YOHANA FINAL 2

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA CRIMINAL APPEAL NO. 549 OF 2025 (Originating from the decision of the District Court of Bukombe in Criminal Case No. 26275 of 2024 before B. J CHITEPO SRM) YOHANA ELIAS---------------------------------------------- APPELLANT VERSUS THE REPUBLIC------------------------------------------ RESPONDENT JUDGMENT Date of last order: 24 January 2025 Date of Judgment: 21 February 2025 K. D. MHINA, J. At the District Court of Bukombe, the appellant was sentenced to a jail term of thirty years (30) years after he was found guilty of Rape contrary to section 130 (1) (2) (e) and section 131 (2) of the penal code, Cap 16 R.E 2022. The trial magistrate also ordered the appellant to compensate TZS. 100,000/= the victim, a girl child aged 14 years, who, for purposes of concealing her identity, will be referred to, in this judgment, as the victim. The magistrate who heard the trial was satisfied that the victim had 1 told a credible story, and her age of 14 years was proved; she was penetrated, and it was the appellant who committed the alleged crime. Looking at the evidence adduced at the trial, it was revealed that according to PW2 (the victim’s mother), after she witnessed that the victim’s behaviour changed and became bad, she discovered that the appellant was cause for that change. In July 2024, she caught the victim, who was 14 years old, and the appellant at the appellant’s home. Later, in August 2024, the victim and the appellant were arrested at the appellant’s home and taken to Runzewe Police Station. This was also testified by PW3, street chairman of Nyuki Street. He stated that he was informed that on 24 August 2024, the appellant and the victim were caught at the appellant’s house and taken to Runzewe Police Station. According to the victim’s mother, when the appellant and the victim were interrogated at the police station, they said they were long-time lovers. This was also testified by PW5, the police officer who recorded the appellant’s cautioned statement (Exhibit M2); the appellant confessed to having an affair with the victim and had sexual intercourse on 20 July 2024, 24 August 2024 and 8 September 2024. 2 The victim was taken to the hospital for a medical examination. According to the medical examination, PW4 (the medical practitioner) at Uyovu Hospital on 24 August 2024, he medical examined the victim and found that she was penetrated and had no hymen. He tendered the PF3 as exhibit M1. On her side, the victim (PW1) testified that she was born on 10 July 2010, and she was a peasant after finishing standard seven (7). The appellant was her lover since July 2024, and she had sexual intercourse with him two times, on July 2024 at the appellant’s home and August 2024 at the guest house. On a fateful day, she said her mother caught her at the appellant’s house. In his defence, the appellant, aged 20 years old, claimed that on 24 August 2024, he was arrested by the police officers without knowing his offence. At the police station, he was interrogated about the victim, beaten and forced by the police to admit the offence. Aggrieved by the conviction, the appellant appealed to this Court with six grounds. This is how the appellant canvassed his grounds of appeal: - 3 i. The Trial Court Magistrate convicted me whilst knowing that the evidence on records from PW1 was unreliable since there were inconsistencies on the dates of commission of the offence of rape; for instance, page 01 of the copy of judgement stated that on 09/07/2024 and 20/08/2024, PW1 was raped, page 02 and 03 of the copy of judgement talks about different dates, so which is which? Lastly, a cooked case. ii. That, to prove and show that this case was a cooked one, and what was stated by PW1 was just a lie, nowhere was there evidence that the parents of PW1 and DW1 discovered that they were in a relationship as it was stated on page 2 of the copy of judgement “ baadae mapenzi yao yaligundulika na wazazi wao na mshtakiwa kukamatwa”.There was no statement from their parents about discovering PW1 and DW1 to be in a relationship, but it was written on the copy of the judgment. Hence, a cooked case. iii. The trial court Magistrate erred in law and fact to warrant a conviction on me while section 146(2) of the Tanzania Evidence Act Cap 6 was not complied with. Hence, there was procedural irregularity. iv. The trial court magistrate dismissed DW 1’s defence with no justification and he stated “Utetezi wa mshitakiwa yani SU1 4 kwa kiapo kuwa tarehe 24/08/2024 alikamatwa katika tuhuma ya wizi unatupiliwa mbali, wakati uhalisia alikuwa anajua kosa lake”. v. The trial court magistrate erred in law as to the fact that he did not comply with section 312(2) of the Criminal Procedure Act Cap 20 (R.E. 2022), as it is seen on page 04 of the copy of the judgment. vi. That, as per the copy of Judgement, the trial Court magistrate erred in law by upholding the conviction and sentence despite the charge not being proved against the appellant to the standard required by law. The appellant appeared in person and fended himself while the respondent/ Republic had the services of Mr. Godfrey Odupoy, learned State Attorney. When invited to submit, the appellant had nothing to add apart from the grounds of appeal and he prayed for this court to consider the same. On his side, resisting the appeal, Mr. Odupoy argued each ground separately and seriatim as listed in the memorandum of appeal. 