20160414 TZHC Mbeya 1

IN THE COURT OF APPEAL OF TANZANIA ATMBEYA (CORAM: KIMARO, J. A., MUGASHA, J. A., And MZIRAY, J. A.) CRIMINAL APPEAL NO. 368 OF 2013 MUSSA RAMADHANI .............................................................. APPELLANT VERSUS THE REPUBLIC ....................................................... ■-•••••••••••• RESPONDENT {Appeal from the judgment/decision of the High Court of Tanzania At Sumbawanga) (Sambo, J.) dated 29 th day of August, 2013 in Criminal Appeal No. 17 of 2011 RULING OF THE COURT 12th & 15th April, 2016 MUGASHA, J.A.: In the District Court of Mpanda the appellant was arraigned as hereunder: OFFENCE SECTION AND LAW: Rape c/s 130 and 131 (3) of the Penal Code Cap 16 Vol. 11 of the laws as amended by section 5 and 6 of the Sexual Offences Provision Act No. 4 of 1998. 1 PARTICULARS OF THE OFFENCE: That Mussa s/o Ramadhani charged on 15/12/2008 at about 18.00 hrs at Kapanga village within Mpanda District in Rukwa Region did have carnal Knowledge with one Mwajuma d/o Mussa who is a primary school pupil aged eight years. The appellant denied the charge subsequent to which the prosecution paraded four witnesses and one documentary exhibit to establish the prosecution case. The appellant was the only witness for the defence. A brief account of the prosecution case is as follows: on 15/12/2008 at 18.00 hrs at Kapanga village, Mpanda District in the Region of Rukwa, the appellant went at the home of MWAJUMA MUSSA {PWl) when her parents were away. The appellant took PWl at the backyard of the house and raped her. After MASUDI ABDALLAH {PW2) heard PWI screaming he went at the scene and found the appellant leaning on PW1. On seeing PW2, the appellant took to his heels. PW2 reported the incident to PWI's parents. PWl was taken to the police, issued a PF3 and she was ultimately taken to the hospital where she was examined by Doctor ALLY HAMISI MSOKE who testified as PW4. The Doctor established that PWl's virginity was ruptured; 2 and her private parts had bruises and smelling fluid. The appellant who was at large was later arrested two weeks after the fateful incident. In his defence, the appellant alleged that, the offence was a fabricated one and that is why he was arrested two weeks after the fateful incident. After a full trial the appellant was convicted and sentenced to life imprisonment. He unsuccessful appealed to· the High Court, hence the present appeal. In the memorandum of appeal the appellant raised nine grounds of appeal which are conveniently summarized into one namely: That, the first appellate Court erred to dismiss the appeal relying on evidence of the prosecution which did not prove a charge beyond reasonable doubt. The appellant was unrepresented and the respondent Republic was represented by Mr. Stambuli Ahmed, learned Senior State Attorney and Mr. Hebel Kiaka, learned State Attorney. When the appeal was called on for hearing, Mr. Stambuli Ahmed, learned State Attorney rose to address the Court that the charge sheet is defective and this adversely impacted and vitiated the trial. He pointed out that, the appellant who is alleged to have raped an eight (8) year old child was arraigned under the provisions of sections 130 and 131(3) of the Penal 3 Code which do not disclose any offence. He submitted that, basically the appellant ought to have been charged under section 130(1} (2) (e) and 131(3) of the Penal Code Cap 16. He added that since the charge sheet is · defective, this occasioned into a miscarriage of justice as the trial was unfair. He cited to us the case of KASTORY LUGONGO vs THE REPUBLIC, CRIMINAL APPEAL NO. 251 OF 2014 (Unreported) and urged us to nullify the proceedings and order a retrial because on the record there is sufficient prosecution evidence to prove the charge against the appellant. On the other hand, the appellant prayed to be set free in the light of the stated anomalies. It is the charge sheet which lays a foundation of a trial. Because the principle has always been that an accused person must know the nature of the case facing him before making his defence. As such, the charge sheet must contain sufficient particulars to enable the appellant to understand the nature of charges he faced and what defence to put up. What constitutes a proper charge was addressed in CHARLES S/O MAKAPI vs THE REPUBLIC CRIMINAL APPEAL NO. 85 OF 2012 where the Court was faced with a situation almost similar to the one at hand. The Court observed that, section 135 of the Criminal Procedure Act Cap 20 R.E. 2002, imposes mandatory 4 requirements that a charge sheet should describe offences and make reference to the section and law