final AYUBU CHEDIEL SELUNGO Tanzlii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB-REGISTRY AT MOSHI CRIMINAL APPEAL NO. 18316 OF 2024 (Appeal from the Judgment of the District Court of Siha at Siha dated 26th day of May 2024 in Criminal Case No. 113 of 2023) AYUBU CHEDIEL SELUNGO…...……………………………APPELLANT VERSUS THE REPUBLIC………………………………………………RESPONDENT JUDGMENT 26th Nov. 2024 & 11th Feb. 2025. A.P. KILIMI, J.: Before the District Court of Siha at Siha, the appellant Ayubu Chediel Selungo stood charged with the offence of rape contrary to section 130(1)(2)(e) and 131(1) of the Penal Code, Cap 16 RE 2022. It was alleged therein that on 20thSeptember, 2023 at Sanya Hoye within Siha District, the appellant did unlawfully have sexual intercourse with a girl aged 16 years whose name is hidden to protect her dignity, thus hereinafter to be referred to as the victim. The appellant denied the charge hence the prosecution paraded four witnesses to prove their case. Their evidence included the testimonies from PW1 Michael Benedict Uiso, a clinical 1 officer who examined the victim. PW2 Zainabu Amani, the owner of the bathroom where the alleged crime was said to have been committed. PW3 Richard Joseph Massawe, the victim’s uncle who saw the accused and the victim together on the material day and last is the testimony from PW4 the victim of the crime. After considering the totality of the evidence including the one advanced by the appellant as defence, the trial court was satisfied that the offence charged had been proved to the required standard. The appellant was therefore convicted and sentenced to the statutory punishment of 30 years imprisonment. Aggrieved by both conviction and sentence, the appellant filed the present appeal based on five grounds which can be summarized into the following complaints: First, that the charge was improperly drafted. Secondly, that the evidence of the victim was incompetent. Third, that the age of the victim was not proved. Fourth, that the prosecution evidence was weak, contradictory, inconsistent and wholly unreliable. The fifth complaint was that the charge was not proved beyond reasonable doubt. 2 On the date set for mention the appellant appeared in person unrepresented while Ms. Ruth Kamola, learned State Attorney appeared for the respondent/Republic. The appellant prayed to file a written submission in support of his appeal and this court granted his prayer and ordered the Respondent to file reply thereto. Arguing his appeal on the first ground the appellant submitted that the charge against him was that of rape contrary to section 130 (1) (2) (e) of the Penal Code but based on the prosecution evidence, it alleged that the victim was of unsound mind. It was his submission therefore that it was wrong in law to charge him with the offence of rape instead the prosecution should have charged him with the offence of defilement of idiots or Imbeciles as provided for under section 137 of the Penal Code, Cap 16 R.E 2022. It was also his argument that the trial magistrate had erred by holding that though the victim PW4 was of unsound mind she was able to recall what happened to her. Elaborating further on this ground of appeal, the appellant was of the view that it was impossible for a person who is already noted to be of unsound mind to be regarded as a competent witness to testify on past issues. The appellant further submitted that the charge of rape against him 3 was totally at variance with the evidence on record hence ought to have been amended under section 234(1) of the Criminal Procedure Act whereas he argued an omission to do so rendered the charge not to be proved on the required standard by the law. To support his argument the appellant referred to the case of Abdallah Maganga vs Republic Criminal Appeal No. 285 of 2020. Furthering his submission the appellant contended that he was prejudiced and wrongly convicted with the offence of rape as the evidence of PW4 was unreliable and the same contravened section 127(1) of the Evidence Act, Cap 6 R.E 2022. The appellant also challenged the trial court decision by submitting that the trial magistrate had wrongly found that the age of the victim (PW4) was proved. He submitted that when PW4 was asked about her age she said she was 2 years old while PW3 who is her uncle said that PW4 was 16 years old. It was his submission therefore that with such evidence it cannot be said with certainty that the age of the victim was proved to the required standard of the law. He further submitted that the age of the victim is a crucial and important ingredient in proving the offence charged. The appellant further referred to the case of Robert Andondile Komba vs DPP, Criminal Appeal 4 No. 465 of 2017 and prayed that this court to find that the prosecution had failed to prove the charge beyond reasonable doubt and find merit in his appeal and set him at liberty. On her part, Ms. Wanda Msafiri learned State Attorney responding to the ground that the appellant was wrongly charged, she submitted that based on the evidence on record at page 9 of the typed proceedings, PW3 only mentioned that his niece had mental health issues and that this is not a conclusive proof that the victim was mentally unsound. It was also her submission that the appellant was properly charged regardless of whether the victim was mentally fit or not. She supported her argument with the case of Omary Mohamed Haruni vs Republic 2024 TZHC. Still insisting that the appellant was properly charged, Ms. Msafiri cited the Court of Appeal decision in the case of Fadhili Makanga vs Republic (Criminal Appeal No. 458 of 2017) 2020 TZCA 270 (TANZLII) where the court held that since the victim under the age of eighteen years, the charge was proper as it addresses specifically raping a girl under the age of eighteen years regardless of her mental status. She thus prayed for the first ground of appeal to be dismissed as the appellant was properly charged. 