abdur karimu shamiri karimu vs the republic 2016 tzhc 2334 16 october 2016

---~ IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF'DAR ES SALAAM AT DAR ES SALAAM CRIMINAL APPEAL No. 73 OF 2023 (Originating from Criminal Case No. 82 of 2022 in the District.court of Kibaha at Kibaha) -, I ABDUR KARIMU SHAMIRI @ KARIMU ••••••••••••••••••••••.;'}.~~, ••••• APPELLANT ( '" ~ , .:-: \",", """<'\.,' ......., " VERSUS \. '~"'" .._~. \\ """ <. " -,...._' <, ¥ "',"" ":" ~,.... /", i/~" ) THE REPUBLIC ~.~ ; iI·.. RESPON'DENT -,"'" \>, '>'>~:"',..',,_,/ lU~.G~,~N:r<:·~:., \ -r> <» t " ' "-\ ' ">,"'-. ~ " -. '''-'. '\" '. \ (~'... '~;,;.; ','".,.'" -. -, <, '-....... ",' '- -, \ \ \ \ >~:""':.<::~~~-~~) ._;) . Date of last Order: 4-9-2023 Date of Judgment- 16-10- 2023 " <::>.:",.. //~~;:~:_" -, , . -, . . B.K.PHILLIP,l ( / ._, "'+"<"";' \"'<""',> . ,1 .r -, ", 'v :iQ"t~U~) on two counts, to Wit; rape The appellant hereirT'\'Ya~\~rraigh.~d '-, \_,'~-'" ' '.\, '-'\, "'~ •"1 contrary to section 130\\·(1)~{2},. (e), J3/1(1) and abduction contrary to , ..," ",»<>: ~..,\.~ '"''''".,\ ' -,~<, ''''"'.._ - ..,~-',." . -f,1 . section 134 and~350fthe P~ha,1Codeltap 16 RE2022]. He denied to have .... ""'\. v,-,~_ \. !' } L ", ",- ':., ... committed-the "offer)ces>a(<;>resaid. In proving its case the prosecution I .;; '.. ...---' .. -~;:~ ....' ...., "0., , \,._~" ' '- "'. ',... ~, , .... ~ ,- -... "-'-.... "'} . paraded1 ~ four ~.w.itne$s~s. The appellant was the only witness for the '-.. '", \ defen't~,\~ase.TA~\fa~e~:was heard on merit and he was found guilty, consequ~A~y",~eJda!~convicted and sentenced to serve thirty' (30) years ..,...... ---- _,J imprisonmenf"'Aggrieved with the. judgment of the lower court, the appellant lodged this appeal.The appellant's ground on appeal are reproduced verbatim hereunder; 1 ....__-------'--~---------~----'---.-- --. I) That the trial learned Magistrate erred in law and facts by composing a judgment that is silent to the offence of abduction as whether the accused is (guilty/not guiltyJ (convicted/not convicted) of the offence of abduction as charged ii) That learned Magistrate erred in law a(Jc{fact by convicting . "' .... ",- "\ without relying to any of the admitted exhiblts./efhibit P1 and P2 . ("" ..•. :'' "' which were essential to the prove of th~.:~Q!:,nts. \, '\ ..... -,....<, '\,<-,"" /' .~\ -.\. -, ".:~ ".1 r>; "........."... / (, '~"'" "\\\ //:' ./':~::.""'' ' ' '..... ,/' '''', -', \ \/,J' ..... '.,••.. .' (.-. ...~'~'.._." '\'\ \"" • \\' "." • J • iii) That, the trial learned "!J1agistj;tft:er~~ ,,; " '. a(Jd·,.(a~t,by ignoring the ','" '. . • '\ "',..... ""... "'-, _\. "'\. 'l ..:·with'Yegara--io~PF:}' (exhibit Pi), PW1 contradiction in evide..nce 1......- \ ~'" ~1. ... "\. ......._ .• ~,r / .... _, .J \. '~, '\ • ~" testified to havl/11!ed it ~?'·'2~.~6.·'2Qf~ while the same is dated ''.:'6, ")/1")2 \ \ /' < ' ....",.,.\ '.. 1 J. ..e:u.e:, •. ,-. \ \. (/,." " \ -, '\, '\ "'~#.' -, ", /' \'.... ". ".', \., \ . " ,,' ___ -"-- ....... ,' " -, ", '-', .... L\\. ". _ " , .., ./ ! - Iv) Tharl:fji!Tl:ri~/\Leilriied . . Magistrate erred in law and fact by failure to '\., ) -. ". ) I .... "" ..satisry·f;-er:self-as .to the'voluntariness, correctnessof the testimony ../",:" ...-.-..... ''''~'' .... ~., . .... ' ,~.,-- - --"'-''''~ .. ~.......... " .... ..._ -, '-"/' ( (' of PI!l(~.,.