CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MUGASHA, J.A.. MAIGE, 3.A. And KHAMIS, J.A.l CRIMINAL APPEAL NO. 142 OF 2020 JOSHUA KWOLESYA @ADAM.......................................................APPELLANT VERSUS THE REPUBLIC......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Madeha. J/l dated the 23rd day of December/ 2019 in DC. Criminal Appeal No, 289 of 2018 JUDGMENT OF THE COURT 28thMay & 3rdJune, 2024 MUGASHA, J.A.: The appellant was charged and convicted before the District Court of Chato at Chato of the offence of rape contrary to sections 130 (1) and (2) (e) and 131 (1) of the Penal Code Cap 16 RE 2019. It was alleged that, on 11/2/2016 at about 08:00 hours at Nyarutefye village within Chato District and Region of Geita, the appellant did unlawfully have sexual intercourse with a three years old girl whom we shall refer to as NP or the victim for the purposes of concealing her identity. He denied the charge. To establish its case, the prosecution relied on the evidence of six witnesses namely: PW1 Happyness Juma, PW2 Peter Mahela, PW3 Samuel Madundo, PW4 Kilasa Ruchapa, PW5 E7986 D/CPL Ilanga, and PW6 Devotha Mwita. Apparently, the victim was not paraded as a witness. On the part of the appellant the record shows that he gave no evidence having opted to remain silent. According to PW1, the victim's mother and PW2, the victim's father, the appellant who resided in their homestead was their employee working on their farm. They both recounted that on 1/02/2016, they were bereaved and had to attend a burial ceremony in another village. Thus, they left their daughter under the care of the appellant. Upon returning home during evening hours they found their daughter sick and she complained to have been raped.PWl inspected the victim and found blood stains on her vagina. Then, PW1 broke the news to her husband who reported the matter to PW3, the Village Executive Officer (VEO) of Nyarutefye village. The VEO and PW4 both recalled that it is the victim's father who informed them about the fateful incident and they both visited the scene of crime and found the victim being seriously injured in her vagina. PW3 and PW4 both alleged that upon arrest, the appellant confessed to have committed the offence and prayed to be forgiven but was arrested and taken to the police station. On 13/2/2016 it is alleged that, upon being interrogated by PW5, the appellant confessed to have raped the victim and as such, a cautioned statement was recorded and tendered in evidence as Exhibit PI. However, the cautioned statement was read out before being admitted in the evidence. We shall flaw and the consequences thereof in due course. PW5 also issued a PF3 and the victim was taken to the hospital accompanied by her father who is alleged to have complained that her daughter was raped by the appellant. Upon examination, it was established that the victim had sustained serious injuries as she had bruises and blood was oozing from the vagina. The victim was admitted for further treatment. However, the fact raised by the doctor that the victim was admitted at the hospital does not feature in the PF3 as well as the evidence of PW1 and PW2, the parents of the victim. The PF3 was tendered and admitted in evidence as Exhibit P2 but it was not read out to the appellant at the trial and we shall address the omission at a later stage. Similarly, the sketch map of the scene of crime was also exhibited in evidence as P2. After the close of the prosecution case, the trial court established that the appellant had a case to answer and it proceeded to address him so that he could elect the manner of giving his defence. However, as earlier stated, the record shows that, the appellant did not venture to give his defence account having opted to remain silent. As earlier stated, upon being found guilty and convicted, the appellant was sentenced to a jail for thirty (30) years. In her judgment, the learned first appellate court found the appeal wanting in merit and like the trial magistrate; conclusively held that the trial Court was correct in holding that the appellant was guilty of the offence of rape because the charge was proved to the required standard. Undaunted, the appellant has preferred this second appeal before the Court faulting the two courts below mainly on two points of grievance to wit, One, that the cautioned statement was wrongly relied upon to found the conviction of the appellant' because during trial it was not properly admitted in the evidence; and two, that on account of the failure by the prosecution to prove the charge beyond reasonable doubt, a finding of guilt and subsequent conviction are wanting. At the hearing, the appellant appeared in person unrepresented, and implored on the Court to consider the grounds of appeal and set him at liberty. On the other hand, Ms. Revina Tibilengwa, learned Principal State Attorney co-appeared with Messrs. Daniel Masambu and George Ngemella, both learned State Attorneys. It is Mr. Daniel Masambu who addressed the Court. Initially, he did not support the appeal. However, upon being probed by the Court, on reflection, he conceded that, the appeal is merited and it deserves to be allowed. On