gabriel aplinaly vs the republic 2023 tzhc 17800 2 june 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MOROGORO) AT MOROGORO CRIMINAL APPEAL NO. 36 OF 2022 (Originating from Criminai Case No. 138 of2020 in the District Court ofKHosa) GABRIEL APLINALY APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGMENT Finai Court Order on:29/05/2023 Judgment date on: 02/06/2023 NGWEMBE,J; Having been convicted for two offences and sentenced to serve 30 years imprisonment concurrently in each of the counts, the appellant GABRIEL APLINALY found his way to this house of justice by way of an appeal. The appellant's encounters are marked to commence on the 30'^'' day of June, 2020 around 20:00 hours when he was arrested by Police Officers and taken to Mikumi for accusations of sexual offences. After a due process, he was arraigned before the District Court of Kilosa for two offences; rape contrary to section 130 (1) (2) (e) and 131 (1) of The Penal Code, Cap 16 RE 2019 and impregnating a school girl contrary to section 60A (3) of The Education Act, Cap 353 R.E 2002 as amended by the Written Laws (Miscellaneous Amendment) Act No. 2 of 2016. Both offences were said to have been committed by him on unknown dates between February and March 2020, at Ihombwe Village within Kiiosa district in Morogoro region. According to the particulars, the appellant had carnal knowledge of a school girl aged 13 years old and that on the same dates and the same place, he impregnated the victim. As the particulars disclose, the victim was still a minor on the eventful date being thirteen (13) years of age. Section 33, read together with section 76 of the Law of the Child Act, accompanied with the Chief Justice's Circular No. 2 of 2018, dated 20"^ March, 2018 requires courts to protect the privacy of minor age victims so as to preserve their dignity and integrity. Therefore, the victim's identity in this judgment has been anonymized for her respective privacy, integrity and future respect in the society. This court has opted to refer to her simply as the victim. Upon arraigning the appellant before the trial court, the prosecution lined up four (4) witnesses and one exhibit, a PF-3 marked PE 1, while the appellant did not defend himself on the circumstances to be revealed in the course. I will state briefly but chronologically the prosecution's evidence hereunder. It is the prosecution's evidence that, the mother of the victim and the appellant are landlady and tenant respectively, as the appellant was living in one of the houses of the victim's mother, in the same compound being a tenant. It is also evident that the appellant is well acquainted with both, the victim and her mother (his landlady). In 2020 when the offence was said to have been committed, the victim was studying at Ihombwe Primary School, Standard VI. It came to pass that at Ihombwe Primary School all the girls, probably adolescents like the victim, were taken for pregnancy test on 29^^ or 30*^^ June 2020 after school opening. The victim was found to be pregnant. The victim's mother was informed by the school administration. The Village Executive Officer was involved, who asked the victim about the responsible person and the victim is said to have named Gabriel Aplinaly (the appellant herein). According to the evidence the appellant was identified by the victim. That Is when the police and militiamen arrested him for due process of law. The next day, on 01/07/2020, the victim appeared before St Kizito Hospital, where a Medical Doctor examined her and filled in the PF.3 which was as well admitted in court as Exhibit PEl. The PF3 had the content that the victim was 5 weeks pregnant as shown by ultra sound test and the fact that she missed menstrual period over five weeks. The victim testified before the trial court that she had an affair with the appellant around March 2020. When her mother was away, the appellant gave her money Tshs. 10,000 asking for "sleeping with her", to which she agreed. They had the intercourse twice without contraceptive, thereafter she was found to be in thin dress, the school suspended her for that. At the end of trial, the court was satisfied that a prima facie case was established against the appellant on both counts. Before he could be invited for defence, he dishonored court bail and absconded. However, he was recaptured just a few months later. The record on the 18/05/2021 coram shows that the appellant upon appearance, stated that he was advised by the victim's mother to escape. The trial court, observed that the appellant's reason for his absence had no merit. The trial magistrate purported to pronounce judgment ex parte and convicted him accordingly. No mitigation was invited, but sentenced him to 30 years Imprisonment for each offence, sentences were ordered to run concurrently. Being so convicted and