Criminal Appeal 62 of 2023 Judgment Mrisha J

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) ATSUMBAWANGA CRIMINAL APPEAL NO. 62 OF 2023 (Originated from Miele District Court in Criminal Case No. 36 of2023) YOKSHAN YOTAM.................................. ................................. APPELLANT VERSUS REPUBLIC...... ............... ..................^......................RESPONDENT JUDGMENT June & l$f' July, 2024 •£/ i ~3i. ,':• 5 •' •. •' c v ; s-s ' \; f-ASys,. MRISHA, J. M, •?.’V! ■sr.-'i.'c' Following the decision of the District Court of Miele at Miele in Criminal Case NO; 36 of 2023 which .led to his conviction and sentence of thirty (30) years in prison for an offence of Rape contrary to section 130 (l)(2)(e) and 131^1) of the Penal Code, Cap 16 R.E. 2022 (the Penal Code), the appellant Yokshan Yotham was not amused at all. Hence, lodged with this court a petition of appeal fronting the following three (3) grounds of appeal: - i 1. That the Tria! Court erred in law and fact by convicting and sentencing the accused person (appellant) while the case was not proved on the required standard, 2. That the trial court erred in law and fact by convicting and sentencing the accused person (appellant) based on evidence of PW2 who was not a credible witness. 3. That the trial court erred in law and factbyfailureto consider the defence case evidence which is fata!. Together with the above grounds of grievances, the said appellant has Tk ''Tb- *'y urged the court to allow the appeal, quash the conviction, set aside the sentence meted out to him by the above-named trial court and set him free. fy Initially itwas <alleged that bn the diverse dates between November, 202band 13th day of March, 2023 at Kanoge Village within Miele District in Katavi Region, the appellant did have carnal knowledge of a sixteen (16) years old girl whose name was and will still be referred to as MM due to her tender age at the time of the commission of the said sexual offence. During trial of the appellants case, PW1 (Mkude Ramadhani) who is the biological father of MM, testified that on 10th day of March, 2023 he 2 sent his daughter (MM) to buy some sugar at the shop, but the victim did not return back. That prompted him to make a follow up to the shop, but was told by the shopkeeper that MM (who testified in the lower court as PW2) had left thereat long time ago. Upon being so informed, and by considering the rumours he got from PW3 (Merry Damas), his wife that their daughter . J.T. "J ' had intimacy relation with a young person known as Yokshan Yotham, 'Sv7 PWl went to the appellant's Milling machine and found him with PW2, but the appellant suddenly took to his heels. ''v' Upon returning home, PWl decided to punish his daughter by canning her, and then PW2 ran away until on 11th day of March, 2023 when she returned back to her parents' home. However, whenever PWl tried to inquire from her;:as-to where, she had been, PW2 ran again from her parents' home. That happened for almost three times, that is from 10th to 13th March, 2023. However, when his efforts to find PW2, PWl decided to report the matter to the Headmaster of Utende Secondary School where MM was schooling, then to PW5 (Evelina Tumaini), the Village Executive Officer who upon receiving a complaint from PWl that his daughter had been seen with the appellant whom he was suspecting to have some intimacy 3 relationship with the appellant, ordered PW6 (Jeofrey Michael), a militia man to find and arrest the appellant. It did not take longer for PW6 to find and apprehend the appellant, and then brought him before PW5. Upon been asked by PW5, the appellant admitted to have known the whereabouts of PW2 and ostensibly led PW1, PW5 and PW6 to the place where he was keeping PW2. Upon arrival, they found PW2 sleeping thereat. "Wl .;i£> Thereafter, the matter was reported to Inyonga Police Station, then PW2 was conveyed to Inyonga Health Centre; whereas, PW4 (Teofrida V0-. Anderina John) had an Opportunity to diagnose PW2 and ascertained that the latter's vagina had no bruises arid hymen, but observed that PW2 had previous sexual intercourse. The PF3 filled by PW4 was tendered in court and; admitted as Exhibit Pi. .^7" On the adversary side, the appellant who from the start denied the serious allegations levelled against him, entered his defence as a sole defence witness (DW1) and testified that he was arrested by PW6 on 13th day of March, 2023 at his milling machine. Thereafter he was taken to the office of PW5 and asked if he knows PW2, but he denied to have known that victim of sexual offence. 