Chegalika v

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY

AT BUKOBA CRIMINAL APPEAL NO. 2117 OF 2024 (Arising from Crimina! Case No. 89 of2023 District Court of Kyerwa) REVOCATUS GERALD @ CH EG ALIKA................................... .APPELLANT

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

JUDGMENT 22nd February and 5th April, 2024 BANZI, J.: In the District Court of Kyerwa at Kyerwa, the appellant was charged with the offence of rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code [Cap. 16 R.E. 2019]. It was alleged in the particulars of offence that, on 23rd lune, 2023 at Ruhita village within Kyerwa District in Kagera Region, the appellant had sexual intercourse with PW2 a girl of 16 years old. The appellant denied the charge. In a bid to prove the case against him, the prosecution side called four witnesses and produced one exhibit. In the main, on the fateful day, around evening hours, the victim (PW2) went to her mother's shop who is a businesswoman to ask her what to cook for Pagel of 15 dinner. At 18:00hours, she left her mother at her business point and headed home to prepare dinner. On the way, she was joined by their neighbour, PW3 and the duo marched home together. While on their way, they passed at the appellants house and found him outside his house. The appellant called PW2 in order to collect her mother's empty bottles of beer. PW3 decided to continue with her journey back home. Immediately after PW2 got inside to collect empty bottles, the appellant closed the door and grabbed her to his bedroom where he undressed her tight and laid her on his bed. He took off his trouser and inserted his male organ into her female organ. She

shouted for help but in vain as the neighbours are living a bit far away from the crime scene. After 30 minutes, the appellant let her go. She ran to PW3 and informed her about the ordeal because her mother was not yet at home. In examining her, PW3 noticed blood on her legs. She took her to their home waiting for her mother. When her mother returned around 19:00 hours, she found PW2 crying and told her that, she was raped by the appellant. PW1 examined her genitals and found her with blood. They went to Mabira Police Post and after reporting, they were given PF3 and went to Mabira Health Centre where PW2 was examined by Mathias Kawangoma (PW4) who found a little blood mixed with man's sperm which was a sign of being sexually Page 2 of 15 assaulted. He filled in the PF3 and gave it back to PW2 and PW1 who returned it to Mabira Police Post for further actions. In his defence, the appellant denied to have committed the alleged offence. It was his claim that, on the fateful date, he left his home in the morning with his wife (DW2) together with their children, Lina and Lewis by using a car and went to harvest coffee. They returned home in the evening. After returning, DW2 started preparing food in the kitchen for supper while he was collecting dried coffee and beans. After taking dinner, they went to sleep until the next morning when they returned to the farm. Later, he was called

by George Philipo asking him to take the patient to hospital and while he was still with him, he was arrested by the police officer for accusation of raping PW2. DW2 supported his evidence by telling the court that, by the time the appellant is alleged to rape PW2, she was at home with the appellant as she was on annual leave. She tendered the annual leave form (exhibit DI) to prove her assertion. However, in her evidence, she contended that, they went to farm using a motorcycle make of Snoray but later the appellant followed a car to carry the harvested coffee. On his side, Godwin Grecian Katula (DW3) claimed to be with the appellant from 17:00hours to 19:00hours at his yard exchanging stories. Later, the appellant left for his home after telling him that he was not feeling well. However, after the Page 3 of 15 appellant left, he did not hear any noise around that area. Lastly, DW4 (Axavery Kaka bi ru Njema), the chairman of Mshisha hamlet claimed that, he was not informed of the incident while most of the incidents are reported to him before being reported to the police. After evaluating the evidence of both sides, the learned trial magistrate was satisfied that/ the prosecution side prove its case beyond reasonable doubt and thus, he convicted the appellant and sentenced him to serve 30 years imprisonment. Aggrieved with his conviction and sentence, the appellant lodged this

appeal containing the following grounds: 1. THAT, the trial Court Magistrate erred in law-and fact in convicting the appellant of the offence of rape and sentencing him to serve thirty years imprisonment while the prosecution witnesses had failed to properly identify the appellant during the commission of the alleged offence; 2. THA T, the District Court of Kyerwa erred in law and fact in convicting the appellant of the offence of rape and sentencing him to serve thirty years jaii in a trial where the prosecution case had not been proved beyond reasonable doubt, contrary to the law; 3. THAT, the trial court magistrate erred in law and fact in failing to appreciate and properly analyze the defence of alibi raised by the appellant thus reaching an Page 4 of 15 erroneous conclusion of finding the appellant guilty of the offence of rape as charged by the prosecution side.

