MOHAMED TAMBATATIZO VERSUS THE REPUBLIC JUDGMENT

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA DC CRIMINAL APPEAL NO. 17860 OF 2024 (Arising from Judgment of the District Court of Chemba in Criminal Case No 44 of 2022) MOHAMED TAMBA@TATIZO ….……………………….. APPELLANT VERSUS THE REPUBLIC …..………………………….…………..RESPONDENT JUDGMENT Date of the last Order: 18/09/2024 Date of the Judgment: 06/11/ 2024 LONGOPA, J. The appellant was convicted and sentenced to serve a thirty (30) years imprisonment and corporal punishment of 6 strokes for the offence of rape contrary to section 130(1), (2)(e) and 131 (1) of the Penal Code, Cap 16 R.E. 2022. The facts of the case are that on 16th October 2022 at Isiri Village within Chemba District in Dodoma Region the appellant had a carnal knowledge of one SG (identities withheld), a girl aged 11 years old. 1|Page The appellant was aggrieved of the whole decision both conviction and sentence thus on 1st July 2024, the appellant filed an appeal on the following grounds, namely: 1. That the learned trial Magistrate grossly erred in law and fact when convicted the accused person (appellant) while the prosecution side totally failed to prove the charge against the appellant beyond all reasonable doubts. 2. That the learned trial Magistrate erred in law and fact by failing to assess the credibility of the prosecution witnesses hence arising at the wrong verdict against the appellant. 3. That the learned trial Magistrate grossly erred in law and fact by convicting the appellant relied on the evidence given by the third part opinion (PW4) doctor who observed that upon examination he found that there are some bruises on her victim vaginal party. 2|Page 4. That the learned trial Magistrate grossly erred in law and fact when improperly admitted the prosecution exhibits PF3 and caution statements which both obtained illegally. 5. That the learned trial Magistrate grossly erred in law and fact by holding that the appellant was positively identified at the scene of the crime whereas the victim (PW3) and other prosecution witnesses failed to give out the detailed description of the alleged culprit. 6. That the learned trial Magistrate grossly erred in law and fact by failing to notice that the case against the appellant was cooked and fabricated one due to the fact that time of commission of offence is of utmost important to be considered and time for which the victim was taken for medical examination. 7. That the learned trial Magistrate grossly erred in law and fact by convicting the appellant whereby the trial was un procedurally conducted. 3|Page 8. That the learned trial Magistrate erred in law and fact by convicting the appellant while the age of the victim (PW3) was not proved. 9. That the learned trial Magistrate grossly erred in law and fact by failing to consider the defense raised by the appellant during the trial. It was on strengths of those grounds that the appellant prays to this Honorable Court to allow the appeal and quash both conviction and sentence imposed on the appellant and let him at liberty. On 18th September 2024, the parties were heard on this appeal through viva voce hearing where the appellant appeared in person to fend for himself while the respondent enjoyed the legal services of Ms. Victoria Njau & Mr. Francis Mwakifuna, learned State Attorneys. In support of the appeal, the appellant had nothing useful than praying to adopt all the grounds of appeal as contained in the Petition of Appeal to form basis of his strengths of the appeal. The appellant added 4|Page on two aspects. First, that he was only arrested and he had never been subjected to medical examination to verify that sperms found on the victim’s vagina belonged to him. Second, that there was a cautioned statement which he was only required to sign forcefully as he was being beaten severely by the Police officers. On the other hand, Ms. Victoria Njau, learned State Attorney stated that the respondent was in objection of the appeal as all grounds advanced have no merits. It was submitted that all the grounds relate to failure to prove case beyond reasonable doubts except for the 4th and 9th grounds. The respondent argued that in respect of proof of the case beyond reasonable doubts forming 1st, 2nd, 3rd, 5th, 6th ,7th and 8th grounds, it is settled law that the prosecution is duty bound to prove the case beyond reasonable doubts. The appellant was charged for offence of rape contrary to section 130 (1), (2) (e) and 131(1) of the Penal Code, Cap 16 R.E. 2022.It was reiterated that decision of the subordinate court was correct. According to the respondent, the prosecution proved of the offence where the victim was of eleven (11) years. The ingredients of the offence 5|Page were that age of the victim, penetration and whether the appellant is the offender who actually committed the offence. It was argued that PW 3, the victim at pages 16-17 of the proceedings, promised