joseph mkaima matheus vs republic 2008 tzhc 97 23 may 2008

IN THE HIGH COURT OF TANZANIA

AT MTWARA CRIM INAL APPEAL NO. 1*1 OF 2007

ORIGINAL NEW ALA DISTRICT COURT CRIM INAL CASE NO. 17 OF 2006 B efore: H.O. Khoja, Esq: DM JOSEPH M KAIM A MATMEUS............ APPELLAN T

VERSUS T H E R E P U B L I C ............................... R E S P O N D E N T Date of Last O rder - 14/3/2008 Date of J u d g m e iu - 23/5/2008

JUDGMENT MJEMMAS, J. Th e appellant, Joseph Mka im a M ath e us w as charged prosecuted and convicted of the offence of rape contrary to section 130 and 131 of the Penal Cude. v. c \\j . iu. Lie wab se nte nced to i ; .. . ■»y years im prisonm ent. He was aggrieved ho:ice the present appea!. Part of the charge sheet read as follows: vlDLi L> I IO iN J r \ l \* LJ L /n V V .R ci p e C O (1 11 d I y IO S ’c 'J l.w ! ' 130(1)(2)(e) arid 131(1; 01 ihe Penal C o ue C a p . 16 Vol.I or the Laws as a m e n d e d by section 5(1) 2(e^ and 6(1) of the Sexual offences special provisions Act No.4/1998. Particulars of the oii e .i ce were set cut as follows PAR I i O U l A R S O' O r I L r JCI.,' i . .a: ^wseph s/u iViKaima aiLu, c h a iy e u ofi 8 day oi i\/lciy. 2uUo at aijuut 1 0 u ^ n ts at i ^ndcjiiiii Vh.age vvuhiu the LJistnci of I a iid a hiiiuja iii Mtw'aia Region ciid have carnal k n u w ie ag e with one iviWAi^Ai-iAivil^, LV0 S m IDI aged 14 yeais. The background of this matter is really confusing and even the magistrate who tried it had problems in putting the facts or history of the matter clear. It was alleged by PW.1 that she was a pupil of standard IV at Mji Mpya Primary School in Tandahimba District. That on 8/5/2006 at 1000 hours she was at a well washing her clothes. She was with her young sister. According to her evidence, the accused person appeared at the water well

and after exchange of words he took her hand and led her to a certain house where he had sexual intercourse with her up to 2000 hours. He took her to his wife and commanded her to stay there. She was detained for two weeks whereby the accused person moved away to Mbalala village and left her with his friend. Thereafter she was arrested by a Village Executive Officer. Later on the accused person was also arrested and they were both taken to Tandahimba police Station. However in his evidence, the Village Executive Officer who testified as PW.2 said that on 8/5/2006 PW.1 and her father went to his office and reported that she (PW.1) had been raped by a person who she did not mention his name. He (PW.2) took two militiamen and went to the place where they were directed by PW.1 and arrested the accused person. According to PW.2 the accused person told him that his name was Joseph and he admitted to have made love with the girl for a long time. PW.2 stated further that the accused person was not a Tanzanian but came from Mozambique and he was employed by one Hassan, a Village Executive Officer of Tandahimba. PW.4 - Arabia Omari testified that she is the mothei of PW.1 and that the said PW.1 ran away from her parents on 11/4/2006 during celebration of Maulid at Masasi. That PW.1 asked PW.4 that she was going to greet her friend but she did not return. According to PW.4 the girl was

found on 9/5‘/2006 at a remote village and she was arrested with the accused person through the assistance of a Village Executive Officer. PW.5 - C.629 Sgt. Makamba produced a caution statement of the accused person whereby it is alleged that he admitted to have had sexual intercourse with PW.1. At the hearing of this appeal the appellant appeared in person and unrepresented. He prayed to add two more grounds of appeal to his petition of appeal. Ms. Shio, learned State Attorney, who appeared for the Respondent- Republic did not have any objection so I allowed the appellant to state his additional grounds of appeal. He mentioned the grounds as: 1. His witnesses were not called to testify. He mentioned the witnesses as his wife Edita Daniel and his brother, one Anthoni.

