MAIGE NYOROBI MIPAWA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB REGISTRY OF SHINYANGA) AT SHINYANGA CRIMINAL APPEAL NO. 32486 OF 2024 (Arising from the decision of the District Court of Meatu at Mwanhuzi before Hon G. Rwekiti SRM dated 13th March 2023 in Economic Case No 61 of 2022) MAIGE NYOROBI MIPAWA….….................................APPELLANT VERSUS THE REPUBLIC……………..…………..……………….…RESPONDENT JUDGMENT 13th January & 7th February, 2025 Massam, J: - In the District Court of Meatu at Mwanhuzi appellant one Maige Nyorobi Mipawa was charged with the offence of rape c/s 130 (1) (2) (e) and 131 of the Penal Code, Cap. 16 R:E 2022. The briefs facts of the case are that, it was alleged that on 5th day of November, 2022 during day time at Nata within Meatu District in Simiyu Region did have sexual intercourse with a girl of 13 years old (to protect her dignity, her name is deliberately withheld) After the full trial, the appellant was found guilty with offence charged, convicted and sentenced, to serve 30 years’ imprisonment. Aggrieved therein, the appellant rightly lodged his appeal in this court with 4 (four) grounds as follows; - 1 1. That, the learned trial Magistrate erred in law and fact to rely on the cooked evidence adduced by the PW1 on the point that on the fateful day her sister came at the scene of crime but she run away and she went to tell her brother (see page 4 of the typed proceeding). 2. That, the court Magistrate erred both in law and fact when he failed to warn or caution himself before acting on the evidence of the victim (important witness) which itself was insufficient, unreliable, inconsistent and incredible to sustain conviction and sentence meted upon the appellant. 3. That, the whole trial court proceedings were vitiated with very serious procedural irregularities lead to the miscarriages of justice. 4. That, the prosecution did not prove the charge beyond reasonable doubt. During the hearing of this appeal, the same was argued orally and the appellant appeared in person unrepresented, while the respondent was represented by Mr. Saguya Learned State Attorney. In submitting his appeal, the appellant submitted that, he was not satisfied with decision meted by lower court, so he prayed this court to 2 consider his grounds of appeal and left him free. In response, the Learned State Attorney for respondent strongly opposed the appeal and supported both conviction and sentence imposed by the trial court. With regard to the grounds of appeal submitted by the appellant. The respondent’s counsel Mr. Saguya S/A prayed to argue ground no 1 and 2 jointly while ground no 3 and 4 will be urged it separately. Starting with 1st and 2nd ground of appeal, appellant complained that the evidence of PW1 was cooked and insufficient to convict him. Mr. Saguya said, PW1 testified that while collecting fire wood at Nata the appellant came and had sexual intercourse with her and he did.PW1 said that after that she felt pain, during the commission of offence, her sister namely JILYA appeared to the scene and appellant run away. After that victim went to report the matter to her brother who informed their parents and later ‘’Sungusungu’’ arrested the appellant. Additionally, Mr. Saguya submitted that the said evidence was not cooked as it was well said that the best evidence on sexual offences comes from the victim and her evidence was strong and sufficient to convict appellant. Finally, he prayed the dismissal of the said grounds of appeal and appeal as it has no merit. 3 Coming to third ground of appeal, appellant complained that was convicted wrongly because there were serious irregularities which lead to the miscarriage of justice. It was submission of Mr. Saguya that all procedures were followed as per the Criminal Procedure Act and nowhere in the court record shows that there were procedural irregularities, which led miscarriage of justice. He prayed the third ground of appeal be dismissed because it has no merit. Responding to 4th ground of appeal, appellant complained that the charge against him was not properly proved. It was submission of Mr. Saguya that this offence was proved beyond reasonable doubt as the victim testified that the appellant had sexual intercourse with her, and she mentioned his name to prove that she knows him for almost one year and she reported this matter immediately after its commission. The clinical officer (PW2) examined the victim and the results revealed that the victim was raped as her private parts were swollen and it had some bruises. PW4 a mother of PW1 did prove the age of victim who said that victim was born on 3.3.2009 and she had 13 years. PW4 said that she was at Shinyanga, but was called by her son who informed her about the commission of that offence, therefore all three witnesses managed to proof that appellant was the one who committed that offence. 