sentenced, the appellant preferred this appeal by issuing notice of appeal within time and actualized his intention by lodging petition of appeal based on six (6) grounds namely: - 1. That, the trial court erred In law and In convicting and sentencing the appellant as the appellant pleaded not guilty when the charge was read over to him. 2. That, the trial court erred in law and in convicting and sentencing the appellant in holding that the age of the victim was proved beyond reasonable doubt without considering [that] no birth certificate was tendered to prove such fact. 3. That, the trial court erred in law and in convicting and sentencing the appellant basing on the weakness of the defence rather than on the strength of the prosecution evidence. 4. That, the trial court erred In law and in convicting and sentencing the appellant in holding that the prosecution case was is proved beyond reasonable doubt. 5. That, the trial court erred in law and in convicting and sentencing the appellant without ordering DNA test. 6. That, the trial court erred in law and In convicting the appellant without disclosing the sentence In the judgment and that the sentence of 30 years in jail lacks the basis. In the cause of hearing this appeal, the Republic/respondent was represented by learned State Attorney Mr. Edgar Bantulaki while the appellant was not represented. Actually, he disclosed in his notice of appeal that he did not Intend to secure any legal service, but demonstrated his Intention to appear during hearing. Having given the detailed background and the grounds of appeal above, I proceed to recap the arguments of both parties hereunder. The appellant's submission was very brief, he just stated that he had filed six grounds of appeal which he prayed this court to consider. The learned State Attorney exhibited his support of the appeal at the very beginning of his submission. He pointed out that there were serious irregularities and infringement of the right to be heard at the trial court. Mr. Bantulaki observed that when the appellant appeared on 18/05/2021 the court was not required to proceed with judgment as it did which approach was contrary to section 226 of the CPA, but ought to avail the accused his right to be heard on why he absconded and then let him enter the defence against the charges. It was his opinion that the whole proceedings from 18/05/2021 was void, same be nullified and the case file be remitted to trial court for hearing to proceed afresh from that date. The appellant when invited for rejoinder he just reiterated his prayer. This being the first appeal, the court is enjoined to follow the rule governing first appeals. Generally, the court Is entitled to reevaluate and consider the evidence laid before the trial court and see If the resultant judgment and orders were grounded on the strength of the evidence. In Alex Kapinga and 3 others vs. The Republic, Criminal Appeal No.252 of 2005, CAT (unreported), it was stated as foliows: - "It is trite law that on a first appeal the Superior Court has a duty to reconsider the evidence, evaluate it itself and draw its own conclusion in deciding whether the judgment of the trial court should be upheld. In so doing however, allowance must be made for the fact that the trial court had the advantage of hearing and seeing witnesses" Whiie maintaining the ruie that the triai court is the one with the most suitabie advantage of testing the witnesses' credibiiity, there is a reasonable avenue of the appellate courts to test credibility of the witness when reevaiuating the evidence. This was held in the case of Shabani Daudi vs. Republic, Criminal Appeal No. 28 of 2000 (unreported) also followed in Oscar Lwela vs. Republic (Criminal Appeal No. 49 of 2013)[2013] TZCA 476 when the Court of Appeal stated: - "Maybe we start by acknowledging that credibiiity ofa witness is the monopoly of the triai court but only In so far as demeanour is concerned. The credibiiity ofa 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 with the evidence of other witnesses, including that of the accused person. In these two other occasions the credibility of a witness can be determined even by a second appellate court when examining the findings of the first appellate court." In the course of exercising the duty of an appeiiate court, in this case where the appeal is mainly based on a complaint that the offences were not proved, the law on burden and standard of proof will take guide along with other relevant principles. Section 3 (2) and 110(1) of the Evidence Act, taken together provides that the prosecutor bears the burden to prove the offence beyond reasonable doubt. I associate this to the case of Anthony KInanila & Another vs Republic (Criminal Appeal No. 83 of 2021)[2022] TZCA 356 where the principle was expounded by the Court of Appeal holding that: - "It is trite but important to observe that, in order to determine the culpability of an accused person in a criminal case, several principles must be considered. First and foremost is the cardinal presumption that the accused person is presumed innocent until the contrary is proved. (See Article 13(6)(b) of the Constitution of the Republic of Tanzania, 1977 Cap 2). Moreover, in line with the above-stated principle, in any criminal trial, the prosecution bears the burden to prove beyond reasonable doubt not oniy that the offence was committed but aiso that it was committed by the accused person or that he participated in the commission of the offence to the extent or degree as prescribed by law. Put in other words, it is the exclusive duty of the prosecution in any criminal trial to place the accused person at the scene of the crime. Being properly guided, no court shall convict the accused person basing on the reason of weakness of his defence or his failure to honour the bail by absconding or only the fact that he was known to the victim. In this case, the act of an accused to abscond did not water down his right to be presumed innocent. Those matters wiil oniy be referred where need arise, for the purpose of evidence analysis oniy. In aii cases, the court will convict him when the offence aileged to have been committed by the accused is proved beyond reasonabie doubt. From the outset, let it be known that, in our jurisdiction rape cases to giris beiow the age of majority (beiow 18 years) is among the serious offences. It attracts the minimum sentence of thirty (30) years for a girl between ten (10) and apparent eighteen (18) years and the sentence of life imprisonment is prescribed for the rape of girls below the age of ten (10) years. Above all, those sentences are accompanied with corporal punishment and compensation in most cases. Such heavy punishment is intended, I presume, to deter whoever had in mind the intent of having sexual relationship with a girl beiow the age of majority. In legislating for such heavy punishment, the legislature may have assumed a civilized society which upholds morality. An ideal society whose people do not bear false witness against their neighbours but speak only truth, among other values of morality and humanity. However, nowadays, such assumption of trust is highly qualified in many cases. It has been experienced of some victims misusing the trust by telling total lies in court. Even some adults have misused such trust by training innocent children to tell lies in court with a view to victimize other male persons who are not in good terms with them. This position was found vividly in the case of Godfrey Leslie Ndumbaro vs. R, Criminal Appeal No. 108 of 2020 where the High Court sitting at Mtwara, found 8 importance of using science to prove fatherhood of the chiid. With a heip of Science, DNA test from the Chief Government Chemist reported that: - "Tegemeo la nafasi (Chances) ya baba Godfrey Leslie Ndumbaro kuwa baba mzazi wa mtoto Yusra Godfrey Ndumbaro nl aslllmla sifurl (0.00%) ukizlngatia "ZPB" ni mama mzazI wa mtoto Yusra Godfrey Ndumbaro". At the end, the court found the appeliant as a schooi head teacher, never fathered the aiieged child, hence was released from prison of thirty (30) years, corporal punishment and compensation. In similar circumstances, another person was aiieged to have pleaded guilty to an offence of raping a girl of six (6) years old. When was arraigned in the district Court, it was recorded that he pleaded guilty. Thus, convicted and sentenced to life imprisonment. However, upon appeal to this house of justice, the court sought additional evidence on mental abilities from the regional medical Doctor from Liguia Regional Hospital. That is Bashiru Saidi Rashidi vs. Republic, Criminal Appeal No. 102 of 2020. The regional medical doctor after thorough examination on the mental capabilities of the appellant, he concluded as quoted hereunder: - "Kwa ujumla wa maelezo yake anaonyesha kuwa na tatizo la kumbukumbu na kukosa mtlririko mzun wa kuflklrl, hivyo kitaalamu mteja wangu huyu anatatlzo la afya ya akill (Mental subnormal)Inamchukua muda mrefu kuongea au kujibu swall kwa maana ufahamu wake uko chlnl sana na amechukua daklka kadhaa kujielezd' Simply means the appellant is suffering from disease of mind called mental subnormal. Obvious, a person suffering from disease of mind is incapable of pleading and has reduced responsibilities in the society. This court proceeded to find that since the appellant has been proved to be subnormal mentally, then the trial court, ought to observe him properly. Accordingly, this court siting at Mtwara quashed the conviction and set aside the sentence meted by the trial court. Proceeded to order the appellant be under supervision of the Social Welfare Officer of Kiiwa District. Another