5 Responding to the second ground of appeal which challenged the evidence of the victim for being incompetent, the learned counsel submitted that the trial court received the evidence of the child victim after being satisfied that the witness was able to understand the questions put to her and give rational answers. Thus, she argued that the witness was competent to testify as provided under Section 127(5) of the Evidence Act, [Cap 6 R.E 2022]. She submitted that this ground lacks merit hence it should be dismissed. Responding to the issue regarding the age of the victim not being proved, Ms. Msafiri submitted that PW3 did testify at page 9 of the proceedings that his niece was born sometimes in June 2006 and further that before PW4 testified the court was made aware that the victim was 17 years old hence she argued that the age of the victim was proved and that the ground lacks merit. Regarding the claim that the prosecution evidence was weak, contradictory, inconsistent and unreliable Ms. Msafiri submitted that the appellant has not pointed out to any inconsistence in prosecution evidence or contradiction in evidence given. 6 Responding to the ground that the case was not proved beyond reasonable doubt, Ms. Msafiri submitted that the ground lacks merit because the prosecution did prove their case beyond reasonable doubt that led to his conviction. She further submitted that the law is clear that the best proof of rape and any other sexual offence must come from the complainant, if credible, convincing and consistent with human nature. She substantiated her argument with the case of Selemani Makumba vs Republic [2006] TLR 379 and Section 127 (6) R.E 2022. She submitted that it was because of these reasons that the court believed the evidence of PW4 and convicted the appellant. Then the appellant rejoined nothing. I have given due consideration to the submission made by the appellant and the response advanced by the learned State Attorney for the respondent. This court being the first appellate court is charged with a duty of re-evaluating the entire evidence on record, subjecting it to a critical analysis and arriving at a decision that may either confirm or reverse the trial court’s decision. Having studied closely the trial court’s record, there is no dispute that on the 25th September, 2023, the appellant was arraigned before the district court of Siha at Siha for the offence of rape. What is in dispute is whether 7 the prosecution proved its case beyond reasonable doubt, that the appellant raped the victim. Undoubtedly, it is settled law that, for a case to be taken to have been proved beyond reasonable doubt, the prosecution evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed. See: Magendo Paul and Another vs Republic [1993] T.L.R 219 and Jafari Juma vs Republic, Criminal Appeal No. 252 of 2019 and Ahmad Omari vs Republic, Criminal Appeal No. 154 of 2005 (both unreported) Starting with the first ground of appeal which basically faults the prosecution’s charge against the appellant was wrongly drafted by preferring a wrong offence. The appellant is of the view that since the evidence suggests that the victim was of unsound mind then he should have been charged with an offence of Defilement of Idiots or Imbeciles under section 137 of the Penal Code, Cap 16 R.E. 2022. Having examined the trial court’s record, in view of this ground the records are clear that the appellant was charged with an offence of statutory 8 rape as provided for under section 130 (1) (2) (e) and section 131 (1). For ease of reference those provisions state as follows; 130.-(1) 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: (e) w ith or w ithout her consent w hen she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man. [Emphasis added]. What can be gleaned from the wording above in lieu of the duty of the prosecution stated above, what is of essence is the prove of the above ingredients embedded in that provisions and nothing else. Therefore, what the prosecution was required to do, is to establish evidence that supports the charged offence and hence by doing so their duty will be discharged, thus the issue of mental status of the victim cannot be verged at this stage, and I think this is because prove of rape even of unsound person may depend on the available evidence. In 9 resolving the akin situation, the court of appeal in the case of Fadhili Makanga vs