CRIMINAL APPEAL NO 122 of 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CRIMINAL APPEAL NO 122 OF 2023 (C/F Criminal Case No. 72 of 2022 in Arusha District Court) ELISHA ELIA MGANDU @HANCE @DONI .............. 1st APPELLANT PAULO JOVITHA MSELE @DASPOH....................... 2nd APPELLANT VERSUS REPUBLIC.......................................................................... RESPONDENT JUDGMENT 6tn May & 7tn June 2024 Masara, J Elisha Elia Mgandu @Hance @Doni and Paulo Jovita Msele @Daspoh (hereinafter, "the Appellants") were tried and convicted by the District Court of Arusha at Arusha ("the trial court") on four different charges; namely, Gang Robbery, contrary to Section 285(2) and 286 of the Penal Code, Cap. 16 (1st count); Rape, contrary to Sections 130(1) & (2)(a) and 131(1) of the Penal Code, Cap. 16 (2nd and 3rd counts); and, Unnatural Offence, contrary to section 154(l)(a) & (2) of the Penal Code, Cap. 16 (4th count). The 1st Appellant faced and was convicted of the 1st and 2nd i counts, while the 2nd Appellant was charged and convicted of the 1st, 3rd and 4th counts. The 1st Appellant was sentenced to five years for the 1st count and thirty years for the 2nd count. The 2nd Appellant was sentenced to five years for the 1st count and thirty years for the 3rd and 4th counts respectively. They were aggrieved and have, thus, appealed to this Court on a total of eighteen grounds of appeal; six initial grounds and twelve additional grounds. For reasons apparent in this appeal, I see no reasons to reproduce the said grounds. During the trial, the trial court was informed by the Prosecution that on 12th March 2022 at Njiro area within the City, District and Region of Arusha, the Appellants did steal one mobile phone, brand iPhone 12, worth TZS 1,970,000/=, the property of Husna Shabani Herry; and that immediately before such stealing, they did strangle her neck in order to obtain and retain such property. For the 2nd and 3rd counts, it was alleged that on the same date and area, the Appellants did have sexual intercourse with Husna Shabani Herry, a woman aged 26 years, without her consent. Lastly, regarding the 4th count, it was alleged that on the same day and area, the 2nd Appellant did have carnal knowledge of Husna Shabani Herry, aged 26 years, against the order of nature. 2 The Appellants, during trial, denied to have committed the offences they were charged of and, further, stated that the case against them was fabricated. As stated earlier, the trial court was satisfied that the Prosecution had proved its case to the required standard. During hearing of the Appeal, the Appellants, whose initial grounds had been prepared by Mr Richard Evance Manyota, learned advocate, appeared in person. Ms Tusaje Samwel, learned State Attorney, appeared for the Respondent Republic. Before the Appellants started to submit the grounds of appeal, Ms Tusaje informed the Court that the Respondent did not oppose the Appeal due to apparent errors in the trial court proceedings; thus, the Respondent was not supporting the Appellants' conviction and sentences as the Prosecution did not prove the charges against the Appellants beyond reasonable doubts. To amplify her position, Ms Tusaje urged the Court to note that there was glaring omissions on the part of the trial court which vitiates the proceedings. She went on to state that, on 20/7/2023, after the 6ni prosecution witness had testified, a new charge sheet was brought in court containing four counts where the victim was referred to as Husna Shabani Herry. That, the said victim was different from the victim who 3 testified in Court, as at page 23 of the typed trial court proceedings the victim is Husna Shabani Omari. Further, in exhibit P7 (the PF3), the victim is Husna Herry. That, due to those contradictions on the names, Ms Tusaje was of the view that it is impossible to identify who the victim was amongst the three names and that it was up to the Prosecution to consider these contradictions and amend the charge in accordance with section 234(1) of the Criminal Procedure Act, Cap. 20 (CPA) but that was not done. To cement that position, she made reference to the case of Jonas Nkize vs Republic (TZHCD) 1992 Tanzlii. Ms Tusaje went further and pointed out another contradiction regarding the names of the accused person. She alluded that in the evidence of PW5, who was found with the stolen phone, the person who put the phone as a bond was James John Msuya. However, no such person was charged. That if the name was an alias for the 1st Appellant, the prosecution ought to have included this name in the charge sheet as an alias for Elisha Elia Mgandu. She referred this Court to section 232 and 235 of the CPA where the contents of a charge sheet are explained, including a requirement that the charge should contain sufficient information to allow an accused person to mount his defence. 