CRIMINAL APPEAL NO 223 OF 2022 ALONDA EKELA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT KIGOMA fCORAM: KWARIKO, J.A.. GALEBA. 3.A. And MASOUD, J.A.1 ) CRIMINAL APPEAL NO. 223 OF 2022 ALONDA EKELA....................................................... ........ APPELLANT VERSUS THE REPUBLIC.......................................................................RESPONDENT (Appeal from the decision of the Court of Resident Magistrate of Kigoma at Kigoma) (Maautu, SRM - Ext. 3ur.^ dated the 5th day of August, 2016 in Extended Jurisdiction Criminal Appeal No. 01 of 2014 JUDGMENT OF THE COURT 6th May & 28th June 2024 KWARIKO, J.A.: Originally, the appellant, Alonda Ekela was charged and convicted of the offence of rape contrary to section 5 (2) (e) of the Sexual Offences Special Provisions No. 4 of 1998 (the SOSPA). It was alleged by the prosecution that on 16th January, 2007 at about 11:00 hours at Nyarugusu Refugees' Camp within Kasulu District in Kigoma Region, the appellant had carnal knowledge with a girl of 7 years old who we will be referring to as 'AB', the victim or PW1. The appellant was consequently sentenced to life imprisonment. Aggrieved, he filed an appeal at the High Court High of Tanzania at Tabora. However, by an order under section 45 (1) (2) of the Magistrates' Courts Act [CAP 11 R.E. 2002; now R.E. 2019] dated 2nd March, 2016, that court transferred the appeal to the Court of Resident Magistrate of Kigoma at Kigoma (the first appellate court) to be heard and determined by Anna Magutu, Senior Resident Magistrate with Extended Jurisdiction who dismissed the appeal for lack of merit. Undaunted, the appellant has come before this Court on a second appeal. In their quest to prove the charge against the appellant, the prosecution paraded four witnesses and tendered two documentary exhibits. The material facts from the prosecution evidence can be recapitulated as follows: PW1 stayed in the refugees' camp with her parents and the appellant was their relative and a neighbour. On 16th January, 2007 PW1 was at home with her elder sister (PW3) (name withheld) while their parents had gone to a funeral. While there, the appellant came and asked PW1 to follow him so that she could assist him to fetch some water as he had done in the past. PW1 heeded to the call and left PW3 at home. However, when they reached the appellant's home, the appellant closed the door and took her straight to his room and put her in bed. He undressed her and had sexual intercourse with her. In the course, she felt pain and discharged blood from her private part. She cried and raised an alarm for assistance. Thereafter, the appellant gave her 50 shillings and asked her not to disclose the incident to anyone. Upon getting back home, her sister PW3 noticed the victim's clothes having blood. Upon interrogation, the victim had nothing other than to disclose what the appellant did to her following which PW3 went to the funeral and informed her father 'EN' (PW2) (name withheld) about the incident. The matter was reported to the local guards where the appellant was consequently arrested and sent to the police station. The victim was taken to the hospital where it was confirmed that she was sexually assaulted and a PF3 was received in evidence as exhibit PI. At the police station the appellant was interrogated by No. D 5283 Detective Corporal Alusante (PW4) where he was said to have confessed to the allegations. PW4 prepared a cautioned statement which was received at the trial as exhibit P2. The appellant who was the only witness in defence, denied the charge. He stated that, on the fateful date he was at home until evening hours. At around 08:00 pm while still at home he was apprehended by the local guards for the allegations of rape. At the close of the case from both sides, the trial court found that the prosecution had proved its case as required in law. It entered conviction and sentenced the appellant as stated earlier. Upon consideration of the appellant's appeal, the first appellate court found that all documentary exhibits, namely; a PF3 (exhibit PI) and the appellant's cautioned statement (exhibit P2) were not properly admitted in evidence as the appellant was not accorded a right to be heard before the same were admitted. The court thus expunged them from the evidence. That notwithstanding, the court still found the case against the appellant sufficiently proved. It therefore dismissed his appeal. In his memorandum of appeal in this Court, the appellant raised a total of six grounds which we have paraphrased as follows: One, that, the appellant was charged and convicted basing on a non-existent law; two, that, the appellant was wrongly convicted under section 235 (5) of the Criminal Procedure Act (the CPA); three, that, the PF3 and the appellant's cautioned statement was not properly admitted in evidence; four, that, PW l's evidence was not corroborated by a medical officer; five, that, there were contradictions between the evidence of PW1 and PW3; and six, the appellant's appeal was dismissed not on the strength of the