LADISLAUS BALTAZARI KALABA VS THE REPUBLIC CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA fCORAM: MUGASHA. J.A.. MWAMPASHI. J.A.. And NGWEMBE. 3.A .) CRIMINAL APPEAL NO. 736 OF 2023 LADISLAUS BALTAZARI KALABA.............................................. APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Bukoba) (Mwenda. J.) dated the 23rd day of June, 2023 in Criminal Appeal Case No. 5 of 2023 JUDGMENT OF THE COURT 17th& 19* March, 2025 MUGASHA. J.A.: In this appeal, the appellant is seeking to fault the decision of the High Court of Tanzania at Bukoba which sustained his conviction and sentence for the offence of rape contrary to sections 130 (1) (2) (e) and 131(1) and (3) of the Penal Code [CAP 16 R.E.2019]. The appellant was arraigned before the District Court of Bukoba at Bukoba whereby it was alleged by the prosecution that, on unknown date of February, 2021, at Butayaibega village, Bukoba Rural District in Kagera Region, the appellant had carnal knowledge of a girl aged six (6) years. For the i purposes of concealing her identity and chastity, the girl shall be referred to as the victim or PW2. The appellant denied the charge subsequent to which in order to establish its case, the prosecution lined up six (6) witnesses and exhibited two documentary accounts in respect of the victim that is, the clinic card and the PF3. The defence had three witnesses including the appellant. After a full trial, the appellant was convicted as charged and sentenced to life imprisonment. He unsuccessfully appealed to the High Court hence, the present appeal seeking to demonstrate his innocence. Initially, in order to understand what underlies the arraignment and conviction of the appellant, it is pertinent to state a brief factual account as follows: The victim, her mother Lucia Joram, (PW1), and the appellant, happened to reside in the same village that is, Butayaibega, Maruku village. It was alleged by the victim that, on the fateful day, her mother had sent her to take an axe from her grandmother and she obliged. While on the way home, it is alleged that she met the appellant who took her to his house and raped her. She was given fruits and warned not to reveal about the incident to anybody. On reaching home, the victim narrated to his parents what befell her. However, the victim's mother, PW1, recalled that it was on 11/2/2021 when she gathered that the victim who was sleeping had difficulty in walking. Upon interrogating her, the victim mentioned the appellant to have raped her when she went to collect an axe. Then, PW1 carried the victim to the appellant's residence where his wife told them that he had gone to attend a burial ceremony of his aunt. Thereafter, the victim was taken to her grandmother Advella Gidion, PW3 and later to the hospital. However, she could not be treated as they were ordered to first report the matter to the police. PW3 recalled that, at the police a PF3 was issued and the victim was taken to the hospital and admitted for four days. The doctor Carlos Christian, PW5 who examined the victim on 11/2/2021, found the hymen perforated and there was a white smelling discharge from her vagina as she had contracted venereal diseases. Besides, he did not detect bruises or blood and he treated the victim. However, the doctor did not testify on the hospitalisation of the victim for four days as recounted by the victim's mother PW1. Moreover, according to the PF3 exhibited at the trial as P2, the victim's mother disclosed to the doctor that the victim was raped on 9/2/2021. The Assistant Inspector Betrida Minja, PW6, the incharge of gender desk at the Bukoba Police station, recalled to have investigated the matter. She as well recalled that the victim who had narrated to her what befell her, was hospitalised at Bukoba Referral Hospital and that 3 upon visiting the scene of crime she interrogated the appellant who denied to have raped the victim. PW3 and Gidion Mutashobya, PW4 the chairperson of sub village both recalled that it is PW1 who told them about the rape incident and mentioned the appellant as the culprit. Thereafter, the chairperson directed the militia to apprehend the appellant who denied to have committed the offence. On the other hand, the appellant denied each and every detail of the prosecution account. Besides admitting that he knew the victim, he stated that between 8/2/ and 11/2/2021, he was not at the scene of crime and instead, between 8/2/ to 10/2/2021, he was engaged by one Kanumgisha to do construction works. He added that, on 10/2/2021 he received a phone call that his aunt had passed away and on the following day, went to Nsisha at the burial where he was arrested on accusations that he had raped the victim. The appellant's evidence on his whereabouts between 8 to 11/2/2021 is supported by Kaijage Baltazary, DW2 and Leokadia Ladislaus, DW3. This piece of evidence on the defence of alibi was not controverted by the prosecution during the cross-examination. As earlier intimated, after