ramadhani subiri judgement

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB- REGISTRY)

AT PAR ES SALAAM CRIMINAL APPEAL NO. 2820 OF 2024 (Arising from the District Court of Bagamoyo, in the Criminal Case No. 82 of 2023). RAMADHANI SUBIRIABDERAHMAN© KIPANDE................... APPELLANT Versus REPUBLIC.............................................................................. RESPONDENT

JUDGMENT 19th Aug & 30th Sept, 2024 DYANSOBERA, J.: In this appeal, the appellant seeks to impugn the decision of Bagamoyo District Court in Criminal Case No. 82 of 2023. In that case, the appellant had been arraigned for the offence of rape contrary to sections 130(l)(2)(e) and 131 (1) of the Penal Code [Cap 16. R.E 2022] whereby it was alleged that on 4th September 2022 at Udindivu Village in Bagamoyo District the appellant had unlawful carnal knowledge of a 15 years old girl, (name withheld). After a full trial, the trial court found the appellant guilty as charged, convicted and sentenced him to serve 30 years' custodial sentence. Aggrieved, the appellant has appealed on the following grounds of appeal: - i i. That the Honourable trial Magistrate erred in law and fact in convicting and sentencing the appellant based on the defective charge sheet.

2. That the Trial Magistrate erred both in law and in facts to convict the appellant relying on the evidence of PW1 (hereinafter referred to as the victim) which was insufficient to prove the offence alleged beyond reasonable doubt.

3. That, the trial magistrate erred in law and fact for failure to guarantee the appellant a fair trial which was committed by the prosecution side on examination of the appellant and his witnesses.

4. That the trial Magistrate erred in law and facts in convicting and sentencing the appellant basing on weak and contradictory evidence on prosecution side which did not establish the offence to the required standard.

5. That, the trial magistrate erred in law and fact by entering a conviction without following a proper procedure in recording the evidence of the child of tender age.

6. That, the trial magistrate grossly erred in law for failure to sentence the appellant.

7. That, the trial magistrate erred in law and fact for failure to consider the ground that there was a delay in reporting a crime which raises a doubt.

8. That, the trial magistrate erred in law and fact for failure to consider the defence raised by the appellant in opposition to prosecution evidence.

9. That, the trial magistrate erred in law and fact by entering a conviction based on the judgment which is problematic and incapable of legal support. io. That, the trial magistrate erred in law and fact by entering a conviction without considering the expert evidence from PW3. 2 The factual background leading to this appeal as gleaned from the record of the trial court can be summarised. PW1, the victim, was, on 3rd day of September, 2022 around 3 pm at night was coming from the ceremony. It is the prosecution case that on her way back home, she met the appellant herein who was well known to her as they live in the same village. The appellant threatened her with a knife and ordered her to board embark on the motorcycle. They went direct to the appellant's room whereby the appellant allegedly forcibly undressed her, inserted his penis into her vagina and then after the sexual intercourse they slept together until the next day. The PW 1 went back home. She did not tell her mother what had transpired. When her father PW2, one Sultani Hamisi Suleiman PW 1, arrived, he was informed that PW 1 was raped by the appellant. PW1 and PW2 went to the appellant's house. Later, PW2 reported the matter to the police where an and they were issued with PF3. Thereafter, PW1 was taken to Kerege Health Centre for examination whereby the same was examined by PW3 Asha Saidi Chanyegela, Assistant

Medical Officer. PW 3 established that PWl's hymen was torn there and there was sign of penetration indicating that she had sexual intercourse. Thereafter, the appellant was arrested, taken to the police station and interrogated by PW4. F.219 Detective Sgt Edward Enock Hadson. Before PW 4, the appellant denied the allegations levelled against him. The appellant was subsequently charged and prosecuted and then convicted and sentenced as indicated hereiabove. The appeal was disposed of by way of written submissions whereby the Mr. Abdulmajid Mtukusye, learned counsel, represented the appellant and argued in support of the submission in chief while Ms. Gladness R. 3 Mchami, learned State Attorney, stood for the respondent and submitted in reply. Submitting on the 1st ground Mr. Mtukusye argued that the first page of the judgment reveals that the appellant was charged and convicted for the offence of Rape, as per sections 130(1) & (2)(b) and 131(1) of the Penal Code [Cap 16 R: E 2022] whereas the prosecution evidence indicates that the victim is below 18 years, hence proper charge was supposed to be a statutory rape as provided under section 130(1) &(2)(e) of the Penal Code [Cap 16 R: E 2022]. To fortify his argument, he referred to the case of Juma Gulak and 2 Others vs R, Criminal Appeal No. 279 of 2022 page 10. According to learned counsel, the charge sheet was improperly

