livinus selestine

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

ATBUKOBA CRIMINAL APPEAL NO. 72 OF 2023 (Arising from the District Court ofBukoba at Bukoba in Criminal Case No. 21 of2023 Dated 2^ August 2023) LIVINUS SELESTINE .......................... .................................... APPELANT

VERSUS THE REPUBLIC ................. RESPONDENT

JUDGMENT 28th February & 01st March 2Q24 A.Y. Mwenda, J In this appeal, the appellant is challenging the decision by the Resident Magistrates Court of Bukoba which convicted him for rape contrary to Section 130(l)(2)(e) and 131(1) Of the Penal Code, [CAP 16 R.E 2022].The prosecution alleged that on 21st day of February ,2022 at Kashai area within Bukoba Municipality District in Kagera Region, the appellant had carnal knowledge of the victim (name withheld) a girl aged 17 years old. In the petition of appeal, the appellant raised nine (9) grounds which in a summary form challenges the prosecution's failure to prove its case. i At the hearing of this appeal, the appellant appeared in person without legal representation while the respondent republic marshalled two learned state attorneys, i.e. MS. GLORIA RUGEYE and Mr. JAMAL ISSA. When he was invited to submit, the appellant had nothing of essence to say. He rather prayed his grounds of appeal to be adopted to form part of his oral submissions. The republic through MS. GLORIA RUG EYE, SA did not oppose this appeal. The learned State Attorney advanced two reasons in support to their stance. One> that there was no proof of the victim's age as adumbrated by the Court of Appeal in ISAYA RENATUS V. REPUBLIC, CR. APPEAL NO.542 OF 2015. She stressed that PW.2 who is the victim's stepmother failed to provide any cogent evidence regarding

the victim's age. Further to that she submitted; that even the victim failed to provide evidence regarding her age. She said, although the victim alleged to be 18 years old, she could not explain how she reached to that number as she did not mention her birthdate and year. Two, that the trial court erred to rely on the victim's statement to convict the appellant after it improperly declared the victim as hostile witness. The learned State attorney stressed that the procedure which ought to be followed before declaring a witness hostile as adumbrated in LILIAN JESUS FORTES V. R, CR. APPEAL NO, 77 OF 2020 was not observed. She said that the trial court ought to have admitted the victim's statement as exhibit before it could declare her 2 hostile. That said, the learned state attorney concluded by praying this appeal to be allowed. That being the summary of what was presented by both parties before this court, the issue is whether the prosecution’s side discharged its burden of proof. In the present matter, the appellant was charged for rape. On that basis, the prosecution was obliged to prove the victim's age, that there was rape(penetration) and who was responsible for that. In a bid to prove its case, the prosecution paraded three witnesses. These are PW1, a police officer who questioned the victim, PW2, the victim's stepmother and PW3, the victim herself. Regarding the PW1 and

PW2, their evidence is purely hearsay. As for PW.l his testimony was to the effect that while he was recording the victim's statement, the victim told him that she was pregnant and the person responsible was mentioned to be the appellant. Regarding PW3'S evidence, hers was that the victim told her that the appellant is the one responsible for her pregnancy as they had an affair. It is evident from these witnesses' testimony that they did not witness the incident. Theirs is hearsay which is not corroborated. See ATHUMANI IAMBI TUPA& MWANAIDI RASHIDI MTULA VS REPUBLIC [2008] TLR 59 where the Court held inter alia that; "Evidence: of Haji Rashidi (PW1) that his father was killed as he alleged, he was told so by his mother was hearsay. Because she denied strongly against this allegation, the 3 evidence of PW1 required corroboration which did not exist." Based on the above authority this court is of the view that PW1 & PW2's allegations that they were told by the victim over the appellant's involvement in rape is hearsay, of which without corroboration, it is as good as nothing. In a bid to look for corroboration of PW1 & PWZ's evidence and being mindful of the principle that true evidence in rape cases is that of credible victim as adumbrated in SELEMAN AMAKUMBA V. R (Supra), this court gauged the victim's evidence only to find it weak to support the prosecution's case. From the

outset, the victim's evidence exonerated the appellant and implicated another person one JACKSON as the one who raped her and put her in a family way. She denied in toto the appellant's involvement in the alleged crime. She insisted that after she discovered to be pregnant, she met with the appellant and begged for TZS 20,000/= as fare for her escape. She also testified in court that she was forced by her stepmother, PW2 to testify lies against the appellant because he; volunteered to give her fare. This type of testimony irritated the public prosecutor who attempted to impeach her credibility by cross examining her. The court declared her hostile although her respective statement was not tendered as exhibit. Despite such finding, still the trial magistrate proceeded to convict the appellant relying on PWl's evidence which is hearsay evidence. As hinted earlier, PWl's evidence is hearsay which is inadmissible. Again, based on the presumption that by giving the victim fare, then the appellant was 4 involved in the crime the trial court convicted the appellant which was a serious error. On the face of it, it is clear that the evidence tendered by prosecution was weak to support conviction because it was based on hearsay evidence and speculations. From the foregoing analysis, this court is of the view that, the prosecution's case is full of doubts. The burden and standard of proof

imposed on the prosecution was not discharged. That said, this court finds merits in this appeal, and it is hereby allowed by quashing the conviction and sentence passed. The order for compensation is reversed. The appellant is to be released immediately from prison unless he is lawfully held. Right of appeal fully explained. It is so ordered. 01.03.2024 Judgment delivered in chamber under the seal of this court in the presence of Mr. Livinus Selestine the appellant and in the presence of Ms. Gloria Rugeye learned state attorney for the Republic 5