a full trial, the appellant was convicted and sentenced to life imprisonment which was sustained by the first appellate court. Before this Court, the appellant is seeking to impugn the conviction and the sentence. In the Memorandum of appeal, the appellant has fronted four grounds. However, at the hearing, two grounds were abandoned and as such, the remaining complaint is that, the charge was not proved beyond reasonable doubt. At the hearing of the appeal, the appellant who was present in Court was represented by Mr. Brighton Ngaywa Mugisha, learned counsel. The respondent Republic had the services of Ms. Chema Maswi, learned Senior State Attorney assisted by Mr. Dickson Makoro, learned State Attorney. In his brief submission, Mr. Mugisha submitted that the charge against the appellant was not proved to the hilt because: one, the charge lacked the date on which the rape is alleged to have occurred which prejudiced the appellant who was not placed in a position to understand the nature of charges in order to make a rational defence which occasioned a miscarriage of justice. Two, in the wake of unassailed defence of the appellant that on the fateful day he was not at the scene of crime, the prosecution fell short of proving the charge beyond reasonable doubt against the appellant. With this short 5 submission, the appellant's counsel urged us to allow the appeal and set the appellant at liberty. On the other hand, Ms. Maswi opposed the appeal arguing that the prosecution did prove the charge at the required standard. On this, she submitted that, one, the victim gave a credible account on how she was raped by the appellant which is cemented by the evidence of her mother and doctor and thus, penetration was proved given that the victim had contracted venereal diseases; two, the victim did at the earliest, mention the appellant as the one who raped her to her mother, PW1 and PW6 a police investigator. Upon being probed on the charge lacking specific date of the fateful event which features in the oral account of PW1, PW3 and PW6, besides replying that it was desirable to amend the charge yet, she viewed that the appellant was not prejudiced because he managed to present his defence that he was not at the scene of crime. Moreover, she submitted that, the omission to amend the charge is not fatal and it is curable under section 388 of the CPA and argued this to be in accordance with the Court decision which she promised to supply. However, up to the time of composing this judgment, Ms. Maswi did not supply the decision as promised. This is with respect, very unfortunate. 6 Upon being further probed as to when was the offence committed in the wake of the Doctor's report in the PF3 that, the victim's mother had reported that the incident was on 9/2/2021, the learned Senior State Attorney surprisingly responded that the doctor's report is purely hearsay and it cannot be acted upon. Moreover, on the omission to consider the defence of the appellant, although she made a half­ heartedly concession and urged us to consider it at this stage, she was of the view that such defence did not impeach the prosecution case. Ms. Maswi rested her submission by urging us to dismiss the appeal and sustain the conviction and sentence. After a careful consideration of the record of appeal and the contending submissions from both sides, the issue for determination is whether the charge of rape was proved against the appellant beyond reasonable doubt. We are aware that, it is settled law that, on second appeal, the Court will not readily disturb concurrent findings of facts by the trial Court and first appellate Court unless it can be shown that: one, the facts are perverse, demonstrably wrong or clearly unreasonable; or two, are a result of a complete misapprehension of the substance, nature and quality of the evidence; three, there is a misdirection or non-direction on the evidence; and four, there is a violation of some principles of law or procedure or have occasioned a miscarriage of justice. See: SHABANI DAUDI VS REPUBLIC, Criminal Appeal No. 28 of 2001; ABDALLAH MUSSA MOLLEL @ BANJOO VS REPUBLIC, Criminal Appeal No. 31 of 2008, SEIF MOHAMED E.L ABADAN VS REPUBLIC, Criminal Appeal No. 320 OF 2009 and WANKURU MWITA VS REPUBLIC, Criminal Appeal No. 219 of 2012 (all unreported). We shall be guided accordingly by the stated principle. At the outset, it is not in dispute that the victim was raped and she contracted venereal diseases. However, parties locked horns as to when was the victim raped and who was responsible. In this regard, sitting as a second appellate court we shall revisit the evidence adduced at the trial so as to get the requisite answers to the posed questions to establish if the charge was proved to the hilt against the appellant. We begin with the charge because it is a foundation of the trial. In criminal justice it is incumbent on the prosecution to lead evidence in support of the charge. Whenever the evidence is not compatible