20180430 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM (ORIGINAL JURISDICTION) (DAR ES SALAAM DISTRICT REGISTRY) CRIMINAL SESSIONS CASE NO. 16 OF 2015 THE REPUBLIC VERSUS 1. G. 5902 PC. BARAKA 2. G. 7478 DC. SALEHE 3. G. 9663 PC. JEREMIAH JUDGMENT 27th & 30th April, 2018. MRANGO, J. Before this court, G. 5902 PC. BARAKA, G.7478 PC. SALEHE and G. 9663 PC JEREMIAH herein stand charged with the offence of manslaughter, contrary to section 195 of the Penal Code Cap 16 Vol.1 of the Laws, Revised Edition 2002. It is common ground that all accused persons are Police Constables and during the trial featured as the first, second and third accused persons respectively. The - - 1 .,. J prosecution alleged that on the 22nd day of January, 2013 at Kibiti area, Within Rufiji District in Coast Region, the three accused persons unlawfully killed one HAMIS s/o ATHUMANI MPONDI (hereinafter to be referred to as the deceased}. In this case Mr. Emmanuel Maleko Learned Senior State Attorney appeared for the Republic, while Mr. George Mwalali, learned Advocate represented all the three accused persons. All accused persons denied to have committed the offence consequently the prosecution siae- -fielaea -sevEih--(7"}- prosecution- - - - witnesses to prove their prosecution case. The prosecution side is positive that it is the accused persons who killed the deceased unlawfully. From a total of seven (7) prosecution witnesses, their version of evidence in support of the charge is as follows; it all started with PWl, ATHUMANI MOHAMED MPONDI a biological father of the deceased who lives at Kibiti but conducts his peasantry work at Kitembo village. ' His testimony was that on the material date while at his farm, it came to his knowledge, through a phone call, that the deceased, his son was assaulted by three police officers. It was further revealed to him thought the same source, that after the incidence, his deceased son was rushed to a health center, and later to the hospital at Songa 2 . where he was attended and referred to Muhimbili hospital with the assistance of OCS, where he died. The deceased was buried at Magurue Mikoroshini in Dar Es Salaam. A YUBU ALI UKUNDA, a grandfather of the deceased who throughout his life and does his peasantry work at Kibiti testified as PW2. His testimony was that on 23/01/2013 at about 08:00 hours while at his farm, he was informed of the death of his grandson Hamisi --- - ---- ·- - -- --- ·- - - ---·- ~ - ---- - --· -- - - -- -- - -- Athmani Mpondi -- - - by his son one Salumu Shamte Ukunda. As to what -- -- -• --- --- - - - was the cause of the death, PW2 was told by the very son that the deceased was assaulted by the police on 22/1/2013 and all efforts to save his life at hospital at Songa and Muhumbili hospital were futile. Upon such information, PW2 told this court that he went at home and they had to discuss how to bury the deceased. Besides, PW2 told this court that The body of the deceased was examined but they were denied to witness it. They declined to accept the body of the deceased at the mortuary. They went back home until when the District Commissioner, CCM chairperson and OCD whose prudence helped to settled the issue and reach consensus of accepting the body of the deceased and buried it at DSM. It was PW2' s further 3 ---- -- --- - - ·---- ---- ~ - - - - - ~ ~ - - - - - - , - , , - - - - - - . , , . , - - - - - - ii was in critical condition he was rushed to Mchukwi Hospital. they were also required to secure a PF3which was broughtby OCD. Besides that, PW3 testified that the deceased was further referred to Muhimbili Hospital where later on during the night he was pronounced dead. PW4 was a fiancee of the deceased one ZAMLATA KASSIM NGWALA a peasant who testified that on 22/1/2013 at about 23:00 hours while at their home stead the deceased returned back home. PW4 said that the deceased was dusty and told her that he was assaulted by police officers. PW 4 said that the deceased took birth and slept. Further to that, PW4 testified that in the following morning the deceased woke up with difficulties a situation which made PW 4 to phone to one of deceased's friend who came and rushed the deceased to hospital. PW4 also, testified that he did not go to hospital·. what she did was instead, was communication with those who were at hospital until she was told that the deceased was no more. PW5 was one ZAKARIA ELIAS LUKEMA, an Assistant Medical Doctor who testified that on 23/1/2013 while at work at Mchukwi mission Hospital, he was summoned by Edmundi Masele, a clinical officer on duty, to attend the patient by name of Hamisi Mpondi who 5 testimony that burial expenses worth TZS. 500,000/= were settled by police and District Commissioner. PW3 was one MUSA SAIMONI KAZIMOTO who lives and works for gain as motorcycle rider at Kibiti. His testimony was