20170303 TZHC Dodoma

''ORIGINAL'' IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA CRIMINAL APPELLATE JURISDICTION DC CRIMINAL APPEAL NO. 05 OF 2017 (Originating from the District Court of BAHI Criminal Case No. 72 of 2016, Hon. S.J. MWANJOMBE, RM) -~-NORO ·1sABE•••.••••••.•••...•.••-.--;; ;·........................ APPELLANT VERSUS THE REPUBLIC ............................................ RESPONDENT JUDGEMENT Mansoor, J: 1sT MARCH 2017 & 3RD MARCH 2017 This appeal arise out of the judgment dated 14 December ~ 2016, passed by the Bistrict Court of Bahi in Criminal Case No. 72 of 2016, by which, the Appellant was convicted of the offence· charged of attempted rape contrary to Section 132 (1) and (2) (b) of the Penal Code, Cap 16 R: E 2002. 1 ''ORIGINAL'' The Particulars of the offence as read over to the Appellant was that: "Naro Isabe charged_ on 21 st _day of August 2016 around 20. 55 hrs. at Msisi Village within Bahi District in Dodoma Region attempted to commit rape to one Agata Paschal a girl of Form Two Secondary School aged 1 7 years old." The Appellant was found guilty of the offense charged; he was convicted and sentenced to Thirty Years Jail Sentence. During trial, the evidence of the pro~ecution case was given through PWl, PW2, PW3 and PW4. PWl was the student; her name is Agatha Paschal aged 17 years and a student of Form Two at Msisi Juu Secondary School. She testified that, on 21 August 2016, on a Sunday, Teacher Noro Isabe went to fetch water at School, anct that Teacher N oro Isabe asked her to < assist in taking the bucket of water to his (teacher Noro Isabe's ) House. Then, Teacher Noro Isabe asked PWl to take the Bucket of Water to his bedroom. She testified that while in the room, 2 "ORIGINAL" Teacher Naro Isabe asked her for a love relationship, and she refused. In the Room they didn't sit or stay close but apart. She stated in an examination in chief that Teacher N oro Isabe started touching her on her waist and thighs. She states further that she managed to push Teacher _N oro Isabe and suddenly a bunch of students entered Teacher Isabe House and asked them not to leave the house. The-students called the police, she said; PWl together with Teacher Nora Isabe were chained and taken to the police station. PW2 was the Chairperson of the Village; his name is Samson Kenneth Mangwela. He stated that he received a call from the students of Msisi Secondary •School· telling him th.at Agatha was missing but she was called by the Teacher. He testified that he took a Bodaboda to School; he was accompanied by one Mashaka. They found Teacher Isabe's house locked, he said. He called the other teachers, and a group of people gathered o:µtside Teacher Isabe's House. He then called the police, the police arrived and had asked Teacher Isabe to open the house, and he opened. This witness testifies that he found the Agatha (PW 1) standing in a corner of Teacher 3 "ORIGINAL" Isabe's bedroom. On cross examined, this witness said he saw Agatha with her clothes on. PW3 was Haruni Mikael Ndekaa a Form Four student of 22 years old who testified that Teacher Noro Isabe had asked Agatha for help to take the bucket of water to his room, and since it took a long time for Agatha to return, he decided to phone the Chairman of th:e- Village -(-PW-Q-)~ T-hat it-- was_ the_ Chairperson (PW2) that had locked the door of Teacher Noro Isabe room/house and so he had locked in Teacher Isabe and Agatha-and--that-it was PW2 that had called _the P~lic~__:_ This witness too had said that they found Agatha in a corner of Teacher Isabe bedroom, well dressed and not crying at all. PW 4 was Inspector Nyanda, who testified that he received a phone call from PW2 telling him that there are villagers and students gathered at Teacher Isabe house, and it is claimed· that Teacher Isabe ha_d locked in a female student i.e. Agatha. <. ·, l, He testified further that Teacher Noro Isabe opened the door for them, he found Agatha seating on a couch, and he arrested Teacher Noro Isabe and Agatha. 4 "ORIGINAL" Based on the testimonies of the four witnesses above, the trial District Magistrate found Teacher N oro Isabe guilty of the . offence of Attempted Rape, he convicted him and sentenced him to 30 years jail sentence. The Appellant was aggrieved with the conviction and sentence; he now filed this appeal and has .raised the following grounds of Appeal: 1. That, the District Court erred in law and 1n fact in convicting the Appellant based <?n t~e- ~vidence which did not prove the ingredients of the offence charged. 