DANIEL CHACHA 1

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA DC. CRIMINAL APPEAL NO. 71 OF 2023 .(Originating from Mpwapwa District Court at Mpwapwa in Criminal Case No. 17 of 2b22) I DANIEL EMMANUEL CHACHA....................................... APPELLANT VERSUS [THE REPUBLIC............................................................... RESPONDENT JUDGMENT Date of Last Order: 12/6/2024 Date of Judgment: 21/6/2024 MASABO, J.:- The appellant is aggrieved by a judgment of the district court of Kondoa in Criminal Case No. 17 of 2022 vide which he was convicted of rape, and ' sentenced to 30 years imprisonment. As per the charge sheet and the record . in the lower court file, the appellant was jointly charged with three other j persons for gang rape of an adult female person namely KK (true name I j withheld for protection of identity and privacy) who was during the incident, I 1 ' the appellant's fellow student at Mpwapwa Teachers Training College. All the accused persons entered a plea of not guilty. Hence, the matter went to a I . full trial after which, the appellant was convicted of rape while his co- ! f i accuseds were acquitted as the court found them to have not been sufficiently implicated. Aggrieved by the conviction and sentence,) the appellant filed the present appeal armed with eight grounds of appeal. Later I on, he expanded the list by filling eight additional grounds thus making a total of 16 grounds of appeal which I shall conveniently summarise starting with the grounds set out in memorandum of appeal which were as follows: Page 1 of 13 iOne, the offence of rape was not approved. Two, the charge was defective. Three, the requirement of section 234 (1) and (2) of the Criminal Procedure Act, Cap 20 R.E. 2022 was offended. Four, the appellant's defence was ignored. Five, the circumstances did not point irresistibly to the appellants guilty. Six, section 3 and 14 of the Human DNA Act of 2009 was offended. Seven, the collection of the DNA offended the law and; eight the chain of j custody in respect of the Government Chemist report was not proved. ' The additional list had the following grounds: One, the provision of section 192(3) of the Criminal Procedure Act was offended Two, there was none compliance with sections 10(3) and 9(a) of the Criminal Procedure Act. Three, the appellant was not sufficiently identified at the scene. Four, the caution statement (Exhibit Pl) was offensive of section 57(1) and (b) of the i Criminal Procedure Act. Five, Exhibit Pl was wrongly recorded by a police । officer who also recorded the caution statements of the other accused persons. Six, the evidence of PW2 and PW4 were contradictory as to the actual offence committed by the appellant. Seven, penetration was not established and Eighth, Exhibit P3, the Government Chemist Report, was in favour of the appellant. Ji I ; When the appeal came for hearing the respondent was represented by Ms. । j । Miyango Kezilahabi, Mr. Francis Kesanta and Ms. Prisca Kipagile, all learned i State Attorney whereas the appellant fended for himself. ■ I ! I Submitting in support of the first ground of appeal, the appellant arguepi that for the following reasons the prosecution miserably failed to prove the Page 2 of 13 offense of gang rape to the required standard which is proof beyond reasonable doubt. The investigator was assigned to investigate the case on 25/1/2022 while he, the appellant, was already in remand custody. There (was no credible evidence as to the date and time of the offence as all what । jthe victim stated was that on 25/1/2022, she was going to town to draw money; PW1 did not eye witness the offence, her evidence was based on hearsay from an undisclosed person and the place at which she allegedly found the victim is different from the scene of the crime. PW3's evidence (was doubtful as to whether he indeed recorded the appellant's statement land took the victim to the hospital at the same time considering that it1 was at night. PW4 was oblivious of the incident and his involvement was at a later stage and just in medical examination of the victim. And, PW5 was ; also not an eye witness. । ; i On the 2nd ground of appeal, he submitted that the trial magistrate erred by convicting him based on an invalid charge sheet as he was charged with gang rape but in the end, he was convicted of rape whereas the charge sheet was not amended in alignment thereto. The conviction and sentence are, therefore, a nullity as the trial court did not disclose the law used to convict him. He subsequently argued that the provision of section 234(1) & (2) of the Criminal Procedure Act, which require that the substituted charge, I if any, be read out and the accused be allowed to enter a plea. The charge was amended to implead the 4th accused but thereafter, it was not read over and the accused persons were not called upon to enter a plea. Thus, the proceedings are incurably defective. On the 4th and the 5th grounds, he submitted that the trial court erroneously ignored my defence in abrogation Page 3 of 13 of the provision of section 312(1) of the Criminal Procedure