4 Thereafter, he was tortured before he could be conveyed to Inyonga Police Station. DW1 maintained that he had been falsely indicted with the instant case as he earns a lot from his milling machine. After a full trial, the trial court found him guilty of the offence charged, convicted and sentenced him, as stated above. Before this court when the matter came for hearing, the appellant enjoyed the legal services of Mr. Peter Kamyalile, learned Advocate whereas the respondent Republic had it from Mr < Mathias Joseph, learned State Attorney. Submitting in respect of the second- ground of appeal, Mr. Kamyalile argued that the evidence of PW2 is no credible because first, she failed to mention the *name oftheappellant, and two, she failed to give reasons for her failure to rnention the appellant's name despite the records showing that she testified to have sexual intercourse with the appellant since November, 2021. Air The learned counsel also submitted that although the typed records of the trial court reveal that PW2 disclosed the issue of her having sexual intercourse with the appellant on several times to PWl, PW3 and PW5, it was his view that the words, 'intimacy relationship' are not enough to show that PW2 was raped. He emphasized that the evidence of that 5 prosecution witness is not credible and cannot be used to convict the appellant. To bolster his stance, Mr. Kamyalile, cited the case of Majid Khalid Seleman @Alsalimi vs The Republic, Criminal Appeal No. 72 of 2023 (HOT at Sumbawanga, unreported) and Akwino Mtavangu @Baba Janet vs The Republic, Criminal Appeal No. 379 of 2021 (CAT at Iringa, unreported). < Turning to the first ground of appeal, Mr. Kamyalile submitted it is trite law that to prove statutory rape, two elements, must be proved; first, it must be proved that the accused had carnalL- knowledge - with a girl with vwrf*-. -"s' or without her consent; two, it must be proved that the girl is under 18 years of age-and that, if sheds 15.or more years of age, it must be shown that she is ndf his wifeT ; He argued, however, that the charge sheet tabled before the trial court 'xk IB against the appellant depicts that the victim had 16 years old at the time of the commission of the offence. In his opinion, any rape associated with the victim of 15 years old and who is under the age of majority, the charge sheet must show that the victim is not the wife of the accused. Reliance was made to the case of Kambarage (supra). 6 Another reason assigned by the learned advocate for the appellant to show that the charge against the appellant was not proved on the required standard is that the prosecution case is tainted with fatal irregularities. He referred to the evidence of PW5 who said he was informed by PW1 that the victim disappeared at her parents' home from Saturday to Monday, but the evidence of PW3 does not show if the said victim disappeared at her parents' home on Saturday. ’ Also, the defence counsel submitted that the evidence of PW1 shows that the victim disappeared and returned home,- as it is shown at page 4, paragraph 3 of the trial court typed proceedings. He concluded that such contradiction is fatal and raises a reasonable doubt citing the case of Peter Joseph Kimathi vs. Republic, Criminal Appeal No. 373 of 2020. Regarding the -third^ground, Mr. Kamyalile submitted that the trial magistrate omitted to evaluate the defence evidence, as it appears from page 8 to 10 of the trial court typed proceedings. He was of the view that such omission is fatal because the right to be heard was not properly considered which is a serious misdirection, as it was stated in the case of Hussein Idd and Another vs Republic [1986] TLR 166. 7 Furthermore, the learned advocate for the appellant submitted that had the trial court considered the defence evidence, it would change the position of the trial court. Having so submitted, the learned counsel prayed to the court to allow the appeal, quash the conviction and set aside the sentence meted out to him because the prosecution failed to prove its case against him, In response, Mr. Joseph informed the court that the prosecution Republic does not support the appeal and prays to this court to upheld the trial court decision and sustain both,conviction and sentence imposed upon the appellant. In supporting the above 'stance,’the learned State Attorney submitted that all ingredients of the offence of rape were proved by the '"'It ' prosecution side; beyond reasonable doubts because apart from her parents who are, PVVt and PW3, PW2 who is the victim of the sexual ^5^ xf.;/.. offence^presented herself as a girl of 16 years old. In regards to the second ingredient of rape which is penetration, Mr. Joseph submitted that the best evidence in sexual offences comes from the victim of sexual offence and PW2 had managed to prove to the trial court that she had been having sexual intercourse with the appellant since November, 2021 and had not met any other man than him. 8 Also, the learned State Attorney submitted that the evidence of PW4 together with that of other prosecution witnesses corroborates the victim's evidence. Regarding the argument that the charge sheet must show that the victim was the wife of the appellant, Mr. Joseph contended that such argument is new as it was not raised and decided by the trial court; also, the appellant had not cross examine PW2 about that issue during hearing. Hence, he submitted that such argument cannot be used to prove the fact which does not exist.