4 The learned State Attorney went on to state that, to support a conviction, the charge sheet which commences proceedings should be right, failure of which leads to unfair trial. She supported this position by the Court of Appeal decision in Francis Fabian @Emmanuel vs Republic, Criminal Appeal No. 261 of 2021. A third anomaly pointed out by Ms Tusaje related to the evidence of PW2, G.345 D/Sergeant Swedy, who alleges to have seized a vehicle while on patrol. That, the evidence of this witness does not relate to the case at hand. She made reference to the proceedings at pages 18 and 19 where PW2 stated that he was investigating a case whose complainant was Anna Selemani, which related to Armed Robbery with identification number AR/IR /3144. That, the case involving the Appellant was registered as Arusha IR 2576 of 2022 as seen at page 11 of the typed proceedings. Hearing was concluded without calling the investigator for the later matter. To her, it was necessary to call the investigator of the matter reported by PW3, in order to link the two cases. That, even when PW2 was asked to identify the motor vehicle (exhibit P. 4), he did not get out so as to identify the same as per page 20 of the proceedings. PW2, also, did not identify exhibit P.6, the Seizure certificate, she stated. 5 Ms Tusaje also casted doubts on the credibility of some of the Prosecution witnesses. Regarding PW5, she stated that his evidence was not cogent. That in his testimony at page 40, this witness, in examination in chief, stated that the person who put the bond was called John James Msuya, but at page 42, when shown Exhibit P.5, he identifies the same person as James John Msuya. On the side of PW 6, she submitted that his evidence also leaves doubts. That, at page 47 this witness stated that the seized vehicle was T 210 CHZ, but at page 48 he changed the numbers to T 210 CZJ. Ms Tusaje concluded that these two witnesses should not have been trusted due to those contradictions. The learned State Attorney also abhorred the decision of the Prosecution of not calling material witnesses who would have assisted in clearing some of the apparent contradictions and evidence. To her, one of those persons was one Hadija. That from the evidence of PW3, she went to meet the two Appellants in the company of Hadija. That, they went to Pillars where PW3 was called outside and that while she was being defiled the said Hadija called PW3 several times and was informed to await at the Hub where the Appellants were to drop PW3. That, it was further stated that Hadija met PW3 after she was dropped at the Bush (page 26 of the typed 6 proceedings). And, it is this Hadija who advised PW3 to go and report the matter to the police. That going with the principle of naming the suspect at the earliest opportunity, Hadija was a key and vital witness. Ms Tusaje further added that, that is not to discount the principle that in sexual offence, the best evidence is of the victim as per the case of Seleman Makumba vs Republic, but the victim's evidence should not be taken as gospel truth. Thus, in her view, Hadija was an essential and material witness. When asked to comment on the submissions made by the learned State Attorney, the second Appellant, on behalf of his colleague, concurred with the learned State Attorney. He also added that, PW3, the victim, did not mention their names anywhere after the alleged events. Further, that when the new charges were read to them after 6 prosecution witnesses had testified, they were not given the opportunity to recall witnesses as per section 234 of the CPA. I have keenly considered the trial court records and the submissions by the learned State Attorney, appearing for the Republic, and the Appellants. The issue calling determination of this Court is whether the prosecution proved the charges against the two Appellants to the required standard to warrant conviction and sentence by the trial court. 