jackson naiko v republic 2023 tzhc 22556 10 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB REGISTRY OF MANYARA)

AT BABATI CRIMINAL APPEAL NO. 72 OF 2023 (Originating from Criminal Case No. 10 of 2022 before Kiteto District court at Kibaya) JACKSON NAIKO......................................................................... APPELLANT

VERSUS THE REPUBLIC......................................................................... RESPONDENT Date of Last Order: 17.10.2023 Date of Judgement:10.11.2023

JUDGEMENT MAGOIGA, J. The appellant, JACKSON NAIKO was arraigned in the District of Kiteto at Kibaya (trial court) for one offence of incent by male contrary to section 158 (1) (a) of the Penal Code, [Cap 16 R.E.2019]. It was alleged in the charge sheet that the appellant on 28th day of December, 2021 at Ndaleta village within Kiteto district in Manyara region, did have sexual intercourse with her daughter, one, JNE -(pseudo name to be referred herein as 'PW1' or 'victim') a pupil of Njoro Secondary School aged 18 years. Having heard the case on merits, the learned trial Senior Resident Magistrate found the appellant guilty, convicted and sentenced him to serve a term of 30 years imprisonment and an order to pay compensation of Tshs. 1,000,000/-to the victim. J Aggrieved by both conviction, sentence and order of compensation, the appellant preferred this appeal to this court faulting the learned trial Senior Resident Magistrate armed with four grounds of appeal, couched in the following language, namely:- 1. That the trial court erred in law and fact by failure to evaluate properly the evidence tendered before it by the respondent during trial of the matter at hand thus convicted the appellant on contradictory evidence; 2. That the trial court erred in law and fact by failure to consider the evidence tendered before it by the appellant; 3. That the trial court erred in law and

fact by convicting the appellant based on the proceedings which were marred with irregularities contrary to laws governing criminal proceedings; 4. That the trial court erred in law and fact by failure to consider the law. On the strength of the above grounds of appeal, the appellant prayed that this court be pleased to allow the appeal, quash conviction, set aside sentence and compensation order and set the appellant free. When this appeal was called on for hearing, the appellant was enjoying the legal services of Mr. Joseph Mwita Mniko, learned advocate, whereas Jk 2 the respondent, Republic was enjoying the legal services of Mr. Benedict Kivuma Kapela, learned State Attorney. Arguing the appeal, Mr. Mniko told the court that he will argue grounds numbers 1 and 2 jointly and grounds numbers 3 and 4 jointly. Arguing grounds of appeal number one and two jointly, Mr. Mniko, learned advocate for the appellant told the court that the learned trial Senior Resident Magistrate erred in law and fact for failure to evaluate evidence on record as such arrived at wrong conclusion by convicting and sentencing the appellant while the case was not proved beyond . . ■ I . reasonable doubt. According to Mr. Mniko, the charged sheet subject of this appeal stated that the offence was committed on 28.12.2021 but the judgement shows the offence was committed on 11.01.2022 at 00:03 hours midnight.

This contradiction on the part of the prosecution shows that there was obvious variance between the charge sheet and the judgement which the appellant was convicted of. According to Mr. Mniko this is fatal and goes to the roots of the matter at issue. Mr. Mniko pointed out that PW1 (the victim) at page 12 of the typed proceedings under oath testified that she was raped on November, 2021 and on 28/12/2021 which are two different dates. Not only that but PW4 the investigator of this case testified that the victim reported on 11.01.2022 and that the last date of rape was on 28.12.2021 but victim 3 had two dates. It was, therefore, Mr. Mniko argument that the evidence of PW1 and PW4 and what is in the judgement are obviously at variance. Another contradiction noted was that, the time of commission of the offence was stated in the charge sheet as 11 Pm but the judgement state time as 00:03 hours, thus differing from what is in the judgement. Also was the testimony of PW1 at page 14 that the one who was raped on 11.01.2022 was Stela and not herself, so making her evidence unreliable to mount conviction. Further, Mr. Mniko argued that at page 11 of the typed proceedings, PW1 testified that with her relationship with biological mother was not good and the appellant raised such an issue at page 45 of the typed proceedings that this is a fabricated case by his senior wife. According

