20170518 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAA.M CRIMINAL APPEAL NO. 169 OF 2015 (Originating from the /Iola District Court, Criminal Case No. 446/2010) HASHIM AHAMADA ------------------------------------------ APPELLANT

VERSUS THE RE PUBLIC --------------------------------,..---------------- RES PO t--iD ENT

JUDGMENT MUTUNGI. J. Having been aggrieved by the decision of the llala District Court at Samora, the appellant has raised the following grounds of appeal:- ( 1) That the trial magistrate did not evaluate correctly the evidence of the prosecution side as well as that of the defence side. (2) - ·That the trial recorded proceedings are not easily legible and lead to inconsistency and confus-ion. (3) That the trial magistrate erred in law and in fact by finding that the evidence of the prosecution side proved beyond reasonable doubt the charge against the appellant. Starting with the second ground of appeal7-P1e--up·J:)ell-en-t_ _ submitted that the sections cited do not disclose the offence. These are cited as section 130 and 131 of the Penal Code Cap. 16 R.E 2002. In his opinion these did not disclose as to what offence he was facing or what kind of rape he had committed to be in a position to defend himself. As far as the first ground raised the appellant submitted that the case had been conducted by two magistrates. The first one heard, recorded the whole evidence and before he could deliver the judgment he passed on. After four months the file was re-assigned to another magistrate for purposes ------------oLwrlting the judgment. He remained with the file for two ----------- - 2 . , . -.. ➔._,,... ; ),~'"-'' years and five months. Even upon writing the judgment he did not

evaluate the evidence properly. Lastly on the third ground, the appellant subm"itted that the evidence on record left a lot to be desired. PWl (the victim) had alot of glaring contradictions in her testimony hence her evidence did not collaborate that of PW2, PW3 --------------- a tia--P·W-4~.--Tbe__01qj_9-~ reason being that there was a big force behind the victim~-Th~s~res-ome-C)f--t-he-GlppelL011!) ------------- re Iat iv es who wanted the appellant's life ruined. They had serious grudges with the appellant. On the other side the respondent dully represented by Miss Lillian Rwetabula, State Attorney submitted that, there were obvious legal irregularities apparent in the judgment. The trial magistrate did not capture the ingredients of the judgment as provided for in Section 235 of the Criminal Procedure Act, Cap. 20 R.E 2002. This provision of law lays down a requisite conditions that, the magistrate should first find an accused guilty and proceed with the conviction. In the matter at hand the trial magistrate simply found the appellant guilty and ended there. To support her point the 3 learned State Attorney cited the case of Sempemba & Another V.R. Criminal Appeal No. 169 /2010 where the procedure 1n convicting an accused person was elaborated at length. The learned counsel proceeded to faulter the way the charge sheet was framed. She submitted that the

cited section__T3_0 _ d<:Jes---HoL __ e-xist in the Penal Code. ------------ The prosecution should have mentionecf--lhe__ telev0r1t-- --S_U_Q_- section. Failure to do so, the prosecution had denied the appellant his right to defend himself as was found in the case of the Court of Appeal, Marekano Ramadhani, Criminal Appeal No. 202/2013 which quoted with approval the case of Charles s/o Makapui V.R. Criminal Appeal No. 85 of 2012 (unreported}. The court found the omission to be a procedural irregularity and proceeded to quash the sentence and conviction, whose consequence was to set free the appellant. The learned State Attorney urged this court to do the same. 4 The facts of the case in brief are that the victim (PW 1) who had come to Dar es Salaam was residing with her relatives. Being new in the city, she had to be escorted wherever she went. On the material day they had asked her uncle (the appellant) to take her around. Having met her uncle he took her around to various places including the Movenpick Hotel, the Casino and the State house. Time passed and at around 11 p.m they went back to Movenpick Hotel where the appellant took a veh icl~ih-e-v·i-e-t-i-m-wGs-r:toJ_s_usr:2icious ------ having been told earlier by the appellant that there is where he worked. The vehicle took them to Crown Hotel at Kariakoo. The appellant and PWl went into a certain room. He told her