7 The learned State Attorney condensed the grounds of appeal into one and urged the Court to hold that the Prosecution did not prove the case against the Appellant beyond reasonable doubts. In other words, she agreed with the Appellants that their conviction and ultimate sentences were not warranted. Having thoroughly scrutinised the evidence and the proceedings of the trial court, I do agree with the learned State Attorney in toto. The burden of proof in criminal trials lies on the prosecution. The Prosecution has to prove the charges against the accused person beyond reasonable doubts. For a court of law to conclude that an offence against the accused was proved beyond reasonable doubts, the test should not only be that evidence was laid down by the prosecution pointing to the guilty of an accused person, it must be proved that the due process of the law was observed from arrest, arraignment in court and ultimate evidence and process. A charge sheet is a fundamental document that informs the court and the accused of the accusations laid against the accused precisely and concisely and ultimately guides the accused in defending himself. In this Appeal, the Appellants, in the additional grounds of appeal, urged the Court to hold that there existed variance between the charge sheet 8 and the prosecution evidence. Notably, the Prosecution amended the charge sheet twice. A perusal of the final charge sheet and the evidence presented by the prosecution to prove their case, confirms the variance between the charge sheet in the particulars of the charge as it relates to the names of the accused persons being different from the one named in the evidence. This fact is conceded by the Respondent. The evidence of PW5 is an example of this variance. In his evidence, as depicted at page 40 of the typed proceedings, he referred the 1st accused person by the name of John James Msuya. However, in the charge sheet the 1st accused person was Elisha Elia Mgandu @Hance @Doni. This is a material variance which puts the prosecution case in question. Further, the victim's names as per the charge sheet was Husna Shabani Herry. This name varies in the evidence presented in the trial court. PW7, the medical doctor, referred the victim by the names of Husna Herry. This name is also manifested in exhibit P7, the PF3 of the victim. But, in her testimony, the victim, who testified as PW3, she informed the trial court that her names are Husna Shabani Omari. This is a different name from the victim named in the charge sheet; namely, Husna Shabani Herry. With the above inconsistencies and as conceded by the learned State Attorney, the prosecution evidence was at variance with the charge with 9 respect of the names of the 1st accused person as well as the victim in all counts. The inconsistencies could have been cured had the prosecution utilised the window of amendments provided by section 234(1) of the CPA. Unfortunately, this was not done. There is no doubt that when the Prosecution last amended the charge on 20/07/2023, it was aware of the variance between the evidence presented and the charge before the trial court. It should have utilised that opportunity to remove any ambiguities and the inconsistencies apparent in its case regarding the names of the 1st accused and the victim. It is settled law that failure to amend the charge to accommodate new evidence is fatal and prejudicial to the accused person and is not curable under section 388(1) of the CPA. This position was expounded in the Court of Appeal decision in Issa Mwanjiku @White vs Republic, (Criminal Appeal No. 175 of 2018) [2020] TZCA 1801 Tanzlii where it was held: "The above provision envisages the situation where there is variance between the evidence and the charge sheet as in the case under consideration. As intimated earlier, failure to amend the charge sheet is also fatal and prejudicial to the appellant and in our considered opinion, it is not curable under section 388 (1) of the CPA. "(emphasis added) io Likewise, in the case at hand, since there was variance between the charge sheet and the evidence on record, then it cannot be said that the case was proved beyond reasonable doubts. The other issue related to the above is failure of the trial court to adhere to the mandatory requirements of section 234(2) of the CPA. For easy of reference the said section is hereunder reproduced: "(2) Subject to subsection (1), where a charge is altered under that subsection- (a) the court shall thereupon call upon the accused person to plead to the altered charge; (b) the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate and, in such last mentioned event, the prosecution shall have the right to re-examine any such witness on matters arising out of such further cross-examination; and (c) the court may permit the prosecution to recall and examine, with reference to any alteration of or addition to the charge that may be allowed, any witness who may have been examined unless the court for any reason to be recorded in writing considers that the application is made for the purpose of vexation, delay or for defeating the ends ofjustice." According to the preceding cited provision, although drafted in non­ mandatory terms, it is absolutely necessary that after amending the ii charge, witnesses who had already testified be recalled and examined, unless the accused person chooses