Republic (supra) at page 9 had this to say; “On whether the charge was defective or not, we are of the view since the victim being under eighteen years of age, the charge preferred against the appellant under the circumstances was proper, since the said provision, that is section 130(l)(2)(e) and 131(1) of the Penal Code, specifically addresses raping a girl under the age of eighteen (18) years regardless of her m ental status of the victim . The age of the victim was proved by the testimony of PW1, her mother. At the sam e tim e w e have failed to find any specific provision addressing raping a girl of unsound m ind under the age of eighteen years.” [Emphasis added]. As discerned from the extract above I see no fault was instigated, in the circumstance the charge preferred against the appellant was proper. Hence, I find this ground meritless and it is dismissed forthwith. Secondly, I wish to deal with ground number three of appeal. The appellant is challenging his conviction alleging that the age of the victim was 10 not proved beyond reasonable doubt. The appellant questioned the fact that the victim’s evidence as to her age differed with that of her uncle PW3. I do agree with the appellant that on the offence of statutory rape age is a crucial ingredient that must be proved since the law provides that the victim must be under the age of eighteen years. In this regard the law is also clear that the victim’s age may be proved by a parent or relative, or guardian or medical practitioner. There is a number of supported cases on this subject, see the case of Peter Bugumba @ Cherehani vs Republic (Criminal Appeal 251of 2019) [2023] TZCA 221 (TANZLII). In the present matter the age of the victim was proved by PW3 who was the victim’s uncle, he mentioned the year and month when the victim was born as can be depicted from the trial court’s typed proceedings at page 9. Now, although the victim is recorded to have said that she was 3 years old at page 9 of the proceeding, it must be noted that this was so stated before giving her testimony. In the circumstance, the law is clear as stated by the Court of Appeal of Tanzania in a number of its decisions that such citation of age before taking the witness stand is not akin to proving it. See the cases of Peter Bugumba @ Cherehani vs Republic (Criminal Appeal 251 of 2019) [2023] TZCA 221 (TANZLII) and Andrea Francis vs 11 Republic, Criminal Appeal No. 173 of 2014. In Andrea Francis (supra) the court held that, “ ... it is trite law that citation in the charge sheet relating to the age of an accused person is not evidence. Likewise, the citation by a magistrate regarding the age of a witness before giving evidence is not evidence of that person's age." Also, I have noted from the medical examination report (PF3) - Exhibit PI, that the victim's age is stated as sixteen years (16), thus cumulatively it shows that the prosecution did prove the age of the victim unlike what the appellant suggests. In the circumstance this ground of appeal also lacks merit and is accordingly dismissed. Now back to the second ground of appeal, the appellant questioned the competency of the victim to testify and challenged his conviction contending that it was based on incompetent evidence of the victim. The appellant argued that since the evidence as adduced by the victim’s uncle PW3 suggested that the victim was of unsound mind, then for that reason she was an incompetent witness to testify on what happened to her. 12 In my examination of this ground, it has two limbs; first whether the victim was competent to testify and second whether the trial court based the evidence of the victim in convicting the appellant. In my scanning of the evidence on record regarding this matter, it is true that the issue of the mental status of the victim was stated by her uncle who testified as PW3 when he was being cross examined by the appellant as can be depicted on page 9 of the trial court typed proceedings. PW3 said his niece had a mental health issue. The record also shows that, initially the trial court asked the prosecution on whether PW4 was sane before receiving her evidence where the prosecution is noted to have informed the court that the victim was of unsound. For the purpose of reference, I find apposite to quote the said prayer as depicted at page 9 of the typed proceeding; “P W 4: Witness Joseph, I am 3yrs, I live at Sanya Hoye, I am a Catholic. Court: Do you think you witness is sane. P ros: this witness is of unsound mind but she can recall all the incident that occur on the material date. She did not even attend school so she can be bad in number. She did not even had a single confirmation letter alone there. She is 17yrs old so I pray that we proceed with her under section 127(5) TEA CAP 6 R. E 2019. 