FANTALEO GIDIONI VS REPUBLIC

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA DC CRIMINAL APPEAL NO. 952 OF 2025 (Arising from District Court of Iramba in Criminal Case No 24352 of 2024) BETWEEN FANTALEO GIDION …………………………APPELLANT VERSUS THE REPUBLIC…………………………….RESPONDENT JUDGMENT Date of the last Order: 25/03/ 2025 Date of the Judgment: 08/04/ 2025 LONGOPA, J.: The appeal is against conviction and sentence on offence of Incest by Male c/s 158(1)(a) of the Penal Code, Cap 16 R.E. 2022. It was alleged that on 24th August 2024 at Mwanga Village in Mkalama District within Singida Region the appellant had sexual intercourse with one E D/O P, a girl of 10 years. The appellant was convicted and sentenced to serve thirty 1|Page (30) years imprisonment on 18th December 2024 upon full trial having heard five prosecution’s witnesses and one defence witnesses. On 10th January 2025, the appellant being dissatisfied by the decision of the Iramba District Court, the whole conviction and sentence filed an appeal before this Court on the following grounds of appeal, namely: 1. That, the Trial Court erred in law and facts by convicting the appellant without cogent evidence to prove the offence of incest by male beyond reasonable doubt. On 25th March 2025, the parties appeared before this court for the viva voce hearing of the appeal. The appellant appeared in person fending for himself while the respondent enjoyed the legal services of Ms. Elizabeth Barabara, learned Senior State Attorney. The appellant was the first to argue the appeal. He stated that the case against him was nor proved to the required standard but the trial against him before the trial court was marred with fabrications and concoctions. 2|Page The appellant denied to have had sexual intimacy with his daughter but the allegations were made by the neighbour who intended to rescue his son from being arrested for having sexual intercourse with the appellant’s daughter. The appellant submitted that sometimes back he took his child to the Police Station where PF 3 was given for treatment after the child had sexual intercourse with the neighbour’s son who ran away and the Police were looking for the neighbour’s son. The appellant attacked the prosecution’s evidence and stated categorically that the witness who was a medical officer/ clinical officer stated to have found nothing regarding sperms being found on vagina of the victim nor bruises and that the child was not penetrated. The PW 2 was the complainant who for the first and second time did not give evidence. She was then couched on what she should say against the appellant and that arrangement made her to state that the appellant had sexual intercourse with her. 3|Page According to the appellant PW 3 was a daughter of the neighbour who testified to have seen the victim at night at her home. It was not true that I had sexual intercourse with my daughter. It was a further submission of the appellant that testimony of PW 4, one Ezekiel Petro was a hearsay evidence. It was not correct. For PW 5 the evidence was not direct evidence but hearsay evidence. It was not true that the appellant committed the offence but the alleged victim child was set to testify against the appellant by a neighbour in order to serve that neighbour’s child who has been having sexual intercourse with the appellant’s child. The appellant prayed for the acquittal after this court quash the proceedings and set aside the conviction and sentence thus setting the appellant free. Conversely, the Ms. Elizabeth Barabara, Senior State Attorney submitted against the appeal for the respondent. The principle in the case of Philbert Gerson @Paschal versus Republic, Criminal Appeal No 267 of 2019, at page 14 was cited to reiterate the position that the Court stated 4|Page that it is settled law that the true and reliable evidence of sexual offence is that of the victim who should prove the penetration. According to respondent’s learned Senior State Attorney, it is on record that the victim who was the PW 2 stated categorically that the appellant was assaulting her. The prosecution had not proved the case beyond reasonable doubts. The element of penetration was not proved before the trial Court. Also, the respondent argued that there were material discrepancies and contradictions of the prosecution witnesses. One of the discrepancies was on the date of the occurrence of offence. It is indicated that some witnesses stated that date was on 23/08/ 2024 while PW 4 stated that date to be 21/08/ 2024. The second contradiction is on the scene of crime. PW 2 stated the scene of crime to be kitchen of the house. PW 3 stated in the house and PW 4 restate the house (another house). The set of evidence from PW 2, 5|Page pw 3 and PW 4 have effect of weakening the prosecution evidence thus creating reasonable doubts on the case against the appellant. That being the case, it was the respondent’s learned Senior State Attorney submission that the weaknesses have left reasonable doubts thus the case was not proved to the required standard. In the case of Mwadau versus Republic, the Court of Appeal stated that material contradictions will corrode the case. Thus, the respondent supported the prayer that this court be pleased to allow the appeal, quash the proceedings and set aside the sentence. Having heard the submissions by the parties in support and opposition to the appeal, this Court is enjoined to determine validity of the appeal. The first aspect is on variance on the charge and the evidence on record thus creating disparities which goes to the root of the case. It is common knowledge that charge plays a significant role in the administration of criminal justice. Thus, the contents of the Charge must 6|Page