- As to the argument that the prosecution evidence is tainted with contradictions which are fatal, the learned State Attorney submitted that :'•r-\- \:J™ • there were minor contradictions which the prosecution case which shows that the appellant committed the offence of rape, citing the case of Deo vs Republic, Criminal Appeal No. 191 of 2018. Arguing in respect of the second ground of appeal, Mr. Joseph contended that the evidence of the victim who is PW2 was credible and reliable; hence, the trial court was properly justified to consider her evidence. Reliance was made to the case of Shabani Daudi vs Republic, Criminal Appeal No< 28 of 2020 (unreported) where it was stated that, 9 "...The credibility of the witness can also be determined in two other ways: one, when assessing the coherence of the testimony of that witness. Two, when the testimony of that witness is considered in relation to the evidence of other witnesses, including the accused" In applying the above authority, the learned State Attorney submitted that the evidence of PW2 and ail from other prosecution Witnesses was corroborative and consistent. Hence, the trial magistrate believed them and determined the case against theappellant.Heconcluded that all that shows that the evidence of PW2;was credible. Submitting in respect of the argument on failure of the victim to mention the name of the'appellant oh'the. earliest stage, Mr. Joseph contended 'W TT Th, that statutory rape is quite different to normal rape as it can be proved where the appellant had sexual intercourse with or without consent of % the victim. He added that in the case at hand, the circumstances are different because the appellant and the victim were in intimacy relationship meaning they were lovers. Hence, the requirement to mention the appellant at the earliest possible opportunity does not apply, thus distinguishing the case Majid Khalid Selemari @Alsalimi (supra). 10 Furthermore, the learned State Attorney submitted briefly in respect of the third ground of appeal that the court has power to re-evaluate the evidence of trial court and rectify the misdirection by the trial court. Finally, the learned State Attorney maintained that in their view the decision of the trial court was proper; hence, he prayed the court to uphold both conviction and sentence imposed against the appellant. In rejoinder, Mr. Kamyalile back stepped his learned friend -by submitting that the case of John Ngusa (supra) is distinguishable because it refers 'V:?> to the offence of raping a girl aged 8 years old which is not the case in the present case in which the alleged victim of sexual offence was 16 years of age. He also submitted, that the typed records at page 7 to 8 show that the appellant had sexual intercourse with the victim on 11.03.2023 and not && .. Vri;;., on 10.03.2023 as stated by the learned State Attorney. Also, the learned advocate for the appellant maintained that the evidence of PW4 does not prove the offence of rape. He also reiterated that the charge sheet must state clearly whether the victim was married or not, as it is provided under section 130 (2)(e) of the Penal Code. He concluded that the charge sheet under discussion do li not contain all the ingredients of the offence created by the above provisions of the law. On the issue of contradiction of dates of disappearance, Mr. Kamyalile submitted that the case cited by his learned friend, is distinguishable because the case of Peter Kimathi (supra) cited by him is recent as it was delivered on 21.03.2024 compared to the case of Deus Josias Kilala @Deus cited by the respondent's counsel which was delivered on 07.10.2020. He, thus argued that the contradiction he has pointed out from the prosecution evidence, goes to the root of the instant case; hence, fatal. x-X As for the heed to mention the suspect at the earliest possible xX x.>'i opportunity, Mr. Kamyalile submitted? that the case of John Ngusa (supra) ,udted’"^by^he^ cc^i^sel for the respondent Republic is distinguishable because in that case the issue of naming the suspect was not'discussed at all. He therefore, argued that failure to name the suspect at the earliest possible opportunity renders the witness's evidence uncredible. The learned advocate for the appellant wind up his oral submission by contending that the typed records of the trial court does not show that the victim did not name the appellant because of love and affair. Hence, 12 the court cannot act on the statement from the bar. He thus, reiterated his prayer that the court be pleased to allow the appear, quash the conviction meted out to the appeal and set aside the sentence thereto. As indicated above, there are three grounds of appeal from which the appellant has urged the court to consider and allow his appeal, then quash the conviction entered against him by the trial court and set aside the sentence that followed. ' s%--„ The court has considered all the grounds of grievances, as presented by the appellant through his advocate and it has also considered the oral submissions made by both counsel