20181010 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 31 OF 2018 (Original Criminal Case No. 63 of 2017 of the District Court of Iramba District at Kiomboi) HAMISI RAMADHANI ...................................................... APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGEMENT 05/09/2018 & 10/10/20 18 KALOMBOLA, J. The appellant HAMISI RAMADHANI was aggrieved by the decision of District Court of Iramba whereby he was convicted with the offence of Rape contrary to Section 130 (1) (2) (a) and 131 (1) of the Penal Code and was sentenced to thirty years of imprisonment. 1 He raised eight grounds of appeal that the trial Court erred in Law and fact for convicting and sentencing appellant:- To thirty years imprisonment relying on suspicious alone without any direct evidence which connect the appellant with the alleged Rape Case. To custodial sentence of thirty years imprisonment with the offence of Rape while the appellant was 17 years of age and is a first offender. To thirty years imprisonment with the offence of rape while the prosecution side failed to prove his case beyond reasonable doubt. To thirty years imprisonment with the offence of Rape while analyses the prosecution case in isolation with defense case. To thirty years imprisonment with the offence of Rape by set up side down the principle in criminal case, for giving the defense the duty to cast doubt on prosecution case instead of prosecution to prove his case beyond reasonable doubt. To thirty years imprisonment with the offence of Rape relying on circumstantial evidence which does not irresistibly point appellant guilty. To thirty years imprisonment with the offence of Rape while there are variance between charge and evidence in terms of age. 2 8. To thirty years imprisonment with the offence of Rape while the age of victim is not proved on evidence. On the day of hearing appellant asked this Court to consider the petition of appeal he filed. The learned State Attorney opposed the appeal who said the proceedings and judgment show the appellant was conn&cted with the offence. PW1 told the trial Court it was the appellant who left with the two children and PW2 testified to have met the appellant and two children twice, and on the second time a second child was crying. There was also the evidence of doctor who stated there was penetration. And that after the incident the appellant disappeared from the village for one year, he in his defence failed to, explain about his absence. His mother failed to explain and assist him in his defence. She submitted on the 2nd ground of appeal that the charge sheet discloses the appellant was aging 20 years. And when preliminary hearing was conducted appellant did not deny, therefore his argument that he was aging 17 years is an afterthought. His mother stated in Court that appellant's age is as it is shown in the charge sheet. Hence it is their submission this ground of appeal lacks merit. She submitted on the 3rd ground of appeal, PW1 and PW2 proved the appellant was seen with the children. 3 They found the 4th ground of appeal devoid of merit as it is seen at pages 9 and 10 the judgment. In that sense Section 312 of the Criminal Procedure Act was applied as the evidence of both sides was considered. They as well found the 5th ground of appeal lack of merit because appellant's evidence did not create doubt on the prosecution evidence. It is their submission on the 6th ground of appeal that prosecution case was proved beyond reasonable doubt by PW1 and PW2. As on the 7th ground of appeal it is stated PW1 told Court the victim was aging 5 years (see page 7 of the proceedings) and the appellant age is 20 and not 17 years. And on the 8th ground of appeal it is submitted the age of victim was proved by PW1. It is finally stated the conviction and sentence imposed was correct. They pray the appeal be dismissed. The appellant had nothing to rejoin. The Respondent/Republic through the learned State Attorney strongly submitted there was proof that the appellant committed the alleged offence which is rape that is why the trial Court convicted and sentence the appellant as it did. 4 I went through the trial Court record, as if was submitted by the respondent herein the two witnesses PW1 and PW2 at different instances said to have seen the appellant with the victim. PW1 who is the mother of the victim said to have seen appellant who went to her home to greet, leaving with her two kids, one being the victim. That a boy child went back home. Therefore later she went on looking for the child. That she met said to the appellant who ran away. PW2 said to have seen appellant with the victim and later saw the victim alone and was crying. He took the victim back to their home, he couldn't find the victim's mother but other people, building. And the Clinical Officer (PW5) lbrahim Kalunga said to have examined the victim, according to his testimony this was on 14/4/2016. His evidence is to the effect that there was penetration. Again looking at the PF3 at page 2 he stated on item "MEDICAL PRACTITIONERS REMARKS, I quote:- "From the patient's informer shows there is an assault done with suggestive presence of bruises to anterior lower wall of the vagina." The remarks suggests the Clinical Officer filled the PF3 basing on story narrated by the informer. The remarks leaves a lot of doubts despite the fact that the Clinical Officer report is not binding to this Court. 5 At this juncture it is worth saying the evidence remain depended by prosecution is that of PW1 and PW2. Is this evidence water tight? Accordingly PW1 testified to have seen the appellant as was leaving with the children and PW2 said he was the one who picked the victim while alone and take her back home. PW2 did not find the appellant together with the victim at least to connect the story. In the circumstance one may connect PW2 with this offence. For the reasons I have impounded herein above, I do not agree with the Respondent/Republic that pros cution case was proved beyond reasonable doubts. Instead I find the appeal meritorious, it is - allowed. Hence the conviction is quashed, the sentence imposed to the appellant is set aside. The appellant is ordered be released from prison unless held for a lawful order. Itis ordered. H. H. KALOLA) JUDGE \ 10/10/2018 11 rA DATE: 10/10/2018 Carom: Hon. D.R. Lyimo- Ag DR Appellant: Present Respondent: Ms Nsana State Attorney. C/c: R. Nyembe MS NSANA STATE ATTORNEY. The case is for judgment, I am ready to receive it. D. R. L4~IM 0 DEPUTY REGISTRAR 10/10/2018 COURT Judgment delivered on this 10th day of October, 2018 in the presence of appellant in person and in the presence of Ms Nsana State Attorney for the Respondent. Court clerk Nyembe present. 14, ~ D.RWIMO DEPUTY REGISTRAR 10/10/2018 7