amended without the court's prior permission as required under section 234(1) of the Criminal Procedure Act [Cap 20 R: E 2022]. He explained that the record shows that the charge sheet was amended, specifically in the statement of the offence, using a blue ink pen while in the court proceedings, no evidence indicates that the trial court ordered the amendment. In the counsel's view, the state attorney acted on her own accord in amending the charge; a serious and incurable irregularity. To support his argument, counsel relied on the case of Kali s/o Kulwa @ Nyangaka v. The DPP, Criminal Appeal No. 6 of 2019 (TanzLii), at page 11. It was further argued for the appellant that there is nothing on the record showing that following the amendment of the charge sheet, the amended charge sheet was read over the accused for him to enter his fresh plea. With respect to the 2nd ground of appeal, counsel for the appellant submitted that the trial magistrate convicted the appellant solely based on 4 the victim's testimony by relying on the case of Selemani Makumba v. Republic [2006] TLR 149 which established a principle that the proof of rape comes from the prosecutrix herself. Counsel, however, argued that the trial court convicted the appellant based on the weak victim's evidence which was insufficient to prove the offence alleged beyond reasonable doubt in that, first, the victim did not

describe the surrounding circumstances at the crime scene, i.e whether there were nearby houses from which she could have sought help by raising the alarm. To fortify his argument, he cited the case of Suleiman Dago @ Swalehe v. R, Criminal Appeal No. 59 of 2022 page 17. Second, PW1 did not detail the distance from the location where she was forced to board the appellant's motorcycle (Boda Boda) to the appellant's home. In counsel's view, describing the distance was essential to provide the feasibility of the victim escaping or seeking help during the transit. Third, PW1 failed to provide a detailed description of the appellant's home environment. On the 3rd grounds of appeal, the appellant's counsel complained on how the proceedings were conducted. He argued that the proceedings show that the state attorney was the one who conducted the examination in chief in respect of the appellant instead of letting the appellant narrate and tell his story freely defending the charge. This, to learned counsel, adversely affected the appellant by denying him an opportunity to defend himself culminating into unfair trial and the procedure of examination of witnesses. To support his argument, he made reference to the case of Kassim Salum Mnyukwa v. R, Criminal Appeal No. 405 of 2019 (2022) TZCA 93. Counsel was also of the view that the appellant was not accorded the right to lead his witness

in examination in chief instead, DW2 was only cross- examined by the State Attorney without giving his evidence in chief. In his opinion, the circumstances of the case imply the cherished principle 5 that justice should not only be done but must undoubtedly be seen to be done was not observed. To bring this point home, counsel for the appellant placed reliance on the case of Mbeya- Rukwa Auto Parts and Transport Ltd vs Jestina George Mwakyoma [2003] T.LR. 251 as it was cited in Kassim Salum Mnyukwa vs Republtc(supra) on page 12. Regarding the 4th grounds, it was argued on part of the appellant that the conviction entered was based on the contradictory evidence of PW1 and PW2. He clarified that while PW2 testified that after being informed about the incident on September 6, 2022, he was escorted by PW1 to the appellant's place and found him there and made apologies while PW1 testified that after narrating the incident to PW2, they went to the appellant's place but could not find him there. In counsel's view, these contradictory statements from key witnesses cast serious doubt on the prosecution's case, and it goes to the root of the case. On this aspect, the court was referred to the case of Mathias Bundala v. R, Criminal Appeal No. 62 of 2004 [2007] TZCA16 which was cited in Toyidoto s/o Kosima v. R, Criminal Appeal No.525 of 2021, [2023] TZCA 17305 (5 June 2023). Submitting on

the 5th ground, the appellant's counsel argued that PW2 and PW4 testified that PW1 is a child of tender age as she was born in 2009 butthat, unfortunately, PWl's testimony was recorded under oath contrary to Section 127(2) of the Evidence Act [Cap 6 R: E 2022], which requires that a child of tender age must promise to tell the truth and will not tell lies. Failure to comply with the statutory provisions renders PWl's testimony devoid of evidential value and ought to be expunged from the 6 record, counsel reliance being placed to the case of Godfrey Wilson v. R, Criminal Appeal No. 168 of 2018. In relation to the 7th ground, Mr. Mtukusye argued that the victim's failure to take necessary steps, such as informing her mother or reporting the matter to the police at the earliest opportunity without any reasonable explanation, raises serious questions about the reliability of her testimony, particularly where it is clear that, as per PWl's testimony, the crime was committed on 3rd September 2022, but it was not reported to the police until 6th September 2022. More so, the victim was clear that she spent the whole night at the appellant's place and returned home the next morning but even then, she did not inform her mother until September 6th' 2022 when she informed her father. In making the point clear, counsel cited the case of DPP vs Simon Mashauri, Criminal Appeal No. 394 Of