similar case is Criminal Appeal No. 17 of 2019 between Shilanga Nguku Maeda Vs. R, the appellant was alleged to have sodomized a boy of seven (7) years old. After ail rigors of trial, the appellant was sentenced to life imprisonment. On appeal, among other issues, the appellant raised the defence of impotence, that he never had sexual intercourse with any woman in his lifetime because his penis did not erect. Out of that defence, this court sitting at Mtwara invoked section 369 (1) of Criminal Procedure Act to seek additional evidence by subjecting the appellant to undergo medical examination from the regional medical doctor as to whether the appellant is capable of penis erection. The medical examination was conducted by Doctor Herbert G. Masigati of Liguia Regional Referral Hospital. The report had the following contents: 'The mentioned person was tested for male sex hormone testosterone and found to be normal, however physiological arousal test done on 24'' July, 2020 failed to stimulate him enough to erection. To this regard Mr. ShHanga Nguku Maeda Is likely to be Impotent" 10 Out of that medical report, it was scientificaily proved that the appellant can never commit the offence of rape or offence against the order of nature as was charged. Hence, the conviction was quashed, subsequently the sentence to life Imprisonment he was set aside and Immediately was released from prison. Likewise In the case of Samwel Stanley vs The Republic (Criminal Appeal No. 67 of 2022) [2023] TZHC 15701, where a Prison Officer was convicted and sentenced to life Imprisonment for allegedly raping his fellow employee's daughter of six (6) years old. When the appeal was presented before this court and upon visiting the proceeding. It was observed that no Investigation was made. The evidence from both, witnesses of fact and expert opinion raised a serious doubt. Having called for additional evidence from an expert doctor specialized In gynaecology. It was revealed that the victim was still virgin. This court had nothing to do except to restore his liberty by quashing the conviction and setting aside the sentence. I am settled In my mind, the crux of this appeal, raise two fundamental questions; first - whether the victim was actually raped, and being a school girl, whether was Impregnated. If any of the two Is affirmative; the second question Is who Is the perpetrator of the offence. The first question seeks to establish the ingredients of the offences If were committed. The last question will test the connection between the appellant and the alleged offences. To the best all grounds of appeal are within those questions. I am saying this because almost In all the six grounds, the appellant Is questioning the prosecution evidence. 11 Essentially, the offence of rape is created under section 130 (1) of the Penal Code, whose ingredients are provided for under subsection 2 (e) of section 130 of the Act. For ciarity the section is quoted hereunder: - "Section 130.-(1)It is an offence for a male person to rape a giri or a woman. (2) A male person commits the offence of rape If he has sexual Intercourse with a girl or a woman under circumstances falling under any ofthe following descriptions: (a)-(d)NA (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 ofage and Is not separated from the man." The offence of rape under section 130 (l)(2)(e) of the Penal Code, is otherwise termed as statutory rape, where in the case of George Claud Kasanda Vs. The DPP, Criminal Appeal No. 376 of 2017,(CAT at Mbeya), the Court of Appeai expiained in ciear terms that: - "In essence that provision creates an offence now famously referred to as statutory rape. It Is termed so for a simple reason that; It Is an offence to have carnal knowledge ofa girl who Is below 18 years whether or not there Is consent" As above, certain eiements are so fundamentai, they must be estabiished and proved by irresistible evidences. Those inciude; one - carnal knowledge (penis penetration to the vagina), consent is immateriai to a giri beiow 18 years; two - age of the victim (for the purpose of appropriate sentence and nature of the rape; three - lack of consent to a 12 woman above 18 years is material; and lastly, proper Identity of the rapist. Penetration, however slight Is sufficient to prove rape. Section 130 (4)(a) of the Penal Code provides as hereunder: - "Penetration however slight is sufficient to constitute the sexual intercourse necessary to the offence" The Court of Appeal In the case of Godi Kasenegala Vs. R, Criminal Appeal No. 10 of 2008(CAT) raised a valid question on what constitutes an offence of rape? It proceeded to answer as follows: - "Under our Penai Code, rape can be committed by a maie person to a female in one of these ways. One, having sexuai intercourse with a woman above the age of 18 years without her