that on 22/01/2013 at about 20:00- 21 :00 hours, he was with his fellow young men at the scene of crime(Kijiweni}. PW3 told this court that thereat, came some people who questioned what was PW2 and his fellow doing, their I i--------------------------------------------- reply was that they were exchanging views. The following question was whether bhang was available among them, again according to their reply, the answer was negative. PW4 testified that, yet one of the . ·~ said persons asked for a cigarette and suddenly they were put under arrest but they escaped. PW3, further told this court that no sooner had they escaped than he heard someone shouting unaniua! unaniua! nakufa!. PW3, further testified that he made an attempt to return at the scene of crime where he found the deceased. They traced down the police. Besides, PW3 testified that he escorted the deceased to his home stead. In the following morning PW3 told this court that he went to see the deceased person who was still in bed, and thus he advised him to go to a health Centre but because he 4 'II . was referred from Kibiti Health Centre. PW5 further testified that, upon his examination, the patient was in critical condition and was therefore of the view that the patient be referred to Muhimbili Hospital and the dedeased was rushed to Muhimbili Hospital by ambulance. PW6 one RAMADHANI JUMA ATHUMANI MASAZA, a retired police officer living at Kigoma, testified that in 2013 I was the OCS- (superintendence of police) at Kibiti police station. He worked there -- - - - - -·-· - .. ---- - - . -- ·--· ------- - -- . - . ·- .. - at for 7 years. It was his further testimony that on 23/1/2013, at about 14:00 hours while on duty at the police station deceased' s relatives went there to seek a PF3. PW 6 told this court that he ordered them to go to the hospital while he went after them at hospital at Mchukwi with office car. PW 6 also told this court that there at the hospital he wanted to take the patient's statement but he ended up issuing a PF3 only because the patient was in critical condition and therefore failed to give statement. Further to that, PW6 stated to this court that the deceased was referred to Muhimbili Hospital and he assisted the relatives TZS. 90,000/= as Samaritan. PW6, testified however that he instructed PW7 to go to Muhimbili Hospital to record the statement but again it could not serve any purpose as the patient died. Yet PW6 told 6 this court that prior, he had been informed that three police officers went at Mbembetini to effect arrest and managed to impound 43 dices of bhang, 3.5 rolls of Bhangi, one pact of Rizla papers and two knives. PW 6 opened a case file against the police suspects and assigned to the investigator for further actions. PW7 was an INSPECTOR SALUM KAY ANDA, police officer at Kilolo District, lringa who testified that in 2013, he was at Kibiti as police I -- officer at the rank of sergeant. It was his further testimoni fhat oh 22/01/2013 at 14:00 as in charge together in company of F.6055 PC Godwin and WP 5009 PC Nacy. At about 19:00 hours there came G.5902 PC Baraka, G.7 478 DC. Salehe and G.9663 PC. Jeremiah the accused persons for the purpose arresting a suspect who was alleged to obtain money by false pretense, the case which was reported in an Occurrence Book. It was his testimony that the three accused persons left but around 23:00 hours they came back while carrying Bhang, 43 dices, a pact of rizla used rolls of Bhangi and two knives without a suspect. The three accused persons stated that they were attacked by the crowd of people using stones as a result they failed to arrest the suspect. They left and in the following morning, F. 60 55 7 PC GODWIN informed PW6 of the grudges between police and civilians. On 25/01/2013 he went to Muhimbili Hospital for Post Mo term _ examination and he also met with deceased's relatives, where it was revealed that there were signs of TB to the deceased and the relatives were told so. The body was handled to the relatives for burial. On the defense side, three (3} witnesses featured, who were the accused persons themselves namely DWl. G. 5902 PC - -BARA~A; o-poHce-officer at Kibrn-testified-n,aton 22/0T/2D-13at about 19:00 hours while at his home place at Bank street received a phone call from his fellow officer one G. 7478 PC. SALEHE urging him to go at the police station. Thereat he found also G. 9663 PC. JEREMIAH hence making a total of three police officers. PC. Salehe instructed them to accompany him to arrest the suspect called Shaweji who was alleged to obtain money by false pretense. The second accused passed information to PW7 of intention to arrest the suspect, the same was wrote down on the Occurrence Book by PW7. They then went for arrest at Mbembetini area but before reaching the area on the way they met with a crowd of