to Mr. Mniko, all these contradictions were not noted because the learned trial Senior Resident Magistrate did not evaluate evidence on record as such caused miscarriage of justice. In support of his position, the learned advocate referred this court to the case of Hussein Idd Mbuya Vs. Republic, Criminal Appeal No. 10 of 2021 HC (Morogoro) (Unreported) in which it was held "that it is easy to accuse a person on rape, but becomes very difficult to defend against that accusation. This has occurred several times in our courts. Family conflicts or land disputes have been reported to the law 4 enforcers as rape, simply because sexual related offences attract long imprisonment Thus, court should always be keen to scrutinize every piece of evidence before conclusion." On that note, Mr. Mniko invited this court to re-evaluate evidence on record and arrive at just decision in the circumstances of this appeal. Also, was the learned advocate argument that, the testimony of PW5 and his findings in exhibit Pl and oral testimony are at variance that in exhibit - —-v* -w- —■• * • » - • ■ < Pl his findings were that no hymen but in his oral testimony under oath testified that the hymen was not intact without explaining the difference between the two terms. On this contradiction, Mr. Mniko invited this court to decide in favour of the appellant. Further was the argument of Mr. Mniko that PW2's

testimony was taken in abrogation of section 130 of the Tanzania Evidence Act, for failure by trial court to inform of her rights under section 130(3) of TEA and as such prayed that this piece of evidence be expunged from the court record. In the totality of the above reasons, the learned advocate invited this court to allow grounds of appeal numbers 1 and 2 and set the appellant free. On the 3rd and 4th grounds of appeal, Mr.Mniko argued that section 210 (3) of the CPA for failure to read the testimony of the appellant at the end of recording, section 231 for failure to address the appellant on the 5 substance of the charge and of his rights as to how to defend as required in sections 231(1), 235 (1) of the CPA which state that the court shall convict and pass sentence according to law but the sentence passed was excessive because section 160A of the CPA for 20 years sentence but here sentence passed was 30 years imposed contrary to law. On the totality of the above cumulative effects, Mr. Mniko prayed that this appeal be allowed and the appellant be set free. In response, Mr. Kapela, learned Attorney told the court that on their part, the Republic, seriously oppose this appeal and supports conviction, sentences and compensation order meted out against the appellant. Replying to grounds one and two argued jointly, Mr. Kapela, learned Attorney admitted that, it is true the

judgement shows a different date «_> W.-j with that of the charge sheet but was quick to point out that, these were typing errors because apart from the judgement and within the judgement the date referred is 28.12.2021. Not only that but also that in the entire proceedings, all witnesses including the victim testified on 28.12.2021 as the date the offence was committed. According to Mr. Kapela, this applies to the time of offence which are all curable under section 388 of the CPA. As to November, 2021, as date argued was different to the charge sheet, Mr. Kapela argued that, the first incidence occurred in November, 2021 and the last one which was in charge sheet occurred on 28.12.2021. 6 As to the testimony of PW4, the learned Attorney reiterated what he argued above regarding dates. The argument that the evidence of PW1 and PW4 and the judgement that are at variance is not true at all except for a date which he has explained as typing errors. As to difference between time in the testimonies of PW1 and PW4, Mr. Kapela argued in reply that same does not go to the roots of the matter because the incidence occurred at night. As to the testimony of PW1 that Stela was raped, no prejudice was occasioned and no law was cited to say that if PW1 testified of any other incidence affected her testimony. As to the argument that the relationship between the father and the mother of