prosecution evidence but on the weakness of the defence evidence. At the hearing of the appeal, the appellant appeared in person, unrepresented while the respondent Republic had the services of Mr. Shabani Juma Masanja, learned Senior State Attorney who was assisted by Mses. Antia Julius Muchunguzi and Naomi Joseph Mollel, learned State Attorneys. When invited to argue his appeal, the appellant adopted his grounds of appeal and preferred for the respondent to reply first to his appeal reserving his right to make a rejoinder where necessary. In response, Mr. Masanja opposed the appeal. In respect of the first ground, he agreed that the provisions of the law upon which the appellant was charged were truly non-existent in 2007 as they had already been incorporated in the Penal Code [CAP 16 R.E. 2002] (the Penal Code]. He however contended that the omission did not prejudice the appellant since essential particulars of the offence sufficiently established the ingredients of rape in line with section 132 of the CPA. He added that, since the appellant understood the charge and accordingly gave his defence, the omission is curable under section 388 of the CPA. 5 Having considered this complaint, we are in all fours with the learned Senior State Attorney that section 5 (2) (e) of the SOSPA is now section 130 (2) (e) and 131 (3) of the Penal Code. Although the charge cited wrong provision of the law, it did not prejudice the appellant because all ingredients of rape were provided in the particulars of the offence. The evidence was also led by the prosecution to prove those particulars. The appellant having understood the particulars and heard the evidence, he provided his defence. The omission is thus curable under section 388 of the CPA. This Court was faced with similar scenario in the case of Jamali Ally @ Salum v. Republic, Criminal Appeal No. 52 of 2017 (unreported), where the appellant was charged under sections 130 and 131 (1) (e) of the Penal Code but the appellant complained that section 131 (1) (e) was non-existent. Having considered this complaint, the Court held as follows: "In the instant appeal before us, the particulars o f the offence were very dear and, in our view, enabled the appellant to fully understand the nature and seriousness o f the offence o f rape he was being tried for. The particulars o f the offence gave the appellant sufficient notice about the date when the offence was committed, the village where the offence was committed, the nature o f the offence, the name o f the victim and her age." On the strength of this authority, we are in agreement with the respondent that the omission did not prejudice the appellant and thus the first ground of appeal has no merit. In the second ground, we further agree with both parties that at the conclusion of the evidence from both sides, the trial court wrongly cited a non-existent section 235 (5) of the CPA in convicting the appellant. However, the court ought to cite section 235 (1) of the CPA which provides thus: "The court, having heard both the complainant and the accused person and their witnesses and the evidence, shall convict the accused and pass sentence upon or make an order against him according to law or shall acquit him or shall dismiss the charge under section 38 o f the Penal Code.,f It is clear that the provision provides a procedure to be followed by the trial court at the conclusion of the case from both sides. At that stage, the trial court stated the following at page 18 of the record of appeal: I find therefore prosecution side to have discharged their noble duty proving their case against the accused beyond reasonable doubt to the standard required by taw. I find the accused guilty as charged and convict him under section 235 (5) o f the CPA 1985. " It appears that the trial magistrate quoted the law as it was before the CPA was revised in 2002. However, we find no prejudice to the appellant since it was stated that the appellant was found guilty as charged. The charging provisions were stated at the beginning of the judgment. This complaint is also rejected. The complaint in the third ground will not detain us. It relates to the omission by the trial court in respect of the PF3 (exhibit PI) and the appellant's cautioned statement (exhibit P2) which were admitted in evidence without affording the appellant his right to be heard. As rightly submitted by Mr. Masanja, the record of appeal shows that, the first appellate court dealt with this complaint and expunged the exhibits from the record. We thus find this ground without merit. The appellant's complaint in the fourth ground of appeal is that, the evidence of PW1 lacked corroboration from the medical doctor. It was Mr. Masanja's submission that the evidence of PW1 was properly considered by the two courts below even if the medical doctor did not testify. On our part, we have taken note of the fact that the medical doctor did not testify for the prosecution side but it is a settled principle of law that medicai evidence is not the only evidence that can be relied upon to prove a sexual