Dc crimina appeal 15979 of 2024 wangala maganga VS republic

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA DC. CRIMINAL APPEAL NO. 000015979 OF 2024 WANGALA S/O MAGANGA .............................. COMPLAINANT / APPELLANT / APPLICANT

VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT

JUDGMENT NKWABI, J 02/12/2024 & 27/01/2025 The offence that the appellant stood charged with in the trial district court is rape. The offence is against section 130 (1) (2) (b) and 131 (1) of the Penal Code, Cap. 16 R.E.

2022. The trial court convicted the appellant as charged and sentenced him to serve 30 years imprisonment and suffer 6 strokes of the cane as corporal punishment. He was also ordered to compensate the victim of the offence T.shs 300,000/=. In its frantic work towards conviction and sentence the appellant, the prosecution brought five witnesses including the alleged victim of the offence and tendered three exhibits which include, the PF3 (exhibit P.1), the sketch map of the scene of the offence (exhibit P.2) and the caution statement of the appellant (exhibit P.3). It was ostensibly claimed by the respondent that the appellant committed the offence on 30th day of March, 2023 at about 19:30 hrs. at Itembula village within Uvinza district in Kigoma region against E.S., a woman aged 35 years. Nonetheless, the appellant is of an unambiguous stance that he is innocent. He is trumpeting, in this Court, four grounds of appeal I emulate: 1. That the Hon. Trial magistrate erred in law and facts by convicting and sentencing the appellant as charged while the prosecution side failed to prove the charge beyond reasonable doubt as enjoined. Page. 1 Hon... JOHN NKWABI 2. That, the honourable trial magistrate erred in law and facts by convicting and sentencing the appellant basing on the defective charge sheet which did not disclose ingredients of the charged offence as enjoined by law.

3. That the honourable trial magistrate erred in law and facts by admitting prosecution exhibits which was illegally procured.

4. That, the honourable trial magistrate erred in law and facts by convicting and sentencing the appellant while the judgment was erroneously reasoned as it did not consider the law. Descended from the above justifications of appeal, the appellant is recommending to this Court the appeal be allowed, conviction, and sentence meted on him be respectively quashed and set aside. Besides he is touting for his immediate release from prison unless held for any other lawful cause, and any other relief or reliefs this honourable Court deems fit and just to grant. When the appeal was called on for hearing, the respondent was represented by Ms. Rehema Mpozemenya, learned State Attorney. The appellant appeared in person, unrepresented. The hearing of the appeal proceeded by way of oral submissions. In submission in chief, firstly, the appellant adopted the grounds of appeal as his submission in chief. He then argued that the evidence of the respondent was manufactured. The appellant questioned why was he arrested after two months while he was residing in the same village. He forcefully opined that the prosecution evidence was very weak on the ground that the evidence on the respondent was contradictory in respect of when the offence was committed. He also queried why the sketch map of the scene of offence was drawn during the night? The appellant went on to observe that the exhibits were

admitted contrary to the law and the doctor did not mention his registration number. He also lamented that the sketch map of the scene was not signed by local leader or owner of the scene of the offence. He, therefore, recommended the appeal be allowed. Replying to the 1st and 2nd grounds of appeal, Ms. Mpozemenya was palpable that the prosecution evidence proved the charge beyond reasonable doubt. She elaborated her stand view that they proved penetration, and that the victim had not consented that penetration of her female organ. Ms. Mpozemenya too was sure as eggs is eggs that identification of the culprit was established beyond reasonable doubt. She expounded that PW.1 testified that the appellant inserted his penis into her vagina, it was when she was coming from the farm. Ms. Mpozemenya went on to say that the victim identified the appellant by name. She was keen to cite for me Seleman Makumba v. Republic [2006] T.L.R. 384 thus, the victim is true witness of the offence. She was emphatic that the testimony of Page. 2 Hon... JOHN NKWABI the victim was corroborated by the testimony of the medical practitioner. Ms. Mpozemenya did not end there, she went on to contend that the victim testified that she was grabbed by Wangala Maganga, the appellant and the appellant beat her up which to Ms. Mpozemenya proved there was no consensus to the act. She added that the doctor found