to tell the truth before the Court. She stated that on 16/10/2022 at around night hours the appellant who is her brother took her and strangled her until she lost consciousness. Upon getting conscious she found blood flowing from her vagina. It was argued that the victim identified the offender through moonlight. Both the victim and appellant were known to each other as sister and brother respectively thus the offender was not a stranger. It was the respondent’s submission that the Court availed the appellant opportunity to cross examine on the evidence of the victim. He only questioned about the clothing that the offender was wearing on that material date. The principle in the case of Medson Manga versus Republic, Criminal Appeal No. 251 of 2019 was cited to reiterate position of the law where Court of Appeal at page 12, stated categorically that failure to cross- 6|Page examine on material evidence is an admission that the evidence of the witness is the truth. It was the respondent’s submission that the appellant did not object that he knows the victim. Thus, PW 3 was credible and reliable witness as the evidence of PW 3 was not shaken at all. This evidence was corroborated by PW 4 the medical doctor. At page 19 of the proceedings, PW 4 stated that after medically examination of the victim found some bruises and blood flowing from the victim’s vagina. This was evidence that there was penetration of the victim’s vagina. PW 4 tendered PF 3 as Exhibit P.1 and the same was read in Court. The appellant was availed opportunity to cross examine PW 4 but chose not to. Thus, PW 4 was credible evidence. Also, evidence of PW 2, victim’s mother, at page 15 of the proceedings stated about age of the victim to be 11 years. There are cases that parent’s evidence can establish age including the case of Isaya Renatus versus Republic, Criminal Appeal No. 542 of 2015 CAT (TANZLII) at page 8. 7|Page PW 2 stated to have examined the victim at her private parts and found that she had blood. The victim immediately named the appellant to be the assailant. It was submitted that evidence of the prosecution managed to establish the case against the appellant as their evidence was credible and reliable thus the Court found the appellant guilty of the offence in accordance with the law being impressed by available evidence on record. On 4th ground relating to admission of the documentary evidence, it was submitted by the respondent that Exhibit P1 which was PF 3 was admitted, the same was read thus the appellant was aware of the contents. There was nothing to complain about it. On cautioned statement as per PW 5 evidence on page 25 the appellant objected thus Inquiry was conducted. There is no evidence that inquiry was conducted properly nor whether the same was read before the Court. This violated the provisions of the law, thus Exhibit P.2 be expunged from the record of the court as the oral testimony alone shall remain for PW 5. 8|Page It was argued that expunging Exhibit P. 2 does not affect the case as the strongest evidence in sexual related cases is from the victim as PW 3 had very credible and reliable that is why the appellant was convicted. In Selemani Makumba versus Republic, the Court stated the victim’s evidence on the sexual offence is the best evidence. On the 9th ground relating to the failure to consider defence case, it was submitted that the same is incorrect. The respondent argued that at page 2 of the Judgment the trial Court fully considered the defence. The defence evidence was not able to shake the prosecution’s evidence that is the reasons that made the trial court to find him guilty of the offence. As such, the respondent prayed that this appeal be dismissed and the decision of the trial court in terms of conviction and sentence be upheld as reflect proper articulation of the law. Having heard the parties, it is pertinent to determine whether or not this appeal is valid. The main question is whether the prosecution managed to prove the case beyond all reasonable doubts in the circumstances of the case. To address this aspect, there is a need to 9|Page analyse the available evidence on record. The first and fore most aspect is on the ingredients of the offence of rape. In order to prove the case of rape there are elements of the offence of rape mainly two that must be proved. There must be penetration of the victim’s vagina by a male sexual organ. The victim must be underage or there should be no consent if the victim is aged 18 years or more. These ingredients were articulated in Godi Kasenegala vs Republic (Criminal Appeal 10 of 2008) [2010] TZCA 166 (12 October 2010) (TANZLII), at page 12, the Court noted that: Under our Penal Code rape can be committed by a male person to a female in one of these ways. One, having sexual intercourse with a woman above the age of eighteen years without her consent. Two, having sexual intercourse with a girl of the age of eighteen