consent. Two, having sexuai intercourse with a giri of the age of 18 and beiow with or without her consent (Statutory rape). In either case, one essential ingredient of the offence must be proved beyond reasonable doubt. This is the element of penetration i.e., the penetration, even to the slightest degree, of the penis into the vagina" (Emphasis added). Similarly, the Court of Appeal In the case of Mbwana Hassan Vs. R, Criminal Appeal No. 98 of 2009(CAT - Arusha), maintained that: - "It is trite iaw aiso that, for the offence of rape ...there must be unshakeabie evidence ofpenetration" In the absence of unshakeabie evidence on penetration even to the slightest degree, rape cannot be constituted. Penetration being a core 13 element of rape, undoubtedly, must be unshakably established and proved beyond reasonable doubt to constitute the offence. In this case at hand, the victim who was a pupil of standard VI at Ihombwe Primary School was found to be pregnant and as the result she was suspended from school. PWl (the victim), PW2 (the victim's mother) and PW4 (the head teacher) clearly stated about this. Likewise, PW3 along with Exhibit PEl established that upon further examination by Ultra sound, the victim on 01/07/2020 was found to be 5 weeks pregnant. The victim possessing no ability to defy the rule of nature, her pregnancy is ipso facto a prims facie proof that her vagina was penetrated by a male organ through sexual intercourse. As earlier pointed, penetration of the 13 years old victim is rape. Then whoever raped the victim and impregnated her, committed another offence called impregnating a school girl. The first question is therefore answered in affirmative, that the victim was statutorily raped and also that she was impregnated while being a school girl. The third compound question, who is the rapist? Who is the impregnator? The respondent when laid its charges at the appellant's door step believed that it was the appellant who committed both the offences above to the victim. Even in hearing of this appeal, Mr. Bantuiaki learned State Attorney, though supported the appeal, he did not lose such stance. I have stated earlier, he based much on procedural irregularity which seemed not to be anything important to the appellant. The learned State Attorney did not support the appellant's grievances on evidence and standard of proof, instead he prayed that the proceedings which he 14 discredited as void, be nuiiified and the case fiie be remitted for the hearing to proceed from there. Aii the observations by Mr. Bantulaki were grounded, the proceedings sureiy had muitipie defects. Likewise, the remedy suggested wouid be feasibie and this court had no probiem with that. But before going into those irreguiarities and whether the remedy is applicabie, I have some significant observations to make. From the triai court record, the victim stated that she had sexuai intercourse with the appellant and a valid assumption was made that the said appellant who was believed to have raped the victim is the one who impregnated her as well. On the other hand, I have considered the triai court proceeding. The victim was said to have been raped and impregnated in February or March 2020 according to the charge sheet. The victim herself testified in court that she had sexual intercourse with the appellant in March 2020. The Medical Doctor claims to have diagnosed the victim on 01/07/2020 and found the victim to be five months pregnant. This wouid suggest that the victim conceived within the month of May 2020. There is a 3 months' difference. The other glaring feature is that the victim did not disclose the said love affair to anyone, neither to her parents nor to the teachers at her school. She kept the secret until when she was found pregnant by the school pregnancy test program. Fiere again it is unknown why she did not reveal the incidents to the teachers until confronted by the Village Executive Officer. I have asked myself whether the victim was credible if she had been very secretive against both, the parents and the teachers. Also, whether her mentioning of the appellant was not for confrontation 15 she faced. These are just some of the discrepancies unearthed, which raised serious doubts considering that the victim is the oniy witness who testified about the rape incidents. It has been stated in a number of cases that faiiure to name the suspect and failure to report the offence altogether, shade a serious doubt on the credibility of the witness. This was the position in the case of Marwa Wangiti vs. Republic [2002] TLR. 39 it was held categorically that: - "The ability of the witness to name the suspect at the earliest opportunity is an important assurance ofhis reiiabiiity; and in the same way unexplained delay or complete failure to report must put a prudent court to inquiry" See