5 Responding to the 1st ground of appeal, he argued that there were no contradictions in the dates of the commission of the offence. He explained that on 19 September 2024, the prosecution amended the charge sheet. In the amended charge, it was indicated that the offence happened between February and March 2024. However, in the new charge, the dates indicated were between 20 July 2024 and 9 August 2024. Further, in the impugned judgment, the dates indicated were between 9 July 2024 and 20 August 2024. From above, Mr. Odupoy argued that though the dates in the judgment differed from the charge sheet, that was a slip of the pen and, thus, does not go to the root of the matter. He cemented his argument by citing Jumanne Mpini@ Kambilombilo and another vs. Republic, Criminal Appeal No. 195 of 2020 (Tanzlii) at page 9, where the Court of Appeal in that case held that the contradiction is a slip of the pen and does not go to the root of the matter. He also cited Said Majaliwa vs. Republic, Criminal Appeal No. 2 of 2022 (Tanzlii) at page 12, where it was held that variance of dates does not 6 go to the root of the case but may be cured under section 234 (3) of the CPA. He concluded by arguing that since the discrepancies in the dates were in the judgment and not between the charge sheet and the evidence, the ground is devoid of merits. On the 2nd ground, he argued that according to PW2, the mother of the victim, on July 2024, he caught the victim and the appellant at the appellant’s house. The victim's habits and behaviour were doubtful, and after she made a follow-up, she discovered that the appellant had caused that behaviour change. In August 2024, the appellant was arrested after the victim was found at his home, and the appellant did not cross-examine PW2 on that issue. Regarding the 3rd issue, Mr. Odupoy submitted that section 146 (2) of the Tanzania Evidence Act was not contravened. That was because at the trial, when PW1 testified, the appellant was given the right to cross-examine, and he did so. Further, when PW2 testified, the appellant was given that opportunity but had no questions. Also, when PW3, PW4, and PW5 testified, the appellant asked the questions. 7 Coming to the 4th ground, he submitted that the trial magistrate considered the appellant’s defence in the judgment as indicated at page 3 of the impugned judgment. However, his defence was found not to have raised any doubt against the prosecution evidence. In the 5th ground, Mr. Odupoy conceded that the requirements of law under section 312 (2) of the CPA were not complied with. He explained that Section 312 (2) of the CPA requires the following: one, the offence; two, the law which has been contradicted; three, the accused must be convicted; and four, the accused must be punished. In the impugned judgment, the trial court did not mention the sentence imposed to the appellant. He further argued that, that anomaly is curable under section 388 of the CPA and prayed this Court reverts the case file to the trial magistrate to sentence the appellant. He substantiated his argument by citing Emmanuel Paulo @Amasi vs. Republic, Criminal Appeal No 262 of 2020 (Tanzlii). 8 On the last ground, he submitted that at the trial, the prosecution side proved the case against the appellant beyond a reasonable doubt. He explained that the evidence proved that the victim was penetrated and she was below 18 years old. He bolstered his argument by citing one, God Kasenegala vs. Republic, Criminal Appeal No. 10 of 2008 (Tanzlii), where it was held that in sexual offences, penetration and age of the victim must be proved and two, Selemani Makumba vs. Republic, Criminal Appeal No. 94 of 1999 (Tanzlii), where it was held that true evidence of rape must come from the victim. He said at the trial, the victim testified she was carnally known by the appellant two times, on 9 July 2024 at the appellant’s home and 20 August 2024 at the Guest House. Therefore, the offence was proved beyond reasonable doubt. Having objectively gone through the grounds of appeal, the submissions, and the entire records of appeal I will start with the 2nd, 4th and 6th grounds of appeal. These three grounds are intertwined; they both revolve around whether the case was proved beyond a reasonable doubt. 9 On this, it is elementary that; First, the onus of proving a criminal case is always on the prosecution to prove the case and never shifts away from the prosecution. Second, the standard of proving a criminal case is beyond reasonable doubt. See Daimu Daimu Rashid @ Double D vs. Republic, Criminal Appeal No. 5 of 2018 (Tanzlii), where the Court of Appeal held that; “…the cardinal principle of the criminal justice system in Tanzania is that the prosecution bears the burden of proving its case beyond a reasonable doubt....’’ Third, it is the duty of defence in criminal trials only to raise doubt against the prosecution case and not otherwise. See D.P.P vs. Ngusa Kejela @ Mtangi and another, Criminal Appeal No. 276 of 2017, CAT (Tanzlii). Fourth, in rape cases, there are elements which must be established and proved beyond reasonable doubt. Those elements were elaborated by the Court of Appeal in Seleman Msuya vs. Republic, Criminal Appeal No. 456 of 2020 (Tanzlii). It was held that; 10 “For the offence of rape to be established, three elements must be proved beyond a reasonable doubt. One, age of the victim; two, penetration; and three, that an accused person is the one who committed the alleged offence”. Starting with the age of the victim, the issue which shall not detain me long, there was the evidence of the victim’s mother (PW2). She stated that the victim was 14 years old as she was born on 10 July 2010. The Court of Appeal in Salu Sosoma vs. Republic, Criminal Appeal No. 32 of 2006 (unreported), where the father of the victim had testified as to the victim's age, observed that; “We are mindful of the fact that a parent is better positioned to know the age of his child”. Therefore, the victim’s age of 14 years was proved by her mother at the trial. On the issue of penetration, the key witness was the medical practitioner (PW4), who testified that the victim was penetrated and had no hymen. In the PF3 (Exhibit M1) it was recorded that; “No bruises or lacerations to genitalia labia majora and minora are 11 Normal. Vagina allows two-finger penetration. No virginity. Vagina allows two-finger penetration. (Expert in sexual intercourse)”. Therefore, there was proof that the victim was penetrated. Coming to the third element on who raped the victim, the entry point is the law under section S. 127 (7) of the Tanzania Evidence Act, which provides that for the offence of which the appellant was convicted, the best evidence comes from the victim. There is also a plethora of authorities on the subject, such as the cited case of Seleman Makumba (Supra). See also Nimo Samu vs. Republic, Criminal Appeal No. 31 of 2019 (Tanzlii). However, before relying on the victim's evidence to enter conviction, courts must scrutinize that evidence and satisfy itself that the evidence is truthful, coherent and reliable. This was insisted by the Court of Appeal in Mohamed Said vs. Republic, Criminal Appeal No. 145 of 2017 (Tanzlii), where it was held that; “We think that it was never intended that the word of the victim of sexual offence should be taken as gospel truth but that her or his testimony should pass the test of truthfulness. We have no doubt that justice in cases of sexual offences requires strict 12 compliance with rules of evidence in general, and S. 127 (7) of Cap. 6 in particular, and that such compliance will lead to punishing the offenders only in deserving cases”. In scrutinizing and assessing the testimony, there are ways in which the credibility of a witness can be evaluated. The Court of Appeal in the cited case of Nimo Samu (Supra), while noting its earlier decision of Shabani Daudi vs. Republic, Criminal Appeal No. 28 of 2001(unreported), held that; “The credibility of a witness can also be determined in other two ways, that is one, by assessing the coherence of the testimony of the witness, and two, when the testimony of the witness is considered in relation to the evidence of other witnesses”. In the instant appeal, as previously alluded, the victim testified that the appellant was her lover from July 2024. In their relationship, they met two times for intimacy. At first, they had sexual intercourse in July 2024 at a Guest House located at Buganzo area and, for the time, at the appellant’s home in August 2024. When considering the victim’s evidence in relation to the evidence of other witnesses, I find that her mother (PW2) stated that in August 2024, 13 she caught the appellant and the victim at the appellant’s house. However, she did not state where at the house they found them, whether inside or outside, at what time and what the appellant and the victim were doing. This was very important because of the following; Apart from findings by a medical practitioner that the hymen was not intact, nothing else was found. In fact, the medical practitioner commented that the victim was an expert in sexual intercourse, and his two fingers slipped into the vagina. I am aware of the trite principle that in proving rape, evidence establishing penetration of the male organ into the female organ is necessary, and such penetration, however slight, is sufficient to constitute sexual intercourse, the ingredient necessary to prove the offence. See Paulo John vs. Republic, Criminal Appeal No. 420 of 2017 (Tanzlii). However, in the circumstance of this case, at least apart from the torn hymen, which the medical practitioner did not indicate if it was torn on the same day, there must be other signs of rape connecting the appellant and the date of the alleged rape. Taking into consideration that the victim was sent for medical 14 examination shortly and on the same day after being caught up with the appellant, Further, the evidence of PW1 indicates that after she ran away from home, her mother followed her and caught her at the appellant's house. In such a circumstance, despite being found together, there must be proof of rape beyond a reasonable doubt connecting the dates of the