creating the offence. At the beginning we extracted the charge sheet to establish that in the first place, the appellant was arraigned under section 130 which is a non- existent provision of the law. Section 130(1) of the Penal Code which creates the offence of rape categorically states as follows: ''It is an offence for a male person to rape a girl or woman" Moreover, section 130(2) (a) to (e) classifies circumstances under which a male person commits rape in terms of the following description: "(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) not being his wife, or being his wife who is separated from him without her consenting to it at the time of the sexual intercourse; (b) with her consent where the consent has been obtained by the use of force, threats or 5 intimidation by putting her in fear of death or of hurt or while she is in unlawful detention; (c) with her consent when her consent has been obtained at a time when she was of unsound mind or was in a state of intoxication induced by any drugs, matter or thing, administered to her by the man or by some other person unless proved that there was prior consent between the two; (d) with her consent when the man knows ... that he is not her husband, and that her consent is given because she has been made to believe that he is another man to whom, she is, or believes herself to be, lawfully married; (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. " In the light of the stated position of the law, and as stated in the case of KASTORY LUGONGO vs THE REPUBLIC, CRIMINAL APPEAL NO. 251 (supra) the charge sheet ought to have been framed according to the provisions of 6 section 135 (a) (ii) of the Criminal Procedure Act [CAP 20 R.E. 2002] which requires: "The statement of offence shall describe the offence shortly in ordinary language avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence and, if the offence charged is one created by enactment, shall contain a reference to the section of the enactment creating the offence." [Emphasis supplied] The Court was confronted with a similar situation like the one under scrutiny in ABDALLA ALLY VS REPUBLIC, CRIMINAL APPEAL NO. 253 OF 2013 (unreported). The Court observed as follows: ".....being found guilty on a defective charge based on wrong and /or non-existent provisions of the law, it cannot be said that the appellant was fairly tried in the courts below.... : The Court went ahead and decided that: ''In view of the foregoing shorttomings, it is evident that the appellant did not receive a fair trial in 7 --1·- . ........_ court... The wrong and or non-citation of the appropriate provisions of the Penal Code under which the charge was preferred, left the appellant unaware that he was facing a serious charge of rape" In another case of SIMBA NYANGURA vs REPUBLIC, CRIMINAL APPEAL NO. 144 OF 200s, the appellant was charged under section 130(1) and 131 of the Penal Code, the Court observed that, the accused person must_ know under which of the description in section 130(2) (a) to (e) the offence he faces fall, so that he can prepare for his defence. As the Court further stated that, "lack ofparticulars unduly prejudiced the appellant in his defence. " In the matter under scrutiny, it is obvious that the appellant was charged, tried and convicted on non-existent provisions of the law which cannot be said to create any offence. In the absence of the sufficient particulars constituting the offence of rape, it is clear that the appellant was not made to understand the nature of charges facing him to prepare an informed or rational defence. This resulted into an unfair trial on account of an incurably defective charge sheet. In this regard, the trial was a nullity and so was the appeal before the High Court because it stemmed from a nullity. We therefore invoke the provisions of section 4(2) of the Appellate Jurisdiction Act [CAP 141 . R.E. 2002] and hereby nullify the entire 8 • proceedings and judgment of the trial and the High Court in Criminal Appeal No. 17 of 2011. We further quash the conviction and set aside the sentence meted out against the appellant. We agree with the learned State Attorney that, in interests of justice a retrial is worthy. We order the expedited retrial of the appellant within 6 months from the date of this order. In the event of conviction if any, the period which the appellant has stayed behind bars should be considered during sentencing. DATED at MBEYA this 14th day of April, 2016. N. P. KIMARO JUSTICE OF APPEAL S. E. A. MUGASHA JUSTICE OF APPEAL R. E. MZIRAY JUSTICE OF APPEAL I certify that this is a true copy of the Original. COURT OF APPEAL \ 9