SISTY REUBEN VS

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA f CORAM: WAMBALI, J.A.. MURUKE 3.A. And MGONYA, 3.A.1 CRIMINAL APPEAL NO. 280 OF 2022 SISTY REUBEN....................................................................... APPELLANT VERSUS THE REPUBLIC ........................ ...........................................RESPONDENT (Appeal from the decision of the Court of the Resident Magistrate of Arusha with Extended Jurisdiction at Arusha) (Massam, SRM-Ext. Jur.1 dated the 25th day of April, 2022 in Criminal Appeal No. 87 of 2021 JUDGMENT OF THE COURT 29th October & 8th November, 2024 MURUKE, JA.: The appellant, Sisty Reuben, was charged at the Resident Magistrate Court of Arusha at Arusha with two counts of unnatural offence contrary to section 154 (1) (a) of the Penal Code Cap. 16 R. E. 2002 now (R. E. 2022). According to the particulars of the offence in the charge sheet, it was alleged respectively that on 25th and 26th February 2019 at Sombetini area within the City, District and Region of Arusha, the appellant did have carnal knowledge of one "AN" (disguised for identity purposes) or victim (PW1) a girl of eight (8) years old against the order of nature. The background of this appeal as appraised from prosecution case during trial are that; on 26th February, 2019 in the morning, while the victim was on her way to school, she met the appellant who commanded her to follow him. PW1 thought that he was taking her to school, but instead, he took her to his residence at Green Valley near Sombetini. Upon reaching there, the appellant undressed the victim and removed his clothes too. He then, sodomized PW1. She felt pains and tried to raise alarm but, the appellant covered her mouth. After finishing the ordeal, the appellant ordered PW1 to get dressed and leave. The incident was revealed when the school in which the victim schooled conducted a roll call, and noted that the she had been absent several times. Therefore, the head teacher directed the class teacher to call the victim's parents, in which her father went. Upon interrogation, the victim revealed that the appellant used to wait for her at Green Valley School, took her to his place and sodomized her. PW1 directed the head teacher (PW3) where they had been meeting with the appellant. PW3 reported to the Ward Executive Officer of the area over the incident. PW1, PW2, PW3, the community police and other two persons went to the appellant's residence. On reaching at the appellant's house, PW3 and the community police stepped down a bit, then PW1 knocked the door of the room in which the appellant came out. PW1 then said to PW3 and others that he is the one who had been sodomizing her. The appellant, was then arrested and it was alleged that he confessed to have sodomized the victim and asked for forgiveness. The incident was reported to the police station where the victim was given PF3 and went to the hospital. At the hospital, the victim was attended by PW4, where upon examination, it was found that the victim anal splinter was loose with poor anal tone. Investigation was conducted by PW5, who recorded the t - appellant's cautioned statement on 1st March 2019, which was admitted as exhibit P2. In his defense, the appellant who testified as DW1, denied to have committed the offence, alleging PW2 to have framed the case against him following misunderstanding with her, because, being a carpenter, he had not completed and handed the bed she had ordered. After full trial, the appellant was found guilty of the second count on the incident of 26th March, 2019 as the trial court found that there was no evidence led by the prosecution on the incidence of 25th March, 2019, with regard to the first count. Thus, it convicted the appellant and sentenced him to life imprisonment on 06th April, 2021. The appellant's first appeal to the High Court was dismissed on 11th April 2022, by Honourable Massam, Senior Resident Magistrate with Extended Jurisdiction after it was transferred to the Court of the Resident Magistrate of Arusha at Arusha. Protesting his innocence, the appellant has preferred the present appeal raising nine grounds filed on 16th May 2023. In determining the appeal which we have re-arranged, compressed and paraphrased the respective grounds as hereunder: (i) That there was variance between charge and evidence. (ii) That section 127 (2) o f the Evidence Act was not complied with before PW1 testified. (iii) That the cautioned statement was not property admitted and relied on in evidence (iv) That there were material contradictions between the prosecution witnesses. (v) That the appellant's defense was not considered. (vi) That prosecution did not prove the