samwel so nyerere vs republic 2023 tzca 27 20 february 2023

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: NDIKA, 3.A.. LEVIRA. J.A., And MAKUNGU, J.A.) CRIMINAL APPEAL NO. 65 OF 2020 SAMWEL S/O NYERERE................................................................APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Arusha at Arusha) (Hon. Naoka - RM Ext. Juris) dated the 11th day of October, 2019 in Criminal Appeal No. 128 of 2018 JUDGMENT OF THE COURT 14th & 20th February, 2023 NDIKA. 3.A.: The appellant, Samwel s/o Nyerere, was convicted by the Resident Magistrate's Court of Manyara at Babati of rape and sentenced to thirty years' imprisonment. His first appeal against the conviction and sentence, decided by the Resident Magistrate's Court of Arusha with extended jurisdiction, bore no fruit, hence this second and final appeal. It was alleged at the trial that between 20th and 21st January, 2016 at Majengo Mapya area within Babati District in Manyara Region, the appellant had sexual intercourse with a fourteen-year-old girl who we shall i refer to anonymously as "the complainant" or simply by her trial codename C'PWl"). The mainstay of the prosecution case was the testimony of PW1. She adduced that on 20th January, 2016 approximately 6:00 p.m., she went for a haircut at a barbershop at Kitintale area in Babati town but could not be fully attended to because the salon had a power outage. She decided to leave. On her way back home, she noticed that the appellant, whom she had seen earlier at the barbershop for the first time, was following her behind. As she passed by a Bajaj tricycle parked nearby, the appellant suddenly bundled her into the tricycle, which she later learnt to be the one he was operating as a taxi. He promptly got in the tricycle and started it, riding to what happened to be his rented room in a house at Majengo area into which he forced the complainant. After locking the door to the room, he switched on a radio subwoofer at a high volume to quieten her possible screams and make it impossible for other occupants of the tenanted house detecting what was going on. He then undressed the apparently cowed girl, removed his clothes, and proceeded to have sexual intercourse with her over the night. In the morning, her two brothers arrived at the scene after being tipped by a certain Hawa Jumanne. After a scuffle had ensued between the ostensibly enraged brothers and the appellant, the former alerted the police who arrived at the scene of the crime a short while later and arrested the appellant. He was taken to Babati Police Station as the complainant was dispatched to Mrara Government Hospital in Babati for medical examination. The complainant's mother (PW2) recounted that her family mounted a search for her daughter in the fateful evening as she did not come back home after going to the barbershop. Early next day they learnt from Hawa Jumanne that she saw the complainant boarding the appellant's tricycle the previous evening and showed the complainant's two brothers the appellant's place of abode at Majengo. PW2 joined the two brothers at the scene at the time the police had already arrived. She saw the appellant being arrested before she took her daughter to the hospital for medical examination. Dr. Moses Mollel (PW4), Principal Assistant Medical Officer, attended the complainant at Mrara Hospital. His findings, as unveiled by his medical examination report - PF3 (Exhibit P2), were that there were signs of bruises, blood and sperm in the complainant's vagina suggesting that she had sexual intercourse the previous night. Moreover, he noted that her hymen was perforated and her vaginal orifice open. 3 WP.5767 Detective Corporal Agnes (PW3), a police officer then stationed at Babati, allegedly interrogated the appellant at Babati Police Station on 22nd January, 2016 on the allegation against him. She tendered in evidence a cautioned statement (Exhibit PI) she attributed to him by which he confessed to the crime. The statement was admitted in evidence as Exhibit PI despite the appellant having repudiated it. Rather oddly, the trial court did not conduct any inquiry into its admissibility. In his testimony on oath, the appellant denied the accusation against him flat out. He averred that he was surprised to be arrested in the morning on 21st January, 2016 for what he later learnt to be an accusation of raping the complainant. The complainant's mother (PW2), he added, framed the case against him, demanding to be paid TZS. 300,000.00 to settle the matter. He was taken to police upon refusing to pay the money. The trial court presided over by Hon. B.T. Maziku - SRM, initially expunged the cautioned statement (Exhibit PI) on the ground that, having been recorded by PW3 beyond the prescribed basic period for interrogation, it offended the dictates of section 50 (3) of the Criminal Procedure Act. However, the court believed the complainant's evidence as supported by the medical evidence that she was, certainly, raped. Moreover, acting on the testimonies of complainant and her mother, the court found that the appellant was the ravisher who abused PW1. The court rejected the appellant's defence that the accusation against him was fabricated by PW2. Accordingly, the court convicted him of rape and sentenced him as stated earlier. As his first appeal was to no avail, he now appeals to this Court, as stated earlier. The appellant faults the first appellate court's decision on eight grounds. In essence, the first three grounds attack the validity of the charge as well as the appellant's plea thereto and contend that there was a variance between the charge and the evidence on record. While grounds four and five fault the evaluation of the evidence on record