to waive that right. In Ezekiel Hotay vs Republic, Criminal Appeal No. 300 of 2016 (Unreported), the Court of Appeal had this to say: "According to the preceding cited provision (section 23d), it is absolutely necessary that after amending the charge, witnesses who had already testified must be recalled and examined. In the instant case, having substituted the charge the five prosecution witnesses who had already testified ought to have been re-called for purposes of being cross-examined. This was not done. (In) failure to do so, rendered the evidence led by the five prosecution witnesses to have no evidential value. Given the shortcomings in the procedure, which with respect the High Court failed to detect, we are not inclined to vouch that the appellant's conviction was safe. We therefore exercise our revisionaljurisdiction under section 1(2) of the Appellate Jurisdiction Act, Cap 141, R.E 2002 and revise and quash the lower courts' proceedings andjudgment and set aside the sewtewce. "(Emphasis added) Further, in Godfrey Ambrose Ngowi vs Republic, Criminal Appeal No. 420 of 2016 (Unreported), the Court of Appeal confronted with the same issue had this to say: "It was argued by the appellant that, after the charge had been substituted which was after six witnesses had already testified, the provisions ofsection 234 of the CPA, were not complied with. Indeed, that is the position of law. And the rationale was stated in the case 12 of Ramadhan Abdallah vs Republic [2002] TLR 45, where the Court stated that: we wish to state that the rationale for section 234 is easy to discern. A new charge sheet is introduced after some witnesses have already testified. The new offence charged may consist new ingredients and or may attract different consequences." The above holding was followed in the case of Nyiga Kinyalu vs Republic, Criminal appeal No. 64 of 2012 (unreported). The fact that in the instant appeal the provision of section 234 was flouted as conceded by Mr. Mwinuka, there was no way in which the proceeding against the appellant could stand." (Emphasis added. In the instant case, having substituted the charge on 20/07/2023, the trial record does not reflect whether the accused persons were given the right to have the 6 prosecution witnesses who had already testified before the amendments re-called for purposes of being cross-examined. Rather, the record reveals that the accused persons were only asked whether they are ready for hearing and they both replied that they are ready for hearing. Based on the decisions of the Court of Appeal cited above, which decisions are binding on this Court, the fact that the trial court flouted the requirements of Section 234 of the CPA is fatal to its ultimate decision. The Appellants cannot be said to have received a fair trial as the trial court 13 did not inform them of their rights after the charge was substituted. According to case law, the evidence of the 6 prosecution witnesses, who had testified before the amendment dated 20/07/2023, has no evidential value. Their evidence has to be expunged from the record. After the said evidence is expunged from the record, there remains no evidence to sustain the conviction of the Appellants. The only available evidence for the Prosecution is that of PW7, the medical doctor, whose evidence cannot independently stand to prove a sexual offence. In the absence of the evidence of the victim of the crime, anything that the doctor stated or wrote in the PF3 is of no evidential value. It is a long- settled position of our law that in sexual offences the best evidence is that of the victim. Furthermore, as observed above, the evidence of PW7 has some variances on the names of the victim. Notably, the Appellants denied to have committed the offences levied against them. It was the duty of the prosecution to prove their guilty and not for them to prove their innocence. In the absence of the vital prosecution evidence, specifically from the victim, it is obvious that the Prosecution evidence was not sufficient to prove the charges against the Appellants herein. 14 Both the Appellants and the learned State Attorney pointed to the other inconsistencies and flaws of the prosecution evidence. I see no compelling reasons to delve into them as the shortfalls discussed suffice to make a determination of this matter. I consequently find merit in this Appeal. I hereby allow it in its entirety. Conviction entered against both Appellants is hereby quashed and the respective sentences set aside. The Appellants are to be released from custody forthwith unless detained for some lawful cause. DATED and DELIVERED at Arusha this 7th day of June 2024. Y. B. Masara JUDGE Right of Appeal explained to the parties. kUGA/ is