bruises in the vagina of the victim and there were injuries on the face of the victim. Ms. Mpozemenya reiterated her stand point that identification of the appellant was watertight because the victim used to know him and a neighbour. She reinforced that there was day light which enabled the victim to recognize the appellant and that the victim immediately reported the incident and the culprit. So, to her, it is irrefutable that the appellant committed the offence. Submitting in reply on the 3rd ground of appeal, Ms. Mpozemenya maintained that the exhibits were admitted in accordance with the law, so the ground of appeal is unmerited. She added that the arguments of the appellant about the exhibits are not the requirement of the law. Lastly, Ms. Mpozemenya held the view that the last ground of appeal has no basis because the sentence is issued under section 131 of the Penal Code. She beefed up that the trial Court handed down a lawful sentence. She prayed the appeal be dismissed for having no merits. The appellant, while making his rejoinder submission, expressed his wish that the Court considers the grounds of appeal and acquits him. He emphasized that the evidence of the respondent is contradictory and he and the victim do not reside in the same village as he resides at Mtego wa Noti village. He went on to question why the semen was not seen in the vagina. He maintained that

the exhibits are illegal. The evidence too was referencing history of the appellant raping other women, the appellant pointed out. He stressed that the evidence is fabricated but the appellant was clear that he has no grudges with the victim. The appellant explained that the police interrogated him concerning the escaping from prison of his young brother. He reiterated his push for the appeal to be allowed. I have considerably debated the stand points of each party to this appeal. With heartfelt respect to Ms. Mpozenyema, I do not agree with her view that the respondent proved the charge against the appellant beyond reasonable doubt. I am of that finding for a number of reasons. One of them is that the charge sheet is in conflict with the evidence. While the charge sheet shows that the appellant resides at Mtego wa Noti village, the testimony of PW.1 (the victim of the of the offence) indicates that the offence was committed in Itembula village, which are Page. 3 Hon... JOHN NKWABI distinct villages, and the appellant is her neighbour. It is vapid law that when a charge sheet is in material conflict with the witnesses’ testimony, then the charge is not proved. That is the position of the law in Said Musa Soweni v. Republic, Criminal Appeal No. 93 of 2020, CAT where it was authoritatively eld that: “The law is settled that, a charge which is in material conflict with the

witnesses’ testimonies materially shakes credence of the prosecution case and renders the prosecution case not proved to the required standard.” Else, the respondent ought to have done what is required of her by the law as stated in Abeid Masikiti v. Republic, Criminal Appeal No. 24 of 2015, (unreported) where it was underlined that: “If this (amendment of charge) is not done, the preferred charge will remain unproved and the accused shall be entitled to an acquittal.” See also Issa Mwanjiku @ White v.Republic, Criminal Appeal No. 175 of 2018, CAT (unreported). But I am mesmerized to make transparent the complaint of the appellant that the respondent’s case was not proved beyond reasonable doubt and fabricated. Is the appellant justified to make such allegations against the respondent? I am prepared to go along with the appellant so far as his claim that the charge was not proved beyond reasonable doubt and part ways with Ms. Mpozemenya, though with extreme respect to her. The contradictions that are alluded by the appellant and are conspicuous in the record could be listed as below: 1. Who were at the farm with the victim? The victim says she was only with her son (PW.2), her son said they were with his father too.

2. About the breakdown of the bicycle, PW.2 did not say anything about it that it was pushed.

3. Concerning the scene of the offence, there is a school nearby suggesting that there would be people around or movements of people because of roads or pathways to and from the school. It was PW.2 who revealed the scene of the offence was near Miembeni school but PW.1, the victim did not.

4. How could a person riding a bicycle be captured that easily by a person moving on foot, because it is claimed that the appellant captured her while on foot while she was riding a bicycle which, however, got broken.

5. The duration of the encounter which started at 18:00 hrs. to 20:30 hrs. when he completed his act as testified by PW.1. In the circumstances that does not impute she was forced to have sex with the appellant, at least, it implies that the victim was courted by the appellant and agreed to have sex with him only that her son unveiled the secret when he found them in the bush at the place, they had sex.

