JUDGEMENT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY. AT DAR ES SALAAM CRIMINAL APPEAL NO 19054 /2024 (From the decision of the District Court of Kinondoni at Kinondoni Criminal Case No. 50 of 2022) dated 3rd day of August 2023 (Hon. RUGEMALILA - SRM) PASTORY JOSEPH .......................................................................... APPELLANT. VERSUS REPUBLIC.................................................................................... RESPONDENT. JUDGEMENT: 11th Dec 2024 & 17th Feb 2025 KIREKIANO, J: The appellant herein, together with one Karim Zongo, was charged with the offence of Gang Rape contrary to section 130 (1), (2)(a) and 131A (1)(2) of the Penal Code Cap 16 [R.E 2019]. The particulars of the charge stated that the appellant and the said Karim Zongo, on the 1st day of January 2022 at Bunju area within Kinondoni District in Dar es Salaam Region, jointly had carnal knowledge of a woman aged 29 years without her consent. The said woman’s name was disclosed in the charge and the record; however, for good reason, I shall sufficiently refer to her as “the victim” 1 All accused persons pleaded not guilty to the offence. In a bid to prove the charge, the prosecution lined up four witnesses: PW1, the victim; PW2, Dr Happiness Mbeyera; PW2 F8043 DC, PW3 Diaayles Simon; and Pw4, H.8047 PC Hamisi Daudi. Briefly stated, the facts that led to the appellant's arrest and prosecution were as follows: On the fateful day, it was the new year, 1st January 2022. The victim had some drinks with her friends at the QX bar at Bunju. The said Zongo joined them. When she wanted to leave, the said Karim Zongo stopped her and pulled her back, asking her about his beers. When she asked for help, the appellant responded. There was an argument to resolve this; the appellant and the said Zongo pretended to take the victim to the police station. In this, the victim and the said Zongo boarded one motorcycle while the appellant followed them with another motorcycle. Instead of taking the victim to the police station as intimated, the two teamed up and forcefully had her carnal knowledge of the victim. It is on record that the police had information about the incident from a motorcyclist who reported it. The appellant and Zongo were later arrested. The appellant's defence was complete denial. The trial court relied on the evidence of the victim, PW1, corroborated by the medical evidence by PW2 2 Dr Dayness. The trial court also relied on the caution statement of the first accused, Karin Zongo (Exhibit P l), to find a conviction on the appellant. Karim Zongo did not make a defence; he was absent. It is noted that when the trial court was composing the judgement, it stated that Karim Zongo had passed away. Notwithstanding this, the trial court went on to convict the appellant and consequently inflicted the custodial sentence of life imprisonment. Dissatisfied, the appellant herein preferred this appeal, setting forth four grounds of appeal, during hearing he maintained two grounds of appeal, thus: 1. That, the trial court erred in law and fact to convict the appellant basing on incredible evidence of PW1. 2. That, the trial court erred in law and fact to convict the appellant by acting upon exhibit P1 which was not listed among the list of exhibits during preliminary hearing. During the appeal hearing, the appellant was unrepresented. The respondent republic had the service of Miss Jackline Werema, a learned senior state attorney. At the appellant's option, the appeal was argued by written submission. 3 In his submission in chief, the appellant argued that his conviction was based on the evidence of a victim PW1 on visual identification of the appellant at QX bar and thereafter at the scene of crime. He argued the appellant was not credible and probable enough to eliminated reasonable possibility of mistaken identity and or recognition. He cited the decision in WAZIRI AMANI Republic ,[1980] TLR 250. He also said in the evidence of PW1 there was variance of names of the victim appearing in the record of the proceedings and that in the charge sheet. In this he cited Mashala Njile V.R Criminal Appeal No 179 Of 2014 (Unreported) it was held that; "Variance between what is stated in the charge sheet as against the evidential facts from the testimony of the prosecution witnesses renders the charge defective On the second ground, the appellant argued that his conviction was based on the caution statement of his co accused (Exhibit P.1) where the appellant was implicated in that statement which was tendered and admitted in evidence without an appellant afforded with an opportunity to object the same. He cited, Twaha Ally And 5 Others V.R, Criminal appeal no 78 of 2004 (Un reported) it was held that; failure to give an opportunity to 4 the accused person to object to the caution statement is fatal. the appellant thus argued that, the case against him was not proved beyond reasonable doubt to justify the conviction he prayed this appeal to be allowed the conviction and sentence thereof to be