alleged offence and the appellant. Another aspect of the prosecution case is what PW2 stated at the trial regarding when she caught the appellant and the victim for the first time. PW2 said that she first saw the victim and the appellant at the appellant’s home in July 2024. However, the matter was reported in August 2024. There is no explanation from the evidence by the prosecution or reason (s) as to why the appellant was not reported or arrested as soon as he was caught with the victim in July 2024. On this, it is common ground that there is no law that sets a time for reporting crimes at Police Stations. See Adam Halfan Mkinda vs. 15 Republic, Criminal Appeal No.17306 of 2024, HC-DSM (Tanzlii). However, unexplained delays in reporting the matter to the police since the occurrence of the offence always raises doubt, and it is unsafe to convict the accused based on such evidence. See Elisha Edward vs. Republic, Criminal Appeal No. 33 of 2018 (Tanzlii), when the Court of Appeal held that; “Admittedly, in the instant appeal, firstly, we agree with the learned State Attorney that the delay in reporting the incident dented the prosecution case”. This is also a position in Majaliwa Ihemo vs. Republic, Criminal Appeal No. 197 of 2020 (Tanzlii), where the Court of Appeal held that; “an unexplained delay in arresting the suspect leads doubts in the credibility of a witness”. Having directed my mind to the cited case laws versus the scrutiny of PW1’s evidence in relation to the evidence of PW2 and PW4, I find that the evidence of PW1 is not coherent and certain. Further, the prosecution evidence is doubtful, and there are leakages in connecting the alleged offence, when the offence was committed and who committed the offence. Thus, the 2nd, 4th and 6th grounds succeed. 16 Coming to the first ground, the complaint was differences in dates of the commission of the offence. On this, the learned state attorney clarified that during the trial on 19 September 2024, the prosecution amended the charge sheet by substituting the earlier charge, which was indicated that the offence committed between February and March 2024, with the new charge indicating the offence was committed between 20 July 2024 and 9 August 2024. Further, he informed this court that in the impugned judgment, the dates indicated were between 9 July 2024 and 20 August 2024. Though the proceedings indicate that on 19 September 2024, there was a prayer to amend the charge sheet, which was granted, but no new charge sheet was found in the records. On this, it is essential to note that following the directives of the Chief Justice by his letter with reference no. RA.49/118/01/5 dated 2 October 2023 that, from 1 November 2023, all court proceedings should be conducted through Electronic Case Management System (eCMS) and the enacted of The Judicature and Application of Laws (Electronic Filing) Rules 2018, all 17 official court records, except in the Primary Court should be in the electronic case file. Rule 9 provides that; “The official record of the court shall be the electronic case file (ECF), proceedings pertaining to that case, together with any documents and exhibits filed under the conventional method”. The case was filed on 12 September 2024, therefore, after the directives of the Chief Justice and the enactment of Electronic Filing Rules. Thus, the record was supposed to contain the documents submitted and tendered during the trial. Therefore, that means the charge sheet included in the record of the trial court read as follows; “RAPE; Contrary to Sections 130 (1) (2) (e) and 131 (1) of the Penal Code [Cap 16 R E 2022]. YOHANA ELIAS, on diverse dates between February and March 2024 at Buganzu village within the District of Bukombe and Region of Geita, did have sexual intercourse with one SARAFINA HAMADI, a girl aged 14 years old.” 18 While the evidence mentioned two dates, 20 July 2024 and 9 August 2024, on the other hand, in the impugned judgment, the dates mentioned were 9 July 2024 and 20 August 2024. Following from above, the evidence and judgment are based on the dates which were not in the charge sheet; therefore, it is clear that the evidence of when the offence was committed was at variance with the charge. The consequence is fatal to a conviction and the appellant is entitled to an acquittal as it was held in Abel Masikiti vs. Republic, Criminal Appeal No. 24 of 2015 (Tanzlii). Therefore, the 1st ground of appeal has merits. From the above discussion, it is clear that the trial proceeded with evidence of when the offence was committed that was contrary to what was preferred in the charge and that it was fatal, which means the offence was not proved. The effect of that fatality is the acquittal of the appellant. Since the above-determined grounds of appeal are decisive and disposed of the appeal, I don’t see the necessity of determining the remaining grounds of appeal. 19 Consequently, I quash and set aside the appellant's conviction and sentence and order the appellant be released from prison forthwith unless he is otherwise lawfully held for other causes. It is so ordered. K. D. MHINA JUDGE 21/02/2025 Court: The right to appeal is fully explained to the parties. K. D. MHINA JUDGE 21/02/2025 20