by the courts below, ground six takes issue with the prosecution's alleged failure to produce at the trial four persons who were material witnesses. Ground seven bemoans the failure by the courts below to consider the appellant's defence. Finally, ground eight raises an overarching complaint that the charged offence was not proved beyond reasonable doubt. At the hearing, the appellant addressed the eighth ground at first. His primary argument was that the charged offence was not proven because the prosecution failed to prove the age of the complainant. He contended that the age was a necessary ingredient in terms of section 130 (1) and (2) (e) of the Penal Code creating the offence. Referring us to page 14 of the 5 record of appeal, he argued that the complainant simply mentioned her age as fourteen years before she testified but she did not testify on it. Relying on our decisions in Andrea Francis v. Republic, Criminal Appeal No. 173 of 2014 and Robert Andondile Komba v. Republic, Criminal Appel No. 465 of 2017 (both unreported), he argued that the complainant's age could not be proved by citation of the age in the particulars of the offence, nor could it be proved by the trial court's citation of the age before her testimony was received. Replying on behalf of the respondent, Ms. Tarsila Asenga, learned Senior State Attorney, who was accompanied by Mr. Felix Kwetukia, also learned Senior State Attorney, contended that even though none of the prosecution witnesses including the complainant adduced evidence on that aspect, her age was established as being fourteen years in the voire dire examination that the trial court conducted before it let her take the witness stand. In support of her argument, she cited our decision in Wilson Elisa @ Kiungai v. Republic, Criminal Appeal No. 449 of 2018 (unreported) contending that her age could have been deduced from the circumstances of the case particularly her assertion before she took oath that she had completed Standard VII in 2015. The immediate focus of our attention must be section 130 (1) and (2) (e) of the Penal Code under which the charged offence was laid: " 130. -(1) It is an offence for a male person to rape a girl or a woman. (2) A male person commits the offence o f rape if he has sexual intercourse with a girl or a woman under circumstances falling under any o f the following descriptions: (a) to (d) [Not applicable] (e) with or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years o f age and is not separated from the man. "[Emphasis added] It is clear from the above provision that for a male person to be convicted of rape thereunder, it must be proven that the victim was under the eighteen years of age at the time the offence was committed. Once that fact is proved, it is immaterial whether the sexual intercourse was committed with or without the victim's consent - see, for instance, Andrea Francis {supra). In the instant case, the complainant was indicated in the particulars of the offence in the charge sheet to be fourteen years old at the time the 7 allegedrape was committed on 20th or 21st January, 2016. Beforegiving evidence on 18th May, 2016, she stated that she was fourteenyears old. The trial Magistrate, bearing in mind that she was a child of tender age, duly conducted a voire dire examination to determine whether she understood the nature and meaning of oath in terms of section 127 (2) of the Evidence Act. Upon determining the issue in the affirmative, the court allowed her to give evidence on oath. Throughout her testimony, she did not adduce any evidence on her age. In Andrea Francis {supra), we held that: "... it is trite iaw that the citation in a charge sheet relating to the age o f an accused person is not evidence. Likewise, the citation by a magistrate regarding the age of a witness before giving evidence is not evidence o f that person's age. It follows that the evidence in a trial must disclose the person's age, as it were. In other words, in a case such as this one where the victim's age is the determining factor in establishing the offence, evidence must be positively laid out to disclose the age o f the victim." The Court went on noting that under normal circumstances evidence relating to the victim's age would be expected to come from any or either 8 of the following: the victim, her parents, a guardian, a birth certificate and so on. The above stance has been consistently followed in numerous decisions including Robert Andondile Komba (supra), Solomon Mazala v. Republic, Criminal Appeal No. 136 of 2012 and Rwekaza Bernardo v. Republic, Criminal Appeal No. 477 of 2016 (all unreported). The Court stated in Solomon Mazala {supra), quite pertinently so far as this case is concerned, that: "Even if we go further and take the liberty to assume that the fact that the trial court conducted a voire dire examination after being satisfied that PW1 was under eighteen years of age, that assumption, in our view, would be contrary to the dictates of the law." Following the above position, we have no difficulty holding that the complainant's statement on her age during voire dire examination, before she took oath and testified, constituted no proof of her age. It is on record that apart from her not testifying on her age, nothing was forthcoming on that crucial aspect from her mother (PW2) or the medic (PW4). Moreover, we noted that PW4 tendered his medical examination report (Exhibit P2) suggesting that PW1 was fourteen years old when he examined her. But report is equally problematic and worthless - as revealed at page 25 of the record of appeal, it was not read out after it was admitted in evidence, implying that the appellant was not apprised of its substance. Our jurisprudence instructs that