2. That the District Court erred in law in convicting the Appellant by alleging that the Appellant used his position as Head Teacher to procure prohibited sexual intercourse against the evidence on record; 3. That the District Court erred 1n law and in fact in convicting the Appellant without considering the defense evidence as to how PW 1 got inside the Appellant's Room. During the hearing of the Appeal, the Appellant was represented by Advocate Nyabiri and Advocate Machibya while 5 "ORIGINAL" the Respondent was represented by Mr. Sarara, the State Attorney. Mr. Sarara supported the conviction and the sentence saying that the Appellant was charged under S. 132 (1) and (2) (a) and (b) of the Penal Code of the offence of attempted rape done by the Rer~o!l· ~th authority. He said the prosecution through PWl had proved the offence in which PW 1, the victim, had-testified- ~ before the Court that the Appellant threatened her, and also intimidated her, such threat and intimidation are featured at page 6 of the proceedings. That the Appellant using his position as the Head Teacher had asked PWl to help him taking the . . water to his house, and later asked PWl to enter his bedroom. That PW 1 testified further that while in the room, the Appellant touched her thighs and waist. Mr. Sarara submitted further that at page 9 of the proceedings it is shown that the Appellant threatened PWl of jailing her and expelling her from school if she refuses to have' a love relationship with him. Thus, the ingredient of threat and intimidation was proved by PWl testimonies. 6 "ORIGINAL" I have heard the submissions of Mr. Sarara, the State Attorney and that of Advocate Nyabiri and Advocate Machibya for the Appellant, and for clarity I shall reproduce Section 132 (1), and 2(b) of the Penal Code, which reads as·follows: 132.-(1) Any person who attempts to commit rape commits the offence of attempted rape and except for the cases specified in subsection (3) is liable upon conviction to imprisonment for life, and in any case shall be liable to imprisonment for not less than thirty years with or without corporal punishment. (2) A person attempts to ·commit rape if, with the intent to procure prohibited sexual intercourse with any girl or woman, he manifests his intention by- (b) being ~ person of authority or influence in relation to the girl or woman, applying any act of intimidation over her for sexual purposes; 7 "ORIGINAL" On this ground, Mr. Sarara's submission relied entirely on the evidence given by PWl. In the present case, at the Trial Court, the prosecution had examined four witnesses, produced no documents or any material objects at all. PWl was examined to establish the fact that the Appellant had attempted to rape her. It is interesting how this witness changed her story when- e-ress-examin~d_ 8-!1~ c_o~tradicted her evidence. For purpose of clarity I shall reproduce herein below some of her answers to cross examination appearing at page 6, 7, 8 and 9 of the proceedings: "At police station I lied to police officers" "It is a lie that I volunteered that I help to carry bucket of teacher Isabe;" "On first statement I did not state teacher Isabe was seducing me to love;" "In the next statement I wrote only he seduced me, but I denied and then communication between us went on;" "I was not farced nor does threatened. " 8 "ORIGINAL" "I had no problem to report to teacher Isabe, it is a lie I said I have;" "It is- not-in the statement -written that Jeacher isabe was fondling me or touching my waist;" "The statement I tell that I sat in a couch is a lie;" "Teacher isabe did not ·force me to do sexual intercourse or love." The above are some of PWl answers to cross examination, admitting to have lied to the· police as - well - as before the Magistrate. There 1s no doubt that the conviction of the Appellant was based on the testimony of PW 1, who at first testified that Teacher Isabe seduced her, threatened her and touched her, but on cross examination she admitted that she was giving false statements at the police and also at trial. She said she was lying. The evidence of PWl was not cogent; her evidence was not reliable and did not fit into the chain of events that have been stated by the prosecution. The prosecution relied upon the testimony of PW 1, in order to rely to such evidence; the evidence has to be wholly reliable and 9 "ORIGINAL" trustworthy. The evidence of PW 1 is doubtful. The evidence of the PWl is in conflict with the other witnesses, and it was not safe to rely on this kind of evidence for the conviction of the accused. The evidence of PW2, the Village Chairman and that of PW3 the student are also contradicting each other, while the Village Chairman testified that he had found the- door locked - until the police arrived, the Student testified that it was the Village Chairman that had locked the Appellant and PWl in the room, and called the police. It is not clear whether Teacher Isabe was occupying only a room or the entire house. It has not been established either by testimonies of the