13 Court: it is ok, let's proceed.” The record reveals thereafter the trial court allowed the examination in chief against the victim to continue. This has prompted me to see whether it was right to proceed with examination in chief under the said circumstances. There is no dispute that the trial court was informed twice the mental status of the victim, by the prosecution and PW3 (victim’s uncle) as depicted above. In my view this was suffice to the trial court to draw inference that the victim had a mental problem. According to section 127 (1) of the evidence Act Cap. 6 R.E.2022 the law provides who is a competent person to testify, further section 127(5) provides for the test of a person of unsound mind, and for the purpose of clarity let me reproduce these provisions hereunder; “127(1) Every person shall be competent to testify unless the court considers that he is incapable of understanding the questions put to him or of giving rational answers to those questions by reason of tender age, extreme old age, disease (w hether of body or m ind) or any other sim ilar cause. 14 (5) A person of unsound mind shall, unless he is prevented by his condition from understanding the questions put to him and giving rational answ ers to them , be com petent to testify.” [ Emphasis supplied] From the wordings of the provisions above as underscored, it is squarely before receiving PW4’s testimony, the trial court should have warned itself by testing on whether the victim is capable of give rational answers before allowing her to testify. Therefore, failure to determine whether she was capable of understanding and give rational answers, in my opinion the trial court proceeded without knowing the competence of the victim to testify which in my view was fatal and an incurable flaw. See Fadhili Makanga vs Republic (supra) at page 9. In the second limb of this ground as said above, the issue is whether the appellant was convicted based solely on the evidence of the victim. According to the above endeavors, the defect stated causes the victim’s evidence solely cannot prove the charged offence against the appellant. What is next is whether there is any other evidence which tend to prove the offence charged. In fact, this question also answers the fifth ground of 15 appeal which entails that whether the charge was proved beyond reasonable doubt against the appellant. According to the evidence, nobody saw the victim and appellant in fragment delicto, it was the testimony of PW3 (the victim's uncle) that he saw the victim and the appellant entering the PW2’s bathroom and locked themselves therein. It was until the local militia came at the scene then they opened the door, however the evidence does not reveal how the victim and appellant behaves or look like when the door was opened. In the circumstances, in my view it is not correct to draw general deduction that being locked themselves therein the appellant did sexual intercourse to the victim. The other evidence is of the medical practitioner (PW1) that he saw redish on the labia minora. I have considered this evidence also in my view cannot used to prove that the appellant that is the one penetrated to the victim’s vagina, this is because the evidence as it is, left much to be desired, thus cannot make the prosecution case remained unshaken, hence raises doubt to the prosecution which indeed becomes benefit to the appellant. I wish to be fortified my observation by the decision of the court in Daimu Daimu Rashid @ Double D vs Republic (Criminal Appeal 5 of 2018) 16 [2019] TZCA 366 [TANZLII] when cited its earlier case of Samson Matiga vs Republic Criminal Appeal No. 205 of 2007(unreported] at page 5 where it observed that; " A prosecution case, as the law provides, must be proved beyond reasonable doubt. What this means, to put it simply, is that the prosecution evidence must be so strong as to leave no doubt to the criminal liability of an accused person. Such evidence must irresistibly point to the accused person, and not any other, as the one who committed the offence.” (See also Yusuf Abdallah Ally vs Republic, Criminal Appeal No. 300 of 2009) In view of the above endeavors, I find the case against the appellant was not proved to the required standard of the law thus these two grounds are meritorious and sustained. In the circumstances, these suffice and I find no need to proceed with the remaining ground number four. In conclusion thereof, I have asked myself whether this matter is fit for me to order retrial, I have considered the above prosecution weakness and the procedure flawed of testifying the competence of the victim as best person to prove this kind of offence, I think the prosecution had the chance 17 to rescue the situation if could have used powers bestowed to them by the law to proceed with case or otherwise if they could have wished to do, but instead they opted to proceed to their detriment. In the circumstances and having considered weakness of other witnesses as alluded above ordering retrial will circumvent appellant’s justice. All said and done, I allow this appeal and order the immediate release of the appellant unless is held for another lawful cause. It is so ordered. DATED at MOSHI this 11th day of February, 2025. X JUDGE Signed by: A. P. KILIMI Court; Judgment delivered this 11th day of February, 2025 in the presence Mr. Kambarage Samson and Ms. Wanda Msafiri Learned State Attorneys, also accused person appeared virtually via video conference. 18 Sgd; A. P. KILIMI JUDGE 11/02/2025 Court: Right of Appeal duly explained. Sgd; A. P. KILIMI JUDGE 11/02/2025 19