20190416 TZHC Mwanza

/ r ' • IN THE HIGH COURT OF TANZANIA IN THE DISTRICT IJ.EGISTRY ATMWANZA CRIMINAL APPEAL NO 177 OF 2018 (Original Criminal C9se No 45 of 2017 of the District Court of Misungwi At Misungwi) I RICHARD JAMES ......... ~.~ ...................... APPELLANT VERSUS THE .REPUBLIC .................................... RESPONDENT JUDGMENT 6th February, 2019 & 17th April, 2019 Matupa, J The appellant was convicted with two counts qf rape contrary to section 130 (2) (e) and section 131 of the Penal Code and Impregnating a I school girl contrary to section 60A of the Miscelianeous Act no 2 of 2016 as read together with the Education Act, Cap 353 2002 revised edition of th~ laws of Tanza~ia. (The proper citation of the latter provisions would qe wou~d be "section· 60A of the Educ·a.tion Act, Cap 353 2002 ·revised edition 1 ' of the laws of Tanzania, as amended by the Laws (Miscellaneous () Amendments) Act no 2 of 2016.") '1 ' ·The particulars of the offer_ice1 which were inelegantly drawn, were to the effect that, between the months of October 2016 and April 2017, the appellant had sexual relationship with one Mageni s/o Petro who was 1 I . . alleged to be of the age of 17 years. It was also alleged that she was a school girl of Sanjo Primary school. It was further alleged that as a result of the relationship; he made her into a family way. At the conclusion of the trial, the court convicted the accused as charged and sentenced to thirty years imprisonment in respect of both counts. I The appellant was dis-satisfied with that ·decision of the court. He has appealed to this court on the following grounds:- 1. That the conviction was based on un.-cogent evidence of the prosecution witnesses with lack of particulars facts of the offence~ Thus,· the case was not proved beyond reasonable 1 i doubt. 2. That day/period. of the inqident was not proved b the i prosecution ·evidence to the charge and facts as the 2: complainant was not tendered at the trial court any clinic card ,' .) neither her child for corroboration. 3. That the PI (PF3) was teodei,ed by PWl who didnt make it. Thus its admission was illegally (sic) 4. That the PW3 was not disclosed his qualification and experience before this court. - 5. That the appellant was not explained by the trial· court his - rights of defence including of calling his witness. - - 6. That the trial court was· not !fair at when it ·was proceeding hearing of prosecution witness (PW3) at absence of the appellant without any effort to trace him During the hearing of the appeal;. the appellant did not haye services of a counsel, he therefore fended for himself. The Republic, the respondents herein,· had the able representation of Ms. Ajuaye Bilishanga, learned Senior State Attorney, who was assisted by Ms. Ginsela state ·attorney. As it was, th~ appellant did riot wish to add anything to his petition of appeal. Even after the submission by the learned s~ate attorney, still the appellant opted to leave the matter for the determination of the court. ln .essence, the learned state ·attorney supported the conviction, contending 3 . • I that the, in terms of the case of Edson Mwombeki versus The Republic i i j) criminal appeal no 226 of 2011 (Mwanza Registry) school girl who was the i victim of the rape, is the best witnes$. . I I I do not intend to address the grou!nds of appeal as enumerated. I think for the purposes of logical handling of the appeal, let me address the i . . . grounds generally,· in as far as they relate to the two charges. Let me I observe at the outset that, on the f~ce of the record, there appears to be I . no dispute ~hat the appellant and the girl were in love and the sexual I . ! • . . . i relationship was procured with the consent of the parties. In fact there is I i record that parties happily agreed to'the act. The record of evidence shows I I ; that, the girl explains the incidence a~ follows:- "I remember se·ptember 2016 I went to greet Michael James at his place where Janesi also lives. Janesi I saw me and approached me and told me after finished ·standard seven he will take to their home . I I . i place. Around evening hours I \went back home. October, _2016 . . i accused came to our home place and sent Leah Michael to call me ! . and I went we greet and. depatl.ir.ed. I (sic) After few days he came ' _agai_n and Leah came to call· me ii went where accused was we went . . .. . . i. Q... . . • . . to one house whkh people who ~ere there lifted (sic) and entered ! I I I 4 ! -i I inside the room and started removing our clothes. I slept down and accused came on top he put his denis to my vagina I felt happy we· I . finished and departured (sic) he gave me 10,000/=. He told me he . I ' would come again and I replied Ok." ! The foregoing forms the grava~en of the factual basis of the case. I The witness has clearly demonstrated their happy relationship. The lack of . ' 1 consent is therefore statutory. In order to demonstrate the lack of the I statutory consent, one has to show fhat the victim -was of. the age below I, eighteen years at the time of the j otherwise alleged proscribed happy I relationship. Looking at