4. THAT, the trial District Court erred in law in convicting the appellant of the offence of rape without evidence to support the said conviction. At the hearing of this appeal, the appellant was represented by Mr. Joseph Bitakwate, the learned Advocate, whereas the respondent Republic was represented by Mr. Erick Mabagala, the learned State Atorney. Submitting jointly on the second and fourth grounds, Mr. Bitakwate stated that, it is the duty of the prosecution to prove its case beyond reasonable doubt. However, in this casez according to the adduced evidence, the prosecution side failed to prove this allegation against the appellant. He argued that, although PW4 found that PW2 was raped, the rapist was not known considering that, it is unknown if the appellant was named as the rapist at the Police Station when PW1 and PW2 went to report the incident. Also, the appellant was not supplied with the statement of the complainant to prove that, he was named before the Police Station. Worse enough, the appellant was arrested three days after incidence without explanation on the delay to such arrest which is a clear indication that, the prosecution was not assured on who committed the alleged offence. He cited the case of Majaliwa Ihemo vs Republic [2021] TZCA 304 TanzLII to buttress his Page 5 of 15 point According to him, it is clear that, the evidence against the appellant was

fabricated. Concerning the first ground, Mr. Bitakwate submitted that, although PW2 claimed the incident to have occurred in the bedroom of the appellant, she did not explain how she identified him. In support with the case Of Sprian Mtungilei vs Republic [2023] TZCA 17957 in which the Court insisted that the fact that a witness knew the suspect before the incident is not enough, he must go further and state exactly how he identified the assailant either by clothing, height or voice, Mr. Bitakwate argued that, although the trial magistrate was satisfied that the appellant was identified because there was no darkness, that was not supported by adduced evidence. In respect of the third ground, Mr. Bitakwate blamed the trial magistrate for not believing the defence of alibi raised by the appellant. According to him, had the trial magistrate evaluated the evidence on record, he could not have believed PW2 against the defence raised by the appellant. It was his submission that, the case against the appellant was not proved beyond reasonable doubt. With such doubts, the same ought to be resolved in favour of the appellant. Therefore, he prayed for the appeal to be allowed Page 6 of 15 by quashing the conviction, setting aside the sentence and releasing the appellant. In his reply, Mr. Mabagala on the outset, opposed the appeal. He expounded that, in rape cases, the prosecution has to

prove two things; age of the victim and penetration. Arguing in proof of rape, Mr. Mabagala cited the case of Selemani Makumba vs Republic [2006] TLR 379 where the Court held that, the best evidence of rape comes from the victim. According to him, in the case at hand, PW2 explained how the appellant took her to his room, undressed her, laid her down and inserted his male organ into her female organ. Her evidence was corroborated by the evidence of her mother, PW1, who examined her and found blood on her genitals. When she was taken to hospital, PW4 examined her and found her genitals with blood and sperms and filled in the PF3 (exhibit Pl). Supporting his argument with the case of Goodluck Kyando ys Republic [2006] TLR 363, Mr. Mabagala stated that, PW2 ought to be believed because she coherently and consistently narrated how the appellant raped her and her evidence was supported by PW3 who was with her when the appellant called her to go to his house to collect bottles of beer. According to him, the testimony of PW1, PW2 and PW3 points an accusing finger to the appellant as the one who committed the alleged offence. Therefore, the claims that the rapist was Page 7 of 15. unknown and failure to supply the appellant with the statement of complainant given at the Police station, cannot make their case to flop because the appellant was not prejudiced by such omission or failure as

