20190430 TZHC Mwanza

) IN THE HIGH COURT OF TANZANIA ) IN THE DISTRICT REGISTRY ) AT MWANZA . . . HIGH COURT CRIMINAL APPEAL NO. 268 OF 2018 I I (Original Criminal Case No. 200. of 2017 of the District Court of Nyamagana at Mwanza) I . ! . . ALLY RASHID @ SHABAN ................... ~ ..................... APPELLANT I ' VERSUS ; THE. REPUBLIC ..... ~ ...... ll'·•········••·••····••11-••·················· RESPONDENT JUDGMENT. 10 & 30/04/2019 RUMANYIKA, J.: Appeal -is against the 16/10/2017 conviction and a 30 years custodial sentence for the charges of rape Contrary to Sections .130 (1) and (2) and 131 (2) of the .Penal Code Cap .. 16 R.E. 2002 (the code) as amended by the Sexual Offences Special Provisions Act No. 4 of 1998. That . . . . I. .. . ·. Ally Rashid Shaban (the appellant) did on. diverse dates between February and April, 2016 at Igogo area Nyamagana pistrict and Region of Mwanza . . . .. rape Lilian Elisha (14). Essentially, there are three (3) grounds of appeal. Nam.ely::- . 1 ) 1. That evidence of the child of tender aJe was improperly received and recorded. 2. That the medical evidence (PF3) bore~ no DNA analysis therefore lacked value. 3. That the trial court improperly relied Ion some hearsay evidence, whereby holding that j that one had corroborative value. I Mr. Adam Robert and Ms. Lilian Meli learned counsel and state attorney appeared for the appellant and resppndent respectively. Mr. Adam Robert in his submissions faulted the learned trial resident · magistrate for not stating provisions of the law under which the conviction . I . was based. Also that tre sentence and order were based on_ wrong provision$ of the law. I That also being a suspect, the victiJn (PWl) was incredible and unreliable. Leave alone her late reporting of the incident (say 5 months . . la_ter) - case of Peter Abel Kirumi Vs. R~p., Criminal Appeal No. 25 of 2016 (CA) unreported. I . . I . That the victim (PWl) was pregnant yes! But the PF3 had no material connection to the appellant. Nor was it a DNA analysis report. I That the trial court relied on hearsay ~vidence of pw2. Therefore the i victim's evidence should have been corroborated. . . l· . !' 2 II I j ; I.· I That the appellant's conviction and sentence were improper for no ) provisions of the law were cited (Contrary to Section 312 of the ) Criminal Procedure Act Cap. 20 (the Act). Leave alone, at the time the 21 years old appellant having been wrongly c~arged Under Section 131 (2) of the code. That if anything, the appellant should have been only sentenced to corporal punishment. Irrespective of the principles of overriding objective. We pray that the appeal be allowed. Mr. Adam Robert further contended. Ms. LiUan Meli learned state attorney partly supported the appeal and submitted that indeed the appellant was wrongly charged Under Section 130 (1) (2) (e). That due to the ·fatal irregularity, the proceedings be nullified and a retrial be ordered ( cited Section 388 of the Act). Secondly, that now that admittedly, she '-"{as a child of tender age (Section 127 (5) of the Evide,:ace Act Cap. 6 R.E. 2002), PW1 should . not have been sworn in. · Very briefly, the evidence on record read thus:- PWl Lilian Elisha at the time 14 years old and a class VI pupil of · Sahara primary school stated that sometimes in February, 2016 at about 21.00 hrs the appellant arrived. and asked her to have sexual intercourse, That as her mother who arrives at 22.00 hrs was now about to come back ·home, she refused. That on the next day, the appellant came back and had her carnal knowledge in the bathroom. Then a wee~ later, and lastly the 3rd round in· March, 2016. ~hat al_l this time she felt pains but the appellant W?rned her_ not to disclose it to mother. That as she wasn't ok, and had 3 I I. i l li ,_ . 'l missed her menstrual period, her mother became suspicious. She took her i ) to laboratory for pregnancy test on 05/07/2016. Whereby she was proved ) positive. That only the appellant was responsible. As she hadn't m~t a man before. l PW2 Florance Deus Msemakweli, mother I of PWl stated that the ' victim was her 2nd born of March, 2002 and a class VI pupil of Sahara 1 primary school. That ordinarily, the petty business woman returned home . . I at ·22.00 hrs. That having been suspicious ,of I the victim (PWl), she took her around on 05/07/2016 for test an~ 1 found her 4 (four) months pregnant. That she reported it to police Igogo, to Butimba and regional hospitals on 11/07/2016. That the _latter 1was, on that basis arrested, . I charged and accordingly arraigned. PW3 WP.2762 D/Cpl. Esther stated thJt with regard to it, and having I been dully assigned by the OCS of Police, Post Igogo, she took up the . I matter on 06/07/2016 at 10.00 a.m. That she arrested the appellant on I • 07/07/2016 and interrogated him on 08/07/2016 but he denied the I I charges. He was arraigned. Hence the case. That the appellant had another police case before. ! PW4 Dismas Joseph Bahati a 2011 ~holding advanced diploma in . . . medicine of Bugando Medical Centre stated that as he was on 05/07/2016 . ' at work place Nyamagana district hospital, among others he· attended_ diagnosed and found the victim· (PW1) four 1months pregnant (·copy of the PF3 - Exhibit "Pl"). That is all. · I l 4 I I , The appellant (at the time 21 years 1old) denied involvement and ) .I .) stated that the prosecution's witnesses contradicted each other materially. ) That if anything, none of the last thre~ prosecution witnesses had implicated him. That.is it. The central issue is whether the prosecution case was beyond reasonable doubts proved. I The victim. (PWl) may have been pregnant, therefore prima facie evidence that at times one have had her 1carnal knowledge. Now, was appellant the responsible further? I . Whereas, I am also aware of the ·1ong settled principl_e of law that I true evidence of rape comes from the victim, here the point is how credible I and reliable was PW1? If at all, it took her say five (5) months to name the I appellant. But also, having missed her "monthly days", mother having been suspicious of her and inquired. In other1 words, had she not been impregnated, the victim would not have named the appellant. The former may have had met no single man before yes! But now that no efforts were made and appellant was not. howsoever proved to be the biological and responsible father, chances were there that the victim naming the latter was, but afterthought. Grounds 2 and 3 of appeal are allowed. Suffices the point to dispose of the appeal. · The conviction and sentence are quashed and set aside. Appeal is, for avoidance of doubts entirely allowed. Un!ess he was retained for some . o~her lawful cause, the appellant be released immediately from prison. Ordered accord,ingly. 5 Right of appeal explained. ·/ I S.M.~MANY 1 AuoGE 21/04/'2 19 I f Delivered under my hand and seal of the court in chambers this 30th . day of Ap~il, 2019 in the presence of Angelina Nchalla state attorney for the respondent and the accused in person. O.H. . DEPUTY REGISTRAR 30/04/2019: I 6