children was not good is true but was quick as well to point out that no evidence that connect the mother with this case as such no evidence of fabrication at all. As to the testimony of PW5 that in exhibit Pl wrote that no hymen and in his oral testimony that hymen not intact as a contradiction, it was the reply of Mr. Kapela that, according to him, they mean one and the same thing in the circumstances of this appeal. As to evidence of PW2 was taken without dictates of section 130 as general rule but there are exceptions under sub section (2) (a) and (b) which provides that when the accused is charged with an offence of morality a couple can testify without necessarily complied with the 7 uOV z diiG - j ;■ ■ provisions of sub section (1) of section 130 of the TEA. On that note, the learned Attorney invited this court to leave the evidence of PW2 intact for it was taken in compliance with the law. On that note, the learned Attorney invited this court to find grounds number one and two devoid of any useful merits and dismiss them. As to grounds of appeal number 3 and 4 argued jointly, Mr. Kapela in reply argued that the proceedings are obvious clear that sections 210,130 and 131 (3) of the CPA were complied with and the record shows the appellant stated how he will defend after being addressed of his rights as shown at pages 43-44 of the typed proceedings. In the alternative,

Mr. Kapela argued that even if not complied with that was not fatal. In support of his stance, the learned Attorney referred this court to the case of Samwel Sylvester Vs. Republic, Criminal Appeal No.36 of 2023 (HC) Manyara (Unreported). As to section 131 of the CPA, Mr. Kapela replied that it was complied with and the appellant replied after being addressed under that provision and invited this court to find this argument devoid of any useful merits. As to section 235 (1) of the CPA, at first Mr. Kapela was adamant that it was complied with but upon probed by the court changed and conceded that it was not complied with because the proper sentence was to be 20 years and not 30 years imposed. On that note, Mr. Kapela urged this court 8 being the first appellate court to impose proper sentence of 20 years. On the totality of the above, Mr. Kapela prayed this court to uphold conviction but disturb sentence by imposing 20 years instead of 30 years wrongly imposed to the appellant. On this point, the learned Attorney referred this court to the case of Faustine Yusuf Vs. Republic, Criminal Appeal No. 455 of 2018 CAT (Arusha) (unreported) on how to deal with the sentence wrongly applied. On the totality of the above reasons, the learned Attorney invited this court to dismiss this appeal for want of merits save for custodial sentence which has to be reduced to 20 years. In rejoinder

Mr. Mniko argued that the cases cited are distinguishable because what was at issue was wrong citation of provision of law but here the issue is imposing excessive sentence contrary to law. Further, Mr. Mniko reiterated that the trial court did not consider the defence evidence at all. Further rejoinder by Mr. Mniko was that PW2 was not eye witness as deduced by the learned trial Senior Resident Magistrate. According to Mr. Mniko, the issue of variance between dates are not minor errors nor typing • • ' ' 1 • - • ’ ■? ‘ . *>; \, j ' ■.. ? - >. . » v . ’ < J Ai £ t b • v ; LC: t. U ‘ UV Ui •.. ' > . fC • errors but goes to the roots of the case. On that note, the learned advocate prayed that, on the noted contradiction be seriously considered and be decided in favour of the appellant. However, Mr. Mniko upon 9 probed by the court if under the provisions of section 130 (2) of TEA, the evidence of PW2 is not admissible, admitted, and indeed prayed to not to pursue this line of argument but was quick to ask the court critically look into the credibility of PW2. On that note, the learned advocate reiterated his earlier prayers to allow the appeal and set free the appellant. This marked the end of hearing of this hotly contested appeal. Admittedly, this is first appeal, and being so, it is trite law in our jurisdiction that the first appellate court is duty enjoined to consider

