JUDGMENT SHABNI ZAMBI

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA CRIMINAL APPEAL NO. 11630 OF 2024 CASE REFERENCE NO. 202405022000011630 (Originating from Criminal Case No. 41103 of 2023 in the district court of Songwe at Mkwajuni) SHABAN S/O ABDALLAH ZAMBI@ BAHATI S/O EDISON ZAMBI ..........APPELLANT VERSUS THE REPUBLIC ........................................................................ RESPONDENT JUDGMENT Date of hearing: 12/08/2024 Date of judgment: 7/10/2024 NONGWA, J. The appellant Shaban s/o Abdallah Zambi @ Bahati s/o Edson Zambi vide Criminal Case No 41103 of 2023 in the district court of Songwe at Mkwajuni was tried, convicted and sentenced in the District Court of Songwe at Mkwajuni with the offence of rape contrary to ss. 130(1), 2(e) and 131 of the Penal Code [Cap. 16 R: E 2022]. It was alleged that, at on 19/12/2023 at Mbangala Village within Songwe District in Songwe Region, the appellant did have sexual intercourse with one “DM” (name withheld), a girl aged seventeen (17) years old, herein to be referred as PW1 or victim. The appellant denied but upon full trial was convicted and sentenced to thirty years imprisonment. PW1 adduced evidence that on 19/12/2023 took maize and went to grand it, on the way met the appellant who proposed to her but she refused. She was drugged to a bush where she was undressed and the appellant inserted his manhood into her virgina. PW1 said she cried for help. Midway PW2 Maneno Lamson Lyanda heard a noise, followed it and saw someone having carnal knowledge with PW1 while his trouser lowered. The culprit ran and the victim was taken to leaders of the local area. PW3 Juma Mahende informed the court that he was a biological father of PW1 who was 17 years born on 19/09/2005 and that on 19/12/2023 was informed about his daughter being raped. He took the victim to police station where they were issued with PF3 to take it to the doctor. The story was confirmed by PW6 Vasco Ado Lupembe who on 20/12/2023 conducted medical check up if PW1 was raped. PW6 said that he did physical check up and found the victim had bruises on inner and outer virginal wall but was HIV and other STDs negative, hymen was perforated, thus, he concluded that PW1 was penetrated by blunt object. The finding was posted in PF3 which was admitted in evidence as exhibit P2. The appellant was arrested by PW5 Rashid Juma Mashauri on 21/12/2023 and sent to Mkwajuni police station where he was received and recorded cautioned statement by PW4 G.1689 D/CPL Charles in which it is stated that the appellant admitted to the offence. When PW4 sought to tender it, the appellant objected on ground that he was denied to call his father, it was later admitted as exhibit P1 after overruling objection. The appellant’s defence was simple and straight. He said, he committed rape after agreeing with the victim to be given money. That the victim consented and told him that she was eighteen and gave her 5,000/= At the end of trial, the trial court was satisfied that the prosecution had proved the offence beyond reasonable doubt, the appellant was convicted and sentenced to thirty years imprisonment. Aggrieved, the appellant has filed petition of appeal on six grounds one, that the cautioned statement and PF3 which was admitted by the trial court contravenes the law for not being read over to the accused, he said that it prejudiced the appellant; two, that the trial magistrate grossly erred both in law and fact by holding that the victim was 17 years old while the biological father of the victim testified that the victim was born on 19/09/2005 and the offence alleged to have been committed on 19/12/2023; three, that the honourable magistrate grossly erred in law and facts to convict the appellant while the prosecution failed to prove the case to the required standard; four, that the honourable magistrate erred in law and facts for failure to draw adverse inference against the prosecution when they failed to call the hamlet chairman to testify; five, that the trial magistrate grossly erred in law and fact to convict the appellant based on contradictory and unreliable evidence adduced by the prosecution and six, that the honourable magistrate totally failed to evaluate and scrutinise the evidence on record, hence reached erroneous and injustice decision. On the hearing date the appellant fended himself whereas the respondent, republic was represented by Ms. Prosista Paul, state attorney. The appellant prayed his grounds of appeal to be adopted to form part of submission. The state attorney informed the court that they were not supporting the appeal. In the first ground that cautioned statement and PF3 were admitted without following procedure, the state attorney admitted that cautioned statement was admitted without proving voluntariness after the appellant had objected to its admissibility. Thus prayed the same be expunged per