jeremia s0 samwel vs republic 2023 tzhc 19042 14 july 2023

I N T H E H I G H C O URT O F T H E U N I T E D R E P UB L IC O F T A NZ AN IA (I N T H E S U B R E G I ST RY O F K I G O M A )

AT K IG O M A D C C R I M I N A L A PP E A L N O .1 O F 2 0 23 (AR I S IN G F R O M KA S U L U D IST R I C T C O URT IN O R IG I N A L C R IM I N A L C A S E N O .4 9 O F 2 022 ) JE R E M IA S / 0 S A M W E L A PP E L LA N T

VERSUS THE REPUBLIC •••••••.•••.••.•..•••••••••••...•••••••••••.•••••••• RESPONDENT Date of La st Order: 10.07.2023 Date of Judgement:14.07.2023

JUDGEMENT MAGOIGA. J. In the district court of Kasulu (trial Court), the appellant, JEREMIA s/o SAMWEL was arraigned for two counts of: one, Rape contrary to sections 130(1) (2) (e) and 131(1) of the Penal Code [Cap 16 R.E. 2019 and, two, Impregnating school girl contrary to section 60A (3) of Education Act [Cap 353 R.E.2002] as amended by section 22 of the Written Laws (Miscellaneous Amendment No.2) Act of 2016. After full trial, the trial court found the two counts proved and consequently convicted and sentenced the appellant to serve custodial sentence of 30 and 3 years for each count respectively. 1 Ag g rieve d b y b o th c on v ictio n a nd s e n te n c e, the a p p e ll a n t p re fe rre d this a p p eal to th is co u rt a rm e d w ith fou r a m e n d e d g roun d s o f a p p e al, c o u c h e d in the fo ll o w ing lan g uag e , n a m e ly : 1. T ha t th e tria l c o u rt m a g is tra te e rred b oth in la w an d fa c ts in c o n v ict in g th e a p p e ll a n t o n th e o ffe n c e o f ra pe w h ic h w a s n o t p ro v e d b e y o nd re a s o n a b le d o ub t; 2 . T ha t th e tria l c ou rt e rred in b oth la w a nd fa ct s in c o n v ictin g th e a p p e ll a n t o n the o ffen c e o f imp re g n a tin g a s c ho o l g irl a n o ffence w h ic h w a s n o t p rov ed b ey o nd reas on a b le d ou bt; 3 . T h a t the tria l c ou rt d e n ie d the a p p e ll a n t's fa

ir tria l a s e x h ib it P 2 -the Att e n d an c e Re g iste r w a s n ot rea d o u t in c o u rt a ft e r b e ing cl e a re d fo r its a d m is s io n ; 4. That the trial court accorded no weight on the appellant's defense of alibi. On the strength of the above grounds, the appellant prayed that his appeal be allowed, conviction and sentenced be set aside and set him free. The brief facts as gathered from the charge sheet are that on unknown date in June, 2021 at Kalunga street within Kasulu district, in Kigoma region, the appellant did rape Agnella Berege (pseudo name) a form two -l!ft\ 2 g irl a t M a v un o G irls S e c o n d a ry S c h o o l a g e d 1 8 y e a rs o ld a n d u n la w fu l im p regn a ted h e r ca u s ing h e r to fa il to a ttend s c h oo l re gu la rly . W h e n th is a p pe a l w a s ca ll ed o n fo r h e a rin g, th e a p pe ll an t appe a re d th ro u g h v id e o c o n fe ren ce fr o m B a n g w e p ris o n a n d w as re p re s e n te d b y M r. M o s e s R w e g o sh o ra lea rned a d v oca te re a d y fo r h ea rin g . O n th e o th e r h a n d , th e R e p u b lic w a s rep re s en ted b y M r . P an c ra s Li gomb i, le a r n e d S ta te Atto rn e y . M r. R w e g o sh o ra s u b m itt ing o n g ro u n d s n um b e r 1 to ld the c o u rt tha t, th e c a s e fo r th e p ro s e c u t io n w a s n ot p ro v e d b e y on d re a s o na b le d o ub

t. Acc o rd ing to M r . R w e go sh o ra , P W l d id n o t e x p la in w h y she to o k s ix m o n th s to rep o rt th e in c id e n c e in the a b s en c e o f a n y th re a ts . A ls o , it w as a rgu ed th a t, a c c o rd in g to PW l , the in c iden c e to o k pla c e d u rin g n ig h t b u t P W l n ev e r e x p la in ed th e e x te n t o f lig h t w h ic h e na b led h e r to c o rrec tly id e n tify the a p pe ll an t. In su p p o rt o f th e a bo ve s ta n c e, c it ed th e case o f Joel Jones Mrutu Vs. Republic, Criminal Appeal No 25 of 2019 (HC} Moshi sub registry, in which it was held that, failure of the victim to mention the accused person at an earlier opportunity time, the court is entitled to draw adverse inference against the victim. Not only that, but also that, according to the evidence on record, PWS testified at page 20 of the typed proceedings that she received case file on 17/01/2022 with no suspect. Further, the learned advocate pointed~ 3 o u t th a t p e n e tra t io n w as n o t p ro v ed b e c a u se a t p a ge 1 2 th e a p p e ll a n t p ra y ed fo r D N A te st w as n o t d o n e w ith o u t an y e x p lan a tion . F o r th e a bo v e d o u bts , th e lea rn ed a d v o c a te fo r the a p pe ll a n t p ra y e d tha t th is co u rt a ll o w th is g roun d . O n th e se co n d g ro un d , th e lea rn e d a d v o c a te a rgue d tha t the se c o

