ELISHA OLCHAKAI LAIZER VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF ARUSHA AT ARUSHA CRIMINAL APPEAL NO. 17490 OF 2024 (Originating from Judgement and Decree of the District Court of Monduli at Monduli in Criminal Case No. 21 of 2023) ELISHA OLCHAKAI LAIZER.................................................. APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT JUDGEMENT 30th October & 11th December,2024 KAINDA, J.: The appellant, Elisha Olchakai Laizer, was arraigned before the District Court of Monduli at Monduli where he was charged and convicted of the offence of rape contrary to Section 130 (1) (2) (e) and 131 (1) of the Penal Code, Chapter 16 of the Revised Edition, 2022. He was sentenced to life imprisonment. Aggrieved, the appellant is before this court challenging both the conviction and the sentence. It was alleged at the trial court that on the 4th day of July, 2023 at Losimingori area within Monduli District, Arusha Region, the appellant had carnal knowledge of one NS, a girl of 14 years of age. The appellant denied the charge. i Four witnesses testified for the prosecution. PW1 NS told the trial court, how on the material day, on 4th July,2023, she and PW4 went to the appellants' shop to collect some school items sent by her mother. On reaching the shop, the appellant sent PW4 away and asked PW1 to enter his shop. Upon entering, the appellant closed the door and asked PW1 to bend and raped her. He then gave her chocolate and biscuits. He also gave her a cake to be send to PW2 who is the victim's teacher. PW2 testified that on the material day, at around 12.47 pm, while at school, the appellant made a phone call asking for PW1 to be sent to collect some school staffs which were sent by her mother. PW1 in a company of PW4, her fellow pupil went to the appellant shop. PW2 went on stating that, the two girls came back to her. She asked as to where were the school staffs they were given by the appellant. They just showed her chocolate, biscuit and half cake. PW2 made further inquiry as to what happened, the victim disclosed that the appellant used to do bad manners to her. PW2 inspected her and found that she was having sexual affairs and the matter was reported at police. PW3 is a medical doctor who examined the victim and prepared a medical report with a remark that the victims' vagina wall is open indicating she is used to sexual intercourse and the presence of sperms discharge on the vagina internally showing recent sexual act. The defense case comprised of three witnesses. On his party, DW1 the appellant denied to rape the victim and alleged that the case was fabricated 2 against him. He told the court about what happened on the material day. He testified that on 4th July, 2023 at about 1pm, while at his shop, PW1 and PW4 called in and said that they were send by PW2, their teacher to take a cake for her. DW1 informed the court that PW1, the victim is his brother's daughter, one Samwel. He further said that, him and PW2 were lovers and that, he had problem with PW2 because he ended the affair. In her examination in chief, PW2 said she had known DW1 for about two years. However, she did not explain as to how she knew him. When cross examined, she denied to be in love affair with the appellant. PW2 stated at page 19 of the typed proceedings.... I did not break the relationship with Elisha he is my friend I don't have any problem with him. DW2 is a person who was at DWl's shop taking porridge at the time when the two girls arrived. Having finished taking porridge, he asked PW4 to send a cup back a of porridge to a nearby church. He testified that at the time of the alleged rape, he was around from the arrival of the girls until the time when the appellant was arrested. He said at page 39 during cross examination.../don't know why he was arrested. DW3 just like DW2, was present at the shop on the arrival of the girls until the arrest of the appellant. He testified that they were present at the shop, appellants arrest left them wondering. 3 The trial District Court found that the prosecution proved their case beyond reasonable doubt, hence was convicted and sentenced to life imprisonment. Aggrieved, he is before the court with the following twelve grounds of appeal; 1. That the trial court erred in law and the fact by change of magistrate without assigning reasons. 2. That the trial court erred in law and in fact in hearing, determination and conviction of the appellant while there was violation of the law during the trial of the case. 3. That the trial court erred in law and in fact to convict the appellant without considering the defense evidence. 4. That the trial court erred in law and in fact for deciding the case based on the evidence adduced by some of the witnesses who have interest to serve. 5. That the trial court erred in law and in fact for failure to put proper records as adduced by the parties. 6. That the trial court erred in law and in fact for convicting and sentencing the appellant based on flimsy evidence. 7. That the trial court erred in law and in fact for convicting the appellant with defective charge. 8. That the trial court erred in law and in fact as the proceedings, judgement and sentence do not correspond to each other. 4 9. That the trial court erred in law and in fact for convicting and sentencing the appellant while the case was not proved beyond reasonable doubt 10. That the trial court erred in law and in fact in hearing, determination and conviction of the appellant while there was violation of the law during the trial of the case. 11. That the trial court erred in law and in fact to convict the appellant without considering the defense evidence. 