case beyond reasonable doubts. Before us, the appellant appeared in person not represented. He requested the Court to receive and adopt his written submission to support his appeal. He also filed a list of authorities to be relied upon. The respondent Republic was represented by Ms. Lilian Kowero, Eunice Makaia and Naomi Mollel, learned Senior State Attorneys. It was Ms. Kowero, who replied to the appellant's grounds of appeal and strongly opposed the appeal and supported conviction and sentence. On the first ground the issue is to whether there is variance between the charge sheet and the evidence. In response, Ms. Kowero submitted that, the appellant complained that PW1 in her evidence said he took her to Green Valley close to Sombetini, while the charge sheet says Sombetini area; in her view the variance is minor, as Green Valley is within Sombetini area, because PW2 and PW3 both testified that it is Sombetini. The learned Senior State Attorney urged the Court to take judicial notice and rule that Green Valley is within Sombetini, and that the variance is negligible. To resolve this ground, it is worth reproducing the 2nd count that read as follows: - "Statement of the offence: Unnatural Offence; Contrary to Section 154 (1) (a) o f the Pena! Code Cap. 16 R. E 2002. i Particulars o f the Offence: That, Sisty S/O Reuben on 2&h day o f February 2019, at Sombetini area within the City, District and Region o f Arusha, did have canal knowledge o f one "AN"a girl o f eight (8) years old against the order o f nature, the act which contravenes the law." As readily admitted by learned Senior State Attorney, there is variance on the particulars of the offence and what PW1, testified as reflected at page 19 of record of appeal when she said: "On 2&h February 2019,1 was going to school in the morning. I met with Sisty he took me to his Toyo and told me lets go. I thought he was taking me to school. Instead, he took me to his home at Green Valley near Sombetini". From the testimony, PW1 was taken to Green Valley . not Sombetini. On the other hand, even the victim's mother testified that the appellant was arrested at Green Valley as reflected at page 22 of the record of appeal. She particularly said that: "... We went to arrest the accused at Green Valley area. It was me, my child and two neighbours and the head teacher andpolice ". On the same point the Head Teacher testified that: "She told us that there is one youth who used to wait for her at Green Valley School and when she reached that area the person used to take her and bring her to his home and raped her (anafanya mchezo mbaya) she said they did so several times" From the three prosecution witnesses including the victim, the area that the offence occurred is at Green Valley not Sombetini. The place in which the offence took place mentioned in the charge sheet has to be proved by the prosecution. Indeed, the defense of the accused depend on the particulars of the offence in the charge sheet. Variance between the charge and the evidence renders the charge not proved beyond reasonable doubt. In the case of Salim Abdallah Maganga v. Republic (Criminal Appeal No. 285 of 2020) [2023] TZCA 17680 (2 October 2023, TanzLII) being confronted with a similar issue, the Court stated: "In effect, therefore, the piece o f evidence proving an incident which occurred at Uwanja wa Ndege, could not be relevant in proving an incident which occurred at a place called Kichochoro.The place o f commission o f the offence being crucial in establishing the offence, we agree with the learned Principal State Attorney that, the variance in that respect between the charge and evidence renders the charge notproved beyond reasonable doubt". In a similar situation, in the case of Noel Gurth a.k.a ii Bainth & Another v. Republic, Criminal Appeal No. 339 of 2013 (unreported) the Court observed as follows: "... where there is a variation in the place where the alleged armed robbery took place, then the charge must be amended forthwith. I f no amendment is effected the charge will remain unproved and the accused shall be entitled to an acquittal as a matter o f right Short o f that a failure o fjustice will occur. " On the same vain in the case of Issa Mwanjiku @ White v. Republic (Criminal Appeal No. 175 of 2018) [2020] TZCA 1801 (6 October 2020, TanzLII), the evidence led by the victim of the offence as regards the stolen properties varied with those which were mentioned in the charge, yet the prosecution did not apply to amend the charge. Having considered that situation, the Court had this to say on the effect of that omission to the prosecution evidence: "We note that, other items mentioned by PW1 to be among those