Said Abdallah vs R

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY)

AT DODOMA DC CRIMINAL APPEAL NO. 17 OF 2023 (Originating from the conviction and sentence of the District Court of Dodoma in Criminal Case No. 2 of 2021) SAID ABDALLAH...................................................................... APPELLANT

VERSUS

REPUBLIC RESPONDENT

JUDGMENT Date of last order: 9/5/2024 Date of Judgment: 25/7/2024 KHALFAN, J. Said Abdallah, hereinafter referred to as the appellant, was arraigned before the District Court of Dodoma (hereinafter referred to as the trial court), charged with one count of rape contrary to sections 130 (l)(2)(e) and 131(2) of the Penal Code [CAP 16 R.E 2019 now R.E 2022]. It was alleged that on different dates of November 2020 at Ipagala area within the district of Dodoma, the appellant did have carnal knowledge of a 13 years old girl. For the purpose of hiding her identity, the girl shall be referred to as PW1 or simply the victim. The appellant pleaded not guilty, hence the matter proceeded to a full trial. In the attempt to prove its case, the prosecution paraded six witnesses and tendered three documentary exhibits. The defence had three witnesses. After hearing the parties, the trial court was convinced that the case against the appellant was proved to the hilt, hence it convicted and sentenced him to serve 30 years imprisonment and six strokes. In addition, the trial court ordered the appellant to compensate the victim a sum of TZS two million. A brief factual background underlying the instant appeal is that, on unknown date of November 2020, the victim went to visit her friend (PW4) who used to live at Ipagala. Having visited her friend, when the victim was on her way returning home

accompanied by her friend PW4, the appellant emerged driving a motorcycle and asked the victim to accompany him to his home. When the duo arrived at the appellant's home, the appellant asked the victim to take care of his shop. Later on, the appellant returned and took the victim inside his room and locked the door. Then the appellant asked the victim to have sexual intercourse with him, but she refused. She wanted to scream but the appellant took a bush knife and threatened to kill her if she raised an alarm. Thereafter, the appellant had sexual intercourse with the victim. Having fulfilled his sexual gratification, the appellant fetched some 2 food for the victim. Since it was in the night, the victim told the appellant that she could not return home, hence he asked the victim to spend the night at his house. In the morning of the following day, the appellant took the victim to her friend (PW4) where she stayed until evening, the appellant came and took the victim to his house and they slept together. In the morning of the third day, the appellant took the victim to her friend (PW4) but in the afternoon, the police officers came and arrested the victim. She was taken to the police station where she was issued with PF3 and taken to Dodoma referral hospital. At the hospital, the victim was attended by PW6, a medical doctor. According to PW6, there were no bruises in the

victim's vagina because the latter had done sexual intercourse before. He explained that since the victim was experienced in sexual affairs it was not necessary to see bruises. In his defence, the appellant denied to have committed the offence. He claimed that on 25/11/2021 in the evening hours, he was at his shop then police officers came and arrested him and took him to the police station where he was interrogated regarding the offence at hand. He claimed that the evidence by the victim was full of lies. 3 The appellant's mother testified as DW2. She narrated that her son (the appellant) is of good behaviour. She claimed that the appellant goes to worship every day. She narrated that it was difficult for the appellant to have raped the victim in his room since the appellant's room is located along side barbershop and studio where there are many people. She narrated that it was impossible for the victim to get into the appellant's room without being seen. DW3, the appellant's sister-in-law gave similar piece of evidence like that of DW2. It is against such background that the appellant was arrested, arraigned and subsequently convicted and sentenced by the trial court as I have indicated above. The appellant was aggrieved with the conviction and sentence meted out against him; hence he has preferred the instant appeal with ten grounds of appeal which can be summarised as follows: 1. The case against the appellant was not proved beyond reasonable doubt.

2. The trial court did not comply with sections 235(1) and 312 (2) of the Criminal Procedure Act [CAP 20 R.E 2022]. 4 3. That there was contradiction between the evidence of PW1 and PW6.

4. That the trial court erred in law for convicting the appellant basing on the evidence of PW6 which was not properly scrutinised.

5. That the trial court erred in law and in fact for relying on the cautioned statement which was improperly recorded.

6. That the trial court erred in law and in fact for con viedng the appellant basing on the cautioned statement which was recorded beyond the prescribed period.