2017. Submitting on the 8th grounds of appeal, counsel for the appellant contended that the court failed to consider the defence and doubts raised by the accused in his defence regarding the victim's testimony, particularly concerning her ability to recognize the accused in a low-light situation and the fact that neither PW1 nor PW4 described the crime scene. The court was referred to the case of Leonard Mwanashoka vs Republic (Criminal Appeal 226 of 2014) [2015] TZCA 294 at page 6. On ground 9 of appeal, counsel for the appellant submitted that the judgment of the trial court is tainted with contradictions regarding the date and time the offence was committed. Further that, the magistrate did not properly evaluate the evidence from both sides before entering a conviction. According to Mr. Mtukusye, the trial magistrate only summarized and evaluated the evidence of PW1 and PW3 but neglected that of PW2, and PW4. Had the magistrate thoroughly evaluated all the 7 evidence, he would have identified the doubts in the prosecution's case, averting miscarriage of justice against the appellant. In support of his argument, counsel made reference to the case of Leonard Mwanashoka vs R., (supra) at page 6. With regard to the 10th ground of appeal, it was submitted on part of the appellant that the trial magistrate stated that after examining the victim, she found that the hymen had been

tom and noted that the victim had begun engaging in sexual intercourse some time ago. This means, according to learned counsel, there was much possibility of the victim having engaged in sexual intercourse with other person (s) than the appellant. This uncertainty raises doubts about the prosecution's case regarding who actually penetrated the victim or whether the victim was indeed raped by the accused since she had been engaged in sexual activities some time ago. As a general rule, any doubt should be resolved in favor of the accused, he referred to the case of Suleiman Dago @ Swalehe vs Republic (Supra). Counsel insisted. He was of the view that the trial court's failure to consider the expert witness’s testimony resulted in a miscarriage of justice against the appellant. Ms. Mchami, learned Senior State Attorney, in reply, urged the court to find this appeal devoid of any merit. She made the following submission. On the 1st ground of appeal, she replied that though the statement of offence state that the appellant was charged with rape contrary to section 130 (1) 2(b) and 131 (1) of the Penal Code [Cap 16 R.E 2022] and the evidence on record reveal that the victim or PW1 was under age at the time when the offence occurred, therefore, the proper sections should have been 130 (1) 2(e) and 131 (1) of the Penal Code (supra), argued that this irregularity, in itself, does not

make the charge sheet defective 8 because it was a citation of inapplicable provisions on the part of the prosecutions which is curable under section 388 of the Criminal Procedure Act [ Cap 20 R.E 2022]. The court was referred to the case of Jamali Ally @ Salum vs Republic (Criminal Appeal No. 52 of 2017) [2019] TZCA 32 (28 February 2019). She further contended that the insertion of the word 'Cap' by pen in the charge sheet at the statement of offence between the word Code and R.E. was not an amendment covered under section 234 (1) of the Criminal Procedure Act (Supra). The learned Senior State Attorney denied to have been any amendment to the charge sheet contending that there is no evidence to show that the insertion was done after the admission of the charge sheet. According to her, the charge sheet was signed by the Public Prosecutor on 18th April, 2023. On the contradictions on the date at the time of the occurrence of this incident between PW1, PW2, PW3, and the charge sheet, it was submitted on part of the respondent that there are no contradictions. She clarified that among the 3 witnesses named above, it is only PW1 who stated the date of the incident to be 4th April, 2022 at page 9 of the typed proceedings whereby the said date matches the date of the incident as stated in the charge sheet. Further that, PW2 and PW3 did not state anything about the date of the