4 Finally, he prayed this court to dismiss the 4th ground of appeal as it has no merit. In the way of rejoinder, appellant said that the victim said that during the commission of offence her sister came to the scene but she did not tell her sister that she was raped. Moreover, the victim did not cry for help and her sister was not called as witness. Apparently, on 3rd ground of appeal, the appellant said the procedure was not properly followed. PW2 said that she received the victim but she had no PF3 and this proves that victim was not well examined but only checked. However, she said that victim had some bruises but she failed to tell us the cause of that bruises. Moreover, the victim mother said that her daughter was born on 3.3.2009 but PW6 said was born on 2002 (see page no. 18 of the proceedings) and in the said evidence there was contradiction of the age of the victim. Finally, he insisted this court to consider his ground of appeal and left him free to join his family. Upon going through the entire records and carefully considered the submission from both sides, it is in view that the appellant is challenging the conviction and sentence meted against him on the reason that the prosecution did not prove its case against him beyond reasonable 5 doubts. Therefore, the main issue to be determined by this court is to whether the prosecution proved the case against the appellant beyond reasonable doubt. There is no objection that it is a common legal principle that in criminal law the burden of proof lies to the prosecution and the standard is beyond reasonable doubts see Section 110 and 112 which read together with Section 3 (2) (a) of the Evidence Act [Cap 6 R:E 2019]. Also, the same principle was stated in the case of Woodmington Vs. DPP (1935) AC 462, the court held inter alia that, it is a duty of the prosecution to prove the case and the standard of proof is beyond reasonable doubt. This is a universal standard in criminal trials and the duty never shifts to the accused, See also the case of Christian Kale & Another Vs. The Republic (1992) T.L.R 302 CAT and John Makorobera & Another Vs. The Republic (2002) T.L.R 296, where it was firmly held that the accused person should only be convicted of an offence, he is charged with on the basis of the strength of the prosecution case not on the weakness of the defense case. The term beyond reasonable doubt is defined in case laws, see Magendo Paul & Another Vs. Republic (1993) TLR 219 where the Court held that: 6 "For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favor which can easily be dismissed." I will start with 4th ground of appeal, that the prosecution did not prove the charge beyond reasonable doubt. It is a trite law that onus of proving in criminal cases is always in the side of the prosecution, as elaborated in the case of Joseph John Makune vs. Republic (1986) TLR 44 at page 49 where the court of appeal held;- “the cardinal principle of our criminal law is that the burden is on the prosecution to prove its case, no duty is cast on the accused to prove his innocence. There are a few well known exceptions to this principle one example being where the accused raises the defence of insanity in which case he must prove it on the balance of probabilities.’’ Notably, in order to satisfy that the case was proved beyond reasonable doubt, it is important to look at Section 130 (1) (2) e whereby basic ingredients of rape offence is provided for, while punishment is under Section 131 (1) of the Penal Code, Cap. 16 R.E 2022. 7 For clarification Section 130 (1) (2) e of the Penal Code reads that It is an offence for a male person to rape a girl or a woman. (2) A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions: (a) N/A (b) N/A (c) N/A (d) N/A (e) with or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man. Therefore, it is clear that for the offence of rape to be established; - first, there must be penetration of a male organ (penis) into the vagina of the victim, second, accused person must be the one who is responsible for the act and lastly, the age of the victim must be proved. In arguing this appeal will start with ground no 4 where, the appellant complained that the case was not proved beyond reasonable doubt while Mr. Saguya said that the charge was proved as the victim testified that the appellant had sexual intercourse with her, and she mentioned his name and the victim reported the matter immediately after its commission. The clinical officer (PW2) examined the victim the 8 results revealed that the victim was raped as her private parts were swollen and it had some bruises. PW4 a mother of PW1 did prove the age of victim who said that victim was born on 3.3.2009 and she had 13 years. PW4 said that she was at Shinyanga, but was called by her son who informed about the commission of that offence, therefore all three witnesses managed to proof that appellant was the one who committed that offence. In his rejoinder the appellant said that PW2 examined the victim but he had no PF3 but there was contradiction of the age of the victim, PW4 