CRM APP NO

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: LILA. J.A.. KENTE. J.A.. And MGONYA. J.A.^ CRIMINAL APPEAL NO. 500 OF 2020 MAHUTI CHACHA MARWA........................................................... APPELLANT VERSUS THE REPUBLIC.......................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, at Musoma) fKahvoza. J.1 dated the 4th day of September, 2020 in Criminal Appeal No. 75 of 2020 JUDGMENT OF THE COURT 3rd & 15th July, 2024 MGONYA. J.A.: Mahuti Chacha @ Marwa, the appellant herein, was prosecuted for rape in the District Court of Serengeti at Serengeti. He was then convicted as charged and sentenced to a term of 30 years' imprisonment and ordered to compensate the victim a total sum of TShs. 5,000,000/= (Five Million Shillings). His first appeal to the High Court was unsuccessful. Still aggrieved, he is before the Court to challenge the impugned decision. Before the trial court, the appellant's case was predicated upon the allegation that, on 27th day of January, 2019 at Nyiboko Village within the District of Serengeti in Mara Region, he had carnal knowledge of a girl aged 16 years old, who shall be referred to as the victim or PW2 in order to conceal her identity. The appellant denied any involvement in committing the offence charged, hence the full trial against him. At the trial court, the prosecution presented five witnesses. The victim (PW2) testified to the effect that, on 27th January, 2019 at Nyiboko Village, the appellant threatened her with a knife, pulled her in the bush and raped her. PW1, the victim's mother, Theresia Chacha testified to have taken the victim to Borenga Police Station after she was informed of the incident by the victim when she returned home on the following morning. Later after obtaining the PF3, she took the victim to Nyiboko dispensary for medical examination. At the dispensary, Yohana Emmanuel, a Clinical Officer at Nyiboko Dispensary (PW3) examined the victim and found that there was clotted blood inside her vagina and bruises on labia minora. It was PW3's finding that the victim was raped as there was penetration of a male organ "penis". Thereafter, he filled the examination report (exhibit PE. 2). PW4 was WP 7277 DC Anastazia who investigated the case and arraigned the appellant in court after she had prepared the charge sheet. PW5, WP 5665 DC Sijali testified to have recorded the statement of one Bachuta Maro @ Nyakiwalo; and tendered his statement on the allegation that the said witness was not found. The appellant, in his defence, denied committing the offence, stating that the case against him was fabricated; and that he and the victim had agreed to marry. As alluded to above, the appellant was found guilty by the trial court. He was convicted and sentenced as stated above. Again, as we have indicated earlier, the appellant's first appeal to the High Court of Tanzania at Musoma (Kahyoza, J.) was dismissed. The High Court upheld the trial court's findings as well as the impugned conviction and sentence. It is worth noting that, the first appellate court, expunged Exhibit PE. 2, the PF3, as it was not read out before the court as the law requires. The court also expunged the statement of Bachuta Maro @ Nyakiwalo which was improperly admitted in evidence. In his efforts to protest his innocence, the appellant has filed before this Court a memorandum of appeal with five grounds. However, since the 2nd and 3rd grounds are directed to the two expunged exhibits as seen above, only three grounds remain for determination. Therefore, the instant appeal is predicated on three main complaints to wit: 3 1. That the tria l and the first appellate courts erred in law to convict and sentence the appellant by holding that the appellant raped the victim using a knife, as the appellant was not able to do two things a t the same tim e, that is raping and holding a knife; 2. That the tria l and the firs t appellate courts erred in law and fact to convict and sentence the appellant as the judgm ent delivered by the tria l court was unreasoned and on the other hand, was upheld by the first appellate court which actually is against the principles o f naturalju stice; and 3. That both courts below erred in law and fact fo r convicting and sentencing the appellant w ithout giving sufficient consideration and w eight to the defence adduced by the appellant. When the appeal was called for hearing, the appellant appeared in person unrepresented, whereas, Mr. Tawabu Yahya Issa and Mr. Isihaka Ibrahim Mohamed both learned State Attorneys, appeared for the respondent, Republic. Being invited to enjoy his right to begin, the appellant prayed the Republic to submit and later make a rejoinder to their submissions. Submitting on the first ground, Mr. Issa referred the Court to page 12 of the record of appeal particularly on PW2's (the victim) testimony, that on the fateful date, PW2 on her way to visit her aunt one Chausiku Magoigwa around 19:00 hours, she met the appellant who threatened to stab her with a knife if she screamed. He then took her into the bushes and after he undressed her, he went on having sexual intercourse with her by force, thus he raped her. Further, during