offence as long as there is some other evidence to sufficiently establish the offence. See for instance; Mussa Ally Onyango v. Republic, Criminal Appeal No. 75 of 2016 (unreported). In the instant appeal, whether or not the prosecution evidence sufficiently proved the case against the appellant, is the discussion we shall have later in this judgment. This ground therefore has no substance and we dismiss it. In the fifth ground, the appellant's complaint is that there were contradictions between PW1 and PW3. Responding, Mr. Masanja agreed that there are such contradictions in two aspects: First, that, while PW1 said that the appellant took her from home in the presence of her sister (PW3), on her part PW3 did not say she saw the appellant take PW1 away. Second, while PW1 said that she found PW3 at home when she came back from the appellant's home, PW3 said she had gone to the funeral when PW1 returned home. It was the learned counsel's contention that the contradiction is not material so long as the incident of rape occurred. We have gone through the record of appeal and find it apposite to reproduce necessary and contested parts of the evidence of PW1 and PW3. At page 4, PW1 said thus: "I remember that on the l& hJanuary 20071 was at home. I was in the company o f my elder sister one 'NE'. Our parents had attended a funeral at DW3 village within Refugees Camp. While there at home; accused person appeared at our home. He found me in the company o f my elder sister. Accused asked me to follow him to his home and to assist him to fetch some water. As the accused is related to us; I agreed to accompany the accused to his home. I left my sister behind at our home." PW1 further said that, after the alleged incident of rape, she returned home. This is what she said: " / proceeded back home where I found my elder sister 'NE' at home. I did not disclose to her the matter...." While at page 5 PW3 stated thus: "On l@h January 2007 at around 11 am I was at our home in the company o f PW1 'AB' my parents had attended a funeral. While there I discovered that PW1. AB' was missing at our home. I started to trace [her]. Young children 10 who were playing outside our home told me that they saw the accused in the company o f PW1 AB' and that they were proceeding to accused person's home. I followed PW1 AB' at the accused person's home and found the accused to have locked the door. I knocked the door but he never opened the door. I decided to return back home and proceeded to the funeral. I returned back home at around 8 pm where I found PW1 AB' to have already returned back..." This evidence shows a completely different account of events between PW1 and PW3. While PW1 said the appellant took her in the presence and full view of PW3, it is different with PW3 who did not say she saw the appellant at their home that day. Further, PW1 said when the appellant was raping her, she cried and raised an alarm for assistance, but she did not say that she heard someone knocking at the appellant's home for the duration she was there as her sister said she went to the appellant's home and knocked the door without response. And while PW1 said when she returned home after the incident, she found PW3 at home, PW3 said she had gone to the funeral and upon coming back that is when she found PW1 at home. It is a salutary principle of law that where there are contradictions in the evidence from the prosecution, the court is enjoined to address 11 them to find out whether they are minor or not. See Mohamed Said Matula v. Republic [1995] T.L.R. 3. It is our considered view that these contradictions from the key witnesses are not minor. The contradictions affect the credibility of these two witnesses as to whether the appellant took the victim from her home and raped her. The contradictions render the prosecution case doubtful. It is again a settled principle of law that in criminal trials it is the duty of the prosecution to prove their case beyond reasonable doubt. See for example the Court's decision in Issa Mwanjiku @ White v. Republic, Criminal Appeal No. 175 of 2018 (unreported). From this analysis, we find the fifth ground meritorious. In the sixth ground we agree with the appellant that the accused can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence. However, the first appellate court did not hold that it dismissed the appeal on the basis of the weakness of the appellant's defence but it did so on the strength of the prosecution case. Eventually, we have found that the prosecution case was not proved beyond reasonable doubt, we thus allow the appeal, quash the conviction and set aside the sentence of life imprisonment imposed on the appellant. We finally order the appellant's release from prison unless his continued incarceration is related to other lawful cause. DATED at DAR ES SALAAM this 26th day of June, 2024. M. A. KWARIKO JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 28th day of June, 2024 in the presence of the Appellant who appeared in person and Ms. Edna Makala, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. 13