Act. The omission to consider his defence, breached his right to be heard and to be treated equally before the law. In support of the 6th and 7th grounds of i appeal, it was submitted that the trial magistrate erred in fact and law by I I relying on a report of a DNA that was conducted in disregard of the I provisions of section 14 of the DNA Act which prescribes the rank of a person I who can collect DNA and for the 8th ground, it was briefly stated that, the I evidence of the Government Chemistry was received in total disregard of the chain of custody. Turning to the additional grounds of appeal, the appellant argued that his first additional ground is meritorious as the substance of the memorandum of disputed facts deduced during the preliminary hearing stage was not read out loudly to him contrary to section 192 (3) of the CPA and in consequences, he was denied the right to know the undisputed facts. On the second additional ground, it was submitted that sections 10(3) and 9(3) of the Criminal Procedure Act were not complied with as the names of the prosecution witnesses were not disclosed during the preliminary hearing. Thus, the appellant had no clue as to who they were. They were brought at I the pleasure of the prosecution and some were not anyhow related to the case. For instance PW4, the doctor, was from Temeke, not Mpwapwa hospital where the victim was medically examined. On the third additional । ground, he submitted that the evidence of visual identification was seriously lacking and below the required standards as the victim did not state how he identified the appellant and the source and intensity of light at the scene of the crime. Besides, the victim stated that she was made to smoke banghi. Page 4 of 13 Hence, she might have been intoxicated and her identification was not free from mistakes. Regarding the fourth and fifth additional grounds, it was submitted that I 'exhibit Pl ought not to have attracted weight as its recording was contrary i Ito section 57 (2) (a) and (b) of the Criminal Procedure Act; there was no certification that the appellant consented to be interviewed in the absence । of relatives or a lawyer. Relying on the case of Njiru & Others vs. Republic । [2002] 1EA 218 and Njuguna Kimani vs Republic [1954] EACA he argued 'that, in fact, exhibit Pl ought not to have been received as PW3 recorded ,'who recorded it also recorded the statements of other accused persons ■contrary to the provision of sections 68 and 73 of the Criminal Procedure Act. He concluded that, the recording of caution statements of different accused persons by the same policeman has the risk of perpetuating I fabrication of cases. On the 6th additional ground, it was argued that there were contradictions between the victim and the doctor who examined her (PW4). The victim testifying as PW2 stated that she was only raped but PW4 stated that when he interrogated PW2 she said she had pains in the vagina ■ and anus and that in his examination he observed that there were bruises in : the anus and no explanation was given as to what caused such bruises considering that there were no allegations of sodomy. > I I On the 7th additional ground, it was briefly submitted that penetration which J is the essential ingredient of the offence of rape was not proved. PW2 did not demonstrate how she was raped. Exhibit P2 (PF3) did not show penetration and PW4 did not demonstrate what caused bruises in the victim's Page 5 of 13 vagina and anus. Lastly, on the eight ground, it was submitted that exhibit P3 was in favor of the appellant as shown on page 95 of the proceedings. In the foregoing, he prayed that his appeal be allowed, the conviction and sentence be quashed and set aside and he be discharged as the case against I ' him was fabricated. 1 When invited for a reply, Ms. Kezilahabi, learned State Attorney, supported the appeal arguing that the offence against the appellant was not proved. I She proceeded that, as correctly submitted by the appellant, he was jointly charged with other persons for gang rape but after trial, he was convicted of rape. Although this is permissible under section 300 of the Criminal Procedure Act, for a conviction of rape to be entered, its essential ingredients must be proved without reasonable doubt. Since the victim was an adult, it had to be proved that there was no consent. The victim stated that the 1 appellant was her lover and they used to have sex and on the date of the j incident, they made love, a fact which was not disputed by the appellant. The fact that they made love on the same date was probably the reason why the DNA results were positive. Wrapping up on this point, she submitted that in the foregoing of the above, there was no rape but consensual sex and both were adults. ; । I Ms. Kezilahabi submitted further that, as correctly submitted ty the appellant, there was a contradiction between PW2 and PW4 on the issue of penetration. PW4 stated that PW2 was penetrated in her vagina and anus whereas PW2 did not state that her anus was penetrated. She argued that this was a major contradiction and went to the root of the