the act, the appellant told the victim not to scream and that if she did, he would stub her with a knife. Then after he had accomplished his mission, he released her. From the above testimony by PW2, it was the learned State Attorney's assertion that, the appellant's claim that it was not possible for him to rape the victim while holding the knife threatening her, is unfounded. It was his stance that, by referring to PW2's testimony that she was threatened by the appellant with a knife, it was not meant that during the entire act, the appellant was holding a knife threatening the victim. It was the learned State Attorney's conclusion that this ground is both misconceived and meritless. As the appellant had nothing to rejoin apart from pleading the court to release him, we prefer to determine this ground straight away. As far as the first ground of grievance is concerned, we agree with the respondent's counsel's views that the complaint has no merit. The reason for our stance is from the record of this appeal, particularly PW2's testimony. The record is very clear that PW2 said that the appellant threatened to stub PW2 if she raised an alarm. Moreover, PW2 in her testimony did not state anywhere that during the act, the appellant was all the time holding the knife threatening her. Given the circumstances, we have failed to trace the basis of the appellant's ground. We therefore declare the ground baseless. Moving to the second ground of appeal that the first appellate court upheld the trial court's judgement which was unreasoned, it was the learned State Attorney's brief observation that, both the trial and the first appellate courts' judgments were reasoned. That before reaching their decisions both courts gave reasons as to why they found that the prosecution case was proved beyond reasonable doubt. He thus prayed this ground to be considered as meritless. In determining this ground, the issue before us is whether, the lower courts' judgements were unreasoned. We are aware that it is the legal requirement under section 312 (1) of the Criminal Procedure Act (the CPA), that every judgment must contain the point or points for determination, the decision thereon and the reasons for the decision. See the case of Abubakar I. H. Kilongo & Another v. Republic, Criminal Appeal No. 230 of 2021 (unreported); where it was stated that: "Determ ination o f the dispute is reached by the Court after a thorough evaluation and consideration o f the p a rtie s' evidence tendered a t the tria l court in relation to the applicable law, and disclosing the reason fo r the decision and the conclusion thereon." Likewise in the case of Amirali Ismail v. Regina, 1 T.L.R. 370, Aberneth, J., made some observations on the requirements of the judgment. He said: "A good judgm ent is dear, system atic and straight forward. Every judgm ent should state the facts o f the case, establish each fact by reference to the particular evidence by which it is supported; and it should give sufficiently and p lain ly the reasons which ju stify the fin d in g ..." See also the case of Josephat Joseph v. Republic, Criminal Appeal No. 558 of 2017 (unreported). In the instant case, after going through the impugned decisions of both trial and first appellate courts, we are satisfied that the trial Magistrate gave reasons for the decision. Referring to page 51 of the record of appeal, it was the trial Magistrate's finding that, the victim was indeed raped by the appellant. Giving his reasons for the above finding, the learned trial Magistrate articulated that the evidence revealed that, the appellantwas well known to the victim and that she was able tomention him asher offender shortly after the incident; of which the trial court found as guarantee of the reliability of the victim's testimony. The other reason for the trial court's decision was the failure of the appellant to cross examine the victim at all; which implies that the appellant agreed on what the victim had testified against him. From the above, it is our firm observation that, the appellant's grievances that both lower courts' decisions were unreasoned and against the principles of natural justice are unfounded. Consequently, we cannot fault the first appellate court's decision on the basis that no reasons were given for the decision. In the event therefore, we find the appellant's second ground of appeal baseless and we dismiss it. As to the third and last ground that both trial and appellate courts convicted and sentenced the appellant without giving sufficient consideration and weight to the defence evidence adduced by him, the learned State Attorney referred us to page 72 of the record of appeal, where the appellate Judge considered the appellant's ground of appeal on this complaint. It was the learned counsel's view that, the appellant's defence was considered but the same did not shake the prosecution's case. To support his stance, he referred us to the case of Sabas Kuziriwa Versys v. Republic, Criminal Appeal No. 40 of 2019. He thus prayed the Court to declare the ground meritless. s Having examined the record of appeal, we concur with the learned State Attorney that, it is on the record