JGDM Mbaraka

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

BUKOBA SUB REGISTRY

AT BUKOBA CRIMINAL APPEAL NO. 24517 OF 2024 (Arising from criminal case no 76/2023 of KYERWA District court dated 30/7/2024 before ALLEN IFUNYA - SRM) MBARAKA SELEMAN………………………………………………….....APPELLANT

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

JUDGEMENT OF THE COURT Date of last order: 05/02/2025 Date of Judgment:21/02/2025 BEFORE: G.P. MALATA, J The appellant herein was dissatisfied by decision of the District Court of Kyerwa delivered on 30/7/2024 which convicted the appellant and sentenced to serve 30 years imprisonment for the offence Rape he committed c/s 130(1) (2) (e) and 131(1) of the Penal Code, Cap 16 R.E.2022.The appellant appealed to this court armed with four grounds of appeal, namely; 1. THAT, the learned trial magistrate erred in law and facts to convict and sentence the appellant without considering that the case was not proved beyond the standard required by law as per section 3(2)(c) of the Evidence Act. 1 2. THAT, the trial magistrate erred in law and fact to convict and sentence the appellant basing on the testimony of PW1 a clinical officer who failed to explain the military came in which station police.

3. THAT, the trial magistrate erred in law and fact to convict and sentence the appellant without considering the Age of the victim that was not were established that there is no birth certificate to support the allegation 4. THAT, the trial magistrate erred in law and, fact to convict and sentence the appellant while there is contradiction on time the victim was raped. Based on the above grounds, he prayed to this court to allow appeal, quash the conviction and sentence and set him free. This appeal came for hearing on 05/02/2025 where the appellant appeared in person unrepresented whereas the Republic appeared through Ms. Ms. Alice Mutungi learned State Attorney. In support of the first ground of appeal, the appellant submitted that, the prosecution evidence was full of contradiction in particular the testimony by PW1 and PW3, in that the clinical officer stated that, the victim was raped on 03/07/2023 at night while the appellant was arrested on 03/07/2023 afternoon and brought to Mabira Police Station. PW1 stated that, the victim was sent to him for medical examination on 04/07/2023. 2 As to second ground, the appellant argued that, there was no proof of age of victim by production of certificate of birth. The appellant submitted that, he was arrested on 03/07/2023 and brought to court on 24/07/2023.That at all time, they were forcing him to confess to the offence. Finally,

he prayed to the court to allow appeal, quash conviction and set aside sentence. In reply thereof, Ms. Alice Mutungi learned State Attorney informed that, the Republic was supporting an appeal based on ground no.4 of appeal on contradiction. It was submitted that, in cases of rape the best evidence comes from the victim. That, the principle is founded in the case of Selemani Makumba Vs R (2006) TLR 379. The victim is in better position to explain what happen leading to the offence in question. PW3 is the victim in this case, she testified that, the appellant raped her on 03/07/2023 at around 10:00am whereas PW1 the medical officer testified that, the victim was raped at night on 03/07/2023. PW1 testified that, he received the victim on 04/07/2023 while PW3 testified that, he collected PF3 at police Station and went to the hospital on 03/07/2023. The contradiction on time of rape and date of referring the victim to police and PW1 is fatal irregularity. 3 Another ground advanced by Ms. Alice Mutungi learned State Attorney is on failure to call important witnesses, PW2 testified that, he was not at scene of crime but he received a phone call by unknown person that, there was problem at PW2's house and wanted to know whereabout. The unknown person informed PW2 that, his daughter PW3 was raped by someone. That, the undisclosed person continued to narrate that, the someone has

already been arrested. Moreover, the unknown person is the one who took the appellant to police but he was not called as witness. Besides, PW3 stated that, there were neighbours who appeared at the scene of crime upon hearing voice by PW3 screaming for help, however, none of neighbours who appeared at the scene of crime was called as witness. Indeed even, the investigator was not called as witness to testify on what happened. As to the issue of failure to prove age, Ms. Alice Mutungi learned State Attorney submitted that, age can be proved by submission of birth certificate, testimony from guardian or parents or baptism certificate. The principle is settled by the case of Juma Shija Vs R Criminal Appeal No.24/2020 (2023) TZCA17393 at page 5. Finally, he opined that, the court be please to allow appeal. Having considered both submissions which are in fact supporting the appeal, this court took time to read and reevaluate the evidence on record. As first appellate court is required to re-evaluate the entire evidence adduced at the trial and 4 subject it to critical scrutiny and arrived at independent decision. This court can either side with the trial court’s decision or differ. The above legal position is gathered from the case of Salumu Muhando vs. Republic [1993] TLR 170, Siza Patrice vs R, Criminal Appeal no. 19 of 2010, CAT, unreported, Alex Kapinga and 30 others vs R,

