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THE JUDICIARY OF TANZANIA

IN THE HIGH CO RT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA I DC. RIMINAL APPEAL NO. 000008990 OF 2024 THOMAS EV ARIST COMPLAINANT/ APPELLANT/ APPLICANT

VERSUS 1 REPUBLl RESPONDENT / DEFENDANT

JUDGMENT A. K. RWIZILE, J The appellant in this case was a: aigned under section 132( I )(2) of the Penal Code before the district court of Kigoma on a heinous offence of attempted rape, which carries same sentence as rape. Upon conviction he was sentenced to 30 years in prison. e is a young man aged 38 years and was convicted of attempting to rape a girl of 12 years. Upon conviction and se1tence, he was not satisfied with both, this appeal is in protest, forwarding with it, 4 grounds; I. That, the trial court erred in law and fact for convicting the appellant without regarding that prosecution case was not proved beyonr reasonable doubt.

2. That, the Magistrate erred in law by convicting the appellant without considering that it was a fabricated case and without considet ing the victim is a child, has no power to fight the old man also, no bruises occurred duringfighting. irregularities, there was la w . r: 3. That, the honourable cour erred in law and fact in convicting the appellant regardless of the procedurally statement neither recorded at the police nor tendered before the court of 4. That, the honourable Co rt erred in law and fact in convicting the appellant without considering the cardinal principle that th4 appellant cannot be convicted on the weakness of his/her defence but on the strength of the prosecution evidence adduced. Having no services of the lawyer, he appellant could not even put up a reasonable argument on the grounds raised. His argument was that, he was c, nvicted and sentenced without following the law. He said, the offence he was accused of, was rape, but was lat r charged and convicted of attempted rape. He maintained, the charge was not proved and therefore did not cot it the offence. He asked, this appeal be allowed. Ms Rehema Mpozemenya leame state attorney for the republic contested the appeal and briefly argued together the lst,3rd, and 4th grounds. She ~aid, the prosecution proved the case beyond reasonable doubt because the victim was threatened. She insisted, the ~ictim Pw2

testified that when on her way and as she reached the graveyards, was Page. I Hon. AUGUSTINE RWIZILE a w ay . Th e c h ar g e s h e e t do e s n o t s t a t e , a t w h a t tim e o r a ra ng e o f tim e w h e n th e o ffe n ce is a ll e g e d c o m m itt e d . B u t th e r ec or d s h o w s fr o m e v id e n c e , th e e v e n in g h o ur s . T h e a r ea w h e r e th e o ffe n c e is a ll e g e d c o mm itte d is a t th e g ra v e y a rd s . It is well stated in the sketch, exhibit Pl. This document was made by the prosecution as investigated by Pw6. The victim told the court that the crime scene, is far away from residential houses. Because when she shouted, could not get help for that reason. But that is not correct, exhibit P 1 shows, from the crime scene, point A to the nearby residences, point Bl is IO paces, from same place to the road is just 8 paces, point C, and from A to point D is just 5 paces. From the above, one forms an opinion that the offence in terms of the sketch exhibit Pl was about to be committed close to the road, resi ential premises and graveyards. All this goes to the point that it was reasonable to hold that even after shouting, n body witnessed it happen. There is no evidence showing how high the grasses were in that area. But still, Pw2 t Id the court that the appellant managed to undress her pants, while Pw3 said that was not the fact. Pw2 said,

she h1d pants undressed. Did she leave it aside as she said or moved with it in her hands or dressed it on again? The evide(e of Pw3, Pw4 and Pw5 does not show or corroborate the evidence of Pw2. It was the trial court finding that ~er evidence was true but did not, say anything about her demeanor and so could not be in the position to assess i~ she was right. For instances, it is only Pw4 who said, she was with dirty clothes and very tired. There is no suppf rt of such evidence from any other material witness of the prosecution. It also means, Pw2 left the crime scene lrying to the police station and cried until her father came by. Attempted rape is an inchoate crire, but it forms a complete and full offence. It must be therefore proved beyond reasonable doubt. The prosecuti!, in my view, did not prove the case beyond reasonable doubt. Therefore, the appeal has merit. It is allowed. e decision of the trial court is set aside. The appellant is therefore to be released forthwith, unless held for other la ful cause. Dated at KIGOMA ZONE this doth of September 2024. A. K. RWIZILE, J

JUDGE OF THE HIGH COURT Page. 3 Hon. AUGUSTINE RWIZILE