20161103 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM CRIMINAL APPEAL NO. 174 OF 2015 (Originating from the Decision of Kilosa District Court in Criminal Case No. 208 of 2014) SAMWEL KITONYA ...................................... APPELLANT

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

JUDGMENT MKASIMONGWA, J. SAMWEL KITONYA, (Appellant) stood before Kilosa District Court charged with two counts namely: Rape contrary to Section 130 (1) and (2) (e) of the Penal Code [Cap. 16 R.E 2992] and Impregnating a School Girl contrary to Section 5 of the Education At No. 25 of 1978 as Amended by G.N No. 265 of 2003 (The Imposition of penalties to persons who marry or Impregnate School Girl, Rules). The appellant was found guilty of the first offence and sentenced to life imprisonment. He was however not found guilty of the second offence and he was accordingly acquitted in that regard. In the count the appellant was found guilty and sentenced to life imprisonment the prosecution alleged that:- 1 " Sq,_mwel s/ o Kitonya is charged,, on the date of July, 2014 at evening hours at Ndogomi village within Gairo District in Morogoro region did carnal knowledge to one Wema di o Isaya a girl of 14 years" The appellant is aggrieved by both the convictions and. the imposed sentence. He therefore appeals to this court challenging the same. He has four grounds of appeal from which he asks this court to vacate the conviction and the sentence. The grounds are to the effect that:- 1. The trial court erred in law and fact when relied on the evidence of PW. 3 which did not prove the offence of rape.

2. The trial court erred in law and fact when relied on the evidence which did not connect the Appellant with the alleged offence.

3. The trial court erred 1n law when it relied on the retracted cautioned statement.

4. The trial court erred in law and fact when it failed to consider the defence case. In short the prosecution's case is as that WEMA ISAYA (PW3) is a student at Ndogomi Primary School. On 27/10/2014 she was detected to be pregnant. This was confirmed upon conducting the UTP Test by LEYLA MSUYA (PW7) a Clinical Officer at Gairo. On being questioned, PW3 mentioned the appellant to be responsible to the pregnancy. PW3 told the court that she had sex with the Appellant sometime in May, 2014. Seven months later she noticed to be pregnant. The appellant was arrested and upon being 2 ,'l questioned by YOHANA MTAMBUKA (PW4) who is his brother and father of PW3 he denied the allegations. The matter was reported to Chakwale Police Station and one WP. 8455 D/C Nuru (PW5) took PW3 for examination. According to PW5 the girl (PW3) was found to be 3 months pregnant. PW6 one G. 5993 D/C Ernest interrogated the Appellant and recorded his cautioned statement which was admitted in evidence marked as Exhibit Pl. PW7 again tendered in evidence the PF3 and it was admitted in evidence marked as Exhibit P2. It is from this evidence the Appellant was convicted. When the appeal came up for hearing before me there appeared the appellant in person and Miss Neema, learned State Attorney representing the Respondent Republic. When was asked to argue the appeal the appellant contended that he is adopting

the four grounds of appeal to which he has nothing to explain. He prays the court to consider the grounds and determine the appeal in in his favour. On her part Miss Neema submitted that the appellant did admit to have had sexual intercourse with the victim girl (PW3). The record also shows that the appellant had confessed to have committed the offence as it is clearly evidenced by the caution statement which was tendered in evidence, without being objected by the Appellant, as Exhibit Pl. As to the age of the victim it is only the victim who told the court that she is a school girl. Miss Neema referred the court to the decision in the case of ANDREA FRANCIS Vs. R. CRIMINAL APPEAL NO. 273 OF 2014 where the court had 3 a word on the age of the victim of rape. The learned State Attorney admits that according to the record there was no eye witness. The complaint/victim however testified to the effect that she was carnally known by the appellant. Miss Neema took a view that the evidence of the victim is primary evidence; the other piece of evidence could only come as collaborations. According to her, the prosecution had proved the case beyond reasonable doubt. She prays the court to uphold the conviction and sentence imposed for they are all proper. In determine the appeal I find it material worth to answer the question whether the prosecution's case was proved beyond doubt. As it

has been shown above the appellant was charged with rape contrary to Section 130 (1) and (2) (e) of the Penal Code. The Section reads as follows:- "S. 130 (1) It is an offence for a male person to rape a girl or woman. (2) A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions:- (e) With or without her consent when she is under eighteen years of age unless the woman is his wife who is fifteen or more years of age and is not separated from the man." 4 1,,1. In order to win a conviction in a charge under this section, the prosecution must prove the following elements beyond reasonable doubt. That is: 1. The accused did have sexual intercourse with a girl.

