20190516 TZHC Mwanza2

:l· 1·.1 } ' ' I IN THE HIGH COURT OF TANZANIA ' ,,. ,· p' -·., -· f··- ,·:. IN THE DISTRICT REGISTRY I /· ' . ,.j. ,, ' ATMWANZA i i .. ,1 . HIGH cou·RT CRIMINAL APPEAL NO. 15 Oi= 2018 (Original Criminal Case No. 24 of 2017 of the District Court of Ilemela District at Mwanza) ·DIONIZ CHARLES ········••11• ■•·■ m11a11J ••••••••••••••••••••••••••••••••• APPELLANT VERSUS I THE R.EPUBLIC .••············••11 ■■ tlG ■■■ •~···················••!I••···· RESPONDENT I JUDGMENT I 09 & 16/05/2019 RUMANYIKA, J.: All is against a conviction and custodial sentence of thirty (30) years i of the District Court of Mwanza (the trial court) for offence of rape I Contrary to sections 30(1) (2)(6) and 131(10) of the penal code cap 16 I R.E. 2002. The 6 (six) grounds of appeal revolve around 5 points as under:- i 1. ingredients of rape were not proved. I 1 2. DNA test was not done to establish that with regard to victim s pregnance, appellant was the responsible further. ' 3. the victim s failure within the 1st five months to name the appellant 1 l casted reasonable doubts on the prosecution case. ' 4. the victim was not proved a Bugogwa Secondary School girl. l ., I 5. the prosecution case was not proved for want of corroborative '.~. (- evidence. Whereas Dioniz Charles (the . ~ppellant) appeared in person, iBdditional to his memorandum of appeal submitted that age of the victim was ·not proved. Much as also, no school teacher was summoned in court. Ms. Lilian Meli, SA supported the conviction and sentence and submitted; ( 1) that with a totality of the evidence; actually the pro$ecution case was proved beyond reasonable doubts. (2) now that the victim was proved · pregnant, penetration was naturally proved (3) according to her evidence, the victim (PWl) was born on 9.1.2000. Therefore one having been offended 17 years old, offence of statutory rape was proved. (4) Now that offence wasn't of impregnating a school girl, a DNA analysis was uncalled for (5) if anything, evidence that the victim was a school girl was there (Exhibit ".P2'1 (6) the victim's evidence needed no corroboration. It is trite law that true evidence of rape comes from the victim. That on this one, the I victim was actually credible and reliable. PWl (the victim) is on record to have been under custody of one Maria Abdallah and Suzana (unt). That she was born on 9.1.2000 and stayed under custody of grandma at Igombe Village District of Ilemela. A Form 1 pupil of Bugogwa Secondary School. That for the first time, in one of the year 2016 evenings, but now at the appellant's home (invited by him), they had sexual intercourse and was paid Shs. 5,000/= .. That subsequently, but at intervals of three days, they had it twice or thrice and she conceived. That she outright named appellant the responsible farther. 2 I . ' The custodians reported the case td police and hospital in May, 2017. ( -.._. Hence the case. PW2 Suzana Charles stated· that the victim was her niece. That I having detected and discovered the confessing pregna·nt school. girl (the victim) on 3/5/2017, the latter named the appellant as the responsible farther. Then they reported the case to police and hospital. PW3 Samson Mgelwa, a D!plom~ holder of Masinga Clinical Officers. College, therefore at the time at work at Karume· Health Centre - Igombe, I • he received and attended- PW1 on 6/5/2017. That she found her four (4) months pregnant ( copy of the PF3-Exhibit "Pl) .. PW4 E.3395 D/Cpl. Deusidedit of, Kirumba Police station (Gender and children desk/wing) stated that as he was on 8/5/2017 at about 11.00 hours at work, he had the case of impregnating the school girl reported to him. (Copy of letter the respective Headmaster -Exhibit "P2). · The appellant denied the charges. That he was just arrested on 5.5.2017 only for charges of threatening to kill Suzana Charles (PW2). Only on 17.5.2017 to be re-arrested, but now charged for rape. That actually 1 there had been a land dispute between him and PWl's family. For that one having had been locked up. That is all. j The issue is whether the offence I of statutory rape was beyond I reasonable doubts proved. I ' The victim (PW1) may have had been_ 17 years old or even more younger. But nobody, other than herself led evidence on this crucial aspect. It is trite law that unlike in any other ' cases where proof of consent . of the victim was material, here it was not the case. Only material was by 3 1 I. parents, custodian school teacher or in case of baptismal/communion ( ceremonies by priest/pastor that the victim was under age. Secondly, according to PW2, PW3 and PW4 the charges of rape were_ only triggered by the school- girl being impregnated. In other _words now that, and it was on this basis that having been named by the victim as the responsible father, the appellant was arraigned and charged, it was safe and incumbent upon the prosecution to lead scientific evidence, DNA analysis to be specific. That indeed the appellant was the responsible . further. It is very unfortunate that no such evidence was adduced. Leave alone reasons not to_. Ground 2 of appeal allowed. Thirdly, I am also aware of the settled law that true evidence of rape . comes from the victim yes! But I would find PWl being not a reliable and credible witness for one main reason; She did not name the appellant, until she was four (4) months pregnant. Only after was detected by the custodians. Possibilities of one having been impregnated by" another man therefore could not be ruled out. After all it is trite law that unexplained delay in naming the accused casted doubts on the prosecution case. Unless it was established that the victim had, through artificial insemination or some other means conceived, which is not the case here, however slight may be, penetration was naturally proved. I will increasingly hold that it is general rule pregance is, without more words prima facie evidence that sexual intercourse was timely and successful. Just a point to all. I have had to ask myself how dare and able PW3 went further and, with regard to PWl 's pregnance mentioning the responsible father. Now that like PW4 did, PW3 did not only test pregance 4 (· but he went an extra mile, without a DNA analysis connecting the -..i ( appellant. There is no wonder that without justification the trial magistrate did convict the appellant.· Ground 2 of appeal is once again allowed. . Last but not Jeast the appellant's defence evidence being ignored. However brief may be, in his defence the appellant sort of stated that he was only fixed because of a land dispute at the time pending between them. It is very unfortunate that the learned trial magistrate did_ not even bother from them to know what, if any, was the land dispute all about. Indeed the appellants' defence case was ignored. The latter wasn't fairly heard. Suffice the points and deliberations above to dispose of the entire appeal. The conviction and sentence are quashed and set aside respectively. Unless he was otherwise legally held further, the appellant be released from prison immediately. Ordered accordingly. Right of appeal explained. A JUDGE 12/05/2019 5 I ' Delivered under my hand and seal of the court ;in chambers. This, 16/5/2019 ·in the presence of M/S Changale, State Attorney . for the . · ·.4 respondent republic and the accused in person . h,"'\Ui:>c::c,,.;,£,. O.H. Kingwel~ DEPUTY REiGISTRAR i . 16/05/2019 l_l; I/