20180827 TZHC Mwanza

- IN THE HIGH COURT OF TANZANIA · - l IN THIE DISTRICT REGISTRY I AT MWANZA l CRIMINAL APPEAL NO. 17. Of 2018 - . I (Original Criminal Case No. 13/2017 from the District Court of Tarime before Hon. M.B. ' . Mpaze-RM I MARWA CHACHA ITEM BE @ MOlEGA •••••au•• ■■ •• ■■ •• ■ •• ■ •• APPELLANT VIERSUS THE REPUBLIC u noeo ••••a• n •• • ■ ■ ,l. ••~ ••■ ■ ■ ■ ■ ■ ■ ■ ■ ■ RESPONDENT •• •• •1• 1 o• • 1 a I I JUDGMENT BUKUKU, J.: The appellant was charged with 1and convicted of the offence of rape . I . by the District Court ofTarime at Tarimr contrary to section 130(1) and 2(b) and 131(1) of the Penal Code Cap 16 R.E. 2002. The trial court sentenced . . . I . . I him to serve thirty years term-of imprisonment and also was ordered to pay l compensation to the victim of T.shs. 1,000,000/= .. . Aggrieved, the appellant has nol come to this Court to claim his innocence. He has filed a MemorandLm of Appeal containing nine (9) grounds of complaint. J. \f✓hen the appeal was called on for hearing, the appellant appeared in . . .I . . person, unrepresented. Ms. Mwanahawa Changali, learned State Attorney, . . . . . !- . . . . appeared for the respondent Republic. ; . t Briefly, the evidence on which the prosecution rel.ies is that of PW1, · I . Neema Chacha, the complainant. She told the trial court that, on the material . I . th day, the 4 of January, 2017 at about 17.00 hours, at Pemba village within Tarime_ District in Mara Region, while grazing cattle with PW2, Sule Masanja and another boy, Emmanuel Bhoke, met the appellant herein, who told PW1 that, . her cattle had strayed onto his fJrm I and had eaten his maize. PWl ' denied the allegations. It is further alleged that, the ~ppellant then pulled PW1 up to the middle of the farm, started beating her and threatened to kill her with a machete, if she ever shout for help. The appellant then pushed I . PW1 down, teared her trouser she was:wearing, he undressed himself, lied J on top of PW1 and had sexual intercourse with her. According to :pw1, while that was happening, PW2 arrived ?t the scene, and upon the appellant · seeing him, he took to. his heels: PW11sked I PW2 to assist , her drive back the cattle home, and she proceeded to ~heir home, where she informed her · ! mother as to what had happened. 2 Ctf4' 61, ~1r+L According to PV/2, Paulina Chacha, having heard the news·from her . daughter; they proceeded to where ,PW1 was allegedly raped by the . . . . I . . .. appellant, where ·she found "some grasses lying downrr showing there was . . - . I. . .i - . ·somethin:g not normal that had happened, and· tliat she saw PW1,:s underpants. Thereafter tliey returned ~ome and reported the matter to the . . I j . . .. < village chairman who advised them to go and report to the Police Station. . I PW.1 was taken to the PoHce Station by her uncle, where she was given· a PF3 and taken to the hospital. Samwel Obiero, a doctor, testified as PWS. He told the court how on I. that day he examined PW1 and faun~ that she had no hymen and had bruises in her vagina and also had small wounds in both her hands. He then tendered in court the PF3 which was admitted as 'Exhibit P1. G.5081 DC CyrH, testified as PW3 to the effect that, he was the one who investigated the case and hencJ prepared the charge against the appellant arid arraigned him in court. In his defence, the appellant herein categorically denied to have I committed the offence. He raised a defehce of alibi to the effect that, on the said material day, he had gone to anothlr village to attend the funeral of his 3 . (' (f ·\1,()v.· (:=---/ i\ /\f\i/ . \,,,:/' r=---,\ _.,{) I V rJ '---------- i grandmother. That, he was shocked to be arrested on 6th April, 2617 arid informed that he had ra·ped Pw1; something which was not true. · · . I During the hearing. of this appeal; the learned State Attorney hastly declined to support the conviction for the offence of tape. She submitted that, the charge sheet as it was, was defective in that, the particulars of the . offence did not mention the very important. ingredient of the offence, nameJy, "consent"as per the requirement. of section 130(2) (b) of the Penal Code (supra). It is for this reason that she prays the judgment and sentence of the trial court be set aside, and the matter be tried de-novo, citing the case of Richard Maginga V.R; Criminal Appeal No. 133/2016 ( unreported). Admittedly, the appellant in this case was charged with the offence of rape. What did the charge look like? I. reproduce the copy of the charge sheet herein below.:- CHARGE SHEET. Name and Tribe or Nationality of the person (s) charged. Name: Marwa s/o Chacha Itembe@ Motega. Age: 32·years. Tribe: Mkurya. Religion: Christian · Occ·upation: Peasant Resident: Soroneta Village . .. I .. Statement of the offence: Rape c/s 130(1) (2) and 131 (1) of the Penal Code (Cap 16 Vol. 1 of the Laws R.E. 2002). . I. . Particulars of the offence: That MARWA S/0 CHACHA ITEMBE @ MOT.EGA charged on 04th day of Janual,'2017 at or about 17:00 hours at Pemba Village within Tarime District in Mara Region d1d have sex_ual intercourse with NEEMA D/0 CHACHA IBARU a girl aged 18 years old. I th Dated at Tarime this 09 day of J~nuary, 2017 I . Signeb PUBLIC PROSECUTOR I The above is the charge to which! was read over to the appellant, to . I . · which he pleaded "not guilty'; hence the trial and the subsequent conviction and sentence by the trial court I am mindful of the fact that, there are situations in which convictions l may be challenged on appeal on any of the following points: (i) where the . . I . . plea was imperfect or unfinished; (ii) w~ere the accused pleaded guilty as a 5 .1. : . . . j. . . Q~··)\ f~)f (,i;1 J\)tiJ·p · \. \ \..__){,, '-------·" ~ . I . result of mistake or misapprehension; or (iii) that the charge laid at his door ' disclosed no offence ·known in law. (SeJ Laurent Mpinga v..R; · [1983] . . . I . . TlR 166 (HC). .. . j . . ·. The question I ask myself now ;J, didthe charge laid before the· I appellant disclose any offence known inl law? As is clear from the charge . . I . .. sheet, the statement of offence refers tdI "Rape"c/s 130(1} . and (2) of the . . . I . . Pena1 Code; whereas, the particulars alleged that, the appellant ''raped"one I Neema d/o Chacha Ibaru. I . I Section 130(1) of the Penal Code provides: I . "130(1) - It is an offence for a male person to I rape a girl or~ woman'~ I To me,_ the above provision only provides a general definition of the I offence of ?ape'~ But in order to pin dow1n a person wit~ ~ape, the statement I must specify which of the paragraphs Ca) to (e) of section 130(2) he has I committed. In this.particular case, it is npt known which of the provisions of . . j . . section 130(2)-(a) to (e) the appellant ~as charged with. •For that matter, it I is vague and ambiguous in so far as that provision refers to a girl or a . I . woman. · I .I 6 ~--·· . . ! CJf?1 t;\) t ttm C From what I have gathered from the facts as narrated in the trial court, . .I. . it was intended to charge the appella·nt under section 130(2) (a). However, · the particulars of the offence did not diSclJse an essential ingredient in that . . I. . . . . I . 1 offence, which is 1/ack of consent'~ As it is therefore, this was a defective . charge as correctly submitted by Ms. Chargali, learned State Attorney. This 1s because, the important element of the offence was not disclosed m order . . I .. . . I . to allow the appeUant the opportunity to meaning fully understand the . charge and be able to prepare his de:fenc~. I · · . I At this juncture, I wish to observe what the court held in the case of . . I . I Mussa Mwaiku.nda V.R; [2006] TLR 387. The court observed that, the . . I . . principle has always been that, an accusid person must know the nature of • the case facing him and that, this can be achieved if the charge discloses the essential elements of an offence. I at mindful of the fact that, this I . requirement hinges on the basic rules of Criminal Law and evidence to the I effect that, the prosecution. ha~ to prov~ that,· the accused committed tt)e actus Reus of the·offence with the neceJsary mens rea. . . . I . . I So, for the above reasons, I fully concur with the learned State . . Attorney to the extent that, the particulars in the charge sheet were . I' defective, hence it resulted in wrongfully taking the appellant's plea, and , I ~ · hence entering a conviction, by the trial court. Ms. Changa·n however, prayed this court to order a retrial de nova following the defect in the charge sheet. . . At this Juncture, and in the justice of this matter, ·this court is faced . . with two options. One, .to discha_rge the appellant or by ordering a retrial as requested by Ms~ Changali. In most cases, a retrial would only amount ot inviting the prosecution to fill in gaps in their case, an action that in most cases do not auger well with the interests of justice. In as much as I have found that the charge is defective, I quash the . . proceedings and subsequent conviction and set aside the sentence. I would have ordered as retrial given the seriousness of the offence. But on · reflection, I have decided to leave it to the Director of Public Prosecutions to decide whether or not to reinstitute the proceedings against the appe'llant. . Order accordingly. ~ . .., ';: .. ·. . · · , ~ · · .. :'./;;, <' - .. _,,/• · A(k.~B · .· KU I .'- I '- // :'\/ /// (: / , I / / I I l "I '•, •• / • • "· / J GE ' , ( • \ I • ' \\ , ·, ' ! / •'". ' ', / i Deliv~r;ed at Mwc!nza '· '',..,_ ~ ~ .=· /. // • .... / ··, This '27th0 August,/2018 8