lor the parties. As it seems, there ... was a tag of war between the learned counsel in relation to the grounds of appeal the appellant has come up with in order to challenge the Tt’ "Tt 'r,W decision , of theTtriaf court. To resolve that confrontation, the issue whether or not the present appeal has merits is inevitable. Hence, I shall determine, it in light with the grounds of appeal and the rival submissions by both counsels. In the first ground of appeal, the appellant has faulted the trial court for ground conviction and sentencing him while the case against him was not proved on the required standard. It has been a universally 13 recognized cardinal principle of law that in criminal cases, the burden of proof rests upon the accuser. That can be inferred from section 110 (1) and (2) of the Tanzania Evidence Act, Cap 6 R.E. 2022 and in case law; see Nchangwa Marwa Wambura vs Republic, Criminal Appeal No. 44 of 2017. As far as the offence of rape contrary to section 130 (l)(2)(e) and 131(1) of the Penal Code is concerned, there are two ingredients which must be proved by the prosecution side beyond any reasonable doubts in order to win a conviction against the accused person.\ % The first, is that there.must be sufficient evidence to prove that the accused had sexual intercourse with a girl with or without her consent and second, that there must be evidence to prove that the girl whom the accused had sexual intercourse with is under 18 years of age and that, she is 15 or more years of age, it must be shown that she is not his wife; ;see Kambarage Mayala s case (supra). I have examined the rival submissions of the counsel from both parties and it seems to me that the appellant's counsel does not dispute that the victim PW2 was a girl of 16 years of age at the time of the commission of the offence, but he has argued that there is no evidence to prove that the appellant had sexual intercourse with the said victim 14 which argument, however, has been strongly disputed by the respondent's counsel. One of the reasons assigned by the learned advocate for the appellant on that aspect is that there is contradiction of dates of disappearance of the victim, PW2 at her parents' home and to cement his argument, he has referred to the evidence of PWl, PW3 and PW5. To the learned State Attorney, those are minor contradictions which do not affect the prosecution's case considering the fact that there is strong evidence to prove that actually the appellant committed the offence charged. On my part, after considering the rival submissions of both parties, the entire records of the case before the trial court and the evidence of PWl, PW3 and - PW5, l am of the settled view that the contradictions pointed out by the- learned advocate for the appellant are minor, as rightly argued by the respondent's counsel because what is seen from the evidence of those prosecution witnesses is that they all joined hands to show that PW2 had disappeared at her parents' home on diverse dates. However, considering the first ingredient of the offence charge which is to have sexual intercourse with a girl with or without her consent, it is my considered view that such ingredient was not proved by the 15 prosecution side beyond reasonable doubts. This is because in their testimonies, PW1, PW2 and PW5 did not say that they caught the appellant ready handed having sexual intercourse with PW2. Their evidence, including that of PW6 only shows that on 13.03.2023 they found PW2 outside the appellants rented house. The only evidence which implicates the appellant as the man who had sexual intercourse with PW2, the alleged victim of sexual offence, came 0,_ S''-- from PW2. However, her evidence, lacks corroboration from the evidence of the rest of prosecution witnessesTor the same reason that none of them testified to have found the two having sexual intercourse at the appellant's rented premises. W.., Again, looking at- the evidence of PWZ it seems that she and the appellant werefloversfor more than a year. However, she never disclosed that intimacy relationship to her parents, even when canned lb. TT by her father on 1© day of March, 2023. If her evidence was true, PW2 could not failtomention the appellant to PW1 at the earliest possible opportunity as being the man who had sexual intercourse with her for that long. More so, had it been true that the appellant had sexual intercourse with PW2, then no doubt he could not be heard to strongly deny such fact 16 when called upon to plead to the charged offence and during defence hearing, as it is shown in the typed records of the trial court. Thus, based on the reasons I have endeavoured to assign above, I am of the view that the prosecution failed to prove existence of the first ingredient of rape in this case. The above would suffice for this court to dispose of the present appeal. However, I find it apt to find out whether the second ingredient was proved on the required standard. As it has been Jndicated earlier, the appellant's counsel has challenged the validity ofthe charge sheet