20180321 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA (DODOMA DISTRICT REGISTRY)

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AT DODOMA DC. CRIMINAL APPEAL NO. 89 OF 2017 ,, (ORIGINAL CRIMINAL CASE NO. 223 OF 2017 OF THE DISTRICT COURT OF MPWAPWA DISTRICT AT MPWAPWA. NATHANAEL KIFARU ...................................................... APPELLANT

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

JUDGMENT 20/12/2017 & 21/03/2018 H. H. KALOMBOLA.: Nathanael Kifaru has three grounds of appeal:- 1. That, your honor judge the trial Court erred in Law and fact when convicted the appellant without considering that the conviction which was founded on the charge which was defective. See the case of MOSES SANJITO VR (CAT) DODOMA Criminal Appeal No. 64 of 2016 ( unreported). 1 2. That, your honor Judge the trial -Court erred in Law and fact when did not consider my defense.

3. That, your honor Judge there was no judgment at all since the trial Court did : follow within the requirement of Section 235 and 312 (2) of the Criminal Procedure Act, Cap 20 R.E. 2002 see the case of MATANO MNAMA VRS R. (CAT) DODOMA CRIMINAL APPEAL 361 OF 2014 ( unreported) When the appeal came for hearing, the appellant denied to have committed this offence stating that the same is a cooked story because they wanted to till in his shamba. That all the witnesses in the complainant side came from same family. He asked Court to consider his appeal. Ms. Mgoma State Attorney submitted on the 1st ground of appeal that the charge sheet is not defective and this offence was proved by PW2 who witnessed the incident so as the sister to the victim. PW6 who is the doctor corroborated PW2 evidence PW 6 tendered the PF3 as exhibit P1 indicating the victim had habitual sexual behaviour, therefore the evidence supported the charge. On the 2nd ground of appeal it is submitted that at page 3 of the judgment, the Magistrate considered ,both the evidences from prosecution and defence, therefore defence evidence was 2 considered but it was found it did not shake the prosecution ,-.. ,:-} -..:,.) evidence hence the decision. In regard to the 3rd ground of appeal it is their submission failure of the Magistrate to mention the Section on which he convicted with the accused is not fatal as it does

not affect the roots of the case instead the file may be remitted back to the trial magistrate for rectification. As on the issue that all the witnesses came from one family, it is submitted that is not true because PWl was a neighbor, PW5 was a street chairman and PW6 was a doctor. They pray the appeal be dismissed. Appellant insisted in rejoinder that PW 1 and the chairman are relatives. Going by the grounds of appeal starting with the 1st ground of appeal, I agree with the State Attorney that the charge which faced the accused person is not defective as from the evidence and the charge sheet the victim's age is 13 years, therefore as per Section 130 ( 1} (e} of the Penal Code the appellant was correctly charged. In the premises the 1st ground of appeal is dismissed. As on the 2nd ground of appeal that his defence was not considered, the Court has this to say. Looking at page 3 of the 3 .... • typed judgment the Magistrate considered appellant's defence r-... ;_-,j ._,.1 as he wrote:- "The accused person who is 68 ;years age defend himself that he is not capable to do ;the same ... " • In the premises I find the 2nd ground\ of appeal without merit I dismiss it. On the 3rd ground of appeal the appellant stated that Sections 235 and 312(2) of the Criminal Procedure Act, Cap 20 R.E. 2002 were not complied by the Magistrate. I agr~e with the appellant that the trial Magistrate

did not comply with the requirement under Section 312 (2) of the -eriminal-Pro-cedure-Act [C-ap ~20-R.E.-200]- which---provides:-~ 11 /ncase of conviction the judgment shall specify the offence of which, the accused person is convicted and the punishment to which he is sentenced." At page 4 of the typed judgment the trial Magistrate simply stated 11 I found the accused person guilty and I convict him accordingly." In the circumstance the trial Magistrate did not comply with the required Law. Therefore what is the remedy for this irregularity? The learned State Attorney submitted the irregularity 4 I is not fatal as this Court may order the file sent back to the trial .,-..,. ~ Magistrate for rectification of the error. But the State Attorney did not mention to the Court under which Law ;that the Court may give such order. I understand that Sectio~ 312 (2) has been coached in Mandatory order as the word "~HALL" is used. 1-:?~~ave further perused the trial Court r_~cord so as to find -~ ' ' out whether there was evidence to connect the appellant with this offence, before deciding on the effect of the irregularity mentioned hereinabove. The witnesses for prosecution to start with PWl Egra Makasi, ' it is gathered from her that she saw the_ appellant and the victim entering inside the house of her neig'hbor, thereafter she 'I heard the victim's sister raising alarm, the victim and

the appellant were locked inside PW2; Betina William got informed that . the appellant and the victim were inside, . she went and find them naked sexing. That she raised alarm, the appellant started ' to wear his trouser. She detained him inside· PW 4 Olivia Ndalu said on the incident day she went back home from shamba ' and got informed by PWl that the appellant raped the victim. That when the door was opened she saw the accused person and the victim coming outside; PW 5 Ageli Makuya was informed by PWl of the incident. She went to the scene and find the victim and appellant locked inside. 5 PW6 Mary Maneno examined the victim. She detected no ,--... ·•( bruises, but that she had habitual sexual behavior, there was penetration and there was no spermatozoon seen. She tendered as an exhibit Pl the PF3. j On the appellant's side he testified th~t he is no longer erecting due to old age and that the place in which it is said he raped the victim was an open kitchen. Going by the evidence at hand it is not clear as to the place in which this incident occurred. PW2 stated that she locked in the victim and the appellant. She did not say if it was inside a house or room, her evidence is thus shaked by appellant's defence that the place was an open kitchen. Moreover it is only PW2 who testified that she found the appellant naked who thereafter started wearing trouser. If that is so, why

didn't she immediately call PWl who is her neighbor to t witness the incident instead she decided to lock inside the victim and the appellant? Moreover PW 6 who examined the victim stated that the victim had habitual sexual behaviour. The appellant could not be found guilty merely because it is said he was locked inside by PW2. There must have been more evidence to prove that the appellant rape_d the victim on the day in dispute. I am not at one with the Respondent/Republic that there was evidence and that the prosecution case was 6 proved beyond all reasonable doubts following the reasons I have herein before explained. In view of the said explanation, I'. ( find the appeal meritorious, it is allowed. ' Consequently the conviction and sente~ce imposed to the :~ appellant are quashed and set aside; respectively. The ,, appellant is to be set free immediately unless held for a lawful order. Ordered accordingly. tut . H. KALOMBOLA)

JUDGE 21/03/2018 7