quashed and set a side and the appellant to be released from the prison. On her part, Miss Werema was quick to inform this court that the respondent was supporting the appeal. She raised one pertinent point on the legality of the proceedings of the trial that Court. Miss stated thus proceedings as exhibited on pages 28-36 when the first accused (now deceased) namely Karimu Zongo did not attend proceedings, no reasons were stated in court’s proceedings until when the judgement was composed. In the Judgment at page 4 it is when it comes to light of the passing away of first accused and there is nothing on record to indicate that his trial was abated. Miss Werema, took a firm view that the resulted proceedings were vitiated and prejudiced the appellant. In support of her position, she cited decision in Mande s/o Manyanya vs Republic (Criminal Appeal 55 of 2017) [2020] TZCA 1910 (17 December 2020) where similar circumstance occurred and the CAT held; 5 It follows then that the abatement of the trial on the death of the accused person is a statutory requirement. The reason behind being that a criminal prosecution is concerned primarily with the punishment of an offender and not with the trial of an abstract issue about the truth or falsity of a prosecution case., Miss Werema thus invited this court to nullify trial court’s proceedings, quashing the emanated decision and consequently set the appellant free as prayed by Appellant. The appellant did not make rejoinder submission. On my part, i wish to start with the point on legality of the proceedings as raised by Miss Werema. I have revisited the proceedings of the lower court. The same indicates that the appellant herein was jointly tried with the said Karim Zongo. The said Karim Zongo had been attending the proceedings, during hearing of the prosecution case. But did not enter defence. As indicated by Miss Werema, the proceedings of the trial court at page 28 shows thus; 17.1.2023 Corum Hon Rugemalila PRM PP Ester Cc Winfrida. Accused Present except the 1st accused. 6 This was also the position on the subsequent dates when the defence hearing was adjourned. Ultimately, on 1.6.2023, the appellant finally made his defence and the trial court reserved its judgement which was later delivered on 3.8.2023. Going by this record, there is nowhere indicating that one, the first accused Karim Zongo passed away and two his trial was abated. At page 4 of the judgment, the learned trial Magistrate indicated thus “In defence, the 2nd accused was the sole witness; following the demise of the 1st accused, Going by the record, it would appear that the non-attendance of the 1st accused in his trial was caused by his death. However, to be precise, the trial court ought to have been formally informed, and the record should have been louder and clear on this. This is because, it is one thing for a trial to proceed in the absence of the accused person and quit a different procedure when the absence of the accused is in the event of death. The latter is governed by section 224A of the Criminal Procedure Act. Cap 20. [RE 2022]. The same provides; “Every trial under this Part shall abate on the death of the accused person. 7 It was expected that the moment it came to the knowledge of the trial court that the 1st accused passed away then his trial was enjoined to put that on record and consequently ought to have abated the proceedings against the said deceased accused. This is pursuant to section 224A CPA. Failure to comply with this was an anomaly which brought a great deal of confusion in the proceedings. This is because, one the trial court did proceed with the trial in absence of the first accused with out assigning reasons, two even after it come to light at shown at page 4 of the judgment that the first accused passed away, yet the trial court went on to rely on the confession of the first accused in finding conviction of the appellant. Based on the above, I am inclined to subscribe to Miss Werema's position that the trial court's proceedings were vitiated following the noncompliance of section 224A CPA, Cap 20 [RE 2022]. Based on the foregoing, the lower court proceeding was a nullity the same under section 29 (b) of The Magistrates’ Courts Act [CAP. 11 R.E. 2019] are quashed. Now, on the way forward, plenty of decisions provide guidance on this, including Fatehali Manji v. The Republic (1966) EA 343 and Shaban Abdallah v. Republic Criminal Appeal No. 255 of 2013, which held 8 that it is not the rule of thumb that a retrial will always be ordered when the original trial is illegal or defective. A retrial should only be made where the interests of justice require it. My decision in this appeal is based on the evidence on record. I have given the same thought as canvassed in the two grounds of appeal, I shall pause here and say a retrial will not serve the interests of justice. In the end, this appeal succeeds the appellant is to be released from custody and set free unless otherwise held. Dated at Dar es Salaam this 17th Feb 2025. A J KIREKIANO JUDGE. 9