the evidence in the form of re-hearing by evaluating the entire evidence in an objective manner (given the first ground of appeal) and draw its own finding of fact whether the judgement of the trial court ought to be upheld. This guidance and inescapable duty of this court as first appellate court has been repeatedly insisted by the Court of Appeal in a number of decisions. See the cases of Okeno Vs. R [1972] EA 34, Kaimu Said Vs. the Republic, Criminal Appeal No.391 of 2019, CAT (Mtwara) (unreported), Sabas Kuziriwa Vs. The Republic, Criminal Appeal No.40 of 2019, CAT (Mbeya) (unreported) and Nurdin Iddi Ndemule Vs. the Republic, Criminal Appeal No.410 of 2018 CAT (DSM) (unreported). io In this appeal, the main complaint in the first and second grounds of appeal by the appellant was failure by trial Magistrate to properly evaluate evidence on record and failure to consider the appellant's evidence as such arrived at wrong conclusion by convicting the appellant on the contradictory evidence. What I gather in these two grounds argued jointly is that the trial court in its judgement did not comply with the provisions of section 312 (1) of the Tt r-. J • ■ • • > ■ i ■: CPA. The said provision for easy of reference provides as follows: "Section 321(1) Every judgement under the provision of section 311, shall, except as otherwise expressly provided by this Act, be written by or

reduced to writing under the persona! direction and superintended of the presiding judge -'■t gftj;•?<-<; : or magistrate, in language of the court and shall contain the point or points for determination, the decision thereon and ’i * ' ’' * ’’'ll (• the, reasons, for, the decision. "(Emphasis mine). The import of the above quoted provision was considered in the case of Amir Mohamed V. Republic [1994] TLR138, and the Court of Appeal had this to say: "Every Judge or Magistrate has got his or her own style of composing a judgement, and what, vitally, matters is the essentia! ingredients shall be there, and these includes J# 11 critical analysis of, evidence by, both prosecution^ and defence,z (Emphasis mine). Further guidance on how to evaluate evidence, in particular, defence evidence was amply given by the Court of Appeal in the case of Leonard Mwanashoka Vs. Republic, Criminal Appeal No.226 of 2014 (unreported) in which the Court of Appeal insisted and clearly articulated what is meant by considering defence in the following language: "Zf is one, thing, to summarize the evidence for, both sides separatelY and anpther thing to subject the entire evidence to an objective evaluation in order to separate the chafffrom the gram. It is one thing to consider, evidence and, then disregard it after a proper scrutiny or evaluation and another thinp not to consider the evidence at all in

the evaluation or analysis^. (Emphasis). In the light of the foregoing discussions and guided by the above authorities, I find it imperative that, evaluation of evidence at the end of trials is inescapable and primary legal duty by Judges and Magistrate as well as assessing the demeanor of the witnesses which can only be interfered on appeal where not done or where done, but the trial court misapprehended the substance of the evidence on record. It is at this 12 point of decision making, points for determination are to be clear in the judgement and this task involves separating, as held above, chaff from the grain or in other words what is relevant and material and what is not relevant and immaterial. Guided by the above stance, I will now deal with the grounds raised and argued jointly. Having carefully heard the competing arguments in respect of the first and second grounds of appeal, I think, the first issues for consideration is whether the prosecution evidence was contradictory and as such the charge against the appellant was not proved. And the second issue whether the trial court considered the defence evidence before arriving at the conclusion. The competing arguments in respect of the first issue was on three folds: firstly, variance between dates in the charge sheet, in the judgement and time the alleged offence was committed; secondly, whether contradictions by

prosecution witnesses went to the root of the matter and as such rape/incest not proved, and, thirdly, whether the trial court evaluated evidence on record and consider defence evidence or not and its effect to the prosecution case. I will start with the issue of variance of dates as it appeared in the charge sheet, judgement and the testimonies of the prosecution witnesses. 13 Having considered the rivalling arguments by the legal trained minds for parties on this point, I with due respect to Mr. Mniko, find that the variance between the dates and time on the charge sheet and judgement as correctly argued by Mr. Kapela, were just typing errors and much as no prejudice was occasioned nor proved to have been occasioned to the appellant, I find this point with no merits in the circumstances of this case. I find the dates and time inoffensive as correctly argued by the learned Attorney. So, the first issue in the first and second ground is found wanting and is rejected and dismissed. This takes me to the second issue whether contradictions by prosecution witnesses went to the root of the matter and as such rape/incest was not proved. I will start with the evidence of PW1 (or victim or NJZ) and PW3 as against the charge sheet on contradictions. Having considered time elapsed to when the report of alleged rape was reported on 11.01.2022, then, this appeal is akin to stand or fail