people who run away but one remained. He was arrested and managed to recover a bag and two knives. They 8 DW2 continued to testify that on the way, they met a crowd of people who were about ten (10), others were sitting an others were standing. They were smoking Bhang. They opted to run away but one person was arrested. DW2 testified further that they also managed to get two knives, one packet of rizla, and 43 dices of Bhang. just like DW 1 testimony, DW2 testified that on their way to the station they were invaded by a crowd of people who threw stones to them I I person whom they arrested. It was dark and the person whom they arrested also run away and joined the group. They handed over the properties whict, they recovered at the scene of crime. DW2 also stated that on the next day at about 14:00 hours he was called by OCS at the police station where on arrival he was informed of the allegation that they assaulted a person a day before. DW2 said he explained to him the full story of what transpired the fateful night. They were prosecuted under police force court but were found not guilty and discharged. Lastly, it was DW3, G. 9663 PC. YEREMIAH, a police officer at Mafia testified 22/01/2013 at about 19:000 at Police Kibiti he was decided to take him to the station but suddenly they were invaded by people who were throwing stones to them. It was dark they left him and run to the police station where they met PW7 whom they informed of what befallen them and handed over to him the two knives, the bag containing 43 dices of Bhang, one packet of rizla. DWl testified further that on 23/01/2013, at about 14:00 hours he was needed at the station by OCS. DW, complied, thereat he was - --- told that they assaulted a person the day before -dunnif - lne- nigh-t .- - - - - - - - - - They denied to assault anybody. The matter was heard in a police force court manned by senior Assistant Commissioner Kigondo, witnesses were summoned but the decision was in the accused's favour. DW2 was the second accused one G. 7478 PC SALEHE who testified that on 22/01/2013 at about 19:30 while at the station he was informed by a complainant an allegation against one Shaweji of Mbembetini for obtaining money by false pretence that is when he requested assistance from his fellows the first and the 3rd accused persons. They informed the Charge Room Officer in charge, PW7, and further recorded the matter on occurrence book. 9 called by the second 'accused to go at the station. He complied whereby he was ordered to accompany him in arresting a suspect. The issue was recorded in OB of police and took the way to where the suspect was. On the way they met a crowd of people who were ten or fifteen who were suspected to smoke Bhang. That they approached near the crowd the said people escaped but they arrested one person when they were about to leave the crowd came I I decided to leave him and run away. At the scene they managed to get 43 dices of bhang, rizla, three rolls of Bhang and two knives. The surrendered the exhibit to CRO. On 23/01/2013 at about 14:00 he got a call which he complied, thereat he was informed of the allegation of assaults. He denied and narrated the story as to what transpired in the fateful night. At the end of the day they were arrested and charged under police court where they were discharged but they were arraigned before this court. There was no final written submission by both counsels. Out of the three gentle assessors, only one Lady assessor was of the view that the accused persons were the ones who assaulted the deceased and 11 ,. therefore rendered to his death. The other two were of the view that all accused persons are not guilty of the offence . At this point I wish to point out some vital legal principles which are a corner to the decision of this case these are; first is a legal principle propounded by the court of Appeal of Tanzania in the case of Goodluck Kyando Versus the Republic; [2002] TLR 363 that: "Every witness is entitled to credence and must be believed _and his evidence accepted unless there good and cogent -reasons for not believing a witn-ess ". ·- O n the same vein, the Court of Appeal in the case of Mathias Bundala Versus the Republic, Criminal Appeal No. 62 of 2004 {CA) {unreported) commented as follows: "Good reasons for not believing a witness include the fact that the witness has given improbable evidence or the evidence has been materially contradicted by another witness or witnesses". Furthermore, another legal principle of law related to witnesses ,,,.