the script o( the evidence, on the face ·of it, the I victim was not asked of her age or hkr date of birth. As such, the evidence i . of the statutory rape is clearly not there. I Since. the prosecution did not do . . j . so, there was no evidence of age, for1 the appellant counter. I The court of Appeal has on s~veral occassions held that in a case 1 falling under se·ction 130 (2) (e) whe re the prosecution wishes to establish . ·. . .I ·. . lack of consent on account of incapacny to do so due to age, the age of ,.I the victim must be clearly proved andJ beyond any reasonable doubt. In the . I . case of Edson . Mwombeki versus The . j Republic criminal . appeal . no 94 of ·I 2016 for example, the Court of appeal discussed the aspect and fo·und the . I ! s evidence of the father to supply to 1the age of the victim. In that case, I reference was made to the case of Hamisi Msitu versus The Republic, I Crimin.al Appeal no 71 of ~009 wher~ the Court -0f Appeal again re-iterated the basic p~inciple that,in a case fallihg under section 130 (2) (e) it is upon I the prosecution to prove the issue of (age beyond reasonable doubt. · ! We have shown· that the witness was not specifically, addressed on ! the aspect of her age in her evidencb. It was therefore not cor~ect for the I t trial . magistrate to assum.e the age pf the victim as it did in this present case. In the absence of evidence ofi the age of the victim, I find that the I ' . appeal has merit. I accordingly allow the appeal in respect of this count. 1 t As to the second count, the victim said that she was in standard seven in I 2017. It is tr.ue that in terms of the case of Edson Mwombeki versus The i Republic above, which, again, drew finspiration from its own decision in the I ~ase of Goodluck Kyando versus Re~ublic 2006 TLR 363, which contains a statement of directive. on how to deal. with witnesses. One such. directive is that every eyewitness is entitled to tredence and must be believed and his I testimony accepted, unless there I are good and cogent reasons not believing a witness. Now the witrie~s in this case claimed that she was a I standard seven pupil ·in 2017. She did not say at what school. . • I ! t ,16 Section 60 A (2) under which the appellant stands charged provides as li _.,') follows:- "(3) Any person who impregnates a primary school or a secondary school girl commits an offence and shall, on conviction/ be liable to imprisonment for a term of thirty years. F/ From the section, I can observe that there are three basic ingredients. One, first is that the girl must be proved to be pregnant. Two, the accused must be responsible for the pregnancy and Three, the pregnant girl must be a primary or secondary school pupil or student. On the first ingredient, true the girl was found to be pregnant. However, this doe·s not answer the second ingredient, of whether the appellant was indeed responsible for the pregnancy. The girl was not asked if at all she had the appellant ·as the only partner during the time. One cannot therefore presume that on the facts of the case, the accused person was responsible,_ or that he was the only person who, under the ~rrcumstances of the case, could be responsible for the pregnancy. For this,· the prosecution only could take a DNA to confirm the allegation against the appellant._ .7 On the last issue, the charge specifically alleged that the appellant ·~ •_,..,.-'' impregnated Mageni s/o Petro of Sanjo, of Sanjo Primary school. I am convinced that a charge under section must clearly establish the fact that the victim is a student. One can only become a pupil if he attends at a school. The allegation here is that the victim was attending school at Sanjo primary school. However, in her evidence, there was no intimation from the prosecution of the school, which the victim was attending. I have asked myself if at all a vague statement that the girl was ·a primary school pupil enough to put the accused person on his defence? .r do not think so.· Since the charge was specific on the school where the girl was attending, the prosecution was enjoined to ·lead evidence on the fact of that allegation. This would have afforded the appellant an _opportunity to cross-examine her . or her witnesses on the fact. In· fact, · it would be appropriate for the person from the school to exhibit the record of student hood of the victim to make the evidence cogent. I Qm not' proposing that the victim or any other person could do so, if the evidence was solid enough. At any rate, there must be evidence before· the accused of a charge he faces and ori which he can defend .himself, before he may be . ! ·• convicted. 8 I. ' ~. I am satisfied that the silence in the evidence of the school where the . '") victim was attending was fatal, and rendered the charge fail to pass the threshold of standard of proof. In the result, I will also allow this ground of. appeal. In the upshot, I do hereby allow this appeal, quash the conviction of the appellant on both counts and set aside the sentence. The appellant shall be released from custody forthwith, unless he is otherwise held there· for some other lawful reasons. 9