on account PW1 and PW3 testimonies who are very key and material witnesses in this appeal. PW1 testimony was that she had been raped twice: the first one, was in November in 2021 in the farm; second one, subject of this appeal was on 28/12/2021 at night at home. PW1 account was that the appellant when came back home went straight wake up the PW1 and asked for food. He 14 ate food and after eating the food, he started to rape her but this incidence was only reported to PW2 who kept quiet until the aunt (referring to Leokadia) came to visit them on 06.01.2022 and on 11.01.2022 when another victim was raped and led to all rape incidences were reported by Aunty to authorities leading to this case; by PW3 an eye witness on the material date testified that the appellant arrived home at around 11pm and woke up the victim and asked her for food but before being given food he started raping the victim and the victim was crying at all material time and he saw the whole raping exercise. The charged sheet says rape was done on 28.12.2021. Therefore, according to PW1, she was raped twice in November, 2021 an incidence she never told anybody including her siblings and 28th December, 2021 and incidence she told her mother alone and never ever told her siblings i.e. her sisters but it was when aunty came all the story started. These two pieces of evidence by PW1 and PW3 materially differs in

that rape was done when the appellant finished eating and that it was >. • . T.'. VV C'i y ki j.l ! <-’ ' ’; ■ ' ■ .■ i . .... done after. PW3 says the victim was crying all the time but the victim does not say so. Truly, the evidence of PW1 and PW3, if looked at critically is not without contradictions. They differ materially as to when the alleged rape, if any, was done. If I were to believe PW1 it was at night when father finished 15 eating, then, he started raping her, but the evidence of PW3 contradicts that of PW1 on the alleged rape that the appellant started raping the victim immediately she was waken up in the living room. Therefore, when the evidence of PW1 and PW3 as said earlier is put together, is that their evidence does not prove beyond reasonable doubt that the alleged rape as charged was actually done as stated in the charged sheet. Both PW1 talks nothing of crying but PW3 talks of PW1 crying all the time rape was ongoing. In this appeal, none of the two witnesses, and, in particular, PW3 testified of how she managed to see that night without stating the nature of light that was able to see from the other room. Further, I am made to believe that the charge sheet was prepared on the strength of the complaint by PW1 at police, but PW1 never talked of any rape that was done in h t r, - November, 2021. This is other than that if the offence of rape/incest was done

in November, 2021 why did the victim tell the police so but was able to say it so under oath. Failure to mention the first rape is to be resolved in favour of the appellant that the complainant under oath had never been raped in such a month. This cements the argument that rape was not proved because of these clear contradictions on record. In my own further considered opinion, in situation like this one, where there are variance or uncertainty on the testimonies of two people considered to be present 16 differ materially of what actually happened as it was in this case, one would expect the Republic to amend the charge under the provisions of section 234 of the Criminal Procedure Act, [Cap 20 R.E.2019]. Unfortunately, this was not done. And its effect, in my considered opinion, is that the charge was not proved and the contradictions noted above goes to the roots of the matter. Had the learned trial Magistrate critically evaluated the evidence before her, she would definitely arrive at different • s-'-. decision as I do hereby find that with the noted contradictions, the offence of incest was not proved at all. Furthermore, Leokadia (the aunty) who has been mentioned now and then as the instigator of all was not called to testify and to me this leave a lot to be desired in this case and I have no hesitation to draw adverse inference to the Republic case. I have as well taken

