INNOCENT STEVEN SALEKO

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA DC. CRIMINAL APPEAL NO. 23485 OF 2024 (Originating from DC. Criminal Appeal No. 8665o f2024 of Iramba District Court at Kiomboi) INNOCENT STEVEN @ SALEKO..........................................................APPELLANT VERSUS REPUBLIC..................................................................................... RESPONDENT JUDGMENT 10.12.2024 HASSAN, J.: Innocent Steven @ Saleko, the appellant herein, was charged, convicted, and sentenced to serve an imprisonment sentence of four (4) years for the offence of Abduction of a girl contrary to section 133 of the Penal Code [Cap. 16 R.E. 2022] by the District Court of Iramba at Kiomboi within the Mkalama District in Singida Region. l The particulars of the offence in respect of which an appellant was charged were that, on 9th December, 2023, at Munguli village, within Mkalama District in Singida Region, wilfully and unlawfully abducted one Mariam d/o Shaha, a girl aged 18 years old, a form three student at Gunda Secondary School with intent to have sexual intercourse with her. In a nutshell, the facts leading to the charge, as it appear from the victim's statement, exhibit PEI; it depicts thus: on 10th December, 2023, at about 1700 hours, the victim, one Mariam Shaha, left her home heading to her neighbour's house. While on the way, she met with her teacher, the accused person, who teaches at Munguli Primary School and lives in the teacher's quarters. The accused person then informed the victim that her father, who left their house for some time, is in Singida town. That evening, the victim decided not to return home; instead, she spent a night in the accused person's house, who lived alone. In the morning of 11th December, 2023, the accused person and the victim left the house together by motorcycle, heading to Singida town to the victim's father, whom they met. 2 The victim remained with her father, but the accused returned to his village. On 13th December, 2023, the victim returned home at Munguli by public bus. Because of fear that she left without permission, the victim went back to the accused person's house instead of going back to her home. Therefore, the victim spent a night of 14th December, 2023, there in the accused person's house. In the morning, around 1200 hours, the victim's mother approached the accused person's house and knocked on the door. The accused opened the door while wearing only shorts. After being welcomed, the victim's mother went to the room and found her daughter inside, wearing slide underwear and a top, and covered her back part with a towel. The victim was hiding behind the door, and the accused person ran away, but later he was arrested by police. The victim was medically examined by a doctor at the Dominic health centre. Although PW1 (the mother) claimed that, due to the medico-legal examination result, her daughter was sexually abused. However, the victim refused to have had sexual intercourse with the accused person. Notably, though, in the prosecution's evidence, there was neither a doctor who testified about the diagnostic status of the victim nor PF3 tendered to support PWl's assertion. It further noted that, according to the PW1 and PW2 3 testimonies at pages 10 and 12 of the proceedings, respectively, she unveiled during cross-examination that the victim had been married before, and her marriage was nullified by the District Commissioner later. Pained by the decision of the trial court, in the petition of appeal, the appellant paraded eight (8) grounds of appeal to be single-minded by the court. For precision, I will paraphrase them all as hereunder: 1. That the charge sheet that introduced the offence o f abduction to the appellant was defective as it failed to conform to the requirements o f the charging provision, i.e., section 133 o f the Penal Code, [Cap.16 R.E2022]. 2. That the trial court erred in law and in fact by holding the appellant guilty o f abduction based on the prosecution's testimony that was not corroborated by the statement o f the alleged victim. 3. That the trial court erred in law and in fact to find the appellant guilty based on the mere presumption and in the absence o f bona fide proof o f forcible detention against the victim's free will and without proof o f the appellant's intention. And an act o f carnally knowing the alleged victim. 4. That the trial court erred in law and in fact by passing judgment based on gender discrimination with respect to the male appellant's good faith to give shelter to the alleged victim. 5. That the trial court erred in law and in fact by convicting the appellant, whereas the prosecution has failed to prove all three ingredients o f the alleged offences. 6. That the trial court erred in law and in fact by convicting the appellant despite the medical examination result showing that no sexual intercourse had at all concluded to the alleged victim. 7. That the trial court erred in law and in fact to pass the judgment based on the weakness o f the defence testimony instead o f the strength o f the pleadings and evidence o f the prosecution. 