7. That the trial court erred in law and fact for convicting the appellant while the prosecution failed to call the arresting officer.

8. That the trial court erred in law and in fact for con viedng the appellant while the prosecution failed to tender sketch map of the scene of the crime.

9. That the trial court erred in law in receiving the evidence of PW1 who was of tender age without complying with 5 the provision ofsection 127(2) of the Evidence Act [CAP 6R.E2022], 10. That the trial court erred in not holding that the defence evidence raised doubts to the prosecution's case. The appeal was disposed of by way of written submissions. The appellant was represented by Mr. Fred Kalonga, learned advocate. The respondent was represented by Ms. Fyumagwa, learned State Attorney. In his submission in support of the appeal, Mr. Kalonga abandoned the 2nd, 8th and 9th grounds of appeal. He consolidated the 1st and 4th grounds of appeal while the 3rd, 5th, 6th, 7th and 10th grounds were argued separately. In his submission on the 1st and 4th grounds of appeal, the learned advocate argued that the prosecution did not prove the case against the appellant to the standard required. He referred to the case of Woolmington v. DPP [1935] 25 Cr. App. R. 72 and Magendo Paul and another v. Republic [1993] TLR 219. He argued that the prosecution failed to prove penetration which is a vital element in the offence of rape. He referred to the decision of this court in the case of Samwel Stanley v. Republic, 6 Criminal Appeal No. 67 of 2022 in which reference was made to the case of Mbwana Hassan v. Republic, Criminal Appeal No. 98 of 2009 (both unreported). He also argued that the

prosecution failed to link the appellant with the offence at hand. He contended that according to the evidence of the medical doctor, it was revealed that the victim had been engaged in sexual affairs several times and since there were no bruises but semen was found inside the victim's vagina, DNA ought to have been conducted to establish if the semen came from the appellant. As to the 3rd ground of appeal, Mr. Kalonga faulted the trial court for relying on the evidence of PW1 and PW6 for having contradictions. According to the learned advocate, while the victim testified that she experienced severe pain, the medical doctor (PW6) testified that the victim was a habitual sex doer. Hence, there are serious doubts whether the victim was raped by the appellant. As to the 5th ground of appeal, the learned advocate faulted the trial court for relying on the cautioned statement which was recorded in the language which the appellant was not fluent which is contrary to section 53(c) (i) and (ii) of the Criminal Procedure Act [Cap 20 R.E 2019], (hereinafter referred to as the CPA). As to the 6th ground of appeal, Mr. Kalonga faulted the trial court for relying on the cautioned statement which was recorded out of the prescribed period of time. He argued that the appellant was arrested on 26/11/2020 and the cautioned statement was recorded on 27/11/2020. He argued that since the cautioned

statement was taken beyond the prescribed period of four hours, then the provisions of section 50(1) of the CPA were not complied with. As to the 10th ground, the learned advocate argued that the appellant's defence raised doubts against the prosecution's case. He argued that the trial court failed to evaluate the defence evidence, hence arriving into unjust decision. He referred to the case of Nathaniel Alphonce and another v. Republic [2006] TLR 395. The learned advocate urged the court to allow the appeal quash and set aside the conviction and sentence meted out against the appellant. In reply to the first ground of appeal, the learned State Attorney argued that the prosecution managed to prove the case against the appellant to the standard required. According to the learned State Attorney, in order to prove the offence of rape, three elements must be established. As to the 1st element, she argued that there must be penetration, and that it was the appellant who raped the victim and the age of the victim was below 18 years old. She maintained that, the first element regarding penetration was established and the victim's evidence was corroborated by that of PW6 who found semen in the victim's vagina. As to the second element, she argued that it was the appellant who raped the victim. She argued that the appellant slept with the victim more than once. She referred to the case