with the charge, that constitutes variance between the evidence and the charge and has adverse impact on the prosecution as the charge remains unsubstantiated. In the case at hand, the charge fronted at the appellant's door is reproduced as hereunder: 8 *CHARGE STA TEMENTOF THE OFFENCE" RAPE: Contrary to section 130 (1) (2) (e) and 131 (1) and (3) o f the Penal Code Cap 16 R.E. 2019. PARTICULARS OF THE OFFENCE" LADISLAUS S/0 BALTAZARI KALABA, on unknown date o f February, 2021 at Butayaibega Village within Bukoba Rural District in Kagera Region had carnal knowledge with one A. J a girl aged six years (06) years old" Apparently according to the charge, the date on which the alleged rape was committed is unknown. However, according to the evidence of PW1, PW3 and PW6 the alleged rape incident was on 10/2/2021. However, whereas the prosecution witnesses kept on repeatedly mentioning the date of the alleged rape, throughout the trial which lasted for almost four months the charge was not amended at all. On this, we found wanting Ms. Maswi's submission that; the omission to amend the charge is curable under section 388 of the CPA and as such, the appellant was not prejudiced because the appellant in his defence was aware of the charges he faced. The stance by Ms. Maswi is entirely against the settled position of the law as this Court has on several 9 occasions stated including in the case of ABEL MASIKIT1 VS REPUBLIC, Criminal Appeal NO. 24 OF 2015 (unreported) as hereunder: "... it is incumbent upon the Republic to lead evidence showing that the offence was committed on the date alleged on the charge sheet, which the accused was expected and required to answer. I f there is any variance or uncertainty in the dates, then the charge must be amended in terms o f section 234 o f the CPA. I f this is not done the preferred charge wiii remain unproved, and the accused shall be entitled to an acquittal. Short o f that a failure o fjustice will occur". [Emphasis supplied] See also: MASASI MATHIAS VS REPUBLIC, Criminal Appeal No. 274 of 2009, VUMILIA PENDA MUSHI VS REPUBLIC, Criminal Appeal NO. 327 OF 2016, ANANIA TURIAN VS REPUBLIC, Criminal Appeal No. 195 of 2009 and JUSTINE MTELULE VS REPUBLIC, Criminal Appeal No. 482 of 2016 (all unreported). In the circumstances as the date on which the offence occurred could be discerned from the adduced evidence, it was incumbent on the prosecution to amend the charge and mention the specific date of the 10 occurrence of the charged offence. It is rather unfortunate that, the submission by the learned Senior State Attorney is not compatible with the provisions of section 234 (1) of the CPA, which gives wider scope to the prosecution to amend the charge at any time during the pendency of the trial. That apart, it would appear Ms. Maswi laboured under a misconception that, the date of occurrence of the offence is not material which is not the case because section 234 (3) of the CPA explicitly states that, what is not material is the time which the alleged offence was committed and it does not necessitate the amendment of the charge. In the premises, the omission to amend the charge did not only negatively impact on the prosecution case, but prejudiced the appellant who was not aware of the specific date of the occurrence of the alleged offence for him to make a rational defence. At this juncture, we do not agree with the proposition by Ms. Maswi that since the appellant had managed to put up a defence the prosecution evidence remained unimpeached. We say so because given that it is the duty of the prosecution to prove the charge to the hilt, it was incumbent on the prosecution to ensure the evidence is not at variance with the charge. As this was not achieved by the prosecution, the prosecution did not discharge the required onus even before closing its case and as such, as ii the burden did not shift, the appellant was indeed not obliged to put any defence as no case was made out against him. Without prejudice to the aforesaid, we also found the prosecution evidence weak in other areas as we shall soon demonstrate. We are aware that every witness is entitled to credence and must be believed unless there are good and cogent reasons for not believing a witness. Good reasons for not believing a witness include giving fundamentally contradictory or improbable evidence. See: MATHIAS BUNDALA VS REPUBLIC [2007] TLR 53 and GOODLUCK KYANDO VS REPUBLIC [2006] TLR 365. At this stage, sitting as a second appellate Court, we can determine the credibility of the witness by looking at the consistency and coherence of the testimony of the witnesses. The prosecution case was weakened by the uncertainty surrounding the date of occurrence of the rape. While PW1, PW3 and PW6 stated that the victim was raped on 10/2/2022 which is contradicted by the victim's mother who reported to the doctor that the victim was raped on 9/2/2022. This is evident in the PF3 which was exhibited in evidence as P2 and it is in harmony with