20170830 TZHC Dar es Salaam1 1

,.,.--., IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM. MISC. CRIMINAL APPEAL NO. 52 OF 2017 SALUM ISAMAIL @ MTONGOLI ..... .................·.APPELLANT ,;,,t.~.... ...... t{.,,,. VERSUS . .., .... -~ . ... B:";."'", ., ..;.,. 0 THE REPUBLIC ............................................... RES PON DENT ' ' Date of first order 21/8/2017 Date of last order 30/8/2017 JUDGMENT I.P.KITUSI, J. Salum Ismail @ Mtongoji,· hereafter the appellant, was convicted for ...t· rape and sentenced to 30 years imprisonment. He was in addition, ordered <.· to pay monetary compensation of Shs. 1000,000/= to the alleged victim, one Erina d/o Moses @ Kagonji, aged 9_ years. It was alleged that on 9th March, 2016 at about 17 hours at Mkuranga "B" area within Mkuranga District in Coast Region the appellant did rape Erina d/o Moses@ Kagonji a school girl aged 9 years. The crucial evidence for the prosecution was that of one Beresha Hendri Msangi (Pwl) the aunt of the victim who testified. that on 9th 1 ·March,2006 at· about 17 hours she sent. Elina Moses Kaganji(Pw2) to a shop to buy eggs. When Pw2 returned from the shop Pwl noticed that .•some liquid was dripping from the pocket in which the eggs were. Pwl ·. concluded that the eggs must have broken and when she demanded an . : .: ·:,:·explanation, Pw2 told her that she had been raped by someone. Pwl, checked Pw2's private parts and confirmed the alleged ·rape because Pw2 had no underpants on, and blood was oozing out. The matter was reported to the police where a PF3 was issued. One Radius Credo Mpendakula (Pw3) a medical doctor made findings after examining Pw2 that her vagina had bruises and discharges therefore a · blunt object had penetrated her. Beside that, her hymen had been perforated. Pw2's account was that when she was walking back home from the shop she ran into the appellant who accosted her. When Pw2 reached a place where there were neither houses nor people, the appellant seized her and threatened death if she ·would dare raise alarms. He forced her to lie on her back on some grass and he had sexual intercourse with her. She described· her ordeal and the pains she experienced in the hands of the appellant, breaking the eggs in the process. When she got home Pw2 disclosed to her aunt what had happened to her.: She disclosed the person who raped her as one Renan because she said she identified him by aid of the light at the scene and that she knew him before. The appellant was arrested on 1st April 2016, Pw2 having spotted him oh 30th March,2016 and pointed him for Pwl to know the culprit. In turn 2 .1,. Pwl called the police(WP Neema Philipa Moshi (Pw4) who arrested the appellant. They charged him for Rape contrary to section130 (1) and · · 131(1) & (3) of the Penal Code. In defence the appellant who had initially indicated that he would testify on oath and would have no witnesses to call, elected to remain silent. In its judgment the trial court concluded from the testimonies of Pwl, Pw2 and Pw4 that the appellant had carnal knowledge of Pw2. It reviewed the evidence as to the appellant's age and came to the conclusion that he was around 20 years. Beside his age, the court took note of the fact that the appellant had had been convicted of unnatural offence when he was below 18 years. It sentenced him to 30 years imprisonment under section 131(3) of the Penal Code. In six grounds, the appellant challenges the conviction and sentence. However for the reason that it may not be necessary to refer to those grounds in the determination of this appeal I shall proceed to address the views taken by Ms Veronica Mtafya, learned State Attorney who supported the appeal. The learned State Attorney submitted that the appellant was tried and convicted on a defective charge. She cited the case of Isidori Patrice Vs Republic Criminal Appeal No. 224 of 2007 CAT (unreported) for the view that a defective charge is an incurable defect under section 388 of the Criminal Procedure Act, cap 20. , With respect, I agree with learned State Attorney because as the Court of Appeal has previously pronounced itself on this point; 3 -.· . . ' .. . - . -----. - "....... being found guilty on a defective charge based on wrong/ . . or nonexistent provisions of the law, it cannot be said that the· appellant was fairly tried in the courts below_...•..... ~.~ .. " ··,:'::c·:'}::'.·:_.:TAbdal·1a _\--. . Ally v~- -RepubUc;·cr1minal ...Appear No: ·253 ~-5r:2n13;· citea·· ~--~- .::·<-:~- · .. · · : Mussa· Ramadhani v. The Republic Criminal Appeal No. 368 of 2013 ;-··. ,•, ··CAT at Mbeya (unreported) Consequently I allow the appeal, quash the conviction and set aside ·' :the sentence. If not held for some other lawful cause, the appellant should ---- be-r:eleased_forthwith. ~L~, . ;:[U I JUDGE 30/8/2017 4