this, he submitted that the appellant was not accorded a fair trial having been denied opportunity to cross-examine PW1 which rendered her account to lack evidential value. Regarding the proof of the age of the victim, the learned State Attorney as well made a concession having pointed out that, since the age of the victim is an essential element of the offence in statutory rape and given that none of the prosecution witnesses testified on the same, the charge was not proved at the required standard. In this regard, the learned State Attorney contended that, given the lacking evidential value of PWl's account who had inspected the victim and the missing factual account to prove the age of the victim, the charge was not proved at the required standard. He thus urged the Court to allow the appeal and set the appellant at liberty. On the other hand, the appellant nad nothing useful to add besides supporting what was submitted by the learned State Attorney. After a careful scrutiny of the record before us, the grounds of appeal and the submission of the parties, the issues for determination are two fold, namely: one, whether the trial was flawed with procedural irregularities; and two, whether the charge was proved to the hilt against the appellant. We begin with addressing the complaint on failure by the trial magistrate to give the appellant a chance to cross-examine PW1. In adjudication, the examination of witnesses at the trial is governed by Part II of the Evidence Act Cap 6 RE. 2019 (the TEA). In respect of the matter under scrutiny, section 146 stipulates as hereunder: "(1) The examination o f a witness by the party who caiis him is caiied his examination-in-chief. (2) The examination o f a witness by the adverse party is caiied his cross-examination. (3) The examination o f a witness, subsequent to the cross examination\ by the party who caiied him is caiied his re-examination." Moreover, the order and direction of examination of witnesses is prescribed under the provisions of section 147 (the TEA) which states as follows: "(1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling them so desires) re­ examined. (2) The examination-in-chief must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief (3) The re-examination shall be directed to the explanation o f matters referred to in cross- examination; and if new matter is, by permission o f the court, introduced in re-examination, the adverse party may further cross-examine upon that matter; (4) The court may in all cases permit a witness to be recalled either for further examination-in-chiefor for further cross-examination and if it does so, the parties have the right o f further cross-examination and re-examination respectively. (5) Notwithstanding the other provisions o f this section, the court may, in any case, defer or permit i to be deferred any examination or cross- examination o f any witness until any other witness or witnesses have been examined-in-chief, cross- examined, re-examined, or as the case may be, further examined-in-chief or further cross examined." The direction and order in which the examination of witnesses has to be conducted in adjudication is a mandatory requirement and it must be complied with to the letter. We are fortified in that regard because the provision embraces a fundamental basic right prescribed under article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977 ( the Constitution) which states: "To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following principles: - (a) When the rights and duties o f any person are being determined by the Court or any other agency, that person shall be entitled to a lair hearing..." We are aware that the prescribed mandatory requirements for instance, the right to cross- examine or re-examine can be waived by a 8 party. Therefore, in the absence of any waiver to exercise the said right, the omission to allow an adverse party to cross-examine a witness is fundamental to any judicial proceedings and its denial is tantamount to subjecting a party to unfair trial for denial of an opportunity to be heard. This was emphasized in the case of EX- D .8656 CPL SENGA IDD NYEMBO AND 7 OTHERS VS THE REPUBLIC, Criminal Appeal No. 16 of 2018 (unreported). The Court observed: "...Granting each party an opportunity to be heard In the proceedings embraces the principles o f natural justice and addresses every question o f fairness o f the procedure or due process, thus, granting some parties a right to be heard while denying others such right may be broad enough to include the rule against bias, since a fair hearing must be unbiased. It follows that, where there is no fair procedural hearing like in this case the proceedings are vitiated." [See also: SEBASTIAN MICHEL AND ANOTHER VS THE DPP, Criminal Appeal No. 145 of 2018, EX. MT 66807SGT GEORGE KWISEMA AND TWO OTHERS VS REPUBLIC, and Criminal Appeal No. 127 of 2020 (both unreported). 