stating that it does not show expressly that PW2 is not the wife of the appellant, as required by the provisions of section 130 (1) (2) (e) of the Penal Code. On. the adversary side/ the respondent's counsel has contended that it is not necessary for the charge sheet to state that the girl alleged to have had sexual intercourse with the accused is not his wife. ’;X On my part, T wish to say that I have considered the above rival arguments by the learned advocates of the parties to this case regarding that legal issue. However, with due respect to the learned respondent's counsel, I am not prepared to follow his position. This is because the charge sheet is a foundation of every criminal case; hence, its 17 particulars must disclose all the sufficient elements constituting the offence charged in order to enable the accused to know them and prepare for his defence during trial. The prosecution evidence will come next in order to corroborate the particulars of the charge sheet. The above position of the court is fortified in the case of Isidori Patrice Vs. Republic, Criminal Appeal No. 224 of 2007 (CAT unreported) in which among other things, the Court held that:'^ •<;. "It is a mandatory statutoryrequirement thateverycharge in a subordinate court shall contain not oniy a statement of the specific • a:-”;. offence with which the accused is charged, but such particulars as may be necessary for givingreasonable information as to the nature ofithe. offence charged^; It is now trite law that the particulars of the charge shall disclose the essential eiements or ingredients of the offence. This requirement hinges on the basicrules of criminal law and evidence to the effect that the prosecution has to prove that the accused committed the actus reus of the offence with the necessary mens rea. Accordingly, the particulars, in order to give the accused a fair trial in enabling him to prepare his defence, must 18 allege the essential facts of the offence and any intent specifically required by law '. [Emphasis supplied] Reverting back to the present case, it is crystal clear that one of the elements/ingredients which has to be proved by the prosecution side in order to establish the offence of rape contrary to section 130 (1) (2) (e) of the Penal Code, is that there must be evidence to prove that the girl whom the accused had sexual intercourse with is under 18 years of age and that, if she is 15 or more years of age, it must be'shown that she is not his wife. v- In our case, there is no'dispute that PW2who is the subject of the instant appeal and the alleged victim of sexual offence, was 16 years of age and for that case, the law requires that it must be shown that she is not his wife. In my view, at the outset such fact must be shown in the particulars of the charge sheet and not only in the evidence to be adduced, at the hearing of the prosecution case during trial because as the law provides, the accused need to understand the nature of the offence he stands charged with at the time of his arraignment for him to understand the case facing him and prepare for his defence. The charge sheet under scrutiny suffers from such ailment as it does not disclose the fact that PW2 is not the wife of the appellant and this is 19 why, I suppose so, the appellant decided not to cross examine any prosecution witness regarding that issue. He waited until the matter went to defence, when he strongly denied to have committed the offence of rape and to have any relationship with PW2. Hence, based on the above reasons, I am of the settled view that even the second ingredient of an offence of rape the appellant stood charged with before the trial court, was not proved on the required standard, 'MM. MF Hence, I agree with the submission of the learned appellant's advocate "M, W and proceed to find merits in the first ground of appeal. In the second ground, the appellant has complained that the trial court convicted and sentenced him based’on the evidence of PW2 who was not a credible vvitness It is a ttrite law that the best evidence in rape cases comes fromtheyictim;.see Kelvin John vs The Republic, Criminal Appeal No.05? of 2022 (HCT at Mbeya, unreported). However, as I have alluded earlier in the course of addressing the first ground of appeal, the evidence of PW2 was not corroborated by any of the prosecution witnesses regarding the fact of her having sexual intercourse with the appellant. I am aware that under section 127 (6) of the Evidence Act, Cap 6 R.E. 2019, the trial court may ground conviction based on the sole evidence 20 of child offender age or a victim of sexual offence upon satisfying itself, after assessing the credibility of that person's evidence, that the child of tender age or a victim of sexual offence tells nothing, but the truth even without requiring corroboration from other witnesses. However, the circumstances of the present case are different and the court cannot invoke such provisions of the law. This is because the credibility of that prosecution witness is materially wanting as she