stolen like ignition switches of tractor and Pajero were not indicated in the charge sheet. In the prevailing circumstances of the case, we find that the prosecution evidence is not compatible with the particulars in the charge sheet to prove the charge to the required standard." [Emphasis added.] We take note of the fact that the issue raised by Ms. Kowero that, Green Valley is or within Sombetini, is her own words of mouth not borne out of the testimonies of the prosecution witness in the record of appeal. A prayer by learned Senior State Attorney that Court should take judicial notice that Green Valley is or within Sombetini, has exercised our minds. We find it pertinent to define what is judicial notice. According to LAW LEXICON, the Encyclopedia Law Dictionary, 1997 Edition at page 1015, Judicial notice is defined to mean: "notice which a judge will take o f a fact without proof. Acceptance by Court for the purpose o f a case,, o f the truth of certain notorious facts without requiring proof". In this regard, in the case of the Attorney General and the Advocate Committee v. Fatma Amani Karurne (Civil Application No. 694/01 of 2021) [2023] TZCA 17611 (11 September 2023, TanzLII), the Court defined Judicial notice as follows: "Simply means to presume a fact as though proved without pursuing the routine procedure of admitting documents in evidence. Thus, all documents listed at section 59 (1) o f the Evidence Act are supposed to be admitted in evidence without subjecting them to normal processes o f clearance before formal tendering and admission into evidence". Moreover, the Court refused a prayer by prosecution to take judicial notice in the case of Edwin Isdori Elias v. Serikali ya Mapinduzi Zanzibar in Criminal Appeal No. 145 of 2002 (unreported) and held that: "We have no facts to enable us to take judicial . notice o f the prevalence of the crime o f robbery with violence in Zanzibar. Nor do we have facts to enable us to say that the said crime has interfered with tourism. Hence we allow ground four o f the appeal". Therefore, the Court cannot take judicial notice as requested by the leaned Senior State Attorney in the circumstances of this case. This is because, we have no proper facts to enable us to take judicial notice of the fact that, Green Valley is within Sombetini area, considering that all three prosecution witnesses (PW1, PW2, and PW3) stated the respective area in which the appellant was arrested is Green Valley. Indeed, PW1 particularly testified that Green Valley was near Sombetini. Thus, ground one has merits in that there is variance between the charge and the evidence on record on the place in which the offence occurred as mentioned in the charge sheet and what has been testified by three prosecution witnesses who went to arrest the appellant at his home where the offence was said to have been committed. Thus, we accordingly allow ground one. Regarding the second ground, the complaint of the appellant is that section 127 (2) of the Evidence Act was not complied with before PWi testified. On this, Ms. Kowero submitted briefly that the provisions of section 127 (2) of the Evidence Act was complied with, making reference to page 18 of the record of appeal. Ciearly, this issue should not detain us, because, the record of appeal at page 18 speak louder. For clarity the same is reproduced below: "Court: The witness is the child be/ow 18 years old. This court therefore ask if she promises to tell the truth before this court. Sgd: R. A. Ngoka- RM 19/11/2019 Court: Do you promise to tell the truth in your evidence before this court? Witness: I promise to tell the truth. Court: What happen if a person tells lies? Witness: He/she become the child o f devil. Sgd: R. A. Ngoka- RM 19/11/2019 Court: The witness promises to tell the truth before this court. She will therefore testify without being affirmed. Sgd: R. A. Ngoka- RM 19/11/2019 From the reproduced part of the record, there is no any doubt that, PW1 promised to tell the truth in terms of section 127 (2) of the Evidence Act, before she testified. We , thus find that the victim's evidence was taken properly in compliance with section 127 (2) of the Evidence Act. Therefore, the second ground lacks merits, and we dismiss it. Turning to the third ground, the complaint of the appellant is that the cautioned statement (exhibit P2) was not properly admitted and relied upon in evidence. In response, the learned State Attorney readily admitted that the cautioned was taken out of time prescribed under sections 50 and 51 of the Criminal Procedure Act Cap 20 (the CPA). She explained that the appellant was arrested on 28th February, 2019 in terms of the evidence of PW1, PW2, PW3 