prosecution witnesses or by any material evidence as to whether Teacher Isabe was living alone in the house or with other people. It is also doubtful as to why a student would have the cellphone number of the Village Chairman off his head, and for what purpose, this creates "a lot of doubt. There is likelihood that the Appellant was framed. The evidence of PW 1, PW2 and PW3 are shaky, not reliable, untrustworthy and doubtful and it was not 10 "ORIGINAL" safe for the Presiding District Magistrate to rely on such kind of evidence to make a conviction. It is a settled principle of criminal ju_risprudence that the burden of proof lies on the prosecution and it has to prove a charge beyond reasonable doubt. The presumption of innocence _cl.?d the right to fair trial are twin safeguards available to the accused under our crimi~ai -Jtistice - -system - but_ on~~ _ the prosecution has proved its case and the evidenc~ led by the prosecution, in conjunction with the chain of events as are stated to have occurred, if, points irresistibly to the conclusion that the accused is guilty then the high court cannot interfere. In this case prosecution failed to discharge its burden of proof that the Appellant had, by using his authority or influence had intimidated PWl and thus attempted to rape her as PWl, PW2 and PW3 evidence could not be reliable at all, and could not establish the ingredients of the offence charged. Thus, grounds 1 and 2 of the grounds of appeal are merited. Advocate Nyabiri had raised an interesting point regarding the particulars of the charge. He submitted that the charge 11 •. "ORIGINAL" sheet was defective as the essential ingredients of Section 132 (2) (b) were missing or were not disclosed. The charge reads as follows: STATEMENT OF OFFENCE ATTEMPTED RAPE: Contrary to section 132 (1) (2) (b) of the penal code cap 16 RE 2002. PARTICULARS OF OFFENCE That NORO ISABE charged on 21 st day of august 2016 around 20.55 hrs. at msisi village within Bahi district in Dodoma region attempted to commit rape_ to one AGATA PASCHAL a girl of form two Secondary School aged 17 years old. Advocate Nyabiri argued that the charge sheet did not show the essential elements of the offence as the words acts of intimidation to procur~ prohibited sexual intercourse' with PWl were missing and also the charge sheet did not show that the Appellant being a person of authority or influence in relation to PW 1, applied any act of intimidation over her for sexual 12 ... "ORIGINAL" purposes. To buttress his argument he cited the case of Mussa Mwaikunda vs. R (2006) TLR page 387, and also the case of Isidori Patrice vs. R, Criminal Appeal No. 224 of 2007 Court of Appeal sitting at Arusha, in which the issue raised .by Advocate Nyabiri was discussed in details in these cases, and at page 11 of the lsidori case, the Justices of the Court of Appeal ------- ------- observed the following: ______________ _ ---------- "It is a mandatory statutory requirement that every charge in a subordinate court shall contain not only a statement of the specific offence with which the accused is charged but such particulars as may be necessary for giving reasonable information as to the nature of the offence charged: See section 132 of the Act. It is now trite law that the particulars of the charge shall disclose the essential elements -:, or ingredients of,,the offence. This requirement hinges on the basic rules of criminal law and evidence to the effect that the prosecution has to prove that the accused committed the actus 13 "ORIGINAL" reus of the offence charged with the necessary mens rea. Accordingly, the particulars, in order to give the ·accused a fair trial in enal;Jli_ng him to prepare his defense, must allege the essential facts of the offence and any intent specifically required by law. We take it as settled law also that where the definition of the offence charged specifies factual circumstances without which the offence cannot be committed; they must be included in the particulars of the _ offence. In a charge under section 132 (1) and (2), therefore, the factual circums~ances L!-'hich of necessity must be stated in the charge are those specified in paragraphs (a), {b), (c) and (d) of sub-section (2), in addition to the mentioned specific intention to procure sexual intercourse". To this, the State Attorney, Mr. Sarara admitted that the particulars of the charge did not disclose the essential elements or ingredients of the offence in that since the Appellant was 14 "ORIGINAL" charged under Section 132 (1) and (2 (b), the words "with intent to procure prohibited sexual intercourse," the words, "being a person of authority or influence in relation to Agatha Paschal' and the words, "applying acts or intimidation over Agatha Paschal for sexual purposes" ought to have appeared in the - charge ~heet. State Attorney Sarara submitted however that, although these words do not appear in the- charge- sheet, -hut since the Advocate representing the Appellant in lower Court had cross examined PWl on these ingredients, then the Appellant understood the offence and the charge was not defective.