) of the Penal Code, [Cap 16 R.E 2022]. In proving the offence, the Republic was supposed to prove age of the victim. If you go through the typed proceedings, PW2 testified that the victim was six years old. That was not controverted. The other factor/ingredient is Penetration. In sexual offences, the evidence of the victim is the best evidence as sexual offences. For the argument he referred the case of Seleman Makumba Vs. Republic, Criminal Appeal No. 94 of 1999, Court of Appeal of Tanzania at Mbeya. At page 7 of the typed proceedings, the victim said, he the inserted to my anus his ‘dudu’. That version of the evidence is supported by PW3, the doctor at pages 10 - 12 of typed proceedings. PW1 also told PW4 that it is the accused who had sexual intercourse against the order of nature (page 14 last paragraph). The counsel submitted that it is their submission that through the witnesses all the ingredients were proved. Even the accused failed to dispute the evidence by PW1, PW4, PW2 and that by PW3 failure to cross examine in certain facts it entails admission what has been testified. In the case of Mawazo Anyandwile Mwaikwaja Vs. DPP, (Criminal Appeal No. 455 of 2017) [2020] TZCA 268 (3April2020) page 23 - 24. However, to show the evidence was credible, the same was proving charges the accused was charged with. According to the counsel for the respondent, the appellant is not disputing that the victim was penetrated. But how he was penetrated. They have their argument that the duty of the court is to evaluate the evidence not to reproduce. The court analyses within the scope of the charges in court. He opined that the short coming listed are minor. They do not go to the root of the case. The contradictions on the dates are minor do not go to the root of the case. Even if the court will see that the evidence of PW4 does not corroborate still the evidence of PW1 victim may suffice to convict the accused. He submitted and argued that the case was proved beyond reasonable doubt and he made a prayer that the 6th ground of appeal be dismissed. The case which has been cited are irrelevant. Submitting on the 1st ground of appeal the counsel submitted that their argument is that the ground is meritless as the case for prosecution was proved charges against the accused. Even the accused failed to cross­ examine on crucial issues. He argued that it is the duty of the prosecution to prove the case ^beyond reasonable doubt and accused cannot be convicted based on the weakness of his defence. The trial court based its decision on the strong prosecution evidence. On the 2nd ground of appeal, the appellant has faulted the admission of exhibit P1. He submitted that they are insisting that PW3 when testifying following procedure. He laid down the foundation and identified and prayed exhibit be admitted. The accused did not dispute at the whole process. The accused understood the charge and evidence tendered. The appellant has not said how she has been affected. The exhibit was admitted according to law. He opined that the ground has no merit. On the 3rd ground of appeal, the appellant is contesting the evidential value of the cautioned statement. The counsel admitted that the trial court erred to receive the document as at recording of the caution statement there was no compliance to law. While recording the statement there were other police officers. The court at conviction did not use caution statement. Even if the same will be expunged it won’t affect the decision. He submitted that the ground has merit. The same may be expunge. On conclusion the counsel submitted that this court has power to evaluate the evidence and come up with its own independent conclusion. However, they are submitting that the rest of the evidence is watertight to prove the case beyond reasonable doubt. I have read the record and also heard the submission by the counsel for both parties. The question for consideration in this appeal is whether the appeal has merit and therefore deserve to be allowed. The answer obviously would depend on whether the grounds of appeal raised by the appellant are meritorious. Starting with the 6th ground of appeal, the appellant has complained that the judgment of the trial court for convicting and sentencing the appellant without there being proof beyond reasonable doubt. The reason advanced is that the trial court Magistrate relied on extraneous matters not adduced in evidence during trial. I have made a follow up along the line of submission by the counsel for the appellant and confirmed the complaints. The counsel for the Respondent has submitted and argued that the same are minor shortcomings which do not go down to the root of the case. It is however a statement made without there being any demonstration of which shortcomings are minor in his view such that we can say with assurance that they do not touch the core of the case. As a general principle in law as was held in the case of Hjordis Fammestad vs Absa Bank Tanzania Limited & Another (Civil Appeal No. 30 of2020)[2024]TZCA 829(28August,2024): “'The importance of a credible record of the trial court's proceedings cannot be over emphasized. Credibility of the proceedingsisindispensableasoneoftheguaranteestoafair hearingonreview,revisionandappeal.Proceedingsserveasa backbone in the delivery of justice. Accurate proceedings providecompleteinformationonthehappeningsofthecase that helps judges, magistrates and judicial oficers confer impartialdecisionmakingincourtcases.Judicialsystemmay fail to bring justice ifproceedings are not presented in a reliable and authentic manner” In the case at hand, we have a complaint which is verifiable on record, that what is contained in the Judgement is not reflected in the record of the proceedings. That has an effect to the fairness of the trial as a whole. In the case of AthanasJuias vs Republic (CriminalAppeal No. 498 of 2015) [2017] TZCA 938 (2 October2017) it was held that: "...the act of the trial resident magistrate to include in his judgment, facts which are not refected in the recorded evidence in the proceedings. Implies either in his judgment, the trial resident magistrate did include extraneous matters which did completely not feature in the evidence of the witnesses who werecaled to testify,or,the trial residentmagistratedidomittorecordanumberof facts that were said by the witnesses in their testimony.Ineithercase,weare Inclined to join hands withthecontentionofthe learned counsel for both sides that, the irregularity occasioned was fatal, and did vitiate the entire proceedings of the trial court. In that regard, we quash the proceedings of the trial court as well as that of the first appellate court, because it was founded on null proceedings, and we set aside the sentence imposed thereto. ” In the quoted holding it is clear the effect of inclusion of extraneous facts in the judgment which does not reflect in the proceedings is fatal and has the effect of vitiating the whole proceedings. The effect is to nullify the proceedings and set aside the sentence. In this case, the question is whether I should order for a retrial. In the appeal, both parties have admitted that the documentary evidence in particular the caution statement and the PF3 were illegally admitted. They deserve to be expunged. The PF3 was not properly identified before being admitted, the caution statement (Exh. P2) was illegally procured. With the situation under the circumstances obtaining in this case it won’t be fair for the order for retrial to be issued. In the case of FatehaliManji vs. R [1966] E.A. 341 it was held that: "In general, a retrial may be ordered only where the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for purposes of enabling the prosecution to fill in gaps in its evidence at the first trial... each case must depend on its own facts and an order for retrial should only be made where the interests ofjustice require it." In the case at hand the complaints were not only on the above pointed anomaly, the recording of evidence also was complained for. Observing at page 9, 24 and 25 the recording of evidence is not reflective of the kind of questions which were being asked by the crossing party. In any case, it is my opinion that subjecting the accused person to a trial denovo won’t be a fair exercise and may occasion injustice given other shortcomings on evidence against the accused. The prosecution will have an opportunity to fill up the gaps pointed out. Under the circumstances I find it just to allow the appeal, quash judgment and conviction, set aside the sentence and order for immediate release of the appellant unless he is being held for another lawful cause. It is ordered accordingly. Dated and signed at Sumbawanga this 12th day of December, 2024. M. MWENEMPAZI JUDGE