and PW5 and the appellant. Besides, it was not contradicted that the cautioned statement was taken on 01st March 2019, almost three days from the date of arrest, she emphasized. We entirely agree with appellant and Ms. Kowero that, exhibit P2 was improperly admitted and wrongly relied upon by the trial court to ground conviction because it was recorded outside the time prescribed by section 50 (1) of the CPA. That section provides that: "50-(l) For the purpose o f this Act, the period available for interviewing a person who is in restraint in respect o f an offence is (a) subject to paragraph (b), the basic period available for interviewing the person, that is to say, the period o f four hours commencing at the time when he was taken under restraint in respect o f the offence. "[Emphasis added]. In the case of Mohamed Juma @ Mpakama v. Republic (Criminal Appeal No. 385 of 2017) [2019] TZCA 518 (27 February 2019, TanzLII), the Court emphasized that: " The statutory periods available for the police to interview persons suspected to have committed offences are closely regulated by the law under sections 50(1) and 51(1) o f the CPA. Section 50 (1) (a) o f the CPA has prescribed the initialperiod o f four hours for police interview, counted from the time when the accused person is placed under restraint in respect o f the offence. In case an extension o f the time for interview is desirable, conditions for extension are prescribed under section 51 o f the CPA." The effect of non-compliance with section 50 of the CPA is to render such evidence inadmissible and incapable of being relied in evidence. Thus/we hold that the cautioned statement of the appellant was wrongly admitted and acted upon by trial court and confirmed by the first appellate court. We therefore disregard the same. Consequently, we allow the third ground of appeal. In the fourth ground, the complaint of the appellant is on the failure to consider the appellant's defense. Pertaining to the complaint, the learned Senior State Attorney submitted that it is clear in the trial court's judgment that the appellant's defense was considered. She referred the Court to the following paragraph in the judgment: "In his defense the accused perison claimed the existing grudges between him and PW2. I treat the evidence surfaced during the defense phase o f the case as an afterthought because the accused person was given opportunity to cross- examine PW2 but he never raised that" In this regard, Ms. Kowero emphasized that the appellant's defence was considered but rejected by the trial court. For our part, we find the complaint unfounded as the reproduced part of trial court judgment speaks by itself as the appellant's defense was considered by the trial court, we find that the fourth ground lacks merits, and dismiss it. We wish to note that the fifth ground involves the compressed grounds two, five and seven of the memorandum of appeal regarding existence of material contradictions between the prosecution witnesseis; The appellant alleged that the prosecution witnesses contradicted each other on the evidence, which raises doubts to the benefit of the appellant. In reply the learned Senior State Attorney briefly submitted that, it is true that the prosecution witnesses, namely, PW1, PW2 and PW3 contradicted each other. However, she maintained that the contradiction is minor and it can usually happen to the.witnesses. The learned State Attorney insisted that, PW1 was a child of tender years and thus her evidence cannot be like an adult person. Thus, despite the contradictions, the prosecution evidence has not been watered down because the victim explained in details how she was:penetrated. She added that, PWl's evidence was supported with that of PW4 who examined her and- was satisfied that, she was penetrated. With the above submission, Ms. Kowero urged us to dismiss the complaint on the fifth ground of appeal. To resolve the complaint in this ground, we deem it necessary to restate the principal of the law that, every witness who is competent in terms of the provisions of section 127 (1) of the Evidence Act, is entitled to be believed as a credible and reliable witness. Thus, he must be believed, his evidence accepted, unless there are good and cogent reasons for not believing a witness. This position was also emphasized by the Court in Gopdiuck Kyando v. Republic [2006] T. L. R. 363. It is also worth noting that there are no rules of thumb in determining the credibility, truthfulness or reliability of a witness, However, the trial court findings as to the credibility of witnesses is usually binding on an appeal court unless there are circumstances on the record of proceedings