into account the testimony of PW1 at page 11 of the typed proceedings that 'the relationship between the appellant and PW2 (the wife of the appellant) is not good" with great caution and guided by the cases of Hussein Idd Msuya (supra) and Hamis Halfan Dauda Vs. Republic, Criminal Appeal No. 231 of 2009 CAT (DSM) (Unreported) along with the defence evidence of the appellant and I am of the considered opinion that high chances of framing the appellant cannot be ruled out in the circumstances of this appeal. This being an - -'W 17 <; to. mentions incest/rape cases to near relatives and much as is on record there is hot blood relationship between the couples, I give the appellant benefit of doubt on this point. Therefore, arguments by the learned Attorney that, contradictions noted, if any, were minor do not convince me otherwise. I reject them. Furthermore, PW1 did not explain why she never mention first rape to police but found it imperative to mentioned it under oath, I find this not normal that a person who is alleged to have been raped twice can move the police machinery to charge the accuse to have been raped once on 28th December 2021 and forget to state another date which was November, 2021 so while under oath. This leave a lot to be desired. So even the issue of lapse of time could, if true, cannot apply within a period . 1 ddOCG ’ ft " k : of a month. On the totality of

the above reasons, the case cited by learned Attorney is distinguishable. The evidence of PW2, PW4 and PW5 did not establish that it was the appellant and appellant alone who caused the absence of hymen as established by PW5. PW2 evidence was hearsay, hence, inadmissible. PW4 was not told of any incest alleged to have been done in November, 2021 and this show that PW1 added that in order to shows that the appellant is of bad character which is against the law. But again, in this appeal, Leokadia who was instrumental in reporting was not called to 18 testify and no reasons was given by the prosecution. I have seriously considered the testimony of PW2 who can share a husband with her biological daughter and keep quiet! This is strange and unbelievable in all respects. I have as well take note of the relationship between PW2 and Leokadia when wholly looked leave a lot to be desired in the circumstances of this case. The testimony of PW2 that she was afraid of the appellant to report to the authority is very doubtful because, threats, if any, were not continous and if I were to believe PW2, then, immediately she had reported the appellant was to be arrested and chances of any killings were not there. The third consideration or issue is whether the trial court evaluated evidence on record and consider defence evidence or not and its effect to the prosecution case. On the face of the

typed judgement in this appeal, one may say evaluation of evidence was done to both prosecution and defence evidence as argued by the learned Attorney, but looking closely, •.. \ ; •> . ... •w. . A VW « ■*-. • . - l' -4 I . no evaluation was done at all. However, critical analysis of evidence after hearing both sides' evidence, is the most crucial but difficult and most challenging task to trial judges and magistrate. It is at this stage, in decision making, where the task of considering the evidence by sorting out of chaff out of grain is crucial, but 19 if objectively done by considering both sides evidence, that brings forth reasons for the decision and make the final decision impartial. : ;• . . . course of ■ ■ I have carefully gone through the trial court's typed judgement, and have clearly noted that the trial Magistrate correctly summarized the evidence of both parties at pages 3 through to page 9 but immediately thereafter, the learned trial Senior Resident Magistrate, instead of analyzing evidence by both sides jumped into answering issues based on one sided evidence and consequently gave reasons for her conclusions and proceeded on to convict the appellant. And in the course of giving reasons, in particular, in reasons number five, the learned trial Senior Resident Magistrate denied the prosecution evidence as against the defence case on reasons that PW1 gave detailed

