CRIMINAL APEAL NO

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA (CORAM: HON. AISHA BADE) CRIMINAL APPEAL NO. 55 OF 2023 JACKSON JULIUS SHEYO................................... COMPLAINANT I APPELLANT / APPLICANT I

PLAINTIFF

VERSUS DPP..................................RESPONDENT / DEFENDANT

JUDGMENT Fly Notes whether the case was proved beyond reasonable doubt, whether the defence by the Appellant was unjustifiable rejected Facts The Appellant present a defence of impotence against the rape charges. The trial court refused it. Ratio Decidendi Defence of impotence is same as alibi, it needs prior notice to be relied upon as a defence. 30th of August 2024 Hon. BADE.: 01/07/2024 & 30/08/2024 BADE, J. The Appellant herein was arraigned at the District Court of Arumeru at Arumcru and charged with two counts. The 1st count was rape contrary to sections 130 (I) (2) (e) and 131 (I) and the 2nd count was unnatural offence contrary to sections 154 (1) (a) and (2) of the Penal Code, (Cap 16 R.E 2022). After a full hearing, the trial court found him guilty of both counts and sentenced him to life imprisonment. Aggrieved by the aforesaid conviction and sentence, the Appellant lodged this Appeal presenting a petition of Appeal with grounds that: 1. The trial magistrate erred in law and fact when held that, the charges against the Appellant were proved beyond the reasonable doubt.

2. That, the tiial magistiate ened in law and fact by failing to evaluate and consider the evidence adduced by the Appellant and his witness during the trial and hence reached an erroneous decision. Bcfoic going to the merits of the Appeal a brief review of the contextual background that led to this Appeal is desirable. It was the prosecution case that on 14/05/2022 at Mula area within Arumeru District in the Arusha legion, the Appellant raped and had carnal knowledge of a girl of nine (9) years old, who will be referred to as a victim or PWI ’ in this judgment for purposes of concealing her identity. On the fateful day at about 19:00 hours, it was alleged that the victim was sent by his sister to buy some maize flour. On the way, she met the Appellant, who took her to the maize farm nearby where he raped and sodomized her. Afterward, the Appellant took her to a shop and bought her a bunch of biscuits and sweets, and warned her not to tell anyone else he would kill her. So she went back home, her elder sister (PW3) asked her why she was late, and she told her that Jack (the Appellant) held her against her will and did something bad to her. The sister called their father (PW2) who came and took her to the police station and later on to the hospital. At the Hospital, he met PW5, a medical doctor who examined the victim and noted that her private parts were not normal as she had

been penetrated by a blunt object into her vagina and anus. On the defense side, the Appellant admitted to having seen the victim on the fateful day around 8:00 PM in his shop coming to buy maize flour and a candle, he denied having raped or sodomized her. He testified that on that day the victim came accompanied by her sister (PW3), gave them the groceries they wanted and they went home. At the end of his defense, the Appellant raised a defense of being impotent. He stated that he never could have done the act he is accused of as he had been impotent and that he was bom with this defect. He further testified that he had never slept with a girl in his life. To substantiate his claim in his defense, he brought DW3, a medical doctor who testified that after conducting a nocturnal penile tumescence test on the Appellant for 3 consecutive days, the result showed that he had an erectile dysfunction. This appeal was argued viva voce. The Appellant was represented by Mr. Richard Mosha, learned Advocate while the Respondent enjoyed the services of Mr. Mahfoudh Mbagwa, learned State Attorney. Regarding the second ground, which counsel for the Appellant chose to start with, Mr. Mosha submitted that the trial magistrate failed to evaluate the Appellant’s defense. He argues that in his defense, the Appellant denied having committed the offence he was accused of, and DW1 and DW3 supported