be proved with cogent evidence to warrant the finding against the accused person hence conviction and sentence thereat. The importance of the charge was illustrated in the case of Francis Fabian @ Emmanuel vs Republic (Criminal Appeal No. 261 of 2021) [2023] TZCA 17936 (12 December 2023) (TANZLII), at page 3, the Court of Appeal reiterated that: In the circumstance of this appeal, we want to sound a note on the propriety of proving the contents of the charge sheet. We presuppose, it is an elementary knowledge of criminal justice that, the cornerstone of any criminal trial is the charge sheet. The charge sheet is a heart, brain and blood of criminal justice and fair trial. It plays a duo role of informing the accused person on the nature of his accusation and allow him to prepare his proper defense. Apart from that, the charge sheet notifies the trial court on the subject matter with a view to determining its jurisdiction and prepare the proper procedure to be applied 7|Page during trial. Therefore, the charge sheet is the most important document in any criminal trial. In the instant appeal, the charge laid before the trial District Court of Iramba stated that the offence occurred on 24th August 2024. The charge explicitly states as follows: IN THE DISTRCT COURT OF IRAMBA. AT KIOMBOI. CRIMINAL CASE NO:- OF, 2024. REPUBLIC. VERSUS. FANTALEO S/O GIDION. CHARGE. STATEMENT OF OFFENCE: Incest by male, Contrary to Section.158(1)(a) of the Penal Code, [Chapter.16, Revised Edition, 2022]. 8|Page PARTICULARS OF OFFENCE: FANTALEO S/O GIDION on 24th day of August, 2024, at Mwanga village, within Mkalama District, in Singida Region, did have sexual intercourse to her daughter EF, a girl, aged 10 years old. Dated at Kiomboi this:-........., day of............, 2024. ...................................... Public Prosecutor. The evidence on record is to the effect that the offence occurred on diverse dates. For instance, PW 1 stated that the offence happened two days prior to 24th August 2024 when the medical practitioner examined the victim. It would appear two days before 24th August 2024 would fall on 22nd August 2024. PW 2, the victim stated that the incident happened on 21st August 2024 when she left her father’s premises to go to the neighbours seeking refugee after the sexual intercourse incident. On the other hand, PW 3 9|Page stated that it was the night of 23rd August 2024 when the alleged incident happened. PW 4 stated the incident happened on 21st, 22nd and 23rd of August 2024 while PW 5 stated that incident happened on 21st August 2024. It is lucid that dates of the alleged incident differ significantly for all the prosecution’s witnesses. These variant dates are not tallying with the Charge that allegedly stated the offence to have been committed on 24th August 2024. It is pertinent that this crucial document in administration of justice must be supported by cogent evidence that tally squarely with the particulars of the charge. Disparities between the charge and the evidence have insurmountable effect on the case. To apply the words of the Court of Appeal in Francis Fabian @ Emmanuel vs Republic (supra), at pages 4-5, the Court noted that: Moreover, it is a duty of the prosecution to produce all necessary evidence to each and every allegation made therein. In the case of Abdel Masikiti vs. Republic, 10 | P a g e Criminal Appeal No. 24 of 2015 (unreported) at page 8 thereof, this Court insisted that, it is incumbent upon the Republic to lead evidence showing that the offence was committed on the date alleged in the charge sheet, which the accused was expected and required to answer. If there is any variance or uncertainty in the dates or month, then the charge must be amended in terms of section 234 of the CPA. If this is not done as in this appeal, the preferred charge will remain unproved, and the accused shall be entitled to an acquittal. Short of that a failure of justice will occur. As the charge and evidence on record are at variance, it is certainly that the charge against the appellant was not proved to the required standard as the date stated in the charge was not proved even by the victim herself. This creates reasonable doubts as to the truth of the alleged crime being committed by the appellant. 11 | P a g e On the other hand, there appears that there was no proof on the sexual intercourse that happened between the appellant and the victim. PW 1 stated that when she examined the victim found no bruises nor blood or laceration on the victim’s vagina. Though the victim had no hymen indication that she might had involved herself in sexual intercourse in recent days. PW 2 the victim stated that stated that the appellant had been abusing her. According to PW 2, when the appellant is drunk, he insults and beats the victim. The appellant abused the victim once. To use the victim’s words “ananifanyia pia ukatili tukiwa jikoni, mara moja.” At no point in time, PW 2 stated that she had sexual intercourse with the appellant. As there is no evidence that sexual intercourse happened between the appellant and victim, then the offence of incest by male was not established. In Chora s/o Samson @ Kiberiti vs Republic (Criminal Appeal No. 516 of 2019) [2021] TZCA 628 (1 November 2021) (TANZLII), at page 7, the Court of Appeal noted that: 12 | P a g e …The intention of the legislature in enacting the provisions of section 158 of the Penal Code which create the offence of incest by male, was to criminalize sexual relationships between people of opposite sex belonging to the same lineage as defined under that provision. Under section 158 of the Penal Code, he submitted, an offence of incest by male is committed irrespective of whether or not there is consent from the woman. For the offence of incest by male to exist there must be proof that sexual intercourse between the victim and appellant happened which is not proved in this case. There is also something which appear to discredit the evidence of the prosecution in this appeal. PW 1, medical practitioner, stated in her evidence that when interrogated the victim she was informed that the victim was raped by her biological father many times. 