evidence and quite considered other extraneous matters not even testified by the prosecution witnesses in this case such as "Pw2 evidence was also straightforward for she was an eye witness same for PW4 and PW5 who decided to sleep outside leaving the accused and the victim in the house while the accused was raping her. But PW3 evidence was straight forward also that she is the wife of the accused and gave reasons why she doesn't sleep with the accused in the house instead she sleeps in the kitchen outside because of the behavior of raping her daughters. That means that there was anything like being 20 framed the victim would have reported by herself to village office but in this case it was the aunty who witnessed what was happening after seeing with naked eyes, and more enough she is his wife's young sister not the former wife." On the face value of the fifth reason, it appears to be an evaluation of the defence evidence, but looking closely that is not an analysis intended and as guided by the Court of Appeal in the cases I have cited above as guidance. Had the learned trial Magistrate directed herself to her noble duty of evaluating both parties' evidence, she could have reached a different conclusion. But what I gathered in the typed judgement was conclusion that, prosecution have proved their case based on one sided consideration of evidence by the Republic. This was

fatal and occasioned failure of justice in this case. Had the learned trial Magistrate done so, she could have found that the charge sheet as shown above was not proved at all because none of the witnesses proved any incest by male, if any, done on 28th December, 2021 as preferred against the appellant. Also, the testimonies of PW1 PW2, PW3 PW4, and PW5, and strangely that of Laekodaia but who never testified, was considered straightforward but f when looked critically was vague and full of contradictions as noted above. Indeed, the evidence of the appellant in this appeal as correctly argued by the learned advocate for the appellant, were utterly not considered at 21 all but rather extraneous matters were considered, hence, failure of justice. Further, on noted discrepancies, PW1 did not meet the test of best evidence comes from the victim because of lack credibility and her version of the story was not corraborated by the PW3 but rather contradicted it. The effect of failure to evaluate evidence was insisted in the case of Jeremiah John and Four Others Vs. Republic, [1986] TLR 283 in which it was held that it is fatal and vitiate conviction. From the discussions above and guided by the above decision, I find the judgement in this appeal and resultant conviction was vitiated as well. Furthermore, as demonstrated above, the learned trial Magistrate failed to critically consider

the defence case before giving reasons and j. ir '• rl, t • ■ 1 •*5 2 T# subsequently convicted the appellant. In this appeal, as seen the trial Magistrate quite correctly summarized the evidence for the both sides but ! tT i O' , I see no any evaluation done on defense case at all. Had the learned trial magistrate analyzed the prosecution evidence along with defense evidence, he could have arrived at different decision altogether. What I found in the typed judgement at page 9 is one sided determination of issues by considering prosecution evidence alone and then followed by reasons for the conclusion. What is in page 12 of the typed judgement is not evaluation of evidence but reasons for the conclusion which was made at page 9. The learned trial Magistrate, with due respect, utterly failed to 22 consider that the detailed evidence of PW1 did not prove the charge that she was raped on 28th December, 2021 as no account why never reported both rapes and this shows the victim had more hidden agenda framed by Laekodia who was never called to testify. At page 13 the learned trial Senior Resident magistrate condemned the appellant for not cross examined PW3 as the wife but PW3 was not the wife but the daughter who was cross examined at page 30. This further r proves that the learned trial Senior Resident Magistrate did not bother to evaluate the evidence by prosecution and defence

case. V ~ ViC-ti; I > iVi’. ' The fact that this family had conflicts, which resulted into the senior wife deserting the appellant was not considered at all. It is not only that a person has not to be instrumental to make it meaningful. The appellant was not even cross examined on this account. Much as the above findings suffices to dispose of this appeal, I find it an • • v-nnior- ■■ ■ - academic exercise to discuss grounds number 3 and 4, which, though legal but becomes redundant in the circumstances of this appeal. Respectively, therefore, the judgement, conviction and sentence in this appeal are vitiated. With the above findings, I am duty bound to reverse the trial court • i < ! ■ U i ■_ acc findings on reasons that the conviction and sentence of the appellant was not safe at all. I, therefore, allow the appeal. I quash conviction and set 23 aside the sentence and compensation order, and consequently order the immediate release of the appellant unless he is held for another lawful cause. Order accordingly. Dated at Babati this 10th day of Noverri|ber, 2023.

IGA

JUDGE 10/11/2023 24