years and below with or without her consent (statutory rape). In either case, one essential ingredient of the offence must be proved beyond reasonable doubt. This is the element of 10 | P a g e Penetration i.e. the penetration, even to the slightest degree, of the penis into the vagina: see, Masomi Kibusi v Republic, Criminal Appeal No. 75 of 2005 (unreported). It is on record, PW 3 the victim stated that on 16/10/2022 during night she was sleeping with her young brother in the room within the house where she lives with her mother and the appellant who is her brother. It was victim’s evidence suddenly the appellant took her while she was going to attend short call and that she was strangled in her neck by the appellant where she became unconscious. At that juncture, allegedly the appellant raped her and when she became conscious found a lot of blood from her vagina. This is the only direct evidence regarding the alleged rape incident. The evidence was corroborated by PW 4 one Dr. Greyson Victor Joseph, a medical doctor who testified that on 17/10/2022 he did examine the victim, found stains of blood and bruises at the victim’s vagina which appeared to have caused by blunt/soft object. He tendered the PF 3 as an Exhibit 1. 11 | P a g e According to PW 4 evidence it was his conclusion that penetration of the victim’s vagina existed. On the other hand, PW 5 testified that on 17/10/2022 at 09:00 she was assigned to deal with incident of rape where the accused person was already in police custody and she interrogated the accused person who admitted to have raped the victim. It was PW 5 that accused /appellant voluntarily agreed to the admission of the offence vide a cautioned statement recorded from 09:00 am to 09:50 am. It was at that juncture that PW 5 prayed to tender the cautioned statement which was categorically objected by the appellant thus necessitating the need to conduct an inquiry on the voluntariness of the cautioned statement. Generally, speaking the element of penetration may appear to have been established as the evidence PW 3 is corroborated by PW 2, victim’s mother and PW 4, medical doctor though his oral evidence. The victim’s mother emphasized that the victim informed her and neighbours that it was her brother who raped the victim. The hymen appeared to be 12 | P a g e perforated. The question to be answered is whether there is any evidence linking the appellant to this offence. The first aspect is on proper identification of the appellant. Identification of the accused is the most important aspect regarding participation of the appellant in commission of alleged crime. In this appeal, PW 3 stated that the appellant was arrested in the morning having allegedly followed the foot-steps that led to the appellant. The foot steps were that of the appellant. The same evidence was adduced by PW 2 who reiterated that neighbours arrested the appellant by tracing the footsteps as they were familiar with the appellant. It was PW 2 that the victim did not call for help as the appellant strangled her. It is settled view of this Court that a thorough perusal of the record reveals nothing on proper identification of the appellant. It is a settled law that visual identification is considered as one of the weakest types of evidence. In Isaya Loserian vs Republic (Criminal Appeal No. 426 of 2020) [2024] TZCA 138 (23 February 2024) (TANZLII), at page 15, the Court of Appeal emphasized that: 13 | P a g e Trite legal stance is that such evidence is of the weakest nature and should not be relied on unless the court is satisfied that all possibilities of a proper and unmistaken identification are eliminated, that is to say the evidence must be watertight. Generally, night times are associated with darkness and the conditions are taken to be difficult and hence unfavourable for a proper and unmistaken identification. For assurance, the Court has occasionally insisted that the identification evidence must meet certain thresholds. In Waziri Amani vs Republic (supra) some guidelines were set out to include, but not limited to, time the culprit was under the witness's observation, distance (proximity) at which observation was made, the duration the offence was committed, and where the offence is committed at night, the source and intensity of light at the scene to facilitate a positive identification and whether the culprit was familiar to the witness. 