omission to read out the contents of a documentary exhibit after its admission would vitiate the fairness of the trial rendering the document worthless - see, for instance, Robinson Mwanjisi & 3 Others v. Republic [2002] T.L.R. 218. On this basis, we discount the report. We recall that Ms. Asenga relied upon Wilson Elisa {supra). In that case, apart from observing that generally evidence as to the proof of age may be given by the victim, relative, parent, medical practitioner or, where available, by the production of a birth certificate, the Court held that: "... like any other fact, age may be deduced from other evidence and circumstances availed to the court which is permissive under section 122 of the Evidence Act, [see Issaya Renatus vs Republic, Criminal Appeal No. 542 o f 2015 (unreported)]." Looking at the evidence on record in its totality, we are satisfied that in the present case, there are no circumstances that would have entitled the courts below to draw an inference as to the age of the complainant in terms of section 122 of the Evidence Act. Perhaps, we should stress that the details she revealed in the voire dire examination on her age and the completion of her Standard VII in 2015 could not form basis of presumption of her age under the said provision. In the premises, we hold, as we must, that the prosecution failed to establish the complainant's age, which was a key ingredient of the charged offence. Although the above conclusion is sufficient to dispose of this appeal, we wish to make very brief observations on the sixth ground. Elaborating on this complaint, the appellant argued that four material witnesses should have been produced at the trial. In the beginning, he said Hawa Jumanne, who allegedly saw him bundling the complainant into his tricycle and informed PW2 of it the following day, ought to have been called to testify on that issue. Secondly, he bemoaned the failure by the prosecution to produce the complainant's two brothers who, acting on the tip from Hawa Jumanne, went to the appellant's home where they found their sister along with the appellant. Finally, he wondered why the prosecution did not produce any of the other occupants of the tenanted house as a witness. 11 Citing Aziz Abdallah v. Republic [1991] T.L.R. 7 and Pascal Mwinuka v. Republic, Criminal Appeal No. 258 of 2019 (unreported), he contended that the trial court should have drawn an adverse inference from the omission to call the witnesses. For her part, Ms. Asenga countered that in terms of section 143 of the Evidence Act the prosecution's case depended on the quality of its evidence but not the number of witnesses produced at the trial. Having revisited the evidence adduced by PW1 and PW2, she urged us to find it credible as did the courts below. Citing Kadili Ally v. Republic, Criminal Appeal No. 292 of 2018 (unreported), she added that the appellant did not cross-examine either of the two witnesses and such omission to contradict their testimonies rendered them unblemished. Accordingly, she urged us to find the complaint an afterthought. We have revisited the evidence in the light of the competing arguments as summarized above. While we agree with Ms. Asenga that the prosecution's case hung on the quality of the evidence adduced to support the charge as opposed to the number of witnesses produced, we agree with the appellant that the four persons he named were crucial material witnesses who should have been called. To begin with, it is not clear how the said Hawa Jumanne who allegedly saw the appellant riding away with 12 the complainant on his tricycle came to know that the appellant took PW1 to his rented home at Majengo. This brings to question PW2's claim that based on Hawa Jumanne's tip, her two sons went to the appellant's home, found the complainant there and then notified her of the finding. The situation is compounded further by the omission to produce the two brothers who could have shed light on how they discovered their sister at the appellant's home after allegedly working on the lead they received from Hawa Jumanne through their mother. Their evidence was certainly crucial to determining the manner the complainant was found at the scene followed by the appellant's arrest. Worse still, one would have expected at least one of the other occupants of the tenanted property to be produced as he would possibly have an independent account on the presence of the complainant at the scene as alleged. All the above should also be viewed in the light of the failure by the prosecution to call as witnesses the police officers who attended the scene and arrested the appellant. The only police officer who testified at the trial was PW3 but she did not attend the scene. Had the first appellate court considered the materiality of the four persons and that no reason was given for their absence, it would have drawn an adverse inference against the prosecution case. That had the said persons been produced as witnesses their testimonies would have 13 been unfavourable to the prosecution case - see R v. Uberle (1938) 5 EACA 58 cited in Pascal Mwinuka {supra). Based upon the foregoing discussion, we need not deal with the rest of the grounds of appeal as we are satisfied that the charged offence was not established. In consequence, we allow the appeal, quash the conviction, and set aside the sentence. The appellant is to be released from prison unless he is held for any other lawful cause. DATED at ARUSHA this 17th day of February, 2023. G. A. M. NDIKA JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Judgment delivered this 20th day of February, 2023 in the presence of the appellant in person and Mr. Charles Kagirwa, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of