his defence by testifying on the defense of erectile dysfunction. He referred to this court on page 42 of the trial court proceedings. The said results of the medical examination was received in court as exhibit DI as rendered by DW3 from Mt Meru Hospital. He referred to this court on pages 50 to 52 of the proceedings. This report evidenced the fact that the Appellant has an ED disorder, which is permanent and inborn. Mr. Mosha contends that the trial magistrate misapprehended the evidence of the Appellant during the trial, ending with an erroneous decision. To support his position, he cited the case ofNyamakesi Malima vs R, Criminal Appeal No. 171 of 2020 CAT (TANZLII) and section 114 of the Tanzania Evidence Act. In his view, the Appellant had proved the impotency condition, which should have been enough to create a reasonable doubt: and which, should have been resolved in the Appellant’s favor. Arguing the 3rd supplementary ground, Mr. Mosha submitted that the court should have relied on the witness of a tendei age when it is convinced that the witness is telling the truth. He argues to the contrary, the records shows that the victim, PW1 has been telling lies. He referred this court to pages 7-13 of the trial court proceedings. Demonstrating this argument, he offered that the acts for which the Appellant had been convicted have been stated by PW1 to have happened in the

shop, then in the room, and then in the maize farm when referring to the different scenes of the crime. Moreover, the counsel argues that PW1 testified that the acts were committed during the night and there was no power, but she could still recognize being on the farm and then also recognized the color of the clothes of the Appellant. He referred to this court on page 11 of the typed proceedings. Also, PW1 testified that she waited for the Appellant to bring her some biscuits from the shop, and then she went to the shop to buy a few items. She further explained that she was frequently raped by the Appellant, except on the material date is when she seemed to have been unable to walk properly. The counsel maintained that all these contradicting testimonies created doubt on the credibility of PW1. To cement his position, he cited the case Seleman Makumba vs R, [2006] TLR 379 and section 127 (6) of the Evidence Act, where courts are counseled to rely on evidence of a witness of a tender age if hc/shc is believed to be telling the truth and nothing else. Arguing the 4th ground of Appeal. Mr. Mosha, submitted on the variance between the charge and evidence as adduced in court. He states that the charge speaks of the scene of the crime being Mula, while PW1 testified the crime was committed at Njia ya Panya. Meanwhile, PW2 stated that the offence was committed in Ilikidinga.

He referred to this court on pages 7, 14, and 22 of the trial court proceedings. He insisted that the evidence produced in court did not support the charge, which makes it defectively incurable. Mr. Mosha added that the charge indicates the victim was raped and sodomized once on 14 May 2022, however, the evidence adduced in court by PW1-PW5 shows she was frequently raped contrary to what is stated in the charge, and no amendment was done to the charge as per section 234 (1) of the Criminal Procedure Act, for the charge to suit the adduced evidence. To buttress his position, he cited the case of John Julius Martin and Another vs R, Criminal Appeal No. 42 of 2020. Arguing the 6th ground, he submitted that, the Appellant was convicted by invoking a new section with which he was never charged or pleaded to. That, the first count was based on section 131 of the Penal Code but the Appellant was convicted under section 131 (3), on which he was not charged with, read over, or/ and pleaded to by the Appellant. He referred this court to the charge sheet on the record as well as the case of Richaid Mlingwa vs R, Criminal Appeal No. 11 of 2016 Mr. Mosha argued grounds 5, 7, and 8 collectively. He submitted that the evidence is not connected. Expounding, he recounts that PW1 stated that she has been raped and sodomized while PW2 stated that PW1 was only raped. On the other hand, PW3 stated