case. Based on Page 6 of 13 these two points, she concluded that the prosecution is case was not proved Jto the required standards and the conviction and sentence were erroneous, i i | Having considered the submissions by the parties and thoroughly read the । record from the lower court, I will now proceed to determine the appeals The main issue for determination is whether the case against the appellant was ' proved. Since the respondent has supported the appeal, I prefer to start with I the two points on which the appeal has been supported. Before embarking I I on these two points, it is imperative at this outset, to consider the appellant's I ; complaints that he was wrongly convicted of rape, an offence which he was : not charged with and the charge sheet was not amended to align it with the evidence on record. i Undeniably, the offence against which the appellant was charged is different from the one he was convicted with. As per the record, he was charged with gang rape contrary to section 131A (1) and (2) of the Penal Code, Cap 16 which states that: "131A (1) Where the offence of rape is committed by one or more persons in a group of persons, each person in the group committing or abetting the commission of the offence is deemed to have committed gang rape. I (2) Subject to the provisions of subsection (3), every person who is convicted of gang rape shall be sentenced to imprisonment for life, regardless of the actual role he played in the rape." ,i Page 7 of 13 (In the end, the trial court convicted him of rape contrary to section ' 130(l)(2)(a) and 131 (1) of the Penal Code which I conveniently reproduce below. "13O.-(l) It is an offence for a male person to rape a girl or a woman. (2) A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions: : (a) not being his wife, or being his wife who is separated from him without her consenting to it at the time of the sexual intercourse; 131.-(1) Any person who commits rape is, except in the cases provided for in the renumbered subsection (2), liable to be punished with imprisonment for life, and in any case for imprisonment of not less than thirty years with corporal punishment, and with a fine, and shall in addition be ordered to pay compensation of an amount determined by the court, to the person in respect of whom the offence was committed for the injuries caused to such person." Before convicting the appellant for rape, the tial magistrate remarked that the substitution was permissible under section 300 of the Criminal Procedure Act. In line with this, Ms. Kezilahabi, while supporting the trial ^court's approach, has argued that indeed the substitution is permissible under section 300 of the Criminal Procedure Act which provides that; "300.-(1) Where a person is charged with an offence consisting of several particulars, a combination of some only of whiph constitutes a complete minor offence, and such combination! is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with Page 8 of 13 . (2) Where a person is charged with an offence and facts are j proved which reduce it to a minor offence, he may be convicted j of the minor offence although he was not charged with it. I 1I I While contemplating on these rival arguments, I came across the decision of ,the Court of Appeal in the case of Imani Charles Chimamngo vs Republic, Criminal Appeal No. 382 of 2016 through which the Court i instructively contextualized the offence of gang rape. It stated thus: ; ".... the offence of "gang rape" is an aggravated specie of the . offence of rape. The phrase "Where the offence of rape is committed" appearing at the very beginning of sub-section (1) of section 131A pre-suppose that in gang rape, the prosecution ; must also prove that offence of rape in any of its various descriptions under section 130 has been committed. Unlike the offence of rape under section 130, the phrase: "is committed by one or more persons in a group of persons, each person in the group committing or abetting the commission of the offence' appearing in sub-section (1) of section 131A aggravates the committed offence of rape to that of gang rape like what pertains in the offence of rape under section 130 where the prosecution . must establish both lack of consent and penetration; lack of consent and penetration must similarly be proved in gang rape under section 131A. In gang rape, evidence must in addition prove the role of another person or other persons abetting or ■ assisting in the commission of the rape. Again, the prosecution j need not prove that each member of the group achieved any| penetration for the offence to be committed. Penetration by one ! member of the group, facilitated by another or others, will be | sufficient to ground a conviction." ; i i From this authority, it is gathered that the two offences are interrelated. The offence of gang rape against which the appellant was charged is an Page 9 of 13 । aggravated specie of rape, an offence which the appellant was convicted with. In both offences, rape must be proved meaning that in both the two , essential ingredients of the rape must be proved. That is, it has to