20180703 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 07 OF 2018 (Oriiinating From Criminal Case no. 38 of 2017 of the District Court of Kongwa at Kongwa) MAJENDA LUSINDE ......... U....U.........II...UI ...... U.U............. APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••................................... RESPONDENT JUDGMENT 10/5 & 03/7! 2018 KWARIKO, 3: Before the District Court of Kongwa appellant herein stood charged with the offence of Rape contrary to section 130 and 131 (1) of the Penal Code [CAP 16 R.E. 2002]. It was alleged that on 23/3/2017 at about 07:00 hours at Mlanje Village within Kongwa District in Dodoma Region the appellant had carnal knowledge with one MARIAM LUSINDE a girl of twelve years. Appellant denied the charge where the prosecution brought a total of six witnesses to prove the same. 1 la It was revealed by the prosecution during the trial that on the material day the appellant asked the complainant MARIAM LUSINDE, PWI, his niece who lived nearby to help him find his hoe who told him that the same was in his house. He asked her to show it and when PW1 went inside that house appellant followed where he undressed himself and her and raped her while threatening not to shout. PW1 said the appellant used to make love to her many times before and used to give her money. While in the act one MUSA came looking for the appellant where PWI's mother JULIE DICKSON CHALO, PW2 informed him that the appellant was in his house but he didn't respond when they called his name which act necessitated the two to go inside that house and opened the door by force where they found appellant making love to PW1; they closed the door from outside and raised alarm where people came, apprehended and took him to the village office. At the village office one THOMAS JORAM THOMAS, PW3, Acting Village Executive Officer received the appellant where upon interrogation he admitted the allegations and was sent to police station where he was interrogated by one WP 11302 PC CHIZANYA, PW5 and took his cautioned statement as he admitted the allegations. The cautioned statement was admitted in court as exhibit P1. Whilst PW1 was taken to hospital and upon examination by a Clinical Officer one ALFA LAZARO, PW6 was found with no hymen as was used to sexual intercourse, no spermatozoa and a PF3 was filled and admitted in court as exhibit P2. 2 In his defence the appellant denied the charge claiming that the case was only fabricated against him as PW1 was couched to lie as such by her mother and that he was at the farm the whole of the material day. At the end of the trial the appellant was found guilty, convicted and sentenced to thirty years imprisonment. The appellant was aggrieved by that decision hence filed this appeal upon five grounds of appeal which raise four important points of complaints as follows: That, the trial court erred in law to convict the appellant basing on insufficient voire dire examination on PWI. That, the trial court erred in law in its failure to analyze the evidence of PW6 who conducted inquily on PWJ relating to the case which was not her business. That, the trial court did not consider the appellant's defence evidence. That, the trial court erred in law to convict the appellant with the charge which did not specify the type of rape allegedly committed by him. During hearing of the appeal the appellant only adopted his grounds of appeal without further explanation which paved way for the respondent Republic to respond. On her part Ms. Nsana learned State Attorney who appeared for the respondent Republic did not oppose this appeal for reasons that will be 3 referred in the course of this judgment. At this point this court is required to decide whether the appeal has merit. Firstly, as rightly complained by the appellant in the fourth ground of appeal which raises a point of law and correctly submitted by the learned State Attorney the charge that was preferred against the appellant did not cite provision of law relating to categories of rape and specify the relevant one in this case as section 130 of the Penal Code was generally cited. This provision says; Section 130. Rape It is an offence for a male person to rape a girl or a woman. A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances fa/llng under any of the following descriptions: 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; with her consent where the consent has been obtained by the use of force, threats or Intimidation by putting her in fear of death or of hurt or while she is in unlawful detention; with her consent when her consent has been obtained at a time when she was of unsound mind or was in a state 4 V 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; 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; 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. Hence, it is clear as shown above that section 130 of the Penal Code has sub-sections (a) to (e) which relevant one ought to be cited and non- compliance leads to accused not knowing which rape they are accused of for them to effectively prepare their defence. In the instant case as the complainant was said to be aged below eighteen years the relevant sub- section would have been (e) above. Ms. Nsana referred this court to the case of AMOS PALANZI V R, Criminal Appeal no. 137 of 2012, Court of Appeal of Tanzania at Dodoma (unreported) to fortify the foregoing stance which said that; "The appellant was entitled to know from the beginning under which scenario he was charged so as to enable him to put up an Informed defence. Failure to specifj' the exact provision of the law under which 5 the accusatIon of rape against appellant fell in circumstances of this case prejudiced the appellant's triaI' The cited case is in all fours with the instant case as explained above and the omission vitiated the whole proceedings and occasioned injustice to the appellant. Also, as it was in the cited case above, the prosecution in our case did not even prove the age of the complainant; not even PW2, her mother testified anything relating to the age of her daughter which was essential ingredient to prove statutory rape, i.e sexual intercourse with a girl below eighteen years of age. Therefore, the fourtft ground of appeal has merit and as such other grounds die naturally. For the foregoing the court find the appellant's appeal with merit and it is hereby allowed, conviction quashed and sentence set aside. The appellant is ordered to be set at liberty unless he is otherwise lawfully held. It ordered accordingly. ra JUDGE 3/7/2018