the same is curable under section 388 of the Criminal Procedure Act [Cap. 20 R.E. 2022] ("the CPA"). He further contended that, a delay of three days in arresting the appellant was not inordinate considering that, the incident occurred in the village while the report was made at town on the same date. Concerning proof age of the victim, Mr. Mabagala argued that, according to the case of Samwel Nyerere vs Republic [2023] TZCA 27 TanzLII, PW1 as a parent was eligible to prove the age of the victim. It was in her testimony that, the victim was born on 12/10/2007 and at the time of testimony, she was 16 years old. In that regard, he strongly insisted that, the prosecution case was proved beyond reasonable doubt. Reverting to the first ground, Mr. Mabagala submitted that, the evidence of PW2 and PW3 on identification was watertight. According to the evidence of PW2 and PW3, the offence was committed at around 6pm to 7pm, which in normal circumstances, 6pm is still broad daylight. Apart from that, the appellant was not stranger to the victim and PW3 as they were neighbours living two houses apart. On the other side, the appellant did not deny living in the same area with the victim although he claimed not to know her. In addition, PW2 Page 8 of 15 named the appellant 30 minutes after the incident, which shows that, she was truthful and reliable. Thus, the appellant was properly

identified. In respect of the third ground, Mr. Mabagala argued that, it is the requirement of the law for accused person who wants to rely on the defence of alibi to issue notice before the prosecution case begins. Therefore, as it was insisted in the case of Mwiteka Godfrey Mwandemele vs Republic [2022] TZCA 586 TanzLII, alibi given during the defence is as good as an afterthought, He insisted that, although the appellant did not issue notice as required by the law, the trial magistrate considered that defence and rejected it because it did not raise any doubt on prosecution case. In discarding that defence, the trial magistrate found that, the defence was full of contradiction between DW1 and his wife, DW2. While DW1 contended that he went to the farm with his wife by using motor vehicle, where they stayed from 6am to 4pm, DW2 stated that, they used motorcycle and they returned at 6pm. Also, concerning the possibility of committing the offence even if they had gone to the farm, Mr. Mabagala argued that, at the time when the incident occurred, they were already returned, thus the possibility of committing the offence is very high. Hence, according to him, this ground lacks merit too and he prayed for the appeal to be dismissed. Page 9 of 15 In a brief rejoinder, Mr. Bitakwate reiterated his submission that, the case against the appelfant was not proved arguing that, had the

victim named the appellant to PW1 and PW3, she was also supposed to name him before PW4 and the Police. According to him, the case of Goodluck Kyando cannot favour the prosecution since the evidence of three witnesses was inconsistent. Also, failure to supply the appellant with the statement of the complainant, delay to arrest the appellant and failure to adduce reasons for such delay, weaken the prosecution case. Consequently, the case against the appellant was not proved. Having carefully considered the evidence on record together with the submissions of the learned counsel for both parties, the issue for determination is whether the appeal has merit. This being the first appellate court is enjoined to re-evaluate the evidence of the trial court and where possible, come out with its own findings as it was stated in the case of Vuyo Jack vs The Director of Public Prosecutions [2018] TLR 387 TanzLII, As it was stated by Mr. Mabagala, in rape cases, the prosecution side has to prove the age of the victim and penetration. In the case of Warnbura Kiginga vs Republic [2022] TZCA 283 TanzLII it was stated that: "In all categories of rape, the basic ingredient for the prosecution to prove is penetration of the female genitals Page 10 of 15 by the male sex organ. When it comes to statutory rape, there is an additional burden of proof of age of the victim in order to ascertain that at

the time the offence was committed she was below eighteen (18) years of age since bifth." Starting with the proof of age of the victim, the law is very clear that, the same can be proved by the victim herself, parents, guardian, relative, teacher or by production of birth certificate. This was stated in the case of Shani Chamwela Suleiman vs Republic [2022] TZCA 529 TanzLII. In the case at hand, PWl, the mother of the victim stated that PW2 was born 12/10/2007 which was neither disputed by the accused nor his witnesses. Considering that there was and still there is no dispute on the age of the victim, this issue should not detain me, hence, the court is satisfied that the victim was under 18 years. The next issue for determination is on the proof of penetration and who was responsible for the alleged rape. In her evidence, PW2 alleged that, she was called by the appellant to go inside his house to collect empty bottles of beer and the appellant used that chance to grab her to his room and had sexual intercourse with her for thirty minutes then let her go home. Although the victim claimed to have recognised the appellant, her evidence is coupled Page 11 of 15 with inconsistencies which raise doubt about her credibility. Despite the fact that, appellant was said to be the victim's neighbour, the victim in her testimony admitted that, she did not know her neighbours well because