incidence. She also elaborated that the inconsistences on the time as they appear in the charge sheet and the evidence of PWI that is 03:00 hours and 3pm and the age of the victim as they appear in the charge sheet and the date PWI gave her evidence that is 14 and 15 respectively are minor which do not go to the root of the case in that it is undisputed fact that the offence took place at night and that the victim in this case is below 18 years old. The case of Dickson Elia Nsamba Shapwata and Another vs Republic (Criminal Appeal 92 of 2007) [2008] TZCA 17 was referred to the court to support this argument. 9 Reacting on the 2nd ground, Ms. Mchami submitted that PW1 stated clearly on her evidence that she met the appellant riding a motorcycle meaning the motorcycle lights were on and the appellant threatened her with a knife in case she raised an alarm. This fact, learned Senior State Attorney emphasized, explains clearly why and how the appellant managed to get PW1 on his motorcycle to his room and that it was undisputable that the appellant was well known to PW1 prior to the incident. Relying on the case of Shamiri John v. The Republic, Criminal Appeal No. 166 of 2004, CAT Mwanza (Unreported) page 11, learned Senior State Attorney stressed that the appellant’s identification was that of recognition. She also added that it is on record that PW1 after being raped by the

appellant she spent the remaining night sleeping in the appellant’s room till morning then she went back home. This means PW1 had ample time with the appellant to know and recognized him as the culprit and that there were just two of them. This fact of sleeping in the appellant's room till morning was never cross-examined by him hence, on the authority of the case of Damian Ruhele vs Republic (Criminal Appeal No. 501 of 2007) [2012] TZCA 160 (2 March 2012), the same is accepted. Responding to the 3rd ground, it was submitted on part of the respondent that as reflected in the typed proceedings from pages 19 to 25, there is a typographical error with the word examination in chief by state attorney as seen in page 19 and 21 and that the same applies to the written phrase 'cross examination by prosecution' at page 34 prior to DW2 adducing his evidence. It was the respondent's view that the State Attorney in that case could not play double role of both examination in chief and cross examination. io In reply to the 4th ground of appeal, Ms. Mchami conceded that there is inconsistency of evidence between PW1 and PW2 when they visited the house of the appellant on 6th September, 2022 but argued that the said inconsistency is minor and does not go to the root of the prosecution’s evidence. On the 5th ground of appeal, it was admitted on part of the respondent that provisions of section

127 (2) of the Evidence Act [Cap 6 R.E 2022] is to the effect that a child of tender age may give evidence without taking an oath or affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell any lies, but argued that, even if the proper procedure for recording the evidence of a child of tender age was not followed the same does not render PWl's evidence inadmissible and buttressed her argument by making reference to the case of Seleman Moses Sotel @ White vs Republic (Criminal Appeal No. 385 of 2018) [2020] TZCA 40 Replying to the 7th grounds of appeal, she admitted that the crime took place on 4th September, 2022 and a report was made to the Police on 6th September, 2022. She explained that the reason for the delay was explained whereby PW 1 stated that she failed to inform her mother of the incident because her mother was angry at her for sleeping outside their home but that the incident was relayed to PW 2, the victims' father who then reported to the Police Station on 6th September, 2022 but that all the same, the late reporting of PW1 to her parent did not in any way prejudice the appellant. In reply to the 8th ground of appeal, Ms. Mchami contended that the trial court considered the appellant's defence, otherwise, this court should step into the shoes of the trial court to the shoes of the trial court ii and consider the same

while determining this appeal. Reference was made in the case of Joseph Leonard Manyota vs Republic (Criminal Appeal No. 485 Of 2017) [2017] TZCA 261. Replying the 9th ground of appeal it was submitted that it is observed at page 4 and 5 of the typed judgment that the trial court evaluated the evidence of prosecutions and that of the defence and came up with its own decision that the prosecution had proved its case beyond reasonable doubt. However, it is settled law that the first appellate court can evaluate the whole evidence again and make its own findings. In substantiate her argument she cited the case of Mapambano @ Mayanga vs Republic (Criminal Appeal No. 268 of 2015) [2016] TZCA 954. In reply to the 10th ground of appeal, Ms. Mchami contended that at page 14 of the typed proceedings, PW3, the Medical Doctor who examined PW1 was clear that after examining PWl's vagina she found her hymen torn, there was a sign of penetration and that she had sexual intercourse. Learned Senior State Attorney was under the impression that there is no evidence to the effect that the victim had begun engaging in sexual intercourse some time ago as claimed by the appellant. According to her, it has to be noted that PW3 evidence is corroborative of PW1 the victim whose evidence is the best in sexual offences. On this argument, she relied on the case of Godi Kasenegala vs Republic (Criminal