nd o ffe n ce w a s n o t p ro v e d b e yo nd rea s o n a b le d o ub t o n th e s a m e reas o n s a s g iv en in g rou n d n u m be r o n e a n d a d de d th a t the o nly e v id en c e is th a t e x h ib it P 2 b u t w h ic h w as a dm itt e d b u t n ot re a d an d a s su c h p reju d iced th e a p pe lla n t. To b o lt u p h is p o in t c ited the case o f Maneno Matibwa Francis Vs. Republic, Criminal case No.35 of 2021 CAT (DSM} in which it was held that failure to read an exhibit after is cleared for its admission render the trial prejudicial to the accused person and cause miscarriage of justice. On that note, the learned advocate for the appellant invited the court to expunge it from the court record. According to Mr. Rwegoshora, once exhibit P2 is expunged from the court record, no other evidence that the victim was a school girl. On the oral account of the witnesses, which by itself do not prove that it was the appellant alone who committed the offences charged. Further Mr. Rwegoshora argued that the appellant requested for DNA test and the court ordered so but without reasons same was not done. This very much casted doubts to the prosecution case. In support of the above stance, -f/1{1( 4 th e le a rn e d a d v o c a te c ite d th e c a se o f Peter Bugumba @ Cherahani Vs. Republic, Criminal appeal No.251 of 2019 CAT (Mwanza) in which it was held that: "Miss

Mwadenya is correct that the appellant implored the trial court right way after PWl has testified for DNA paternity test to be conducted and order to that effect was issued by the trial court. We cannot help but wonder why no explanation was given on record, as to why the trial proceeded and concluded without the aforesaid order being complied with." The Court of Appeal, thus, concluded that it was prejudicial to the appellant's case and created doubts to the prosecution case. On the same vein, Mr. Rwegoshora invited this court to find the same situation applies in this appeal because at page 12 the appellant among other prayed for DNA paternity test but which was not done and no explanation was offered in the proceedings. On the above submissions, Mr. Rwegoshora invited to be considered alongside with the third ground. On the last ground of appeal, the main complaint by the learned advocate for the appellant was that the trial court did not consider the defence of alibi and no reasons were given for its rejection despite supported with ~ evidence. 5 O n th e to ta lity o f th e a bo v e g roun d s a rgued , M r. Rw e g o s h o ra s trong ly u rg e d th is c o u rt to a llo w th is a p p e a l by s ett ing a s id e th e c o n v ict io n , an d cu stod ia l s e n te n c e im p o s e d a ga in s t th e a p p e lla n t a n d s e t h im fr e e . O n th e p a rt o f the re s p o nd

e n t, th e R epu b lic , M r. Li go m b i, lea rn e d S ta te Atto rney rea d ily to ld th e c o u rt tha t h e su p p o rts the a p p e a l o n a ll g ro u n d s o f a p pea l ra ise d an d a rgued , th e a u th o ritie s c ited a lo n g s id e w ith p ra y e rs to a ll o w the a p p e a l a n d o rde r fo r re le ase o f th e a p p e llan t. H a v ing h e a rd th e su b m is s io n s b y th e le a rn e d le g a l m in d s fo r the p a rt ie s . and having myself gone through the trial record proceedings and judgement which revolves around that the case for the respondent was not proved beyond reasonable doubt and, without much ado, I entirely agree with the learned legal minds for parties that for the reasons argued, the case against the appellant was not proved at all to the required standard of prove in criminal cases. I will add that, according to the typed proceedings in this appeal, in particular, at page 10, PW1 told the court that she had a phone which she was communicating with the appellant but without telling the numbers of the appellant and hers so as to connect him with the offences and continued threats and allegations of abortion not proved at all. Another reasons, I may add is that the appellant was charged with impregnating the school girl the victim way back in June 2021 but when 6 * she testifie d it w a s June ne xt year, w h ich m e an s the child in disp

ute w a s bo rn but no proo f w as te nd e re d to sho w that the ch ild had any re latio nsh ip w ith the ap pe lla nt. At lea st a D N A test requ e sted by the ap pe lla nt b ut de nie d co u ld have p roved that, the alread y bo rn child w as the putative so n o r da ugh te r of the ap pe lla nt. In the ab se nce of all the se, as co rrectly a rg u ed by the leg a l m in d s fo r part ies in th is ap p eal, a case fo r R epu b lic w as no t proved at all, T hat said an d do n e, I allo w th is ap pe al, an d co nseq u e ntly I set aside co nvict io n and se ntence m ett ed o ut ag a in st the ap pe lla nt and o rde r his im m ed iate ly re le ased fr o m p riso n un le ss he ld othe rw ise fo r an o the r la w ful cau se . It is so ordered. Dated at Kigoma this 14th day of July, 2023. S. M. MAGOIGA

JUDGE 14/07/2023. 7