that during medical examination PW1 was found with STD, which is not substantiated on the report. PW2, PW3, and PW4 testified to the difference in distances between the scene of the crnne to the vtctim’s home. PW3 spoke of 10 meters, PW2 said it was 100 meters while PW3 stated it was 70 meters, referring to this court on pages, 16, 13, and 20 of the typed trial court proceedings. Mr. Mosha further argues that the victim's father, PW2 testified that his statement was taken at the police on 10th May 2022 which was 4 days before the commission of the offence, that is 14th May 2022. He insisted that these gaps and contradictions are leaving the prosecution’s evidence with more questions than answers and if the trial couit analyzed the said evidence well enough it would not have convicted the Appellant. To cement his position, he cited the case of Pascal Yoya vs R, Criminal Appeal No. 248 of 2017. With regard to the 1st ground, that the charge was not proved beyond the reasonable doubt, the counsel submitted that the defense of erectile dysfunction was properly reasoned and proved as per exhibit DI, and supported by the evidence of DW1 and DW2, but the same was not accorded the weight it deserved and this creates the doubt that the piosecution case was unproved to the required standards. He further contended that variance between the charges and the evidence adduced on the scenes of

the crime, Mula and Ilikiginga, the difference in frequency of the committed acts, and without amending the charge, which the evidence adduced did not support it. Further, the victim was telling lies as she stated different scenes of the crime. Also, PWI testified that the Appellant took chululu and inserted it in her private parts, never was it explained in any of the records as to what is meant in reality as it could mean a number of things including the penis; and PW2 having written his statement at the police on May 10 while the alleged offence was committed on 14 May 2022. He referred to this court on page 16 of the proceedings. Opposing the appeal, Mr. Mbagwa had his pick on ground 2, submitting in response that they were disputing that the evidence proved the defence of the Appellant that he is an impotence. That, on page 42 of the trial court proceedings, DW2 was not the person who conducted the medical exam on the Appellant and had admitted while being cross-examined that he was asked to come to testify since the person who conducted the exam was absent, so the trial court could not have considered such defence as the witness testifying was incompetent. That, the prosecution could not bother to cross-examine the witness since he was not the one who made the report. Moreover, Mr. Mbagwa submitted that the Nyamasera case (supra) could not apply on the circumstances as

the court could not consider such defence which was supported by an incompetent person. That, the defence should have followed the procedure to tender the said statement, and not to bring a witness who did not conduct such medical examination. On the 3rd ground, Mr. Mbagwa argues that the submission made by the Appellant’s counsel regarding this ground is misconceived as the submission and the section alleged to be contravening do not match. Even though it was argued that PW1 did not promise to tell the truth since the said provision requires that one who does not know the meaning of oath or affirmation should only promise to tell the truth, retorting that submitting to the court that PWI was lying in court has no impetus on the section cited. He insisted that section 127 (6) was not contravened. On the argument that the charge sheet was incurably defective, Mr. Mbagwa submitted that the evidence ot sexual offences should come from the victim, in this case, PWI is not recorded to have said the offence was committed at Njia ya Panya, she only stated that she stayed at Njia ya Panya. On the allegation that other prosecution’s witnesses mentioned some other places other than the one referred to in the charge sheet, Mr. Mbagwa responded that a place can have several names depending on their customs and geographical locations. He added that the argument raised does not make the

charge become defective as the variances are minor, neither do they go to the root of the case, nor has the Appellant been affected by these variances, capping it with the fact that the prosecution witnesses were not cross-examined regarding these variances. On the argument that the Appellant was convicted against a section he was never asked to pica or charged with, Mr. Mbagwa conceded that section 131 (3) of the Penal Code which imposes the sentence was not cited in the charge sheet, but the sentence imposed by the trial court was based on this provision. That, non-citation of such provision could not render the charge defective as the omission is curable under section 388 of the CPA. To support his position, he cited the case of Abdul Mohamed Namwanga vs R, Criminal Appeal No. 257 of 2020 (TANZLII) With regard to grounds 6, 7, and 8, the learned State Attorney Mbagwa submitted that he conceded to the fact that there weie vaiiances in the testimony of prosecution witnesses, but argued that the same did not shake the prosecution case. In his view, the difference in distances from the scene of the crimes by prosecution witnesses did not shake the prosecution case. He insists that the testimonies went on assumptions, there was no exact measurement taken as they were all making assumptions, in which case he reasoned, all of them couldn't state the same distances. On the