12. That the trial court erred in law and in fact for convicting the appellant on contradictory evidences. The hearing of the appeal was by written submissions. I choose to consider first the third and nineth grounds of appeal. Considering both the prosecution and the defense cases is an implied essential ingredient of a judgement in a criminal case under Section 312 (1) of the Criminal Procedure Act, Chapter 20 of the Revised Edition, 2022. Essential ingredients of the judgement include critical analysis of both the prosecution and the defense case. See Amir Mohamed v. Republic, [1994] TLR 138. In Leonard Mwanashoka v. Rupublic, Criminal Appeal No. 226 of 2014, the court had this about considering the defense case; "It is one thing to summarize the evidence for both sides separately and another thing to subject the entire evidence to an objective evaluation in 5 order to separate the chaff from the grain. It is one thing to consider evidence and then disregard it after a proper scrutiny or evaluation and another thing not to consider the evidence at all in the evaluation or analysis." The appellant's complaint in the third ground is that; there is nowhere in the entire judgement which shows that the court did consider the defense evidence when composing its judgement. The court did not consider the evidence of DW2 and DW3 at appellant's shop. Further, the appellant is not happy with the way the defense case was treated because the issues he raised was not considered. The appellant raised an issue that he had love problem with PW2. He prayed for the court to hold the proceedings vitiated citing the cases of Abel Masikiti v. The Republic, Criminal Appeal No. 24 of 2015, Hussein Idd & Another v. The Republic [1986] TLR 283, Jeremiah John & 4 Others v. The Republic, Criminal Appeal No. 416 of 2013. In the case of James Bulolo & Another v. The Republic [1981] TLR 283 the court held that; " failure to consider defense evidence was fatal to the proceedings. Defense has to be weighed as against prosecution to see if it introduces any reasonable doubt." In Hussein Idd & Another v. Republic (supra) the court went on and held; 6 "it was a serious misdirection on the part of the trial judge to deal with prosecution evidence on its own and arrive at the conclusion that it was true and credible without considering the defense evidence." I have carefully scrutinized the trial District Court judgement. I agree with the appellants position that the evidence of DW2 and DW3 were not considered. Even the appellant's complaint on the issue he raised that he had love problem with PW2 was never considered. From the record, it is PW2 who told the victim to go to the appellant shop, she is the same person who probed as to what happened in the shop, she reported the incident to the police, she escorted the victim to hospital for examination and medication, the record is silent on whether the parents or other teachers of the victim were involved in the matter. In this appeal, one of the appellant's complain is that, the case is fabricated at the instance of PW2. It is my finding that the circumstances of this case required the trial court to take precaution with the evidence of PW2. In the case of Elipidus Rwezahula v. Republic, Criminal Appeal No. 107 of 2020, the Court of Appeal emphasized on the need of the court to be cautious on the allegation of the charge of rape as it is the easiest case to frame against a person because the victim may easily be couched against an innocent person. The next question is whether or not, the case was proved beyond reasonable doubt. The appellant complained that the testimonies of PW1, PW2, 7 PW3 contradicted each other on material issues, for instance; narration of series of events that happened differs among the three key witnesses, as to who initiated the process going to the appellant shop, while PW1 stated that it is PW2, but PW2 said it is the appellant. On his part, PW4 said it is PW1. As to which items were collected from the appellant's shop, PW1 mentioned chocolate, biscuit and a cake while PW2 mentioned chocolate and half cake. On the part of PW4, she mentioned cake and biscuit. As to whether the cake was given to PW2, PW1 and PW4 said it was given to PW2, teacher Tecla. However, PW2 did not say as to whether she received the said cake. The respondent conceded that there were contradictions on testimonies of PW1, PW2 and PW4 but argued that the contradiction is minor with no effect to the prosecution case. I have considered the arguments by the parties together with the record, taking all the issues discussed above, I am of the view that the prosecution case has been undermined. It is trite law that where the conviction is based on the sole eye witness, like the case at hand, his or her evidence must be absolutely watertight. See Ramadhani Said Omary v. The Republic, Criminal Appeal No. 497 of 2016. Considering the evidence on record, I cannot say with certainty that, the prosecution proved the case beyond reasonable doubt. 8 In view of the aforementioned findings that, the prosecution and the defense case were not given a deserving critical analysis, and the doubts on the prosecution case, the conviction of the appellant is not safe. I therefore allow the appeal. The conviction meted against the appellant is hereby quashed and the illegal sentence of life imprisonment is set aside. I accordingly order an immediate release of the appellant from prison unless he is held for some other lawful cause. Order accordingly. S. J. KAINDA JUDGE 11.12.2024 9