__ is the rule against Hearsay. In the book of Justice Y.V. ChandraChund; 2006 THE LAW LEXICON/THE ENCYCLOPADIC LAW DICTIONERY WITH LEGAL MAXIMS, LATIN TERMS, WORDS AND PHRASES; 2nd edition, Wadhwa Nagpur; at page 829, Hearsay is referred to: "that which one has heard from another without himself having any direct knowledge thereof" 12 Again as per page 12 in the book of SPENCER, J. (2008). Hearsay Evidence in Criminal Proceedings. North America (US & Canada): Hart Publishing, Oxford & Port Land Oregon), the rule against hearsay is expressed as: "rule which provides that a witness giving oral evidence to the court is not allowed to tell the court about a fact of which he or she heard from someone else" am also persuaded with the Privy Council decision in __S_ubramaniam v.J~ublic Prose.c.utor -(-1-9-50} W .b..R---.---9-eS; w-Aer:e it was-Reid that the evidence is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement._ In our jurisidcition the rule against hearsay is provided under sections 61 and 62 of Evidence Act, Cap 6 R.E. 2002. For easy reference section 61 (1) a-d is hereunder quoted in extensor "62.-(1) Oral evidence must, in all cases whatever, be direct: that is to say- (a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it: (b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; (c) if it refers to a fact which could be perceived by any other sense, 13 or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner: (d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion or, as the case may be, who holds it on those grounds: Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be -... - - -- ---- ---- __ _fo_u11d,_Qr_ l_l_a_s become incapable of giving evidence, or - - - ~ - - - - - --· - - - - - - -- -- - - - - - - --- - - cannot be called a_s CJ witness _without an amount of delay- -- or expense which the court regards as unreasonable." I have poised to discuss these legal principles due to the fact that of all the prosecution witnesses save for the evidence of PW3 which is a direct evidence, all other witnesses in this case their evidence is a hearsay, which in law is not admissible. Equally important therefore is to look at the credence of their evidence on the course of answering issues. The issue for determination are: First, whether the deceased is dead. The setting of the circumstances of this case reveal that the deceased was rushed to Muhimbili Hospital where he was attended on 23/1/2013 whereby he died during the night. He was later buried at Magurue Mkoroshini here 14 in Dar Es Salaam. This is· depicted by the evidence of PW3 and supported by PW 1the deceased' s biological father, PW2 the deceased's grandfather who testified to bury the deceased and PW7 who witnessed the body being examined before it was handled over for burial. it is therefore my conclusion on this issued that the deceased is really dead. The second issue is to the effect that if the answer in number 1 is ~- -afi.irmath1.e; whaLis the_c.ause_oLde.ath.- ____ - -Now that it-"is settled th-at the deceased-re-ally-died, the cause-of death has to be revealed. The prosecution assume that the deceased's death was not natural but their evidence is a two-way traffic which in result rendered to itself being materially contradictory and inconsistent. For instance, PW3 said he heard the deceased screaming unaniua ! unaniua! Nakufa!, he went back and found the r' deceased who complained that the police assaulted him and that he assisted him until to his home stead. That on the following day he went at the deceased home and found the deceased in bed he advised him to go to a health center sent to Mchukwi hospital and later refered to Muhimbili Hospital where he died. However, this evidence is contradicted by PW4 the deceased's fiancee and PW7 15 ,. who witnessed the examination of the body of the deceased. PW4 contradict the evidence of PW3 in that on the material date at about 23:00 hours, the deceased came back by himself and explained that he was with friends making a total number of three people where he was assaulted by police officers. He was able to take his birth and slept until morning where PW 4 called by phone one of his friend so as to accompany the deceased to hospital. PW7 contradicted PW3 in that - ___b_e wenLto Mu.t'1iITTbili-~Gs~i-tel-w-Aefe-Ae-wi-tnesse-d-th-e-examinationof- - the body and the doctor revealed the findings that the deceased cause of death was due to tuberculosis (TB} and the same was communicated to the relatives. However, for the reason best known to the prosecution the said doctor did not testify nor did such autopsy report and therefore this court was not in the position to know anything further than that. Even one Zakaria Elias Lukeba (PW5} who introduced himself as a Medical Doctor at Mchukwi Hospital and examined the deceased made X-ray to the deceased before death and before he was referred to Muhumbili Hospital on cross examination stated that the X-ray test revealed nothing. The law is settled in respect of contradictions and inconsistencies that the same 16 'ii must be assessed and if they go to the root of the case they may not be relied to form