9 In the light of the stated principle embodied in the order and direction of examination of witnesses which embraces the principles of natural justice in judicial proceedings, it is incumbent on the trial magistrates to ensure that every party in judicial proceedings is fairly tried by being accorded a right to be heard. In the present case, it is glaring at page 4 of the record of appeal, after the examination in chief of PW1; the appellant was not given a chance to cross- examine PW1. The record does not indicate that the appellant had waived such right otherwise the record would have indicated that (cross-examination nil). Yet, the trial court believed such evidence and acted on it to ground the conviction of the appellant which was sustained by the first appellate court. This was a serious omission which occasioned a failure of justice because besides the appellant being prevented to test the veracity of the evidence given by PW1, he was denied the right to be heard. Thus, the evidence of PW1 was wrongly acted upon by the trial court to convict the appellant and we accordingly disregard it. Next is the complaint about the cautioned statement being read out at the trial without initially being admitted in the evidence. The law is settled that, the documentary evidence must be initially exhibited at the 10 trial before it is read out to the accused person. This was emphasized in the case of ROBINSON MWANJISI AND OTHERS VS REPUBLIC [2003] T.L.R 218 where the Court stated: "Whenever it is intended to Introduce any document In evidence, it should first be cleared o f admission, and be actually admitted, before it can be read out Reading a document before it is admitted in evidence is wrong andprejudicial." We underscore that, the essence of the principle laid in the cited is to ensure that a document which is read out before it is exhibited at the trial not evidence before the court. In the circumstances, since the cautioned statement was not exhibited at the trial, it was not evidence before the trial court. Thus, such documentary evidence was wrongly acted upon to convict the appellant. We accordingly expunge it from the record. We have also gathered that, the PF3 exhibited as PE3 was also not read out after being admitted in evidence and yet it was acted upon to ground the conviction of the appellant. This was as well a serious omission as the appellant was convicted on the basis of the evidence, he was not aware of though he present was throughout the trial. In the premises, we discard the PF3 from the record. Since it is settled law that an oral account shall 11 not fail the test merely because the documentary evidence is expunged, we remain with the oral account of the Doctor PW6 to be addressed later in our decision. Having discarded the evidence of PW1 and expunged the cautioned statement of the appellant the question to be answered is whether the remaining prosecution account suffices to prove the charge of rape against the appellant. Our answer is in the negative and we shall explain. According to the charge, the appellant was charged with the offence of rape contrary to sections 130(1), (2) (e) of the Penal Code which stipulate as follows: "(e) with or without her consent when she is under eighteen years o f age, unless the woman is his wife who is fifteen or more years o f age and is not separated from the man." According to the cited provision, it is mandatory that before a conviction is grounded, there must be tangible evidence from the prosecution to prove that the victim was under the age of 18 years. See: SOLOMON MAZALA VS REPUBLIC, Criminal Appeal No. 136 of 2012; WINSTON OBEID VS REPUBLIC, Criminal Appeal No. 23 of 2016, EDSON MWOMBEKI VS REPUBLIC, Criminal Appeal No. 94 of 2016 and ALOYCE MARIDADI VS REPUBLIC/ Criminal Appeal No. 208 of 2016. (All unreported). In the matter under scrutiny, although the charge shows that the victim was three years old, no evidence came from any of the prosecution witnesses to prove the age of the victim. Given that the age of the victim was not established it cannot be safely vouched that the offence of rape was proved beyond reasonable doubt and as such, the two courts below were not justified to convict the appellant. As earlier stated, having expunged the evidence of the doctor, we remain with her oral account. However, besides the medical evidence establishing penetration in sexual offences, such evidence cannot be solely acted upon conclusively to ground a conviction. Therefore, in the present case, since the age of the victim was not proved, the oral medical account falls short of proving the offence charged and the prosecution case cannot be salvaged. Having re-evaluated the factual account, it is glaring that the charge of rape was not proved to the hilt against the appellant and as such, the appeal is merited. We proceed to quash and set aside the conviction and 13 the sentence and order the immediate release of the appellant unless he is held for other lawful cause. DATED at MWANZA this 3rd day of June, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL I. 3. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The 3udgment delivered this 3rd day of June, 2024 in the presence of Appellant appeared in person and Mr. Daniel Masambu, learned State Attorney for the respondent / Republic through Video link from the Office of National Prosecution Service at Mwanza, is hereby certified as a true copy of the original. 14