which call for reassessment of their credibility. The above notwithstanding the monopoly of the trial court in assessing the credibility of the witness, is limited to the extent of the demeanour oniy. But, there are other ways in which the credibility of a witness can also assessed; one, by assessing the coherent of the testimony of the witness, and two, when the testimony of the witness is considered in relation to the evidence of other witnesses. While we are in agreement with the learned Senior State Attorney that there exist contradictions between the prosecution witnesses, we do not agree with her that, the said contradictions are so minor. To the contrary, they are serious and go to the root of the case by affecting the credibility and reliability of the prosecution witnesses. We hold this view because: One, PWi the victim testified that it is her mother who told the teacher over the incident, while PW2 testified that she was called by the teacher and asked to go to school. Two, PWI testified that, her mother noticed that she was going to Migombani where she used to meet with Sisty, while PW2 while being asked clarification question by the trial court,;she replied that "PWI is my child. I never noticed anything. I left her at home. Three, PW3 testified that, on 28th February 2019, after being informed of the victim's absences.at school by her class teacher, she called the victim's parents and it, was the victim's father who responded as the mother was reported sick. Later, they went to pick the victim's mother. However, ,PW2 did not disclose if the father of the victim was also present; .Particularly, PW2 is recorded to have said as follows: " ... we went to arrest the accused at Green Valley area. It was me, my child, and my two neighbours and the head teacher and police officers". It is therefore apparent that neither PW1 nor PW2 mentioned the presence of victim's father contrary to what was stated by PW3 that she was accompanied by PWl and PW2. Four, PW2, the victim's mother testified that she was accompanied by her neighbours, the head teacher and the police when they went to arrest the appellant while, PW4 the medical doctor testified that, the child (PWl) was with the father when she was sent to the hospital. It is not clear how did PW2 participate in the arrest of the appellant but she was not able to go to hospital to accompany PWl. However, in her testimony, she said that after she returned from the hospital, she inspected the victim. This casts doubts on the incident and the credibility of PWl and PW2. PWl did not also state that she was with her mother or father at the hospital. For clarity, PW4 said: "On 2&h February 2019 I was at the hospital Mount Mem. While at work I received a child, aged eight (8) years by that time. She was together with her father. They claimed that she was carnally known against the order o fnature ". The Court in Mohamed Said Matula v. Republic [1995] T.LR. 3, stated that: " Where the testimonies by witnesses contain inconsistencies and contradictions, the court has a duty to address the inconsistencies and try to resolve them where possible; else the court has to decide whether the inconsistencies and contradictions are only minor, or whether they go to the root o f the matter" See also, Dickson Elia Nsamba Shapwata & Another v. Republic (Criminal Appeal No. 92 of 2007) [2008] TZCA 17 (30 May 2008, TanzLII), Toyidoto s/b Kosima v. Republic (Criminal Appeal No. 525 of 2021) [2023] TZCA 17305 (5 June 2023, TanzLII), and Frank Maganga v. Republic (Criminal Appeal 93 of 2018) [2021] TZCA 105 (13 April 2021, TanzLII). As intimated above, through Ms. Kowero admitted that there were contradictions, but she termed them to be minor. For our part we decline the learned Senior State Attorney's assertion and find that the contradictions are serious and raised doubts on whether the appellant committed the offence as alleged in the charge sheet. What is even serious is that though PW1, PW2 and PW3 mentioned the presence of police officers in the cause of arresting the appellant on 28th February 2019, none testified at the trial including the investigation officer. The Court therefore wonders who arrested the appellant and took him to Mbauda Police Post before being taken to Arusha Central Police Station. In the circumstances of this case, it was expected that the police officer who arrested the appellant would have testified to render credence to the prosecution witnesses evidence. When the learned Senior State Attorney was prompted by the Court why the two neighbors who according to PW1 knew the incident before PW2 and PW3 were not called to testify, she replied that, they were not material witnesses