2. The girl is under eighteen years of age. Going by the evidence, as admitted by Miss Neema, the learned State Attorney, there was no an eye witness in this matter. The prosecution case depended much on the testimony of the victim girl (PW3) and the cautioned statement. In her evidence PW3 told the court that she did have sexual intercourse with the Appellant sometime in May, 2014. That evidence does not support the charges, in which it is shown that the offence was committed 1n July, 2014. PW3 also told the court that after seven months of having sex with the appellant was by 27/10/2014, she noticed that she was pregnant. Contrary to that testimony, PW5 one WP 8455 DC Nuru, a police officer who gave PW3 a PF.3 to the Hospital for pregnancy test told the court that the girl (PW3) was found to be 3 months pregnant. PW2 one MONICA CHILIMO RASTA a teacher at Ndogomi Primary School who took PW3 to the Hospital for pregnancy test had a similar story as PW3 that the later was found to be seven months pregnant. PW7 LEYLA MSUYA the Clinical Officer who conducted the test is silent in her oral evidence and the PF. 3 she tendered in court, as to the age of the pregnancy. Going by this evidence if the pregnancy was 7 months old by October, 2014 the complainant can be surely said to have conceived sometime in March, 2014, and that defeats the testimony of PW3 to the effect 5 that she

became pregnant upon being carnal knowledge by the appellant sometime in May, 2014. It will be the same if it will be considered that by 27 / 10/2014 the pregnancy was 3 months old which will show that PW3 conceived sometime in July, 2014. I agree with Miss Neema, the learned State Attorney, that the evidence of the victim is a Primary one and that the other pieces of evidence could only come as collaborations. However where the victim's evidence is of such a nature that it is not reliable as I find to be the case here the same cannot sustain conviction where there is no other corroborating evidence. In this matter it seems the cautioned statement was relied upon by the court in finding the conviction, as the collaborative evidence to that given by PW3. In its decision the court quoted the alleged confession and found with certainty that the Appellant had sexual intercourse with the girl. In our laws admissibility of confessional statements are governed by Part III of the Evidence Act [Cap. 6 R.E 2002]. Section 27 (1) and (2) of the Act reads as follows:- "S. 27 (1) A confession made to a police officer by a person accused of an offence may be proved as against that person. (2) The onus of proving that any confession made by an accused person was voluntarily made by him shall lie on the prosecution" The record shows that when PW6 one G. 5993 DC Ernest intended to tender the

cautioned statement in court, the appellant is recorded to have said; "I object. I did not confess". This essentially 6 '. meant two alternative things. One: that the accused did not make the statement; or Two: that the statement, though made, it was not v~luntarily made. In any case the court had an obligation to conduct an Inquiry with a view to establishing whether the accused made the statement and that he made it voluntarily before admitting it evidence. The record shows that despite the objection the court admitted the statement in evidence and marked it as Exhibit PI. This in my view was unprocedural. The court erred when it admitted the cautioned statement without conducting an inquiry to satisfy itself if the accused made the statement and that he made it voluntarily. As such the statement has no any evidential value capable of corroborating the evidence given by the victim. Suffice it to say that there is no evidence that proved beyond doubt that the appellant did have sexual intercourse with PW3. As to the age of the victim, the prosecution had to lead the evidence showing that the victim (PW3) was a girl less than 18 years of age at the time of the alleged sexual intercourse. The record shows that seven witnesses were called and testified in favour of the prosecution. None of the witnesses did tell the age of the victim at the time the alleged offence was committed.

PW3 mentioned to be 15 years old during the voire dire examination conducted by the court. She is silent in her statement upon examination in chief. The statement made by a witness in a voire dire test; does not form part of the witness's evidence in the case. As the age of the victim is one of the elements constituting the offence under which the Appellant was standing charged with, the same should be crucially proved 7 beyond reasonable doubt. Since, in this matter the age of the victim was -not established, it stands therefore that the offence was not proved. In the light of the above analysis I find, there was no evidence adduced by the prosecution that proved the charge against the accused/ appellant. The accused was therefore wrongly convicted. As such, the conviction is quashed and the sentence is set aside. The accused should be released out from jail if he is not there in for other lawful causes as this appeal succeeds in its entirety. Dated at Dar es_Salaam this 3 rd day of November, 2016: E.J.~i~

JUDGE 3/11/2016 8