(th~:·'vict/m)-jiVho was punished and kept in lock up for 2 \ I ... \. " \ \. consecutf~~Clay$;under influence of her parents, therefore PW3 c -. \ " ""i:~stimony}~asnot voluntarily. -,.... "'>, ,,/ J ~"""" "- -_...... ;1 ,. ~-------- ./J v) That the trial Magistrate erred in law and in fact by failure to consider reasonable mistake of fact that PW3 was a student therefore, mistake of age, which was pleaded by the appellant honestly and not contested by the prosecution side. 2 vi) That the trial Magistrate erred in law and in facts that the prosecution side failed to prove their case without reasonable doubt Briefly, the prosecution's 'case was as follows: between 11th and 16th June 2022, in the Maili Moja area within Kibaha District in the Coastal Region, the appellant had sexual intercourse with a 15-ye~r,:pld girl, a Standard Four pupil at Maendeleo Primary School. In this cas~>:she.will be referred . i 0"'" '. •. -~'. ",. , to as "SO" or. "the victim" for the purpose of\protec;ting "h~r ldentltv, On . "-, '. ...... .. ". . . ,," '~,.;, -, " _ . -, , ."", 11th June 2022, the appellant unlawfully took" SO',from her-parents' ", '.~ . \\ \ ,.' '~~'~ ......~ custody and stayed with her from (~-~:~_~,~e~~.,,16t~,3?'ne':2'022.On June 18th June 2022, PW2, while at-his "'resiaerfce >noticed\ that SO was not 1 ''\' .-,.... -. "\.~\: ..'..... <; .. ~~_~-~~' ..... -', \\,1.... '\..' \ around. He asked 50's frlendabout-her-whereabouts, and her response ,/ , .. " .. ," '',,'' '." "" was that she did not knOr(where/S~ 'W~~'"At'\~~:OO PM, SO returned home and promised to explain absenG~'\~nd"':whereshe had been. On 16th "'. " \~er \, \\_ \..\') ""\, June 16 2022, .~[}-tqld'Pyv~ th~t"s"he ~J~'~/beenwith her lover. He then took /'/" ... _"~ ... \.... '<, "\~.. ... '<, ~.--'.... .... '-P"/.1 . her to the appellant's residence. Upon entering the appellant's house, PW2 "''- ) I "', " -,~~eVy,·the victim. In response, the appellant asked }he-'ap.pelf~nt.·...if=_~~e, .: ~.~-.--...... . '. ",. .. .'.......',~. admitted that'he'. kn'ew'SO asshe was his lover, and he was not aware that \, \ . \ \\'\ "'. -, ", , . a student, she wa\s. .'I \ Thereafter, PW2 took SO to the hospital. After -.\., """ ' I underqolhqa medical examination, the results showed that she had no bruises on h~r·~~rirt~1 area but had been penetrated. PW3 (the victim) informed the court that on 11th June 2022, she went to Maili Moja and passed by the appellant's shop. She was called by the appellant, who told her that he loved her. Later, they went to the 3 1 appellant's residence, ate, and after some time, undressed. The appellant took her to bed and inserted his penis into her vagina. She stayed at the appellant's home for several days. When she returned home, she told her. parents that she had been staying with the appellant at his home. PW1, the doctor at Tumbi Hospital, testified that on 24th June, 2022, he was at his office. He received SD for a rnedlcal,examination, which \''- -'" revealed that she had no bruises but. had lost her"'~ir:-ginity, indicating penetration. Moreover, he found that she was, r:lo~".p.re~n'~ht.. , and.did not ,_ \... ," .... -, " .....,...... ..~.. -, ./ . 1.' v...... .. ./' have HIV. PW1 filled in the PF3. '~' \. \.'\ \ 1\ <, ">, ./ '\.". -.~'\"- '. . "'\,' ./~.... -.........._,~~. ""'"', " ... , \\. \~. ... : \'1, """,:. <,.... ,., '"'''''''''"'_, \_ '" On the other side, the appellant,.denied:tAEt'Gh~~ges.\fijs '\. '" \,.~ ..,."" ~-" defence was as \\_ ,,' follows: That on 12th June/--202'2;:~,wh~'n<:he, ~ok~. ii' .: - _,.,t • '\~ '\" '~\, '~"'t-, ~.pin the morning, he found three people outstde.hls residencewltf 5D, crying. They asked him if ~ I " v, • ', '" he knew SD, and h~ ..rep'li~q that/n~~\d,!d':"L~ter on he was called by the to~~q)to the police station. On 5th July chairperson Of/his.,~,r~~":~aQ'd"~~k~d ... /": '_ 0'"--'-''' 0, '"'' "\.< "~. """" -'"'-.,.--.~ __,>.1 2022, he we~t(~6 tHe\p.olid~.,st9tioh;·WI1·erehe was interrogated. He denied ~ ) I , cornmlttlnq-the offerices'~narged:'against him. /' ,""--~"'''''''' ""'" '<, ('\ -,........ ,. -, Whe~ this appeal was -,.calledfor hearing, Mr. Shabani Mwaite, a learned '\ \, . '\ .... ,\ "". """ counseland Mr. CI~'~ence-Maige,a learned State Attorney appeared for the '.,'., " -, " j \ I . • appellant-and respondent respectively. The appeal was heard by way of , '., •., ..... _-,,- ./ I written submissions. Submitting' for the first ground of appeal, Mr. Mwaite argued that the appellant was charged with two counts, namely Rape and Abduction. However, the proceedings and judgment are silent on the court's findings 4 regarding the offense of abduction. He went on submitting that the appellant was neither found guilty nor convicted of the offence of abduction. He contended that the trial Magistrate did not determine the said offence as if the appellant was charged with one count only. He was of the view that the trial court's failure to determine the offence of abduction renders the lower court's proceedings nul~\~nd void. To support - ,, his arguments, he cited the provision of section 235(1') of the Criminal Procedure Act ("CPA") and the case of Haji M~-~~~e... '\ ', '<, ~h~l~·vs.Di~ector "", " -_~. of Public Prosecution, Criminal !::Appeal'.>,N-O~;""3Q8\'\\-,_9f/ 2017 \"~..... ,'\"'"'' \\ ',\\ ~,",/ >.,.,,,•.• "<, ~ ~,,,/r ... (unreported), in which the Court of-Appealinterpretedsectlori 219 of the ...... -<>...,. \.,~, \'~"''' '\\, Criminal Procedure of Zanzibar, ~Qich'\i~·'\Ii1·P~J'·h?cj!e(ia'.YV,ith section 235 (1) ", "" ...-, ""'\ \.\~.. "'-'-l.~"""-":'" "', "," of the CPA. He also subm~tte9:Jhcit,~h~ o-rti).s~.ion "to. determine the offence of abduction renders the t~i~'i-court's \ \ ,.' -, jLicl'gm~rit::null and void, as per section V ""\', -, ....-. . \. ,.' '... ~ -. ..Jhe,p~A.(,//"'<"" 312(1), (2), and (3)z,~f -, \. ,,"\ " '\ ,/'-- ..<, -"\<~"" """~''-". ,,) - J _// _,',,-,--.,,"\', "\'.,"", -,<,,~--- --- .• j!' : In rebuttal, M.r.-,Mhoja\ corieeded that the appellant was charged with two ", ., ~. ) / ", '-, ,.'x, counts..Rape a'i;d:Abdl:iqion. r ,ti?- ..... · ~"""'"".""".'" <>..,......... " ...,\... ;, -, -'.,~ <.... ahd> at the close of the prosecution case, a '~.,.".' .... 't prims facie case was.established in respect of both counts. The first page 1 \ \ t "" ',',', ", "'", "- -. of the\trial court's.judqrnent shows that the accused person was charged " , '-, • \-' t \.\ with tw6",·9ff~nce$: "-... .~~~- -__ .However, after summarizing the evidence, the trial " , "......_,- _, ' Magistrate seems to have' focused on the first count only and did not determine the second count, despite witnesses testifying about it. Relying on the provision of section 235 (1) of the CPA, Mr. Mhoja argued that it is clear that after hearing the parties and their witnesses, the court has to either convict the accused and pass sentence or acquit or discharge him. 5 .. He pointed out that as the provisions of the law cited herein above are couched in mandatory terms thus, the trial court was expected to convict or acquit the accused person as law does not offer any other remedy apart from conviction or acquittal. Moreover, Mr. Mhoja argued that the' provision of section 312(1) of the CPAwas not complied with" and under the circumstances, the appellate court cannot step-into the shoes of the , "." . '\',\ trial court; rather, it should quash the judqrnent and s~t>,~sidethe orders f"· -, '-, arising thereof, and remit the case file to the \loW~r-, ..cpurt"'sp,tha~/t~etrial . \. ," \, ..... ~......... >..,~... ""', '~" ".,tV ~ .. <~' Magistrate can compose a fresh judgm&ht, in ithi\=h"'~h'e/he"'wJJV'makea -',\. -,... -. "'\ \\ /,J/' .r'<:.......... , court to determination of both counts. He(ref~JTed·",tRl~ -the case of ''' Sosthenes Bruno &. another Vs,~,Flofit-Sh:~lJ{~;:Ci"if~ppeal No. 81 of " ., ....__.. ......... ''->.' --.;' \. \ ", '"\., ..... '\, \........ ~'--"''-- " -c, -..: ,~ , 2016 (unreported) to support-his I "'."., .... - ~ argqme'nts." '<''', "\,. "', "\,\ / ,l/' ''\:..;","\.\. ....'