as they would have repeated what PWl had told them. Further, regarding why police officers who arrested the appellant did not testify, she replied that record of the trial court proceedings are silent. However, she insisted that in terms of section 143 of the Evidence Act, the prosecution is not obliged to call all witnesses but only the material witness who will prove the case. It is acknowledged that the law requires the prosecution to call material witness(s) to prove the case against an accused person, failure of which, entitles the court to draw an adverse inference to the prosecution. In the case of Azizi Abdallah v. Republic [1991] T.L.R. 71, it was stated that: "The general and well-known rule is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify on material facts. I f such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an adverse inference to the prosecution." In the present case, Ms. Kowero emphasized that PW1, PW2 PW3, and PW4 were the key witnesses who proved the case to the required standard and therefore, there was no need to call other witness. She further made reference to section 143 of the Evidence Act to fortify her argument while insisting that there is no specific number of witnesses required to prove a certain fact. We aware of the stated position of the law by Ms. Kowero, that under section 143 of the Evidence Act, there is no particular number of witnesses Required to prove a fact. However, we Wish to state that whether or not to call a certain person as a witness depends on the circumstances of each case and the relevance of the evidence of such witness to a case. Therefore, in our considered view, section 143 of the Evidence Act was not intended and cannot be applied as a readymade answer to every question regarding failure to call a witness(s). In the case of Baya Lusana v. Republic (Criminal Appeal No. 593 of 2017) [2021] TZCA 16 (15 February 2021, TanzLII) when the Court was confronted with almost an akin situation it stated as follows: '!'Furthermore\ it really taxed our mind as to why the investigator was not called to testify on such a serious offence which posed a threat to the life o f PW1. It is the investigator who would have shed light as to what precipitated the appellant's arrest because while the appellant was charged with attempted murder the evidence on record shows that he was arrested for stealing cattle but on interrogation he confessed to have assaulted PWl...,. Failure to Call material witness entities this Court to draw an inference adverse to the prosecution". Being guided by the position above and as we have already found that the arresting police officer was a material witness in the present case, with respect, we are unable to agree with Ms. Kowero and the first appellate court that section 143 of the Evidence Act will rescue the situation at hand. We consider the arresting officer to be material witness in the circumstances of this case because he was a witness who was in a better position to explain some missing links in the prosecution case. Having regard to the contradictions between PW1, PW2 and PW3 as to the place in which the offence was being committed and who arrested the appellant and whether the father allegedly went to school accompanied the witnesses to the arrest entitles us to hold that failure to call some material witnesses like the police and the father of the victim weaken the prosecution case. Consequently, we allow the fifth ground. The sixth and last ground concerns the complaint that the prosecution did not prove its case against the appellant. We note that while the appellant contended that the case was not proved, the learned Senior State Attorney seriously objected to the assertion. Nonetheless, for our part, having in mind to our finding with regard to inadmissible exhibit P2, the variance between the charge and the evidence on the record and the contradictions between the witnesses, we have no hesitation to state that the. prosecution case was not proved to the requjred standard. Consequently, we find that prosecution failed to discharge 'it's burden of proving the case beyond reasonable doubt. We accordingly allow the sixth ground of appeal. In the end result, we find this appeal has merit. Consequently, we quash the conviction and set aside the sentence imposed on the appellant. Finally, we order that the appellant be set free unless he is being held for other lawful cause. DATED at ARUSHA this 8th day of November, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 8th day of November, 2024 in the presence of the appellant in person and in the presence of Mr. Mahfudh Mbagwa, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original.