of appeal that both in the trial and first appellate courts, the appellant's defence was considered and the appellate Judge found that the same did not cast any doubt on the prosecution's case. It is a cardinal principle of law that all parties have the right to be heard and their cases be considered for evaluation before the decision. See the case of Abbas Sherally & Another v. Abdul Sultan Haji Mohamed Faza Iboy, Civil Application No. 33 of 2002, and Director of Public Prosecutions v. Rajab Mjema Ramadhani, (Criminal Appeal No. 223 of 2020), [2023] TZCA 45 (23rd February 2023) TanzUI where in the latter case we held that: "Time w ithout number, the Court has consistently insisted on the need to guard against contravention o f the rig h t to be heard (audi alteram partem ) in adjudicating the rights o f parties. It is a rule against a person being condemned unheard. Any decision arrived at, w ithout a party getting an adequate opportunity to be heard is a n u llity even if the same decision would have been arrived a t had the affected party been heard." 9 From the record of the appeal, we are satisfied that both prosecution and defence sides were given equal chances to prosecute and defend their cases. At the trial court, the appellant was given his right to enter his defence, where he denied to commit the offence saying that the case against him was fabricated. In addition, the appellant told the trial court that he and the victim had agreed to marry. Whereas, during cross examination he informed the court that he did not know the age of the victim. As far as this ground of complaint is concerned, we make reference to pages 51 and 52 of the record of appeal, where it is revealed that the trial Magistrate explicitly considered what was testified by the appellant in his defence and finally concluded that, since the appellant did not cross examine the victim at all, that means he admitted the truth of her testimony against him. From all the above, the trial Magistrate upon being satisfied, held the appellant responsible that indeed he committed the offence charged. Likewise, going through the record of appeal at page 72, we find that this ground of complaint was determined by the first appellate court and finally concluded that the ground was meritless as the appellant's 10 defence was considered by the lower court. Having the same view, we also dismiss this ground of appeal for being unfounded. Despite our ruling that all the appellant's three grounds of appeal are meritless, in the course of hearing the instant appeal, it came to our knowledge that in the entire record of appeal, there is no any proof of the victim's age. When probed by the Court on this issue, the learned State Attorney conceded to the Court's observation that during the hearing of the case before the trial court, the victim's age was not established. We are aware that, the age of the victim is of great essence in establishing the offence of statutory rape under section 130 (1) (2) (e) of the Penal Code. Therefore, the establishment of the victim's age is of extremely importance before conviction and further sentence. In law, the victim's age can be proved by either the victim herself, both of her parents or at least any one of them, a guardian and by birth certificate. See - Issaya Renatus v. Republic, Criminal Appeal No. 542 of 2015, Marko Bernard v. Republic, Criminal Appeal No. 329 of 2018, Jafari s/o Musa v. DPP, Criminal Appeal No. 234 of 2019 and Andrea Francis v. Republic, Criminal Appeal No. 173 of 2014 (all unreported). In the last cited case, the victim who was alleged to be 16 years of age like the one in this case, no witness testified about her age, hence the Court held that: ii "The evidence in a tria l m ust disclose the person's age, as it were. In other words, in a case such as th is one where the victim 's age is the determ ining factor in establishing the offence, evidence m ust be p ositively la id out to disclose the age o f the victim . Under norm al circum stances, evidence relating to the victim 's age would be expected to come from any or either o f the follow ing: The victim , both o f her parents or a t least one o f them, a guardian, a birth certificate, etc." In this case, amongst the prosecution's witnesses, PW1 was the victim's mother and PW3, was the clinical officer who examined the victim. Both of them were proper and legal persons to establish the victim's age. However, none of them did establish PW2's age. Notably, it is on record of this appeal that, during the hearing before being sworn, PW2 declared her age to be 16 years old. Furthermore, the charge sheet revealed that the victim's age was 16 years old. However, by referring to what was held by this Court in Andrea Francis v. Republic (supra), it is the position of the law that, the victim's declaration of her age before being sworn; and particulars indicated in a charge sheet is not enough proof of victim's age for the court to base on the conviction and sentence. In that case it was held: 12 "i/7 this case, the particulars o f offence in the charge sheet indicated that PW1 was 16 years old. When she testified on I4 h February 2006, the tria l Principal