13 | P a g e That evidence was also stated by PW 3 who stated that the victim informed him to have penetrated more than three times. PW 4 also stated that victim had informed him that she had been engaged in sexual intercourse with her father several times. However, that was not the evidence of the victim before the trial court. This has two implications. Credibility of the prosecution’s evidence becomes into question. In the case of Elisha Edward vs Republic (Criminal Appeal 33 of 2018) [2021] TZCA 397 (24 August 2021) (TANZLII), at pages 6-7, the Court stated that: It is settled law that the best test for the quality evidence is based on the credibility of a witness (see Yohana Msigwa v. The Republic (1990) T.L.R. 143, Anangise Masendo Ng'wang'wa v. The Republic (1993) T.L.R. 202 and Richard Mtengule and Another v. The Republic (1992) T.L.R. 5. It is in this regard that in Shabani Daudi v. The Republic, Criminal Appeal No. 28 of 2001 (unreported) 14 | P a g e the Court stated that: “Credibility of a witness is the monopoly of the trial court but only in so far as demenor is concerned. The credibility of the witness can also be determined in two other ways. One, when assessing the coherence of the testimony of that witness and two, when the testimony of that witnesses is considered in relation to the evidence of other witness including that of the accused person. In those two occasions, the credibility o f a witness can be determined even by a second appellate court when examining the findings of the first appellate court.” The credibility question rises on two instances. First, the victim’s testimony is quite silent on the sexual intercourse with the appellant different from what other prosecution witnesses stated to have been informed by the victim. The trial court never benefitted from the testimony of the victim to know about the sexual intercourse happening several times. Second, if sex incidents happened several times, the silence of the 15 | P a g e victim in conspicuous absence of evidence of any threat whatsoever makes the whole evidence doubtful. As the evidence of the prosecution is marred by serious variance on the dates of commission of the event and the frequency of occurrence of the same, it was unreliable and incredible to sustain conviction of the appellant to the offence of incest by male. In Barnabas William Mathayo vs Republic (Criminal Appeal No. 254 of 2020) [2022] TZCA 431 (15 July 2022) (TANZLII), at pages 12-13, the Court stated that: This is material contradiction which goes to the root of the matter but was not addressed by the courts below. In the celebrated case of Mohamed Said Matula v. R [1995] T.L.R. 3, the Court considered contradictions and inconsistencies in the prosecution evidence and the duty of the court to address the same and it held thus: “Where the testimonies by witnesses contain inconsistencies and 16 | P a g e contradictions, the court has a duty to address the inconsistencies and try to resolve them where possible; else the court has to decide whether the inconsistencies and contradictions are only minor, or whether they go to the root of the matter " -See also Emmanuel Kabelele v. R, Criminal Appeal No. 536 of 2017 (unreported). It is therefore our considered view that, had the courts below addressed this contradiction, they would have found that it went to the root of the case thus creating some doubts to the prosecution case as to whether the incident happened as alleged. Given that the prosecution evidence was characterised by serious contradictions, it can safely be stated at this juncture that there was no proof the case beyond reasonable doubts as required of the criminal cases in this jurisdiction. 17 | P a g e In the case Chausiku Nchama Magoiga vs Republic (Criminal Appeal No. 297 of 2020) [2023] TZCA 17810 (9 November 2023), at page 11, the Court of Appeal stated that: The duty of the prosecution to prove a criminal case beyond reasonable doubt is universal and, in our case, it is statutorily provided for under section 3 (2) (a) of the Evidence Act, Chapter 6 of the Revised Laws. Further, in the case of Woodmington v. DPP [1935] AC 462, it was held inter alia that, it is a duty of the prosecution to prove the case and the standard of proof is beyond reasonable doubt. The term beyond reasonable doubt is not statutorily defined but case laws have defined it. In the case of Magendo Paul & Another v. Republic [1993] T.L.R. 219, the Court held that: “For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed.” 18 | P a g e The disparities between the charge and evidence on record have left reasonable doubts that there is likelihood that alleged crime never happened at all. It was unsafe for the trial court to enter conviction and sentence against the appellant in the circumstances where the prosecution evidence left a lot to be desired. Thus, there was no proof of the case against the appellant to the required standard. In totality of the events, the appeal has merits and it should be upheld. The conviction is quashed and the sentence is set aside forthwith. The appellant should immediately be set free unless his continued incarceration in prison is for any other lawful reasons. It is so ordered. DATED at DODOMA this 8th day of April 2025. E.E. LONGOPA JUDGE 08/04/2025. 19 | P a g e