Criminal Appeal no. 252 of 2008, CAT, unreported. In the case of Siza Patrice (supra), the court held that; “We understand that, it is settled law that a first appeal is in the form of a rehearing. The first appellate court has a duty to re- evaluate the enter evidence in an objective manner and arrive at its own findings of fact, if necessary.” In determining the present case, the court will be also guided by principles in the case Malmo Montagekonsult v. Margaret Gama, Civil Appeal No 86 of 2001 where the court of appeal stated that; “An appellate Court is not expected to answer the issues as framed at the trial. That is the role of the trial Court. It is, however expected to address the grounds of appeal before it. Even then. It does not have to deal seriatim with the grounds as listed in the memorandum of appeal. It may, if 5 convenient address the grounds generally or address the decisive ground of appeal only or discuss each ground separately" Having re-evaluated the entire evidence in objective manner as principled in the case of Siza Patrice vs R, supra, it will take approaches settled in the case of Malmo Montagekonsult v. Margaret Gama, supra where the court of appeal stated that, the court can come to the conclusion in an appeal by three ways; one, conveniently addressing the grounds of appeal generally two, addressing the decisive ground of appeal only and three, by

discussing each ground separately. In determining the case, this court will adopt the style used by Ms. Alice Mutungi learned State Attorney by taking a decisive ground on proof of the case beyond reasonable doubt. The cornerstone point in this case is that, whether offence of rape was proven beyond reasonable doubt. This is a decisive ground encompassing all other grounds. I am in agreement with the raised misnomers by Ms. Alice Mutungi learned State Attorney and appellant that, the evidence on record were full of contradictions and that it failed to provide proof of the offence, the accused arraigned for. The first snag is on inaccuracy of the victim’s evidence. PW3’s testimonies are full of contradiction as correctly submitted by Ms. Alice Mutungi learned State Attorney of which I need no need to repeat. The victim 6 is not a child but fifteen years old, thus capable of adducing evidence without such fatal contradictions. Further, evidence by PW1, PW2 and PW3 are also imprecision as pointed out by both Ms. Alice Mutungi learned State Attorney and appellant. The court of appeal in the case of Deus Josias Kalala vs Republic, criminal Appeal no 191 of 2018 held that: “……material contradiction or discrepancy is that which is not normal and not expected of a normal person and that courts have to determine the category to which a contradiction, discrepancy or inconsistency could

be characterized” In the case of Mohamed Said Matula vs. Republic 1995 T.L.R 3 it was held “Where the testimonies by witnesses contains inconsistencies and contradiction the court has a duty to address the inconsistency and try to resolve them where possible; else the court has to decide whether the inconsistencies and contradiction are only minor or whether they go to the root of the matter.” Also, in the case of Goodluck Kyando v. R [2006] TLR 363, the court settled that: - 7 "It's a trite law that, every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing a witness” Based on the identified inaccuracies and guided by the above principles of law, this court hold that, the misnomers touched the very root of the matter, thus fatal irregularities. Second, failure to call important witnesses who rescued the victim from raping. The victim PW3 specifically stated that, there were neighbours who appeared at the scene of crime to rescue her upon hearing screaming for help. PW3 did not mention their names and none of them appeared in court to testify. Third, PW2, the father of the victim testified that, he received a call from unknown person who told him that PW3 was raped and rescued. It is the same person who took PW3 to Police. Astonishingly he was not that person was not called as

witness. Fourth, the investigator who could have narrated what, when where and why the accused was arrested was not called as witness for unknown reason. In the case of Shukuru Moshi @Elimlingi Vs R, Criminal Appeal No.29/2021 (2024)where the court referred in the case of Bwaneka Vs Uganda, where it was held that; 8 "It is the duty of the prosecutors to make certain that, police officers who had investigated and charged an accused person do appeared in court as witnesses to testify to the part they played and circumstances under which they decided to arrest and charge the accused person". In concluding the second, third and fourth reasons herein, it is with no iota of doubt that, all persons who appeared at the scene of crime and rescued the victim from rape ought to have testified unless cogent and reasonable cause are disclosed. The Court of appeal in the case Boniface Kundakira Tarimo vs. Republic, Criminal Appeal No. 350 of 2008 (unreported) propounded that: "... It is thus now settled that, where a witness who is in a better position to explain some missing links in the party's case, is not called without any sufficient reason being shown by the party, an adverse inference may be drawn against the party, even if such inference is only a permissible one. 9 In the case of Siaba Mswaki vs. Republic, Criminal Appeal no. 401 of 2019, the Court of Appeal at Dar es salaam held