14 | P a g e The incident happened at night time at around 21:00 hours. There is nothing on record in respect of existence of light at all or intensity of the light if the same was there. No evidence on description of the appearance of the appellant on that material date. Also, it is not stated what was the distance from the victim’s room to a place where she went for a short call. The victim neither stated at which point exactly she was grabbed while attending a short call, was the incident done within the house or outside the house. That is not known. At this juncture, I am convinced that appellant was not properly identified. The second major infraction of the evidence of the prosecution is treatment of the evidence and admissibility of documentary evidence. There are two aspects, namely failure by trial court to afford the right to cross examine and conduct the inquiry against admissibility involuntary cautioned statement; and the unprocedural reception of Exhibit P. 1, the PF 3. It is on record that PF 3 was tendered by PW 4 without any clearance of the Court. This is despite the same being admitted without any 15 | P a g e objection. The prosecution ought to have led the witness to state about his role in preparing or filling in the PF 3 upon completion of examination of the victim, state the possible features to identify the document before a prayer to tender the same. None of these was made available to the Court. PW 4 never stated to have filled nor prepared any document upon examination of the victim thus there was no basis for the tendering of Exhibit P. 1. The law is settled that any documentary or exhibits must undergo three processes in tendering them. In the case of Robinson Mwanjisi and Three Others vs. R. [2003] T.L.R. 218, at 226, the Court of Appeal stated that: Whenever it is intended to introduce any document in evidence, it should first be cleared for admission, and be actually admitted, before it can be read out. Also, in the case of Geophrey Jonathan @ Kitomari vs Republic (Criminal Appeal 237 of 2017) [2021] TZCA 17 (16 February 2021), the Court of Appeal emphasized that: 16 | P a g e It is trite principle that when a document is sought to be introduced in evidence three important functions must be performed by the court, clearing the document for admission, actual admission and finally, to ensure that the same is read out in court. The effect of the omission… is to expunge the documents from the record. The position is the same where the document is admitted without being cleared for admission as it happened in this case. In the circumstances, we agree with the learned Senior State Attorney that exhibits P1 - P3 which were wrongly admitted in evidence deserve to be expunged from the record and thus we accordingly hereby do so. Indeed, Exhibit P. 1 must be expunged from the record of the court for being violative of the law. The similar fate should be applicable to the cautioned statement which was admitted by the respondent to have failed 17 | P a g e to comply with tenets of the law. Thus, nothing of documentary nature remains in this case to support assertion that victim was raped. Also, it can be noted from the record that evidence of PW 5 was not completed and had two weaknesses. First, the appellant was not afforded the opportunity to cross examination. This violated the right of the accused person to interrogate the witness. The record does not reflect that accused was availed the right to cross-examine which contravened the provision of sections 146 and 147 of the Evidence Act, Cap 6 R.E. 2022 and Article 13(6) (a) of the Constitution of United Republic of Tanzania. In the case of Ex-D.8656 CPL Senga s/o Idd Nyembo & Others vs Republic (Criminal Appeal 16 of 2018) [2020] TZCA 381 (7 August 2020), at pp.13-15, the Court of Appeal emphasizes on the need to afford right to cross examine in the following terms: - Failure of the trial magistrate to give each of the appellants the opportunity to say whether they objected or otherwise to the admission of exhibit and to cross-examine witnesses breached the rule of natural justice, which 18 | P a g e entails that justice must not only be done but must manifestly be seen to be done. Indeed, the right of hearing is not only a fundamental procedural aspect in the court proceedings, but it is also a fundamental constitutional right in Tanzania by virtue of Article 13(6) (a) of the Constitution. In the circumstances of this case, we are settled that the proceedings, findings and judgment of the trial court were invalid having occasioned miscarriage of justice due to the glaring irregularities we have demonstrated above. The second aspect relates to treatment of inquiry on involuntariness of the cautioned statement. It is on record that 0n 04/09/2023, the appellant stated categorically that cautioned statement was involuntary as the was beaten/ tortured and forced to admit the offence. The court scheduled the 06/09/2023 as date set for inquiry on voluntariness of the cautioned statement which was not conducted as the prosecution’s witness was not there. On 11/09/2023 and 20/09/2023 but the prosecution 19 | P a g e witnesses for inquiry never appeared. Surprisingly, on 04/10/2023, the trial Court heard only the appellant. The trial magistrate noted that the accused was using delaying tactics by raising the same. This observation was made after the prosecution failed to bring the witness to testify on voluntariness of the