\~ <, ( r ',_ \\ -, ''to ! .1 .. ~-. '-.' , ' •• \ ,,~) . , \ r~ '\\~ '\ .. ,>... ".j In rejoinder, the aPeellan~.)pinea/naQd~'With Mr. Mhoja, stating that the judgment is def.eGtiy~'rQ~'.f~lli·:(rg"to d~~~~h,inethe second count. However, ,_,r _. __ ...;. "'\ ';. >_~\__ ....' v. ._ <,., .••__ ,_.. /? he implored~,,<~~iS"~pprt \tq~~~t-aside the impugned judgment and set him fr~e;-He,~troQgly,ref9tepMr>Mhoja's view that the case file should be ,J' .' ....... ,""r.._ ....,".......-..•• """': \.~"" ,.\~. ....,....... ~.....,.\',~) remitted to the:'trial",Fo,urt.To support his stance, he cited the case of \ \ -, ". ......., '\, "'\" -, (unreportedj.. ,', Abdalla~ Ally Vs,.\The",-Republic,Criminal Appeal No. 253 of 2013 ,)) \ ~ . .. ..--~_... , ,.~ ~/ -.-~----./ In this case, it is not in dispute that the appellant was charged with two counts: Rape and Abduction, and he was convicted of rape only. The second count was left undetermined, meaning the court did not make any decision regarding it. The dispute between the parties in this issue is the 6 • appropriate legaL remedy following the omission committed by the trial court, which rendered its judgment defective. The question is whether to quash the impugned judgment and order a trial de novo or to quash the impugned judgment and set the appellant free. Let me point out that the case of Abdallah 'Ally (supra), cited by the appellant in his rejoinder to support his stance that the appropriate legal remedy is to quash the -. ",~ impugned judgment and set him free is distlnqulshablefrorn the facts of , ( ~"'" "',\ -. this case. In the former case, the Court of App~al:l:)ot~d thatthe tria, court . , . '-", "\.. ~"""'"'''' -""""'""-. ' .......',,\ i" /,," . , "-,, '<, "./, sentenced the appellant without first con¥icting him, andthe cngrge sheet ''''", ••\. •.~ ... ! -, /;~. ;r' ... "v-, -». »: ~.~ ......,. was defective. Thus, the court rnade-a.flndinq'that i .......... ....~. q~de'ring'a"retrial \ , of the \'" l";..,.." ..... _...... ''',_ '~" " \ case would not meet the interests of'jystiGe:~'-Iri.:~the, -, -, \'" \'. ..".............. ~._-.::. ca,s~at hand, there is ~\.. ...~,.,. no argument that the cha~ge-she'et:was'defectiVei',a'nd the trial court did . ,/ .. /'--""'_' \ >...."">"" ..'\, "~''I." not make a determlnatlorr \ t· of the, second /' <', -, -, cotll;lt at all. However, upon ~\..,,,I • , \ ,f \, ...., perusing the provisions of\~e~tions';23.?'~.(1)' a}1d 312 (1) of the CPA, I am of '... "~. '''", ..", . .-,v, '\ , the settled Vi~w--tQ9t""in>th~"'firc;~mst~l}tes of this case, the appropriate .. _'// ,>""--""'-"t:. '\'\\ -, . '" . \,'.... <,-, .... ~--...., .;,.l' legal remedy.is.to set aside-the lrnpuqtied judgment and order the case file -, ... .>. ),_ I \ "-.....'\,., to be remitted fci~th~>trl~l'~ourt,i0r the trial magistrate to compose a fresh f!/ /~."__ .., ,_ ""~~.~ ...... <, "'\" ""'t,.\_~, "',., .......... "';.~'."" ...'; judgrn~nt, as 1,$h~lI'el~Q~rateJbn shortly. \ ' ", '... -, ~'- 'I, \, -, \, '''I, ~/ '. " \. ~\ '.' ", \'. \ \ \. '\ ! , It is on recprq "'--that' ........ upon the closure of the prosecution case, the trial court '" " '., " made a flndlnqthat the appellant had a case to answer on both counts. Consequently, the appellant defended himself on both counts. Therefore, it was imperative for the trial court to make a determination of both counts. There is no way the court can receive evidence from both sides and leave the matter undetermined. Justice demands that any matter brought before 7 • the court has to be determined to its finality thus, it is. the finding of this court that the impugned judgment is defective. Therefore, I hereby set it aside and, order the case file to be remitted to the trial court for composition of a fresh judgment by the trial magistrate in which she will the 8