· In the present case, it is plainly clear that, the particulars of the charge did not disclose the essential ingredients of the offence and the Appellant did not know the nature of the case facing him as the ingredients of the offence were not adequately disclosed to him on the charge sheet. It is trite law and as stated in the above cited cases that the particulars of the offence must be clear and must contain all the essential ingredients of the offence, and the fact that the Advocate of the Appellant did cross examine the prosecution witnesses on the 15 "ORIGINAL" offence charged, does not cure a defective charge. The Appellant did not know that he was charged for being a person with authority or influence and that he intimidated Agatha Paschal for sexual purposes. As held in the Mwaikunda's case (supra), the charge which did not disclose the offence is defective and cannot be cured under Section 388 of the Criminal Procedure Act, Cap 20 R: E 2002. Having held so, I shall not consider the 3 rd -ground as I have already held that the evidence of the three witnesses of the prosecution and in particular the evidence of PWl was not credible as· she admitted that she lied before the police officers, and so it was not safe for the Trial Magistrate to convict the Appellant based on PWl evidence. If the statement and the evidence of PW 1, the victim, were found to be reliable, trustworthy and consistent with the course of events, the conviction could be based on her sole testimony. There is no bar in basing the convictibn of an accused on the testimony of a solitary witness as long as the said witness is reliable and trustworthy. In this case the conviction of the accused was based on the testimony of PW 1 and since PW 1 testimony was 16 "ORIGINAL" unreliable and untrustworthy the conviction of the accused/appellant basing on PWl testimony was wrong. In the present case, the entire case hinges upon the trustworthiness, reliability or otherwise of the testimony of PW 1 who testified that the Head Teacher, the Appellant herein had wanted her for love relationship or for sexual purposes, and that the Head - teacher had touched he_r._ This· testimony did not fe~tµ:re _in h~r two statements made before the police and she admitted in Court that she was lying. The contention raised on behalf of the appellant is that this witness, being the sole witness, (PW 1, PW2 and PW3 did not hear the Appellant uttering the love words to PWl or even intimidating her, they also did not see the Appellant touching, fondling or caressing PWl) would be an interested witness, and in that situation, the possibility of PWl falsely implicating an innocent person cannot be ruled out. In the present case, on a cumulative reading and ~ appreciation of the entire evidence on record, I am of the considered view that the learned Trial Magistrate had fallen in error of law or appreciation of evidence in accordance with law. It is trite law that the prosecution must prove its case beyond 17 ---·- . " "ORIGINAL" any reasonable doubt. There are a lot of unclear doubts on the entire evidence by the prosecution, such as, how would a student -of a school- have a cell phone number of the village chairman, and why would the student be watching teachers - activities after school hours and at night, another doubt which was not cleared is that what was the distance from school to the - -· - - head teacher house, and die -d1stance -from-- the home_ of th_e chairperson of the village to the house of the accused. There was no map presented in court to satisfy the court on these locations. Such is not the burden on the accused. The Trial Court has acted on certain legal and factual presumptions which cannot be sustained on the basis of the record and the principle of laws afore-noticed. The case of the prosecution, thus, suffers from proven improbabilities, infirmities, contradictions and the statement and evidence of the witnesses, in particular PWl, is not reliable and worthy of credence. Consequently, and based on the above, this appeal has merit and is allowed; the conviction is quashed and the sentence is set aside. The Appellant is ordered to be released from prison unless he is otherwise lawfully held. 18 . • "ORIGINAL" It is ordered accordingly. JUDGE 3 rd MARCH 201 7 - - - - - - - JudgemepJ _c!elivered in Court today in the presence of the Appellant, Sarara, State Attorney for the R~spona.erit- Republic- - - - - - - and Mr C.A.Chali the Court Clerk. JUDGE 3 rd MARCH 2017 19