cautioned statement. I am satisfied that this observation contravened the mandatory provisions of the law. Indeed, section 27(2) of the Evidence Act, Cap 6 R.E. 2022 imposes the duty on the prosecution to prove voluntariness of the confession. It states that: 27(2) The onus of proving that any confession made by an accused person was voluntarily made by him shall lie on the prosecution. In Chamuriho Kirenge @ Chamuriho Julius vs Republic (Criminal Appeal 597 of 2017) [2022] TZCA 98 (7 March 2022) (TANZLII), at pages 21-22, the Court observed that: 20 | P a g e It is settled that an oral confession of guilt made by a suspect before or in the presence of reliable witnesses, be they civilian or not, may be sufficient by itself to ground conviction against the suspect. The Court insisted that such an oral confession would be valid as long as the suspect was a free agent when he said the words imputed to him. It means therefore that even where the court is satisfied that an accused person made an oral confession, still the trial court should go an extra mile to determine whether the oral confession is voluntary or not. What amounts to an involuntary confession is provided for under subsection (3) of section 27 of the Evidence Act, Cap 6 which states: "(3) A confession shall be held to be involuntary if the court believes that it was induced by any threat; promise or other prejudice held out by the police officer to whom it was made or by any member of the Police Force or 21 | P a g e by any other person in authority." As the appellant alleged torture and being forced to sign the cautioned statement, it is duty of the prosecution to satisfy the trial court that the confessional statement was made voluntarily. The prosecution did not discharge such duty as per available record. It was not proper for the trial magistrate to shift the burden of proof to the defence in involuntary cautioned statement. The ruling that accused’s objection to the voluntariness of cautioned was delaying tactics by the accused was not in consonance with the law. It offended the clear provisions of the law. In James @ Shadrack Mkungilwa & Another vs Republic (Criminal Appeal 214 of 2010) [2012] TZCA 38 (26 March 2012) (TANZLII), at page 20 the Court of Appeal stated lucidly that: It is true that, generally, for an irregularity in procedure to be fatal, it must be shown to have prejudiced the accused and occasioned a failure of justice. But, these rules of procedure differ in importance. Some are minor and do not go to the root of justice. These can be ignored. But some 22 | P a g e are so fundamental, that they cannot be ignored. Rules that affect an accused's right to be heard, or to a fair hearing, are fundamental, and cannot be ignored. Totality of these aspects categorically reveal that the appellant was not treated fairly during the hearing and was convicted and sentenced inappropriately. Weaknesses of the prosecution evidence points out that the prosecution’s evidence was so weak, disjointed and inconsistent to warrant conviction and sentence thereof. Thus, both conviction and sentence imposed on the appellant are unlawfully. In the case of Charles Mwinami vs The Republic (Criminal Appeal No. 451 of 2021) [2024] TZCA 231 (22 March 2024) (TANZLII), at page 8, the Court stated that: We take it to be settled law that it is the cardinal principle of law in criminal trials that onus is always on the 23 | P a g e prosecution to prove the charge. The burden of proof never shifts to the accused and the standard of proof is always beyond reasonable doubt. (See, for instance, Mohamed Said Mtula v. R, (1995) T.L.R.3.) In this case, the prosecution was required to prove that the offence was committed as alleged in the charge. We see no such evidence coming from the prosecution as rightly argued by the learned State Attorney. Neither of the prosecution witnesses attempted to explain when the offence was committed. All that is on record is the dates PW4 heard of the rumors and took legal action. Even the medical examination and the resultant findings are not reliable the victim having been examined seven days after the appellant's arrest. In the absence of a clear date when the victim was allegedly penetrated, the findings of PW4 becomes unreliable. 24 | P a g e As the evidence of prosecution did not establish categorically that there was proof beyond reasonable doubts, this appeal is merited. I am satisfied that 1st, 2nd, 4th, 5th, 7th, 8th and 9th grounds are merited to warrant allowing this appeal. In the circumstances of this appeal, the appellant was erroneously convicted and sentenced. I shall proceed to quash the conviction, set aside the sentence imposed by the trial court thus the appellant is hereby acquitted and order his immediate release. The appeal is allowed in its entirety. It is so ordered. DATED and DELIVERED at Dodoma this 6th day of November 2024. E.E. LONGOPA JUDGE 06/11/2024. 25 | P a g e