be proved without reasonable doubt that there was penetration and if the victim is an adult, that the intercourse was nonconsensual. If these elements are I | established but there is no proof that the rape was committed by several I people (which is the sole distinguishing factor of these two offences) the provision of section 300 of the Criminal Procedure Act can justifiably be invoked to convict the accused person of rape, although he was not ordinarily charged of rape. In the foregoing, the appellant's complaint in this regard, lacks merit. Turning to Ms. Kezilahabi's submission, considered conjointly, her two, points I suggest that the two ingredients of rape were not proved. Ms. Kezilahabi has argued that lack of consent which is the second essential ingredient of rape was not proved and the evidence of penetration was contradictory. She aligned her thoughts with the appellant's first ground of the appeal. In my scrutiny of the record I have observed that, PW2 stated how the appellant penetrated her. In her testimony, she did not mince words as what happened between her and the appellant. However, as submitted by both parties, there are two pertinent issues which render her evidence questionable. First, is the major contradiction between the victim's account, and the testimony of the doctor who examined her (PW4) and the medical report (Exhibit P2). PW4 and Exhibit P2 were led to corroborate PW2's testimony that her vagina was penetrated but, as correctly argued by the appellant and the learned State Attorney, they show that PW2 had bruises Page 10 of 13 . in her vagina and anus suggesting that, she was penetrated in her vagina | and anus. The observation was alien to the case as PW2 did not complain I I about sodomy and her testimony was silent. In my firm view, and as correctly : submitted by Ms. Kezilahabi, the contradiction is a major one as it goes to the root of the case. Hence, it cannot be ignored or taken lightly. 1 I am aware of the settled position that, in sexual offences, the evidence of the victim is the best evidence. It attracts invaluable weight and suffices to support a conviction even in the absence of corroborating evidence' (see Selemani Makumba vs Republic (Criminal Appeal 94 of 1999) [2006] TZCA 96 TanzLII). However, for this rule to prevail, such evidence must establish beyond reasonable doubt that, there was penetration and that there was no consent, if the victim is an adult. And, in case of any other woman where the consent is irrelevant, that there was penetration/ The record shows that PW2 was an adult person during the incident. Thus, her evidence ought to prove without reasonable doubt that there was penetration and that, the intercourse was nonconsensual but it does appear so. In her testimony, she acknowledged that, the appellant was her. lover and that, they used to make love. After the closure of the college i (date undisclosed) they made love once. Further revelation from the record is that the incident happened after the closure the college when both, the appellant and PW2 were preparing to go for field work. J I In his defence the appellant admitted the existence of the love affair between him and the victim and that on 24/1/2022 they had a consensual sex. In the foregoing and in the view of the PW2's non-disclosure of the date of their Page 11 of 13 last consensual sex, I am constrained to believe the appellant defence that, they had a consensual sex on 24/1/2022 and the correlation in the DNA report was not coincidental. Accordingly, even if, I were to apply the best evidence rule and soley rely on the victims account and the DNA results while I discounting PW4 testimony and the substance of Exhibit P2 the second essential element of rape would remain unproved. I have in addition, noted with great concern the uncertainty of the time of the offence. The inference from PW2's testimony is that the offence was I I I committed on 25/1/2022 after 8:00 hours as this is the time she decided to go to withdraw some money. PW3 who was an investigator stated that; he I was assigned the case file on 25/1/2022 at 7:00hrs and the appellant was arrested at 8:00hrs. As correctly submitted by the appellant, this suggest : । that the appellant was arrested the incident and the investigator was assigned the case prior to its commission which is incomprehensible. I may also add here that in the circumstances of the present case, the issue of time was critical considering that, the allegations were that, PW2 was raped by many people which brings into account, the issue of visual identification of the appellant to which no evidence was rendered. I In totality of the above, I am satisfied and I agree with both parties that :he prosecution's case was not proved to the required standards. In consequence thereto, the appeal is allowed. The conviction entered against the appellant is quashed and the sentences imposed on him are set aside. It Page 12 of 13 is ordered that, the appellant be discharged unless he is otherwise detained for another lawful cause. Dated and delivered at DODOMA this 21st day of June 2024. Page 13 of 13