she was not staying with her parents. Apart from that, the evidence is silent on whether at the time when the victim saw the appellant, there was still day light or it was already dark. If the victim really recognised the appellant, why she failed to mention him when they were asked by the doctor (PW4) on the same night of the incident? The record reveals that, when PW4 asked the victim and her mother about the identity of the rapist they replied that, his identity was unknown. Furthermore, as correctly stated by Mr. Bitakwate, there is no evidence to establish that, at the police station, the victim named the appellant as her rapist. If at all she named him, why did they wait for three days to arrest him while he was just living near the victim's house and there is no evidence that he escaped after the incident? Besides, the appellant claimed to be denied with his right to be supplied with the statement of the complainant as required under section 9 (3) of the CPA. On his side, Mr. Mabagala contended that, such omission did not prejudice the appellant and is curable under section 388 of the CPA. However, had the said statement being supplied to the appellant, it could have cleared the question of the victim Page 12 of 15 naming the appellant as her rapist at the police station. Thus, it is the considered view of this court that, such omission had prejudiced the appellant.

Moreover, the victim claimed to have shouted during the incident but nobody heard her voice because neighbours live very far from the appellant's house. However, this version of her story about neighbours to be very far is contradicted with the evidence of PW3 who claimed that, the appellant lives two houses away from the victim's house. All in all, it was the same victim who stated that their house is seven houses away from the appellant. If the duo are neighbours, why the victim rushed to PW3 instead of going straight to her house? All these create doubt on the credibility of the victim and PW3. Their testimony cannot be reliable to prove that it was the appellant who raped the victim leave alone the incident to have occurred in his house. Apart from that, although the prosecution witnesses claimed that the appellant was living alone, it can be recalled that, the appellant brought his wife (DW2) who testified that, at the time when the incident alleged to be occurred, she was at home with the appellant. It was her testimony that, at that time she was on leave and she tendered her application form for leave (exhibit DI) which shows that she was oh her annual leave from 01/06/2023 to 28/06/2023. I find nothing to doubt the authenticity of exhibit DI Page 13 of 15 considering that, it was admitted without being objected by the prosecution side. That being the case, as the

incident was alleged to be committed on 23/06/2023, which falls within the dates when DW2 was on leave and in absence of evidence proving that she was somewhere else, I am satisfied that she was at home by that time and thus, there is no possibility for the appellant to have raped the victim in the presence of DW2. Although the appellant's evidence contradicted with his witnesses, still that cannot be used as a proof that he committed the offence. The prosecution side, still had a duty to prove beyond reasonable doubt that, PW2 was raped and it was the appellant who raped her. As a matter of law, the accused person has no duty to prove his innocence but rather, his duty was just to cast doubt on prosecution evidence. In this case, the defence evidence has managed to cast doubt on the prosecution evidence if at all the appellant was the one who raped the victim in his house. Such doubts ought to be resolved in favour of the appellant. From the foregoing reasons, it is the finding of this court that, the prosecution had failed to prove the case against the appellant beyond reasonable doubt. Therefore, I find the appeal with merit and I hereby allow it by quashing the judgment and setting aside the sentence meted against Page 14 of 15 the appellant. I order his immediate release from prison unless otherwise lawfully held. It is accordingly ordered. I. K. BANZI

JUDGE 05/04/2024 Delivered this 5th April, 2024 in the presence of Mr. Joseph Bitakwate, learned counsel for the appellant, Mr. Erick Mabagala, learned State Attorney for the respondent, the appellant, Mr. Audax V. Kaizilege, Judge's Law Assistant and Ms. Mwashabani Bundala RMA. Right of appeal duly explained. 05/04/2024 Page 15 of 15