allegation that PW2 who is the father of the victim had his testimony recorded before the date of commission of the offence, the learned counsel conceded this particular fact, blaming it on either a slip of the tongue of the prosecution witness or a slip of the pen of the trial magistrate, cautioning that such variance cannot cause the reverse of the decision, insisting that this variance is not prejudicial to the Appellant. With regard to the allegation that the prosecution failed to prove the case against the Appellant beyond a reasonable doubt, Mr. Mbagwa submitted that in his view, the case was proved beyond a reasonable doubt. Further, he maintains the judgment did consider the defence evidence and made it clear that the person paraded as a witness by the defence side was incompetent, which meant the defence evidence was considered albeit on a negative note, which means it did not favor the Appellant. Rejoining on the argument that the person who tendered exhibit DI was an improper person to tender the exhibit, Mr. Mosha maintained that DW3 is a medical doctor from Mt Mem Hospital, he was the one who received the Appellant on January 3, 2023, presenting a condition as indicated on page 50 of the trial court proceedings. He admitted him and was involved in the process of examination including conducting a penile test for 3 consecutive days. Mr. Mosha added that DW3

participated in the exam, and he was the one who prepared the medical report. So the fact that the exam itself was done by a different doctor notwithstanding, he was the one assigned by his medical doctor in charge to testify. In his opinion, DW3 was a fit person to tender such a document. On the allegation that the variances are minor, Mr. Mosha refuted this argument since the said variances go to the root of the offence, including a variance of distances, to which Mr. Mosha agrees that they may be a difference, but refuted that differences should be to such a huge extent. On the variation on the date of the statement made by PW2 to the police, Mr. Mosha submitted that since court records arc supposed to be believed to be true, it should have been believed that the record was made on 10th May 2022, going to the root of the case and record and it prejudiced the rights of the Appellants. After careful consideration of the record of this file, and rival submission by the counsel for the parties, the issues for determination before me are, firstly, whether the charge sheet was incurably defective, secondly, whether the trial court considered the Appellant’s defence and lastly whether the prosecution proved the case against the Appellant beyond the reasonable doubt. In answering the first issue, the Appellant’s counsel is attacking the charge sheet for being incurably defective

on two limbs, that the charge sheet mentions the scene of a crime which is different from the scene mentioned by the prosecution witnesses, and two, that the Appellant was convicted on a new section which he was never charged or pleaded to. Staiting with the first aspect, I had to revisit the record and I could not see the basis of the Appellant’s counsel argument. It is clear from the record that PW1 testified that she lives in Njia ya Panya, while PW2, the victim’s father and PW3, the victim’s sister testified that they live at Ilikiding’a. Obviously, Njia ya Panya is within Ilikiding a or Kiding a. It is also on the record that the scene of the crime mentioned on the charge sheet was Mula. As indicated above, PW1, PW2 and PW3 did not testify that the offence took place at Ilikiding’a or Kiding’a or Njia ya Panya, as alleged by the Appellant’s counsel. Their testimony is on the places that they live in. It is also on the record that the distance from where the victim lives with her parents is less or approximately 100 meters from the scene of the crime which is Mula, and Mula and Kiding’a are areas neighboring each other, so it is possible for the victim home place to be Ilikiding’a and the scene of the crime to be at Mula. The case of John Julius Martin (supra) cited by Appellant’s counsel is distinguishable and docs not apply in this case as in the cited case the