Appeal 10 of 2008) [2010] TZCA 5. Having considered the trial court's record, the grounds of appeal and the written submissions in support and opposition of the appeal, I have to decide whether the appeal has merit. As far as the first ground of appeal is concerned, both the appellant' and respondent's sides agree that the victim was 15 years old, hence the 12 offence of rape fell under statutory rape. Since this was a statutory rape, the proper section would have been section 130 (2) (e) of the Penal Code [Cap. 16 R.E.2022] and not 130 (2) (b) as was the case in question. With regard to the 2nd and 4th grounds of appeal, the fact that the victim, that is PW 1, was carnally known by the appellant was not proved beyond reasonable doubt. The argument by PW 1 that she boarded the appellants motor cycle and slept with the appellant in his room was not sufficiently established by evidence, nobody saw the victim embarking on and disembarking from the appellant's motor cycle. As to what transpired at the appellant, PW 1 and PW 2 gave inconsistent and contradictory versions on whether they found the appellant at home and whether the appellant uttered any word. As rightly submitted by learned counsel for the appellant, these contradictions and inconsistencies are not minor and goes to the root of the case denting the prosecution case. The record of the trial court shows that when the

appellant was testifying, he was being examined in chief by the state attorney who also cross examined him. This means that there was unfair trial. The argument by the learned Senior State Attorney that this was a typographical error cannot be accepted as the record is clear the appellant was not only examined in chief but also cross examined by the state attorney. To be on the safer side, let me quote what transpired during the defence: Defence Case Continue: Dwl; Ramadhani subiri alias Kipande 24 years Moslem A/S as follows: XD: - 13 - I recall on 06/09/2022 while at home PW! and PW2 came alleged that I raped PW1; your honour I deny; I did not rape PWL - In her testimony PW1 testified that on material date she was coming from ceremony or disco at around 3pm night but she did not explain how she managed to recognize me' - Your honour PW1 testified that the incident occurred on 04/09/2022 but she disclosed to PW2 on 06/09/2022, that she disclosed the incident 3 days after been raped this create doubt on her evidence. - That is all. Signed: H. R. Mareng PRM 31/8/2023 DW2: Hassan Ramadhan Nassoro, 42years, Moslem. A/s as follows: - XD: - I recall on 06/09/2022 while at home together with DWI, the Police Officers came and arrested DWi alleged that he raped a girl; your honour on material date -I was together with DWi he did not commit the alleged offence. - That is all. Signed: H.

R. Mareng PRM 31/08/2023. From the above quoted part of the proceeding, it does not look like the witness was testifying on his own but rather he was replying some questions. While it is expecting that if he was testifying on his own the floor would have taken a different outlook. It is trite law that on examination in chief, it was supposed to be accused's narration. He should have given his own testimony without being questioned unless he had his 14 own advocate. I took further step to look at the handwritten proceedings as it is well known in case there is contradiction between the two proceeding the handwriting proceedings are the one be relied upon. Therein, it written XD (to mean examined in chief). This, to some extent, tallies with the typed script where the accused, while testifying, is recorded to have been being chief examined and cross examined by the state attorney. The same applied when the accused's witness DW2 was testifying. The Court of Appeal in the case of Kassim Salum Mnyukwa vs R (supra) made clear on what entails examination in chief and cross examination in the following "Examination in chiefis essentially the domain ofa party that has called the witness in question; in this case, the appellant so as to give evidence on his side. It is during examination in chief when the party concerned is afforded with an opportunity to tell his /her side of the story

and elicit his/her account of what transpired concerning the incidence. The given evidence will eventually assist the trial court to e/ucidate what happened so as to arrive at a fair and balanced decision." Likewise, the Apex Court went further and held as thus: "The questioning of the defence witnesses instead of letting them narrate tell their stories freely had an adverse effect of denying the appellant an opportunity to defend himself. This is because the appellant was denied the opportunity of telling his story concerning the incident. The pointed-out irregularity contravened the appellant's right to a fair hearing." Guided by the above authority, it is obvious the appellant was denied a right to fair trial enshrined under Article 13(6) (a) (ii) of the Constitution 15 of the United Republic of Tanzania by being precluded from defending the criminal allegations that had been levelled against him and was also denied opportunity to lead his witness. Indeed, the record is clear that the appellant's complaints that the case against him was not proved beyond reasonable doubt, are not without merit. The whole case was tainted with reasonable doubts which, in actual fact, shook the prosecution case. Those doubts should have been resolved in favour of the appellant. That said, I am satisfied that the appeal has merit and I allow it. In consequence, I quash the conviction and set

aside the sentence. I order that, unless lawfully held for other causes, the appellant should be released from custody forth with. This judgment is delivered under my hand and the seal of this Court on this 30th day of September, 2024 in the presence of the appellant and Mr. Abdulmajid Mtukusye, learned counsel ffljr the appellant and Ms. Gladness R. Mchami, learned Senior State Atto $r the respondent. .P. D sobera

JUDGE 30.9.2024 16