of Selemani Makumba v. Republic [2006] TLR 378. She argued that the evidence of PW4 corroborates the victim's evidence as she was taken by the appellant and on the next day it was the appellant who returned the victim to PW4. She pointed out that there is also the evidence of the investigator PW6 who interrogated the appellant and the latter admitted to have raped the victim. Thus, she was of the view that there was ample evidence to establish that it was the appellant who raped the victim. As to the age of the victim, the learned State Attorney argued that there was ample evidence to establish that the victim was below 18 years 9 old. She explained that in her own evidence the victim stated that she was 14 years old at the time the offence was committed. Equally, the victim's mother (PW3) explained that the victim was born on 31/5/2006 hence she was below 18 years old and birth the certificate to that effect was tendered. She argued that with the above evidence on the record, there was no need for DNA as argued by the appellant's advocate. In reply to the 3rd ground of appeal, the learned state attorney argued that there was no any contradiction because at first time the appellant raped the victim blood came out from her vagina and she felt pain. She argued that the appellant raped the victim, for the second time and when she was medically examined by PW6 semen was found in

the victim's vagina. She submitted that the evidence by PW4 incriminated the appellant because she (PW4) saw the appellant taking the victim away and he returned the victim to her (PW4) on the next day and in the evening, he took the victim again. The learned Stated attorney argued the 5th and 6th grounds of appeal jointly as they are interrelated. She argued that it is not only the cautioned statement that led to the appellant's conviction but the evidence of PW1 and PW6. She maintained that even if the cautioned statement is disregarded still there is ample evidence to ground the appellant's conviction. She pointed io out that the appellant never cross examined PW3 when he tendered the cautioned statement. She maintained that failure by the appellant to cross examine PW3 at the time he tendered the cautioned statement meant that he is estopped from asking the court to disbelieve it. She referred to the case of Nyerere Nyague v. Republic, Criminal Appeal No. 67 of 2020 (unreported). In reply to the 10th ground of appeal, the learned State Attorney argued that the trial court evaluated the evidence of both prosecution and defense side. She argued that the learned trial magistrate framed points for determination and at the end he was of the view that the appellants evidence did not cast any doubt to the prosecution case. She therefore urged the court to dismiss the appeal. In

rejoinder, Mr. Kalonga essentially reiterated his submission in chief. I have keenly gone through the record of the trial court, there is one pertinent issue worthy of consideration before going to the merits or otherwise of the appeal itself. The charge contains some alterations in respect of the name of the victim and her age. The alterations were done manually using a pen. It is shown that the said alterations were made on 1/9/2021. The appellant was arraigned before the trial court on 7/2/2021. n Going by the trial court's record, the basis for such alterations was not indicated. I have traced the record, there is nowhere it is shown the prosecution moving the court to amend or alter the charge. Equally, even after such alterations were made, the appellant was not called to plea to the fresh charge after the alterations were made. In terms of section 234 (1) of the CPA any amendment or alterations to the charge must be done with the leave of the court and after such alterations, the court is required to call upon the accused person to plea afresh to the charge. For the purposes of clarity, section 234 (1) of the CPA reads: "Where at any stage of a trial, it appears to the court that the charge is defective, either in substance or form, the court may make such order for alteration of the charge either by way of amendment of the charge or by substitution or addition of a new

charge as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice; and all amendments made under the provisions of this 12 subsection shall be made upon such terms as to the court shall seem just (2) Subject to subsection (1), where a charge is altered under that subsection- (a) the court shall thereupon call upon the accused person to plead to the altered charge. [Emphasis added]. In the instant matter, since the charge which is the basis of any criminal trial was altered without leave of the court and without the appellant being called to plead afresh, it is the finding of this court that, the appellant's trial based on an incurably defective charge. Facing an akin situation, the Court of Appeal at Mbeya in the case of Kali Kulwa @ Nyangaka v. Republic Criminal Appeal No. 6 of 2019 (unreported) observed thus: "...In view of the above provision, we are of the considered opinion that, once a charge is lodged, any amendment or alteration to be made on it, it must be with a prior permission of the court under the above quoted section, and when an amendment is effected then the altered charge must be read over to the accused person for him to plead." In the authority referred above, the Court of Appeal, having found that the trial based on an incurably defective

charge proceeded to nullify the proceedings set aside the conviction and sentence meted out by the trial court. In the instant matter, guided by the above decision, I proceed to nullify the trial court's proceedings and judgment. The conviction and sentence meted out against the appellant and the order for compensation are quashed and set aside. I order the appellant's immediate release from the prison unless lawfully held. It is so ordered. Dated at Dodoma this 25th day of July 2024. F. R. KHALFAN

JUDGE 25/7/2024 14