also; Jarlbu Abdallah vs. R [2003] TLR. 271, Salum Seif Mkandambuli vs. Republic (Criminai Appeal 128 of 2019)[2021] TZCA 263 and Lameck Bazii & Another vs. Republic (Criminal Appeal No. 479 of 2016)[2018] TZCA 191, among others where the principle has been maintained by our courts of law. I may admit here even the trial court does not seem to have thirsted for truth. It did not press the victim's evidence to credibility test before it opted to believe her. Even the glaring contradictions and inconsistences pointed herein seem to have escaped the trial magistrate's scrutiny. Above ail that, the newborn baby was born before judgment was pronounced. When the appellant resurfaced before the court the magistrate would reasonably be expected, not only to avail the appellant a chance to defend, but also to cause the DNA test be conducted as additional evidence since the child who was born of the victim was 16 available. It Is unfortunate even the respondent Republic did not take any action In order to assist the court serve justice. Equally Important Is rule that the rule of best evidence In sexual offences, whose spirit Is on the position that best evidence In sexual offences comes from the victim as per the famous case of Seleman Makumba vs. R, [2006] TLR, 379 where at page 384 the Court of Appeal held: - "True evidence ofrape has to come from the victim, ifan aduit, that there was penetration and no consent, and in case of any other woman where consent is irreievant, that there was penetration/' It Is known, under normal circumstances, the best evidence on sexual offences should come from the victim. However, with time and due to what Is being reflected In practice, such assumption Is qualified In many ways. It has been proved that some victims have misused that trust by telling lies In court. Even some adult persons, misused such trust by training Innocent children to tell lies In court with a view to victimize male persons who are not in good terms with them and sometimes even for no traceable reason at all. The courts as of now are required to verify critically the evidences of the victim on rape cases. This position was also arrived at by the Court of Appeal In the case of Hamisi Halfan Dauda vs. R, Criminal Appeai No. 231 of 2019 (unreported), when held: - "We are aiive however to the settied position of iaw that best evidence in sexuai offences comes from the victim, but such evidence shouid not be accepted and beiieved whoiesaie. The 17 reliability of such witness should also be considered so as to avoid the danger of untruthful victims utilizing the opportunity to unjustifiably incriminate the otherwise innocentperson(s)" Nowadays, the court stands alerted when handling cases related to sexual offences, despite the settled rule of the best evidence that, comes from the victim, yet for such misuse and mistrust, the court must verify If the victim Is trustworthy and tells nothing but only truth. The Court of Appeal In the case of Pascal Sale vs. R, Criminal Appeal No. 23/2017, CAT at Tanga (unreported), qualified such rule by guiding subordinate courts to be critical on credibility of victim's evidences. In other words, the rule that best evidence comes from the victim Is only the best If the witness Is credible and reliable In the eyes of the law. Otherwise, the rule cannot be relied upon. It Is on totality of the above that on 14/12/2022 this court ordered that the newly born child, the appellant and the victim be subjected to DNA test by the Chief Government Chemist, who had to furnish the scientific report on or before 23/01/2023, that Is within a month and a half. This court applied section 369 (1) of The Criminal Procedure Act, Cap 20 R.E. 2022, which Is quoted hereunder: - Section 369(1) "In dealing with an appeal from a subordinate court, the High Court if it thinks additional evidence is necessary, shaii record its reasons and may either take such evidence itseif or direct it to be taken by a subordinate court" (3) "Unless the High Court otherwise directs, the appellant or his advocate shaii be present when the additional evidence is taken" 18 (4)"Evidence taken in pursuance of this section shall be taken as ifit were evidence taken at a trial before a subordinate court" Regrettably, the report was not furnished on time hence the court was necessitated to adjourn the hearing several times. It is after consistent insistence on the learned State Attorneys to comply with the order, when eventually it was furnished on 29/05/2023 some five months from the date of the order. When this court went through the report, whose relevant content will be discussed in the course, it was observed that the Government Chemist Laboratory Authority received the samples from the Morogoro Forensic Office on 19/05/2023 and it promptly acted. On 22/05/2023 the Government Chemist Laboratory