place mentioned in the charge sheet is different from the place mentioned by the prosecution witnesses, while in the instant case the prosecution witnesses did not mention the place where the crime is alleged to have been committed, but rather where they live. On the second aspect of this contention, the Appellant’s counsel alleges that the Appellant was convicted for the offence of rape under section 131 (3) which he never charged or pleaded to. This argument was conceded by Respondent’s counsel who nevertheless, quickly dismissed it as a curable defect under section 388 of the Criminal Procedure Act. As it appears on the charge sheet, on the first count which was rape the Appellant was charged under section 130 (1) (2) (e) and 131 (1) of the Penal Code but on the judgment, he was sentenced by the trial court under section 131 (3) of the Penal Code. Now, the question is whether failure to cite subsection (3) on the charge sheet denied the Appellant his right to know the nature of the offence of rape he was facing and thus prejudiced. The answer to this question is not far-fetched. The particulars of the 1st count in the charge under consideration reads: ■•Particulars of the offence; JACKSON JULIUS @ SHAYO. on the 14th day of May. 2022 at Mula area within Arument District in Arusha Region, did have sexual intercourse with one "WFS" a girl aged nine (9) years old. the act which

contravenes the law. ” As it can be seen from the above, particulars of the offence disclosed when, where, how, and to whom the offence was committed. In addition, when the Appellant was arraigned before the trial court, the facts of the case contame more elaborate information about what happened on the material date was also read over, and the Appellant was accorded an opportunity to respond to both charge and the facts. In these circumstances, it cannot be ruled out that t e Appellant was not given reasonable information as to nature of the offence with which he was charged. I am satisfied that the particulars of the offence and the facts of the case disclosed all the ingredients of the offence of rape in the extent of enabling the Appellant understand the nature of the charged offence. Thenceforth in my view, the issue of prejudicing the Appellant docs not arise and as correctly argued by the Respondent’s counsel, the defect is curable under section 388 of the Criminal Procedure Act. Addressing the second issue, whether the Appellant’s defence especially a defence of impotence raised by the Appellant were considered by the trial court. As I revisited the trial court’s judgment, it is without a doubt the Appellant’s defence were considered and rejected by the trial court. At pages 12, 13 and 14 of the trial court’s judgment, the trial magistrate while analyzing the two

defence raised by the Appellant she rejected both of them. The first defence was that the victim’s father was forcing him to admit the offence as he took TZS 530,000 from him as medical expenses he incurred for the treatment of the victim. The trial magistrate rejected this defence on the reason that there is no proof that the Appellant reported the incident to the relevant authority other than DW2, the Hamlet chairman, and that even if the victim's father took the money from the Appellant, it cannot be construed as a waiver of the Appellant’s liability as proved by the prosecution case. On the other hand, the defence of being impotent was rejected by the trial magistrate on the reason that the Appellant did not prove his defence as the testimony of DW3, a medical doctor who purported to have conducted a medical check-up on the Appellant and found him with erectile dysfunction was weak to raise a doubt to the prosecution ’s case. The judgment also categorized the defence as an afterthought since it was raised after the close of the prosecution’s case, and the Appellant never cross-examined PW1 or any prosecution’s witness in respect of that aspect. Also, the trial magistrate ruled that the defence side failed to bring to court the person who conducted the test to the Appellant. I think I should concur with this finding on two simple reasoning that firstly, the trial magistrate

correctly rejected the defence of impotence as raised by the Appellant, as it was an afterthought. The Appellant did not issue any notice of that defence before the commencement of the trial, that he would rely on the defence of impotence. I must state in all fairness, the defence of impotence is more like the defence of alibi an all practical purposes, and the Appellant was required to issue a notice that he would rely on the defence of impotence so that it will be in the mind of the prosecution, and they will not be taken by surprise. More importantly, the notice would serve the interests of fairness and due process by allowing the prosecution side an opportunity to investigate the said particulars of the defence and prepare its case accordingly. It prevents surprise tactics and ensures that both parties have access to relevant information, thereby promoting a fair trial. But also, in my considered view, granted that notice is a formal and a legal requirement, it is logical to expect that this defence will come in candidly at the first instance of the accusations, and therefore giving notice would be a natural reaction. So in consequence of failure to notify of relying on such a defence at the beginning of the trial, one cannot preclude adverse inferences drawn by the court for non-compliance, causing the court to find the said defence as weak against the prosecution