2. He did not know the whereabouts of his wife and brother. The petition of appeal has about fourteen points/grounds of appeal. Ms. Shio, learned State Attorney, was also in dilemma concerning this appeal. She submitted that there were contradictions in the evidence which was produced by the prosecution. She said, for instance, when PW.1 was giving evidence she made the impression that they did not know each other [PW.1 and the accuseaj however during cross examination PW.1 gave impression that they knew each other before the date they met when she was going to the well. The learned State Attorney went on to say that the evidence of PW.2, the Village Executive Officer shows that PW.1 and her father went to his office and informed him that PW.1 had been raped by the appellant but the evidence of PW.1 is to the effect that she was at the house of the appellant’s friend when she was arrested by PW,2 (VEO). It was the view of the earned State Attorney that those two pieces of evidence are contradictory. Ms. Shio submitted fur :her that PW.1 said that she was washing clothes in a well with a friend when the appellant met her and convinced her to go and liv e with him. That friend was not called to testify and under the circumstances of the case it was important for that friend of PW.1 to be called 10 testify to show that that incident took place. The learned State Attorrley argued

further that although PW.1 said that the appellant took he ' when she was washing her ciothes ir a well, PW.4 who isthe mother of PW.1 said that on the material day they were celebrating Maulid day in Masasi and PW.1 told her that she was going to greet her friend and she never returned. Ms. Shio raised also the issue of the age of the victim i.e PW.1. According to Ms. Shio the charge sheet s low ed that she was 14 years old but when she was giving evidenc e she said that she was 15 years old. The learned State Attorney s jbm itted that it was important to prove the exact age of the victim because it is an important ingredient of the offence of rape under section 130(1) and (2)(e). The learned State Attorney concluded her submission by saying that notwithstanding what she had said above there is a cautioned statem ent of the appellant which was tendered in court without objection from the appellant. In that statement the appellant adrhitted to have had sexual intercourse with PW.1 at the house of one Mandela. She (Ms.Shio) left it to the court to decide the matter. As stated from the beginning this matter is really confusing and the.w hole of the prosecution evidence is full of contradictions as stated by the learned State Attorney. The contradictions which were raised or pointed out by the learned State Attorney were also identified by the learned trial Magistrate as shown in

his judgment. Let me quote him [Trial Magistrate] "The first problem presented is on the issue of the date and place of disappearance of the girl (PW. 1). And then the place where the girl was found by VEO (PW.2). Regarding the date it is seen that the charge sheet and the first part of the evidence of the girl (PW. 1) shows that it was on 8/5/2006 where the accused was alleged to have sexual intercourse with the girl. While the evidence of the father of the girl one Arabia (PW.4) shows that the girl ran away from them on 11/4/2006 in the celebration of Maulidi day at Masasi pretending that she was going to greet her friend but did not return.” The trial Magistrate went on and said: “ From the above evidence it is seen that the date of incident is not on 8/5/2006 as alleged on the particulars of the offence. And that the place where the parents of the giri iost control of their girl was at Masasi as from 11/4/2006 to 9/5/2006. The evidence is not clear as to how the girl and her father met however the evidence of the VEO (PW.2) shows that the girl and her father reported to him about the incident on 8/5/2006 then they looked for the accused and arrested him after being shown by the girl.” N o tw ith sta n d in g the above contradictions or inconsistencies, the trial m a gistra te convicted the accused person [appellant] on tne basis of the e v id e n c e of PW.1, PW .2 and the

caution sta te m e n t of the accused person. He, however, did not a d d re ss his m ind to the issue raised by the learned State A ttorney on the exact age of the victim. A s subm itted by the learned State Attorney, age of the victim is an im portant in g ie d ie n t of the offence of rape under section r ; 0( 1) and (2)(e) of the Penal Code. The charge sheet indicated that the victim was 14 years old but w h e n the victim w as testifying she said that she w as 15 years old. PW .4 w ho said that PW.1 w a s her daughter' did not assist tne c o u it to establish the exact age of the victim ; therefore q u ash the conviction of the app e lla n t and set aside ti.e se n te n ce or in iiiy years im pnsonm ent. i ne appellant is tc ije sOi forthwith unless held for so m e oth^, lawful cause. O rder accordingly. G.J.K. I'v/lje/nmas, Judge 16/5/2008 O rder: J u d g m e n t to be read o ve ; by the A cting District Reyisira. on 2 3 /5 /20 0 8 . (■ j--L G.J.K. M jem m i/s. ' [ / Judge 16/5/2008 Date: 23/5/2008 Coram: M.R. Gwae, Ag.DR Respondent: Mr. Mkude, State Attorney Appellant: Present B/C: Ms. Kalenje, RA Mr. Mkude, learned State Attorney: The matter was scheduied for delivery of judgment. Court: Judgment is ready, judgm ent read over and explained in the presence of Mr. Mkude, the learned State Attorney for Republic and appellant. Ag: District Registrar 23 / 5/2008 Rights of appeal to the Court of Appeal of Tanzania explained.