testified that the victim was born 3.3.2009 but PW6 said was born on 2002 (see page no 18 of the proceedings). I have gone through the submission from both parties and going through the trial records and observed some procedural irregularities as follows, In the trial file there are two charges both admitted on 8th November 2022 with different particulars of offence, the first charge with Criminal Case No 61 of 2022 attached at the back (last page) shows that the offence was committed on 6/11/2022 while a charge with Criminal No…. of 2022 attached at the first (front) page revealed that the offence was committed on 5th November, 2022 and the proceedings are silent if there was substitution of the charge or not Under such circumstances, it is difficult before this court to ascertain between these charges which one prosecution used to prosecute 9 appellant and if the same was proved as required beyond reasonable doubt. See the case Emmanuel @ Magesa Chacha and Another v. Republic, Criminal Appeal No. 538 of 2020, [2024] TZCA (2 May 2024) and Mohamed Haruna @ Mtupeni & Another vs. R, Criminal Appeal No. 25 of 2007 In regard of exhibit P2 which is caution statement, I am aware that the Caution statement may be taken under section 57 or 58 of the Criminal Procedure Act. This was emphasized in the case of Ramadhan Salumu vs Republic, Criminal Appeal No. 5 of 2004 (unreported) where the court held that; - “Caution statement therefore, are not made exclusively under section 58 and Exhbit P5 in this case is not less a caution statement merely because it was taken under section 57 and not section 58. The circumstances in which the two kinds of caution statement are taken are different. The one taken under section 57 may be as a result either of answers asked by the police investigating officer or partly as answers to question asked kind partly volunteered statement. The statement under section 58 is a result of wholly volunteered and unsolicited statement by the suspect’’ 10 Notably, under section 57(2) e of Criminal Procedure Act requires that the times when the interview was commenced and completed be indicated. I think the purpose is to know the way the accused was treated before, during and after the statement. Now, in our case the caution statement admitted as exhibit P2 indicated only commencing time i.e. 11:00 hrs. Failure to do so was fundamental irregularity which rendered the statement in admissible. Bad enough the record shows that the accused person was arrested on 5/11/2022 at 05:00 hrs but his caution statement was taken on 6/11/2022 at 11:00 hrs more than 12 hours which was contrary to Section 50 (1) of Criminal Procedure Act. In the premises I expunge the caution statement (P2) from the records for being taken out of time. Moreover, PF3 which was admitted as exhibit P1. PW1 said that on 5/11/2022, PW5 took her at Imaleseko hospital where she was examined by a nurse who confirmed that she was raped. Her evidence was supported by PW5, however PW2 a clinical Assistant officer at Imalaseko said that she received the victim on 6/11/2022 at 02:30 hrs she detected that the victim was raped. From the piece of evidence there is a doubt at what date the victim was examined either on 5/11/2022 or 6/11/2022. However, during cross examination by the accused PW2 said that when she received the victim she had no PF3 and 11 now this court asked the question where did the PF3 came from and tendered to the court and admitted as exhibit P1? Meanwhile, PW2 said that she is working at Imalaseko dispensary but the PF3 which was filled on 6/11/2022 shows that PW2 is working at Meatu Government Hospital and the PF3 bears the rubber stamp of District Medical officer in charge, this is another doubt on the PF3 admitted. Moreover, on the remarks made by PW2 on PF3 said that ‘’there is evidence of penis penetration because of bruises on left hand and legs…………………. her clothes were tearing”. I don’t think if the penetration of penis can be proved by bruises on hands and legs. From the observations above, I find that the PF3 admitted as exhibit P1 was not genuine as per Section 240 (2) of the Criminal Procedure Act. Thus, I expunge the same from the records and after expunging the caution statement (P2) and medical report (P1) from records. In my view there is no evidence left to sustain conviction on the appellant because no prove of penetration but also if the appellant was the one who was responsible with the act. Thus I agree with submission of the appellant that the case was not proved beyond reasonable doubt. In the premises, the 4th ground of appeal has disposed the entire appeal. I think no need of tackling the rest grounds of the appeal. 12 In view of the aforesaid. I allow this appeal and quash the conviction and set aside the sentence. I further order the appellant be released from prison forthwith unless held for any other lawful cause. It is so ordered. DATED at SHINYANGA this 7th day of February, 2025. R.B. Massam Judge 13