the basis of conviction. This is explained in the case of Mohamed Saidi Matula V. R [1995) T.L.R 3, the court held inter alia that: "Where the testimonies by witnesses contain inconsistencies and contradictions, the court has a duty to address the inconsistencies and try to resolve them where possible; else the --------------------eaurl--has-to-de_cide .,,- whether the - - --------- inconsistencies ~------ ------ and contradictions are only minor, or whetne,- -- -- - -- -- -- - - they go to the root of the matter." The law is now settled as in the case of Nung'uniko Gidule v, R. Criminal Appeal no. 223 of 2008(supra)that; "Inconsistencies and contradictions between the prosecution witnesses that go to the root of the matter cannot be relied upon" The contradiction between PW3, PW 4 and PW7 are material to this case because they go to the root of the matter, that is cause of the death, section 8 of Cap 20, R.E 2002, any death which is unnatural or death by violence there must be made inquiries under the authority and procedure laid down under the provisions of section l O of the Inquest Act, Cap 24, that is the coroner forth with criminal investigations be conducted. Based upon the account of prosecution 17 'I ,.., . evidence, the cause of death of the deceased was not established by the prosecution to wit that it was unnatural or through violence which could require the Coroner's authorization to conduct an autopsy report. There was no evidence to that effect even if was one and therefore given that position I am constrained to say that the death of the accused was natural in the absence of expert opinion or authorization of the coroner to conduct an examination. See also the -eese-of-the-llPP -V-;-Emmanuel-Erasto-Kibwan-a-andtwo-oth-ers;-Criminal- -- Appeal no 576 of 2015 (CAT-Mbeya, unreported). On the other tone, this matter was not actually reported at the police, it was when the PF3 was demanded when the relatives went at the police for the sake of PF3 only therefore while the witnesses claim to be honest they did not report the matter to the police, as required duty under section 7 of Cap 20 (supra). It would appear that PW6 was working under contrary to the procedure and took it by the back door and brought the matter to his table for the reason best known to himself and used a lot of force to justify that this death was unnatural. I say so because by his evidence he supported the relatives by giving them 90,000/= _for what he called himself as a good 18 Samaritan and also supported with burial expenses and putting the accused restraints. This is highly doubted and it would appear that "' PW 6 urge was to ensure that this death appear unnatural and took side with the accused's relatives. The circumstances reveal that death was natural as the doctor at Muhimbili Hospital as PW7 who witnessed the examination said from the doctor's mouth that the dead of the deceased was caused by Tuberculosis (TB}. The following iss-ue -is -·whether the -accusea persons were seen assaulting the deceased which assault ended up to the deceased' s death. In order to answer this issue, I would like to address the whole question of evidence of visual identification. I say so because the • event is allegedly said to have taken place during the night and this is not disputed by both sides. The law is settled that the evidence of visual deification is of the weakest kind and most unreliable therefore should be relied upon satisfaction that all elements of mistaken identity are eliminated. See the land mark case of Waziri Amani V. R [1980] TLR 250. It was insistently held that: "No court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight" See also the cases of Nung'uniko Gidule v, R. Criminal Appeal no. 223 of 2008(supra) just to mention a few. The factors set out in the case of 19 il i Waziri Amani's case such as what was the source of light, its intensity distance and time under observation by a witness were not canvassed by the prosecution. It should be noted that, it was PW3 who said he identified the assailants. At best he said he knew the assailant as being police officers because they put them under arrest, which case is wanting. Besides testifying that they tracked them down so as to identify them when he was asked for clarification as to whether he could identify them, PW3 said he could not be able to identify them rather than insisting that_ he knew them as police officers. In this case-there-was no identification parade conducted to identify the accused ·neither was dock identification. It -goes - without saying that there is no single witness who actually saw the accused person assaulting the deceased person. It is a hearsay kind of evidence which in law cannot be accepted. On cross examination PW3 did mention of a moonlight as a source of light, but could not explain as to