6. Considered with another case of the appellant, (DC) CRIMINAL APPEAL NO. 11757 OF 2024 recently determined by this Court, which alleges the appellant is a resident of Mtego wa Noti village, and the charge sheet bears the appellant as resident of Mtego wa Noti village while the victim in this case resides in Itembula village. PW.1 said I came to know Wangala Maganga as we used to live in a neighbourhood, Page. 4 Hon... JOHN NKWABI Bwelu Kusini, he now lives at Ugongoni B. For instance, PW.1: “I went to the farm with Chaboya. After doing farm activities, I left at about 18:00 hrs I left Chaboya at the farm.” But PW.2 Chaboya said: “… on 30/03/2023 in the morning I was at the farm with my father and mother. At 18:00 hrs my mother left the farm to home while I stayed with my father.” Further, while PW.2 claimed the incident happened near a school, the sketch map of the scene of the offence does not indicate the school. PW.1 too did not say that the incident happened near Miembeni school. It should be remembered that there is a proverb that goes, “never forget that a half truth is a whole lie.” That resonates in Mathias Bundala v. Republic, Criminal Appeal No. 62 of 2004, CAT (unreported) where it was stated that: “Good reasons for not believing a witness include the fact that the witness has given improbable evidence, or the evidence has been materially contradicted by another

witness or witnesses.” The respondent would readily agree with me that where a court of law entertains a doubt, in criminal case, the doubt should be resolved in favour of the accused person. For that position of the law, I parrot Hussein Hassan @ Antiti v. Republic, Criminal Appeal No. 541 of 2021, CAT where it was underscored that: “..., the foregoing evidence not only leads to multiple interpretations, but also creates doubts which, in our respect view, should benefit the appellant.” See also Ndorosi Kudekei v. Republic, Criminal Appeal No. 318 of 2016, CAT, (unreported) where it was stated thus: “The question we ask ourselves on the glaring contradictions above was, as to why there was a change of mind by PW4 and PW5 in their testimonies before the court, from the statements which they had earlier on made at the Police Station? For whatever reasons that might have occasioned it, the situation could not fail to let one raise eyebrows and be tempted to think that there was something sinister. Such situation did give credence to the doubt raised by Mr. Materu, in regard to the cautioned statement of the appellant that, the last sentence which reads “nipo tayari kwenda kuonyesha mwili huo na simu”, was most probably added at a later time for a purpose”. With deep-seated respect, it appears to me that Ms. Mpozemenya was preoccupied by the position of the law that true evidence

in rape or unnatural offences cases comes from the prosecutrix herself or himself as stated in Seleman Makumba (supra) and Hangwa William v. Republic, Criminal Appeal No. 117 of 2009 (CAT) (unreported) but the position that should not be underestimated is that held in Mohamed Said v. Republic, Criminal Appeal No. 145 of 2017, CAT (unreported) where it held thus: “However, we wish to emphasize the need to subject the evidence of such victims to scrutiny in order for courts to be satisfied that what they state contain nothing but the truth. … Page. 5 Hon... JOHN NKWABI We think that it was never intended that the word of the victim of sexual offence should be taken as gospel truth but that her or his testimony should pass the test of truthfulness. We have no doubt that justice in cases of sexual offences requires strict compliance with rules of evidence in general, and S. 127 (7) of Cap. 6 in particular, and that such compliance will lead to punishing the offenders only in deserving cases.” I verily believe that, in this case, I have complied with the pronouncement of the Court of Appeal in Mohamed’s case (supra). As the caution statement was objected by the appellant, it required corroboration to ground conviction basing on the same which corroboration is wanting in this case. I am guided by John Cherehani & Another v. Republic, Criminal Appeal No. 189 of 1989 (Unreported) (CAT)

where it was underlined that: “The trial magistrate was wrong in law in using one retracted confession to corroborate a similar confession since each requires corroboration” Finally, I allow the appeal and quash conviction anchored in the first ground of appeal. Flowing from the above, I set aside the sentence imposed on the appellant. The appellant is to be released from prison unless held therein for other lawful cause(s). It is so ordered. Dated at KIGOMA this 27th of January 2025 . J. NKWABI

JUDGE OF THE HIGH COURT Page. 6 Hon... JOHN NKWABI