ease. The second reason is that DW3 was an unreliable witness as firstly, his credibility is questionable. In his evidence, he testified that he was among the doctors who admitted and conducted a nocturnal penile tumesces test for three consecutive days and the result shows that the Appellant has erectile dysfunction. He also testified that he prepared the medical report however on cross examination, he denied having conducted the test and mentioned one Dr. Kipapi as the one who conducted this test on the Appellant. DW3 further testified that he was sent by the Medical Doctor in Charge to come and testify in respect of the report. By examining exhibit DI you will note that it was not prepared by DW3 as he testified during examination in chief. So the trial magistrate was justified in rejecting such defence of impotence raised by the Appellant as DW3 was not a proper person to testify on that aspect, nor was his testimony credible. Now addiessing the last issue, on whether the prosecution proved the case against the Appellant beyond reasonable doubt. It is trite law that the prosecution has a burden to prove the charge and the standard is beyond the reasonable doubt. It is also a trite law that the best evidence of rape (or any other sexual-related offence) must come from the complainant whose evidence, if credible, convincing, and consistent with human nature as well as the

ordinary course of things, can be acted upon singly as the basis of conviction. See the cases ofSeleman Makumba vs R, [2006] TLR 379and the case of Richard Mlingvva vs Republic, Criminal Appeal No. 11 of 2016 and section 127 (6) of the Tanzania Evidence Act. Going through the prosecution evidence it is clear that the prosecution failed to prove the case against the Appellant beyond a reasonable doubt. My saying so is premised on the fact that it is without a doubt that the prosecution’s case left more questions without answers, aspects which raise not only reasonable doubt but also put into question the credibility of the prosecution witnesses. Starting with the victim herself, I find her credibility to be questionable. The victim testified that while on the way to the shop, she met the Appellant who took him to the maize field, raped and sodomized her, took him back to the shop, bought her a bunch of biscuits and sweets, and then warned her never to tell anyone. However, in cross-examination, she changed the story and stated that the incident took place in the Appellant’s room. As she testified in chief, PW1 stated that she was raped and sodomized on 14/05/2022, while in cross-examination she changed the story stating that the Appellant used to rape and sodomized her frequently and that the incident of 14/05/2022 was not the first time, facts which were not supported by the

charge sheet. The victim’s contradictions did not end here, as on cross-examination she stated that her clothes had mucus and blood, facts which were supported by her older sister. PW3 who on examination in chief, stated that the victim had a blood stain on her backside. However, in her testimony while being cross- examined, she explained that her father ordered her to prepare the victim and the only thing she did was to give her a sweater and shoes. Presumably, the victim went to the hospital with the same clothes seen initially with mucus and blood stains. Meanwhile, the testimony of PW5, a doctor who conducted a medical examination on the victim on cross-examination, stated that there was neither blood oozing from the victim’s pants nor was there any blood stain in the clothes. All these made this court to question the credibility of the victim and raised a question whether the victim was telling nothing but the truth. I am firmly of the stance that as explained above, the evidence of the victim of sexual offence especially that of a child of tender years can only be relied upon and found as the basis of conviction only if the evidence is credible, convincing, and consistent with human nature as well as the ordinary course of things. As I revisited the testimony as given by the victim including her statements while she was being cross-examined, I could not say that the

victim gave spontaneous, coherent, consistent, and detailed evidence to warrant a conviction on the offenses that the Appellant was charged with. I cannot overemphasize the fact that these are serious offences attracting severe punishment. Discarding the testimony of the victim, which I can not help but discard, which testimony is regarded as the best evidence in sexual offences, would certainly crumble the prosecution’s case as the remaining pieces of evidence are hearsay with no help on the prosecution side. Having said so this appeal is allowed to the extent explained above. The conviction and sentence meted by the trial court is hereby quashed and set aside. I further order the immediate release of the Appellant unless he is held by some other lawful cause. It is so ordered. Dated at ARUSHA ZONE this 30th of August 2024.

AISHA BADE

JUDGE OF THE HIGH COURT