failed to mention the appellant at the earliest possible opportunity when her father found her with the appellant whom it is alleged that he took to his heel just after seeing the PW2's father- Hence, I find the evidence of that witness to be incredible for containing Lintruth statements regarding the allegations against the appellant. Hence, I find merits in the second ground of appeal. |} Last for my determination, is the third ground of appeal in which the trial court is faulted for its failure to consider the defence evidence which is fatal. There isno doubt, as rightly submitted by the learned advocate for the appellant, that the learned trial magistrate omitted to considered the appellant's evidence in the course of composing his judgment. This can be observed in the unpaged typed judgment of the trial court where after making a summary of evidence including the appellant's, the 21 trial magistrate went on determining the case against the appellant based only on the evidence adduced by the prosecution side. On his side, the respondents counsel has conceded that there is such misdirection and misapprehension of the defence evidence. He has, however, invited the court to use its power, as the first appellate court to re-evaluate the evidence of the appellant and come up to its own findings. "/A'®-., First of all, I agree with the learned advocate for the appellant that actually there is such misdirection by the trial court: I also agree with the learned State Attorney for the respondent Republic who has invited the court to use its powers, to re-evaluate the defence evidence before it come to its own findings. 4? WL 'W. The need for the appellate court to re-evaluate the evidence recorded by the trial court beforetpiaking its own decision, is a matter of law which has been emphasized by the courts of record; see Deemay Daati and Others vs The Republic, Criminal Appeal no. 1994 (CAT at Arusha) and Simon Edson @Makundi vs The Republic, Criminal Appeal No. 5 of 2017(CAT at Arusha). In the latter case, the Court of Appeal stated that: 22 "...the appellate court is bound to consider the grounds of appeal presented before it and in so doing, need not discuss all of them where only a few will be sufficient to dispose of the appeal. It is also necessary for the first appellate court to re-evaluate the evidence on record before reaching to its conclusion. ' [Emphasis supplied] Back to the case at hand, and guided by the above directions of the Court of the land, I have re-evaluated the evidence of the appellant as recorded by the trial magistrate during trial only to find out if the same is sufficient to change the position of the trial court, as the appellant's counsel has argued. ‘-vA. What can be gathered from page 48 to 19 of the trial court typed proceedings is that .in the course of his testimony, the appellant admitted I’V'- .T.'fV "V''’ to have been apprehended by a local militia (PW6) on 13.03.2023 at i f =; '.'■S' 0900 hours and matched to the Village Executive Officer (PW5) who asked him if he knows PW2, but he denied to have known such prosecution witness. His evidence also reveals that, after his denial to such question by PW5, the appellant was tortured, but maintained his denial, then he was 23 conveyed to the Police Station where he was threatened to admit that he knows: PW2. Thereafter, he was tortured at that Police Station, but he still kept on denying to have known PW2. Even during cross examination, the appellant reiterated that he neither know PW2 nor does he know why PW2 told lies against him. He also told the trial court that he had been falsely fabricated with that case by the PW2's "father because he had been earning much from his milling machine. y5'*-y Again, in his judgment the learned trial magistrate made a summary of the above defence evidence, but for. reasons best known to him, he omitted to consider it, as indicated above. I will therefore, step into the shoes of the trial court, and do what it ought to do. Starting^with the: appellant's complaint that he was tortured; his evidence is in my view strong and has shaken the credibility of the prosecution evidence because despite alleging that he was tortured for several times after denying to have known PW2, he was not cross examined about his complaints of torture when he was taken before PW5 and at the Police Station. This indicates that his evidence that he did not rape PW2 is true. Hence, I also find the third ground of appeal to be with merits. 24 The above being said and done, I am of the settled view that the present appeal is meritorious. It is thus, allowed as proposed by the appellant's counsel has prayed. Consequently, the conviction meted out to the appellant is hereby quashed and the sentence of thirty (30) years imprisonment imposed by the trial court against the said appellant is set aside. The appellant should therefore, be released from the prison custody forthwith unless he held therein for some other lawful cause Order accordingly. 19.07.2024 DATED at SUMBAWANGA this 19th day of July, 2024. 25