that; “…...in criminal cases the burden of proof lies on the prosecution and it never shifts – see Tafifu Hassan @ Gumbe vs. Republic, Criminal Appeal no. 436 of 2017 (unreported). This means that, it is upon the prosecution to call material witnesses to prove a case beyond reasonable doubt and in exercising this noble task they are not limited in terms of number of witnesses whom they should call”. (Emphasis added) Also, in the case of Aziz Abdalah vs. Republic (1991) the court of appeal held that; “In general, and well-known rule is that the prosecutor is under prima facie case to call those witnesses, from their connection with the transaction are able to testify the material facts. if such witnesses are within reach but not called without sufficient reasons, the court may draw adverse inference on the prosecution. It is a trite law that, failure to call material witness to testify in a case, the court is at liberty draw an adverse inference against the defaulting party, in this case the Republic. 10 Fifth, accused was arrested on 03/07/2024 in the afternoon and kept in police custody until 24/07/2024 when he was brought for the first time in court. This piece of evidence is confirmed by testimonies of PW2 and PW3 as well as the statement from the informer to PW2. The trial court’s proceedings confirm the date the accused was brought to court. There are no explanations from

the police as to why they stayed with accused for such a longer period without charging him and tabling in court. None of the police officers appeared in court to testify. The appellant submitted that, during that period, he was been tortured to confess to the offence. The truth of the same remains on the minds of the parties who were present at the police, the police officers and appellant. However, the question tasking this court is why staying with accused in custody for clear 21 days without charging him in a court of law. In the absence of any explanation from police officers on what triggered for such uncalled-for delay in charging the accused, this court stands to believe the story by appellant. The law enforcement agents left the law behind and discharged their legal obligations against the dictates of law. This is completely against criminal justice civilianization. It is a constitutional and 11 legal right for a person arraigned for any offence to be brought in the court of law within the mandatory time limit prescribed by law. it is a right not a privilege from someone. The above right is assembled from sections 32 (1) and 33 the Criminal Procedure Act, Cap.20 R.E. 2022 which provides for inter alia time limit within which to take accused to the court of law after arrest. Section 32(1) provides that; “Where any person has been taken into custody without a warrant for

an offence other than an offence punishable with death, the officer in charge of the police station to which he is brought may, in any case, and shall if it does not appear practicable to bring him before an appropriate court within twenty four hours after he was so taken into custody, inquire into the case and, unless the offence appears to that officer to be of a serious nature, release the person on his executing a bond with or without sureties, for a reasonable amount to appear before a court at a time and place to be named in the bond; but where he is retained in custody, he shall be brought before a court as soon as practicable”. Also, section 33 of the same Act provides that; “An officer in charge of a police station shall report to the nearest magistrate, within twenty-four hours or as soon as practicable, the cases of all persons arrested without a warrant within the limits of his station, whether or not such persons have been admitted to bail”. 12 In the case of Magina Kubilu @ John Vs Republic, Criminal Appeal No. 564 Of 2016, the court of appeal held that; “It is a complaint that the appellant was not taken to court timely contrary to the provisions of section 32 of the CPA. As rightly put by Ms. Tuka the record shows that the appellant was arrested on 04.04.2014 and taken to court on 14.04.2014. That was contrary to section 32 of the CPA which requires that an

accused person should be taken to court within twenty-four hours after being taken into custody” The above position of law calls for all stakeholders to enhance rule of law by complying and providing rights to the accused as stated by law. It is by so doing rights of the people will be guaranteed. Such culture will not only enhance rule of law but also take away overcrowding of remandees in police custody and prisons as well as minimizing running costs to the Government in providing human needs to all culprits. Those arraigned for bailable offence might have successfully applied for bail pending investigation and trial. offences. The burden of proof in criminal cases is beyond reasonable doubt and lies on the prosecution side. The burden never shifts to the accused. The accused is only required to raise reasonable doubts on the prosecution case. Accused has not duty 13 to prove his innocence. See the cases of Woolmington v. Director of Public Prosecutions [1935] AC 462; and Mohamed Haruna @ Mtupeni & Another v. Republic, Criminal Appeal No. 25 of 2007 (unreported). In the just cited case of Mohamed Haruna @ Mtupeni & Another , the Court stated that: - "Of course, in cases of this nature the burden of proof is always on the prosecution. The standard has always been proof beyond reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the

prosecution case and not on the basis of the weakness of his defence." Again, in Mwita and Others v. Republic [1977] TLR 54 the Court said: "The appellants' duty was not to prove that their defence was true. They were simply required to raise a reasonable doubt in the mind of the magistrate and no more." That said and done, this court is inclined with both submissions by Republic and appellant that, the case was not proven to the standard required by law. In the event, this court hereby allow the appeal, quash, conviction and set aside sentence imposed by the trial court. It is therefore ordered that, accused be released with immediate effect unless lawfully detained in custody for another offence. 14 IT IS SO ORDERED. DATED at BUKOBA this 21st February, 2025. G.P. MALATA

JUDGE 21/02/2025 JUDGEMENT delivered at BUKOBA this 21st February, 2025 in the presence of all parties. G.P. MALATA

JUDGE 21/02/2025 15