requirement of the case of Robinson Mwanjisi. With regard to PF3, state attorney submitted that after it was admitted was read in court to the accused. On age of the victim in ground two, it was submitted that PW3 testified that PW1 was born on 19/09/2005 and at the date of commission of offence on 19/12/2023 the victim was 18 years and three months. With regard to ground four that hamlet chairman was not summoned to testify, the state attorney argued that he was not the material witness as his evidence could be confined to what he was told. On contradiction in ground five, the state attorney said there was no contradiction in prosecution evidence. Submitting in ground three that the prosecution did not prove the case beyond reasonable doubt, it was stated that PW1 explained what befell her and that when in the bush she cried for help which was corroborated by PW2 who responded to a call for help only to see the appellant running. Further submission was that penetration was corroborated by PW6 as explained in exhibit P2. The state attorney added that the appellant admitted to have raped the victim in his defence. From the above the state attorney was in favour of the trial court decision. Having considered record of appeal and submission by the state attorney, issues for my determination is one, whether cautioned statement exhibit P1 and PF3 exhibit P2 was properly admitted in evidence; and two, whether the prosecution proved the case beyond reasonable doubts. In the first ground the complaint of the appellant is that exhibit P1 and P2 were not read to him after its admission in evidence. The state attorney conceded that exhibit P1 was procedural admitted for want of conducting inquiry after the objection was raised to its admissibility by the appellant. Thus prayed the same be expunged. It is the law that when a document is intended to be introduced in evidence it must first be cleared for admission, be actually admitted and be read to the accused after its admission in evidence. See Robinson Mwanjisi and Others vs Republic, [2003] TLR 218. The concession by state attorney is not on complaint that exhibit P1 and P2 was not read for it is clear in record that exhibit P1 and P2 were read after admission into evidence. However, there is procedural aspect on admission of cautioned statement after being objected by the accused. Under section 27(1) of the Evidence Act, a confession voluntarily made to a police officer by a person accused of an offence is admissible. When a court has to make a decision either to admit cautioned statement in evidence or not and where there is an objection for the same not to be admitted on a ground that it was not freely and voluntarily made, inquiry in subordinate courts or a trial within a trial in the High Court has to be conducted to determine its voluntariness. In this case when prosecution wanted to introduce caution statement of the appellant, it was objected on ground that he was denied chance to have his father present. The trial magistrate heard parties and overruled the objection. Presence of a person of the accused’s choice when recording cautioned statement is provided section 54(1) of the Criminal Procedure Act [Cap 20 R: E 2022], the requirement in intended to safeguard right of the accused and ensure that statement recorded by the police are freely and voluntarily, free from the remotest taint of suspicion, and free from the blemishes of compulsion, inducements, promises or even self – hallucinations. The objection raised by the appellant went to voluntariness of the cautioned statement touching one of the procedural rights of the accused when it comes to recording of his statement. In Twaha Ali and Five Others vs Republic (supra) the court stated that: ‘Accused’s procedural rights are there to be strictly observed not only for their benefit but also to ensure that justice is done in the case.’ The procedure adopted by the trial magistrate to determine objection of the appellant in main case without conducting inquiry to determine if the accused was availed with such right affected the admissibility of exhibits. Since the trial magistrate did not conduct an inquiry after an objection was raised, I am in agreement with the learned State Attorney that the same was illegally received in evidence. It is unfortunately that the trial court attached weight on it. Accordingly, exhibit P1 is expunged from the record. The first ground of appeal has merit. Advancing to the second issue whether the prosecution proved the case beyond reasonable doubt, the state attorney while appreciating that penetration was proved and presumably the perpetrator known, she submitted that the victim at the time of rape was aged eighteen years and three months. She just ended there. The appellant was charged with statutory rape under section 130(1)(2)(e) of the Penal Code, it provides; ‘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: (a) to (d) not Applicable (e) with or without her consent when 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.’ To prove the offence under the above section, the prosecution is required to establish that the accused had sexual intercourse with a girl under 18 years of age, if she is 15 or more years of age, it must be shown that she is not his wife. The sexual intercourse is proved by penetration of victim’s vagina, even a slight penetration is sufficient to constitute sexual intercourse under section 130(4) of the Penal Code. In this case the accused being known to the victim was not in dispute in the trial court. Regarding penetration, it was established by the victim herself and corroborated by PW6 and exhibit P2. In her evidence PW1 said the appellant inserted his penis in her vagina, the fact which is not disputed by the appellant when she admitted that PW1 consented and they had agreed. Evidence of penetration is corroborated by PW6 who said PW1 there was bruises in inner, outer vagina and hymen perforated, the result explained well in exhibit P2. The intricate issue is on age of the victim, while the prosecution said the victim was 17 years, the appellant said she was 18 and they had agreed. Bearing that the appellant was charged with statutory rape, proof of age of the victim is vital as is the one that differentiates normal rape which is proved by lack of consent from statutory rape where consent is immaterial unless aged 15 or above and is a wife. In Amani Yusuph vs Republic, Criminal Appeal No. 124 of 2019 [2023] TZCA 48 (23 February 2023; TanzLII) the Court of Appeal, citing words of the High Court Judge, Ngwembe J. as he then was in the case of Omary Hashimu vs Republic, Criminal Appeal No. 63 of 2022 [2022] TZHC 14599 (7 November 2022; TanzLII) stated: ‘In statutory rape, proof of age is fundamental. In fact, the age of a woman is a determining factor which differentiates between normal rape and statutory rape. Even punishment depends on the age of a woman.’ Thus, in the case of Sumitu Abdallah vs R, Criminal No. 247 of 2021) [2023] TZCA 17994 (14 December 2023; TanzLII), the court held that; ‘... in a case where the victim's age is the determining factor in establishing the offence, evidence must be positively laid out to disclose the age of the victim.’ Conscious of the age being of great significant in establishing the offence of statutory rape that the victim must be under the age of eighteen, such proof of age can be adduced by the victim, parent, relative, medical practitioner or where available, by the production of a birth certificate. See Ado Aron Nziku vs Republic, Criminal Appeal No. 449 of 2021) 2024 TZCA 220 (22 March 2024; TanzLII). In the case at hand, the victim just said was 17 years old, PW3 said PW1 was 17 years old born on 19/09/2005, in exhibit P2 PF3 which was tendered by PW6 the estimated age of the victim is 17 years. There was no documentary evidence in form of birth certificate relating to the age of PW1 which was tendered by the prosecution The alleged rape occurred on 19/12/2023. The appellant in his defence said that PW1 consented to sex and told him that she was 18 years old. The trial court was aware of evidence of PW3 that the victim was born on 19/09/2005 and ordered to be availed with birth certificate, but it approached evidence of the prosecution of age of the victim casually. Although date of birth was mention by PW3 the court did not compute to satisfy itself, that aside evidence of the appellant that PW1 told him that was aged 18 was not given any weight. In this appeal the state attorney has submitted that taking evidence of PW1’s father that she was born on 19/09/2005, when offence of rape was committed on 19/12/2023, PW1 was eighteen years and three months, thus above eighteen. I agree with the state attorney that computing from 19/09/2005 when PW1 was born to 19/12/2023 when the alleged offence was committed the victim was eighteen and three months. Therefore, the offence of statutory rape under section 130(1)(2)(e) of the Penal Code could not be preferred against the appellant. Being the case, it makes no sense that rape was proved as submitted by the state attorney as that will be venturing on the matter which was not before the court. From the above and in view of the doubts shown above, I find merit in the appeal that the charge of statutory rape under section 130(2)(e) of the Penal Code was not proved beyond reasonable doubt against the appellant. For the reasons shown, I allow the appeal, quash the conviction, set aside the sentence as well as the order of compensation and six strokes of cane imposed on the appellant. I order the appellant's immediate release from prison, if he is not otherwise lawfully held. V.M. NONGWA JUDGE 7/10/2024 Dated and Delivered at Mbeya this 7th October 2024 in presence of the parties. V.M. NONGWA JUDGE