that, since it was late and Gongo la mboto was very far, they had to spend a night there. PW 1 got into the bed and on turning she found the appellant standing naked. He then started undressing her, begging to have sex with her. She refused, reminded him that he was her uncle and she would narrate to her mother the whole episode. 5 The appellant got out~- knife and as she tried to open the door, it was already locked. The appellant then forced his penis in her vagina. She had no choice but give in since her - --- ------- - life was now in danger. ____ Hciving raped--her -the--appellonJ _ cleaned himself with a handkerchief and they remained in the hotel till morning. The appellant gave her water to drink and tablets. In the morning the appellant left and came back at 11.00 a.m. There after he took her to Vingunguti to --- different relatives ana-not-buck-t-o--i=-0-8G1-t-o-wb_ele she was ----------- the previous day. PWl asked the appellant to call her relatives at Tabata and by the time they arrived at Vingunguti the appellant had already left. PWl narrate-the episode to her relatives who sent her to the hospital. First at Madona hospital (Private) then to Amano hospital where she was examined and a PF3 was filled by a medical doctor. Ultimately the appellant was arrested and charged for rape. Having analysed the facts as above the issue is whether the appeal has merits or

otherwise. The court finds it is of necessity that it first concentrates on the glaring legal anomalies. Section 135 of the Criminal Procedure Act, Cap. 6 20 R.E. 2002 clearly provides for modes under which a charge sheet is to be drawn. The supreme court of this land in the.case of Charles s/o Makapui V.R. Criminal Appeal No. 85 of 2012 (unreported) observed that it· ·is a- mandatory requirement under section 135 of the Criminal Procedure Act, that a charge sheet should describe the offence and should make reference to the section of the law creating ---• ---Jb_e_Qffence. -------~-------------------------------------------------- In this case the appellant was charged for rape contrary to section 130 of the Penal Code. The case of Simba Nyangura and the Republic (unreported), clearly stated in a charge of rape an accused person must know under which of the descriptions (a) to (e) in section 130 (2) the offence he faces falls, so that he can be prepared for the defence. It was found the lack of underlying particulars prejudiced the appellant in his defence. It is the settled view of this court that the appellant in the circumstances of the case is not clear whether he was able to appreciate what he was specifically charged with for him to make an informed defence. It is hence imperative for 7 the prosecution to have carefully framed up the charge in accordance with law. It

becomes even more vital to do so where an accused is faced with a grave offence attracting a long prison sentence as it was the case in this matter. The second error as found by the court is non-compliance to the requirements of section 235 of the Criminal Procedure - -------Act,_JCap 20 R.E 2002]. In this regard the trial magistrate si m pl;-;;a t~d-th-;tth e -op peIT an t-is--fo~on-ci-§H-il-t3/--b_u:t_dj_d_-n-O-t- ------ proceed to convict him in compliance with section 235 ( 1) of the Criminal Procedure Act, [Cap. 20 R.E 2002] in his judgment. It is my settled opinion that there was hence no valid judgment in terms of subsection (2) of section 312 of the Criminal Procedure Act (Supra). On this I am also guided by the numerous occasions where the Court of Appeal held that, a judgment which lacks a conviction in terms of section 235 ( 1) as read with section 312 (2) is not judgment all. Such instance is the case of Amani Fungabikisi V.R Criminal Appeal No. 270 of 2008 (CAT unreported)". 8 The foregoing notwithstanding the prosecution case leaves ct- lot to -be desired, as it was not sufficient enough to implicate the appellant to the offence c·harged. The victim (PWl) was of the age of the majority. She narrated at length of how she was with the appellant roaming around site seeing up to late hours. She went with him up to the - - --M-0-t-e-l-r-o_om~he appellant took a bath

and still they went . on to sleep on the sam;bedwifnnim-.-1:0-t-er-is-wb.en_he ---------------- woke her up and raped her. They then went on to sleep. The appellant woke up at about 6:00 am took a bath and left the hotel only to return at 11 :00 am. The victim despite remaining alone kept waiting and did not raise an alarm. For any stretch of imagination it is difficult to absorb such a narration. The victim was old enough to realize and appreciate all that was taking place yet for reasons known to herself she kept silent. The rest of the prosecution evidence does not collaborate this story. It is the settled findings of the court that the prosecution had failed in its noble duty of proving the offence beyond any reasonable doubt. In such offences the evidence of the victim is the best evidence but in this case it left a lot to be desired. In the upshot the court is satisfied that the trial court's judgment and sentence together with the compensation ordered be quashed and ·set aside. The appellant is accordingly set free unless held for some other lawful cause. - f-- - --- er --- B. R. Mutungi

JUDGE 18/05/2017 Read this day of 18/5/20 l 7 in presence of the appellant and Miss. Imelda Mushi for respondent. t 2J B. R. Mutung1

JUDGE 18/05/2017 Right of appeal explained. 10