D istrict M agistrate, before putting her on oath also indicated that she was aged 16 years. With respect, it is trite law that the citation in a charge sheet relating to the age o f an accused person is not evidence. Likewise, the citation b y a M agistrate regarding the age o f a witness before giving evidence is not evidence o f that person's age." In this case, the appellant was charged with statutory rape contrary to section 130 (1) and (2) (e) and 131 (1) of the Penal Code and sentenced to serve 30 years' imprisonment. That being the case, after ascertaining that the victim's age was not proved, the appellant's conviction for statutory rape was not proved. Trite law is to the effect that in sexual offences where only two persons are usually involved, the testimony of the complainant is mostly crucial but must be scrutinized cautiously. See Selemani Hassani v. Republic, (Criminal Appeal No. 203 2021) [2022] TZCA 127 (22nd March 2022) TanzLII. That being the case, taking into consideration the circumstances of this appeal, this Court finds that the victim's testimony IB should not be taken as a gospel truth, in a sense that the courts must warn themselves that, before entering conviction, the prosecution eliminates all the possible doubt. Early reporting by the victim of a crime to a person whom he/she first comes across is taken to add credence on her truthfulness. See the cases of Marwa Wangiti Mwita and Another v. Republic [2002] T.L.R. 39, Jaribu Abdallah v. Republic [2003] T.L.R. 271 and Makende Simon v. Republic, Criminal Appeal 412 of 2017(unreported). In the last case, it was held that: "It is a cardinal principle that the ab ility to m ention the suspect a t the earliest opportunity tim e is o f utm ost im portance as it proves re lia b ility o f the w itness." Unfortunately, in this case, Bachuta Maro Nyakiwalo and Pili Saiga, whom the victim claimed to have met immediately after the rape incident and reported the incident, did not testify. It is on record that on the alleged date of incident the victim left their home at 16:00 hrs going to her aunt one Chausiku Magoigwa. On her way at 19:00 hours, she met the appellant who ravished her. Also, it was testified that after the incident, the victim met one Bachuta Maro Nyakiwalo whom she informed on what had befallen her. Further, the victim claimed to have gone to the house of Pili Saiga, a member to their church to salvage herself that night. While there, she also told the latter on what had happened to her. The victim then was accommodated that night as it was already late and unsafe to return home. As it can be recalled, before the trial court, the prosecutor informed the court that it was difficult to procure the said Bachuta although it was not stated as to what caused the failure to trace him to testify. Similarly, Pili Saiga whom the victim stated that she met soon after the incident and who accommodated her for the whole night, nothing was stated to account for the failure to summon her. These were both material witnesses to corroborate the victim's testimony. It was stated by this Court in Director of Public Prosecutions v. Sharif s/o Mohamed @ Athumani and Six Others, Criminal Appeal No. 74 of 2016 (unreported) that: "...a m aterial witness is a person who has inform ation or knowledge o f the subject m atter which is significant enough to affect the outcome o f a tria l. " In this case, no one witnessed the appellant ravishing PW2. Pili Saiga was a material witness who could have informed the court what PW2 reported to her immediately after the alleged incident and what was the 15 victim's physical state at the time she met her immediately after the ordeal. It is settled law that, the prosecution is under a prim a facie duty to call those witnesses who, from their connection with the transaction in question, are in a position to testify on material facts. If such witnesses are within reach but are not called without sufficient reason stated, the court may draw an adverse inference to the prosecution's case. See; Azizi Abdalla v. Republic, [1991] T.L.R. 71, Wambura Marwa Wambura v. Republic, Criminal Appeal No. 115 of 2019 and Priva Constantine @ Shirima v. Republic, Criminal Appeal No. 437 of 2020 (both unreported) to mention the few. Flowing from the above established legal principles, this Court finds that failure of the prosecution to summon both Bachuta Marwa @ Nyakiwalo and Pilly Saiga, without any sufficient reasons, casts doubt with the possibility that they could have given evidence contrary to the prosecution's case. Hence there are doubts that, prosecution case was proved to the required standards. It is from the above observations in totality, that we allow the appellant's appeal, quash his conviction and set aside the custodial 16 sentence imposed on him. We proceed to order his immediate release from prison forthwith, unless held for some other lawful cause. DATED at MUSOMA this 12th day of July, 2024. S. A. LILA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 15th day of July, 2024 in the presence of the appellant who appeared in person and Ms. Beatrice Timothy Mgumba, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL 17