the evidence of the victim and PW1 that the victim was raped on 10/2/2021 when she was sent to collect an axe. That apart, the evidence on the findings of the doctor who examined the victim on 11/2/2021 at page 19 of the record 12 of appeal leaves a lot to be desired as to when was the victim raped as hereunder: "We did examine her vagina to see whether she was raped. I do recall that the girl's hymen was perforated and there was whitish discharge from her vagina with bad smell. We did not detect any bruises or blood discharge.... I did conclude that the girl was raped as her hymen was perforated, she had contracted venereal diseases and the while discharge had a bad smell...... " Since the victim was examined a day after the rape incident and had foul smelling discharge, it is highly probable that she was not raped on 10/2/2020 but rather a number of days before. Besides, the evidence that came from PW1 and PW6 that the victim was hospitalised is not supported by the doctor who treated the victim. Such state of evidence which is marred with contradictions clouded a shadow of doubt on the prosecution case. On the part of the victim, we are aware that in sexual offences, the true and best evidence is that which comes from the victim. See: SELEMANI MAKUMBA VS REPUBLIC [2006] TLR 379. However, the courts are not barred to assess the credibility of such witness so as to determine whether the evidence availed by the victim is not improbable 13 and as such, we shall accordingly be guided. The victim is on the record to have said that, after being raped, she returned home and broke the news to her parents. This is contradicted by the victim's mother who testified that when she returned home found the victim sleeping and upon examining her, found that she had foul discharge. Besides, this contradicting and denting the victim's account, it leaves unanswered the date when the victim was raped. Thus, with such unreliable and improbable evidence from the victim, her credibility is questionable and thus, it was highly unsafe to rely on it to convict the appellant. Lastly, is the defence of the appellant which was not considered by the two courts below. There is, in this regard, a long and unbroken chain of decisions of the Court which underscore the duty imposed on the trial and the first appellate court to imperatively consider and evaluate the entire evidence so as to arrive at a balanced conclusion. However, where the two courts below did not consider the defence case, this Court may step into the shoes to evaluate and consider the defence case. See the cases of SAID PETER @ NDIRA @ SAID RAMADHANI VS. REPUBLIC Criminal Appeal No. 490 of 2020, and JULIUS JOSEPHAT VS. REPUBLIC (Criminal Appeal No. 3 of 2017. In the latter case, the Court held that; As already pointed out, the fact that both courts below in the present case did not consider the 14 defence case is, in our view, a misapprehension o f the evidence and entities us to intervene in an endeavour to put matters in their proper perspective. We have sought guidance from our previous decision on the point in Joseph Leonard Manyota v. R, Criminal Appeal No. 485 o f 2015 (unreported)". Notwithstanding that, the appellant did not give notice to rely on the defence of alibi as required under section 194 (4) of the CPA, we think, under the circumstances of this case, the trial court ought to have taken cognizance of the defence of alibi raised. See: BAHATI MAKEJA VS REPUBLIC, Criminal Appeal No. 113 of 2006 (unreported). In the instant appeal, the defence of alibi raised by the appellant did fundamentally impeach the prosecution case that on the fateful day he was not at the scene of crime and instead, he was either at construction site and on the following day went at the funeral as supported by DW2 and DW3. This evidence was not controverted by the prosecution and as such, the prosecution did acknowledge the appellant's defence of alibi. This as well, besides impeaching the prosecution account, it clouded the prosecution case with a heavy doubt and Ms. Maswi's proposition that the defence did not weaken the prosecution case is neither here nor there. 15 In the circumstances, on the basis of the re-evaluation of the evidence adduced at the trial, although the victim was raped, there is no evidence to link the appellant with the charged offence because the prosecution has failed to prove the charge to the hilt against the appellant. Thus, all said and done the appeal is merited. Consequently, we allow it, quash and set aside the conviction and the sentence meted on the appellant and order his immediate release from prison unless held for some other lawful cause. DATED at BUKOBA this 19th day of March, 2025. S. E. A. MUGASHA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 19th day of March, 2025 in presence of Mr. Brighton Mugisha, learned counsel for the Appellant and Mr. Dickson Makoro, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. C. DEPUTY REGISTRAR COURT OF APPEAL 16