5 8. That the trial court failed to make a proper evaluation o f the evidence tendered by both parties. During hearing of the appeal, the appellant appeared under the legal warden of Ms. Zahara Chima, learned counsel. Whereas, for the respondent republic, Mis. Betha Kurwa, learned State Attorney entered presence. Hearing coxswained orally, and based on the appeal as pitched, the issue for determination of the court is whether the appellant's charge was correctly proved to warrant conviction. In her submission to support the appeal, Ms. Zahara Chima, learned counsel for the appellant, submitted that all grounds of appeal have been yielded in the 1st and 5th grounds of appeal that the prosecution has failed to prove all ingredients of the charge. Looking at section 133 of the Penal Code, she argued, it provides for the elements of offences, including an intention to marry or have sexual intercourse with any other person who takes her away or detains her against her will. In the case at hand, the prosecution has failed to prove that the accused had detained the victim against her will. For example, looking at page 14 of the proceedings, the victim shows that she went to sleep with 6 the accused for the purpose of connecting her with her father at Singida Urban. And thus, it is true that she was sent there to meet her father. Also, on 13/12/2023, the victim went back to the accused and spent a night, and on 14/12/2023, the accused was arrested. Therefore, looking at the circumstances of this case, she argued that there was no bad intention to retain the victim; in fact, the victim went to the accused with her free will. An exhibit PEI, the victim's statement, that was admitted under section 34B of the CPA, shows that the victim went to the appellant for the purpose of searching for her father. The appellant had no intention to marry or commit any sexual intercourse with the victim or cause her to be married and have sexual intercourse with any other person. That said, she submitted that the charge was not proved beyond reasonable doubt, and thus, the appeal should be allowed and conviction and sentence should be quashed and set aside. Readily, prosecution conceded to the apparent flaw pointed out by the appellant's counsel. Conspicuously, learned State Attorney Ms. Kurwa enjoined that as she has gone through the proceedings, she conceded 7 argument geared up by the rival counsel that, based on the 1st and 5th grounds of appeal, the appellant's call has merit. She therefore concluded that it is clear that section 133 of the Penal Code imposes the ingredients of the offence of abduction. And, as rightly submitted by the appellant's counsel, they were not proved beyond reasonable doubt. For instance, looking at the evidence of PW4, who tendered a statement of the victim (PEI), the statement does not show that the victim was unwillingly detained or forced to be married or have carnal knowledge with the appellant or any other person. Therefore, seeing that the elements of the offence were not proved beyond reasonable doubt, she wholeheartedly supported the appeal. In my endeavour, going through the submissions by the counsels and further deepening into the record of proceedings, it appeared obvious that the appellant was incorrectly convicted by the trial District Court. Needless to say, though, it may sound positive to note that section 133 of the Penal Code explicitly imposes the ingredients that ought to be proved in order to warrant conviction for the offence of abduction. The section provides: 8 "Any person who, with intent to marry or have sexual intercourse with a woman o f any age, or to cause her to be married or to have sexual intercourse with any other person, takes her away or detains her against her will, is guilty o f an offence and is liable to imprisonment for seven years." Based on the requirements of section 133 of the Penal Code quoted here-above, and as rightly submitted by learned counsels, both for the republic and the appellant, indeed the element of whether or not the appellant had an intention to marry or have sexual intercourse with a victim or to cause her to be married or to have sexual intercourse with any other person was not at all proved. Again, the element of whether the appellant had taken the victim away or detained her against her will was also not proved. For instance, in reference to the victim's evidence (exhibit PEI), that is according to the law, when it comes to sexual offences, it becomes the best evidence (see Selemani Makumba vs. Republic (Criminal Appeal 94 of 1999) [2006] TZCA 96 (21 August 2006), basically the victim transpired as thus: 9 "...on 10th Decembert\ 2024' at about 1700 hours, I left home heading to our neighbour's house, one mama Miiika. While on the way, I met with teacher Innocent Sa/eko (the accused person), who teaches at Mungu/i Primary School and lives in the teacher's quarters. He informed me that my father, who left our house for some time, is in Singida town. That evening, I did not return home to my mother, even if it was dose to Munguli Primary School; instead, I spent a night in the house o f teacher Innocent Saleko, who lives alone. In the morning o f 11th December, 2024, we left the house together by motorcycle heading to Singida town to see my father, whom I met. The teacher left, and I remained with my father until 13th December, 2024, when I returned to Munguli village by bus. I did not return home because I left home without permission; thus, I was afraid. Therefore, I went back into the teacher Innocent's house, and I spent a night there..... on l4 h December, 2024, we were arrested by police and medically examined at the Dominic health centre. To tell the truth;I did not have sex with teacher Innocent Sa/eko." Having gone through what was transpired by the victim, it is obvious that the offence of abduction was unproved. In the circumstance, I am alive to the position of the law; thus, it is the duty of the prosecution to prove the charge beyond reasonable doubt. For instance, in Simon Edson @ Makundi v. Republic, Criminal Appeal No. 5 Of 2017 CAT (unreported), it was held that: "It is trite law that the burden o fproofin a criminal case lies on the prosecution; and it never shifts to the accused." See also decisions in George Mwanyingili v. R, Criminal Appeal No. 335 of 2016; Nchangwa Marwa Wambura v. R, Criminal Appeal No. 44 of 2017; and Mohamed Haji Ally v. R, Criminal Appeal No. 225 of 2018 (all unreported), just to mention but a few. For the foregoing reasons, I am satisfied that the appeal has merit. I hereby allow it, quash the convictions, and set aside the sentences. The appellant is to be released from prison forthwith. 11 It is so ordered. DATED at DODOMA this 10th day of December, 2024. Judgment delivered this 10th day of December, 2024 in the presence of the parties. S. H. HASSAN JUDGE 10/ 12/2024 12