Authority had already conducted the scientific test and sent back to Forensic Office Morogoro. While the Government Chemist Laboratory Authority was very prompt in each action, the State Attorneys upon receipt of this court order seem to have acted sluggishly. I am of the mind that if each of the official concerned acted diligently and promptly, the Government Laboratory Authority would have received the samples early and they would have acted on time as they have exhibited. Eventuaiiy, this court would have received the report within the period it projected and may be this appeal would have been disposed of around the same month. Being cognizant of the need to dispense timely justice to parties, which is much stricter in criminal cases like this at hand, the learned State Attorneys and other justice stakeholders must learn how to act diligently like the Government Chemist Laboratory Authority has demonstrated. Having so observed, before going into the content of the report, I 19 commend the Government Chemist Laboratory Authority for such a devotional facilitation to this court. The report was tendered by Ms. Mary Lundu, learned State Attorney. Same was admitted as Exhibit API. I am fully aware that, expert reports are not determinant factor In proving or disproving the offence before any court of law. Always medical doctors and other professionals give expert opinion to the court to assist the court on that aspect. The trial judge or magistrate may be lacking such medical knowledge, but always their opinions shall remain opinions not binding to the court. Other Common law jurisdictions like India have a legal position similar to ours. For Instance, In India In the case of Ramesh Chandra Agrawal Vs. Regency Hospital Ltd. and others, MANU/SC/1641/2009: JT 2009 (12) SC 377, the apex court considered the Issue pertaining to expert opinion In a detailed way. It qualified the expert opinion that. In order to bring the evidence of a witness as that of an expert. It has to be shown that he has made a special study on the subject or acquired a special experience therein or In other words that he Is skilled and has adequate knowledge on the subject. The position of India Is similar to our jurisdiction and It Is settled that, expert evidence from a qualified and experienced expert on the field, deserve high respect. Its role cannot be underestimated, though not binding as was held In the case of Said Mwamwindi vs. R. [1972] HCD. 212 and Tizo Makazi vs. Republic (Criminal Appeal No 532 of 2017)2021 TZCA 437,among others. Rightly, the scientific opinion must /] come from an expert on the field. Also, should demonstrate the methodologies used to arrive to the conclusion. 20 In the evidence before the trial court, PW3 and PF3 did not establish the rapist. In this case where the charges of rape and impregnating a school girl are jointly preferred, given the weakness earlier sorted, DNA test was important. But the evidence given by all the prosecution witnesses, had nothing to link the appellant with pregnancy. Even PW3,the medical doctor who purportedly diagnosed the victim, did not state in his testimony that he diagnosed the victim, but only tendered Exhibit PI. Which again, although it was filled to the effect that the victim was tested through ultrasound method, no copy of image was tendered in court. Although I have resolved earlier on the issue of rape and pregnancy, this court exhibits how negligently the case was handled. Logically, it was easy in this case to establish that the victim was pregnant, but establishing the person responsible for the pregnancy was a serious task which however was taken lightly by both the republic and the court. I have seen the trial magistrate judgment purporting to consider the fact that the victim identified the appellant. The purported identification did not carry any point for the prosecution side as the appellant was her mother's tenant occupying the adjacent house at home. Obvious she was expected to know the appellant. The DNA test as Exhibit API shows, was conducted by a Government Chemist, verified by Manager of Forensic Biology and DNA Laboratory. Same was approved by the Director of Forensic Sciences. Although none of them appeared before this court for testimony at this stage as it came only for additional evidence, the court does not doubt the methodology through which DNA test was conducted. The methodology is well stated at Part 1.1 of Exhibit API that various specimens were retrieved from each of the 21 three subjects of the test and were tested in 15 areas as elaborated. The conclusive findings of the test according to exhibit PAl, was that: - "Tegemeo la nafasi (chances) ya mtuhumiwa GABRIEL S/0 APPLINALY (Vieieiezo A, Al, A2) kuwa baba mzazi wa mtoto YAHAYA OMARY (Vieieiezo C, Cl, C2) ni asiiimia sifuri (0.00%) ukizingatia kuwa victim (Vieieiezo B, Bl, B2) ni mama Mzazi wa Mtoto Yahaya s/o Omary(Vieieiezo C, Cl, C2)." The above means that chances of the appellant Gabriel Aplinaly being a biological father of the child Yahaya Omary is zero percent (0.00%). This implies that the appellant is not connected in any way to the child born after the alleged rape. As I have observed in other cases with analogous facts, I wish to observe here that the prosecution has dual purpose in prosecuting offenders in a court of law. First is to net true offenders and let the court punish them according to the existing laws. Second is to establish and prove guilty or innocence of an accused person before a court of law. In so doing, the prosecution is needed to parade all evidences it has to prove the alleged offence. Further, I would encourage the prosecution and investigation, whenever possible and convenient to use scientific instruments to unearth the truth of the allegations before subjecting innocent persons into rigours of court proceedings. This case is one of many where innocent persons are convicted and sentenced to long imprisonment, while the real perpetrators remain at large unnoticed. Complaints from the society that the true offenders, are left free and innocent persons are languishing in jail, may 22 earn validity. Eventually, loss of trust to the judicial system and dysfunctional legal system are sure to occur in the society. In totai consideration of the evidence iaid before the trial court and on the circumstance of this appeai where DNA report has been presented, I find that the appeliant was not the one who impregnated the victim. Now is it probable that he raped the victim in the first count? I have taken the prosecution's case theme into account, that the rapist is the one who impregnated the victim. It follows, the appellant who Is proved to be not responsible for impregnation, cannot be the victim's rapist, in absence of other concrete evidence as in this case. This is because there was no serious evidence in respect of the offence of rape. If the impregnator was established, in my reasoning such person would be inferred to be the rapist. But since the impregnator has not been established, some independent evidence was required in respect of rape. I think the trial court took lightly the provisions of section 3(2)(a) and 110 of The Evidence Act, on burden and standard of proof in Criminal cases. So, the trial court erred to convict the appellant with ail weaknesses diagnosed herein. Alternatively, this court is aware of other impropriety found in the trial court proceeding, which I will point out just in nutshell. The trial court grossly erred for not availing the appellant right to be heard when he was rearrested after absconding, the basic principle required it to let him show cause and enter defence against the charges. Before sentence, the appellant was not Invited to offer his mitigations and in respect of the second count, the trial court erred In awarding him 30 years imprisonment as if it was the minimum provided sentence. There are authoritative 23 decisions on the interpretation of section 60 A (3) of The Education Act including Peter Bugumba @ Cherehani vs. Republic (Criminai Appeal 251 of 2019) [2023] TZCA 221, Mawazo Kutamika vs. Republic (Criminal Appeal No. 64 of 2020) [2023] TZCA 67 and Sokoine Mtahaii @ Chomongwa vs. The Republic, Criminal Appeal No. 459 of 2018. In the latter, the Court had this to state: - 'The above phrase "shall on conviction, be liable to Imprisonment for a term of thirty years" to which we have supplied emphasis, does not Impose the custodial term of thirty years as the mandatory penalty. It gives discretion of the trial court, subject to Its sentencing jurisdiction, to sentence the offender up to the maximum of thirty years' Imprisonment depending upon the circumstances of the case after considering all mitigating and aggravating factors." After that anaiysis, I am of the strong view that the thai court would have reached into a conclusion that the appellant was not guilty had it been properly guided by principles discussed herein, even the sentencing was marred. Consequently, I find merit in this appeal hence I allow it. The court proceed to quash the convictions in both counts and set aside the two concurrent sentences of 30 years imprisonment passed on the appellant for each count. The appellant be released immediately, unless held for any other lawful cause. ^ Order accordingly. Dated at Morogoro this June, 2023. 24 :)V3 P. J. NGWEMBE JUDGE Q2I06I2023 Court: JudgetffenF^ivered at Morogoro in chambers on this 1^ June, 2023 in the presence of appellant, and Josbert Kitale, Learned State Attorney for the respondent/Republic. Sgd: L. Lyakinana, Ag, DR 02/06/2023 Court: Right of appeal to the Court of Appeal explained. O/r C T Sgd: L. fcyajrinana, Ag, DR X V. v 25