whether it was sufficient to identify a person even of so he did not see the accused persons assaulting the deceased. This issue is therefore answered in a negative that there is no proof of assault and therefore such assault if any did not render to the death of the deceased. The accused cause of death as per PW7 who went at Muhimbili Hospital testified the following: "I went to Muhimbili Hospital. on 25/01/2013 I went to Muhimbili to witness the Postmortem examination and met the deceased's relatives and the Doctor on examination of the deceased's body it was revealed that the cause of death was due to Tuberculosis (TB)" 20 This evidence is far from being controverted. At best it ended up corroborating the defense case who denied to have had assaulted anybody on the eventful day. The last issue is whether the prosecution side proved the case beyond all reasonable doubt. The law is settled that it is the duty of the prosecution case to prove the case beyond reasonable. It never shifts. In the case of Nung'uniko Gidule v. R, Cr. APP. No. 223 of 2008 (CAT - lringa, unreported) held interalia that; "In criminal case, the burden is always on the -· ~ -f)Fesee(jtien --te -prove-the-case -against-tt,e appellant~ -- beyond reasonable doubt. The burden n~ver shifts" Again in the case of Hussein Said Nampanga V. R, Criminal Appeal No. 117 of 2011 (CAT, DSM, unreported) it was insisted that: "We wish to re- state the principle that the burden of proof in criminal cases lies on the prosecution side, the standard of which is proof beyond all reasonable doubt, meaning the proof that leaves no thread of doubt" The duty of the accused is nothing but to cast a reasonable doubt See Nathaniel Alphonce Mapunda and Benjamin Alphonce Mapunda V. R. [2006] T.L.R 395. Besides, in Juma Hamis Kabibi V. R, Criminal Appeal no. 216 of 2011 (CAT- Mza, unreported) the court went further and amplified that; "With respect, a criminal accusation ultimately stands or falls on the strength of the prosecution case. Where the prosecution case is itself weak, it cannot be salvaged from the tatters of the 21 • • defence. It is quite plain that, false statements made by an accused person, if at all, do not have substantive inculpatory effect and cannot be used ~ as a make weight to support an otherwise weak prosecution case. The fact that an accused person had not given a true account only becomes relevant, to lend assurance, in a situation where there already is sufficient prosecution material" In this case the evidence tendered by the prosecution which is -ft -- aTiegedly implicating -tne three -accos-e-d persons- is -hinged -0n -the evidence of visual identification which I have already discussed in the third issued that PW3 failed to identify the witness if any. The Looking upon the evidence of both sides, this case is one among the cases where the policemen are alleged to have picked a quarrel or misunderstanding with civilians and later the police force and the deceased family. This unceremonious situation was propelled by PW6 who would appears to have entertained this matter in the back door. In Peter Mabara V. R, Criminal Appeal no. 242 of 2016 (CAT-Bukoba, unreported) such that: "The general and well known rule is that the prosecution is under prima facie duty to call all material witnesses and if such witnesses are not called without sufficient reason being shown, the court may draw an inference averse to the prosecution (See Aziza Abdallah Vs. R [1991] TLR 71 )" The defence side was of the view that there was no assault by the person whom they had arrested. That they run away after a group _ 22 . . of people started to stone. All being critically evaluated, I am of the settled mind that the evidence of the prosecution in record is weak and therefore insufficient to base conviction on it. I am also at one with the two, a lady and gentleman assessor who were of the same respective views. However, I differ with one lady assessor who was of the view that the accused persons were the ones who assaulted the deceased and therefore rendered his death because of what he said they admitted to be at the scene of crime. The reason for such departure is due to lack of evidence by the prosecution because it --~a~during th~ ni_g_t)f wlJer~W-~_had to explain_ hQW h_e__manag_e_d to_ identify them. Also she appears to forget that the accused persons testified to be attacked by stones. But most of all she had to ensure that the accused person had no duty to prove but only to cast doubt and the burden of the prosecution never shifts. The evidence tendered does not establish beyond reasonable doubt the offence of manslaughter contrary to section 195 of the Penal Code. In consequence, all the accused persons namely G. 5902 PC. BARAKA, G.7478 PC. SALEHE and G. 9663 PC JEREMIAH are found not guilty of the offence of manslaughter contrary to section 195 of the Penal Code and they are therefore acquitted forthwith under section 235 of the Criminal Procedure Act, Cap 20 R.E. 2002. It is so ordered. ~-- D. E. MRANGO JUDGE 30/04/2018 23 " . Court: Judgment delivered today the 30 th day of April, 2018 in the presence of the accused persons, Mr. George Mwalali Defense Counsel, and Mr. Emmanuel Maleko-Senior State Attorney for the Republic. ~:.___-- D. E. MRANGO JUDGE 30/04/2018 r-1)---c-ou-rt:~-RigntofAppeal-Explained-.- - - - - - - - ~ - - ~ - - ~---- b,...--1-- D. E. MRANGO JUDGE 30/04/2018 24 ' IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 85 OF 2015 FRANK KIBAGO ••••••••••••r• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • .APPELANT VERSUS REPUBLIC ............................................................ RESPONDENT JUDGMENT 1 .~-~ • Date of last Order 1/6/2017 _,' r· ~Date-of Judgment __ :Z/6/2017 ---------- KITUSI,J.: Frank Kibago, the appellant, is serving a prison term of 30 years imposed on him by Mafia District court sitting at Mafia, for an offence i whose charge reads as follows; "RAPE C/ S 130 AND 131 OF THE PENAL CODE CAP 16 OF THE LAWS [R.E.2002]". It was alleged in the particulars of the offence that the appellant had had carnal knowledge of one Tunza d/ c Maftah aged 12 years and a student of Jimbo Primary school. The alleged rape was said· to have taken place oh 6 December 2014 at 1.00 P.M at Kivukoni Kirongwe Village within the District of Mafia. Tunza Maftah testified as Pwl and related how the appellant seduced her into agreeing to be his lover and the subsequent sexual intercourse at the residence of appellant's elder brother. The ---------~--courtship __began__§.O_J:!!eJirne 1n September, 2014 and the sexual Page 1 of 3 WWWIIW\ WWW \■ ~ -__.._--,....-..,..-- --r-rna--oa--..,.,.._.,,.... 11 ---,,na-a-,;;;WWW-I W a W ■I ___ _ _ a_'"1'11:'=a,~~__,- IWWW ■ WWW & & =:. ---=:aw ,,._·____,_,_ 1a _,, • .l' intercourse began sometime later and went on until on 4 December, 2015 when Pwl' s brother found her at the appellant's house in the morning she having had spent the previous night with him. A fight ensued between Pwl 's brother and the appellant but that is not relevant. Six other witnesses testified in this case. These are Kidogori s / o Farhan (Pw2) who is Pwl's uncle, Emmanuel Mlengwa (Pw3) a medical officer at Mafia Hospital, Regina Masiole (Pw 4) a teacher at the school where Pwl was studying, Mohamed Maftah (Pw 5) and Hamidu Maftah {Pw 6) brothers of Pw 1, and De Thomas (Pw 7) the investigator of the case-: In view of Pw l's strong statement that she had several sexual intercourses with the appellant, and in view of the appellant's defence during which there was no tacit denial by him of the allegations, there is more than sufficient proof of the fact that the appellant had carnal knowledge of PW 1. Based on the evidence for the prosecution, the trial court convicted the appellant of the offence of rape. He was sentenced to imprisonment for 30 years as earlier indicated. The appellant has appealed to this court by presenting seven grounds of appeal. Under grounds 4 and 9 of the Memorandum, the appellant has stated that he was charged under section 130 (1) (2) (e) and 131 of the Penal Code. I intend to deal with only these two grounds for reasons that will soon become apparent. Ms. Brenda Nicky, learned State Attorney represented the Republic during the hearing of this appeal. The appellant was unrepresented and hardly added any value to his petition of appeal. Page 2 of 3 ;,ji' 0 ( •)1 ... fT11e learned State Attorney faulted the-trial court for proceeding with defective charge of rape which did not specify the cat~gory of ;ape.· hnder section 130 (2) of the Penal Code. She cited the case of Fred Mwakajilo V.R Criminal Appeal NO 252 of 2011 CA (unreported). It was her submission that the defect in the charge is incurable under section 388 of the Criminal Procedure Act, Cap 20. With respect I agree with the learned State Attorney. The charge laid at the appellant's door was under section 130 and 131 of the . Penal Code, and it does not specify the essential elements. The law regarding this aspect is settled as per the decision of the Court of ~;~e~-i~ the-case -of Mussa- Mwa-ikunda v~ R~public [2006] TLR 387 -- - - ·-- and that the defect is -not curable by section 388 of the Carin.al Procedure Act, Cap 20, because it amounts to unfair trial. Since the appellant was not afforded a fair trial, for the reason that the defective charge did not give him the opportunity to understand the nature of the charge, the appeal is allowed. The conviction is quashed and the sentence of 30 years imprisonment is set aside. The appellant to be set at liberty immediately unless for other reasons .S4~~~~il eld. \~CL, 2='fi. P~USI 1· 07/6/2017 JUDGE Page 3 of 3 :, ' ' .... ·, J