Vitalis Joseph vs Republic (Criminal Appeal 384 of 2021) [2022] TZCA 822 (19 December 2022)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MKUYE. 3.A.. KENTE. J.A. And KIHWELO. J.A.) CRIMINAL APPEAL NO. 384 OF 2021 VITALIS JOSEPH .................................................................................. APPELLANT VERSUS THE REPUBLIC.................................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Mqonya, 3.) dated the 31st day of May, 2020 in HC. Criminal Appeal No. 234 of 2020 JUDGMENT OF THE COURT 23d September & 19'h December, 2022 MKUYE, J.A.: Before the District Court of Kinondoni at Kinondoni, the appellant, Vitalis Joseph, was arraigned for the offence of rape contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code [Cap 16 R.E. 2002, now R.E. 2019]. It was alleged in the particulars of offence that the appellant, on diverse dates in 2016 to November, 2017 at Tegeta Masait area within Kinondoni District in Dar es Salaam Region, did have carnal knowledge of one, LT whom in order to hide her identify we shall refer her as "the victim" or "PW2"), a girl of 9 years of age. Upon a full trial, the appellant was found guilty, convicted and sentenced to life imprisonment. His appeal to the High Court, was not successful as it was dismissed for lack of merit. Hence, he has come to this Court on a second appeal. Before embarking on the merit of the appeal, we feel obliged to narrate a brief background leading to this appeal. It goes thus: The appellant was employed as a houseboy to take care of the garden and domestic animals (dogs) at the home where the victim was residing with her parents. On 18th June, 2018, Hilegada Prosper Mushi (PW1) (the victim's mother), while on their way to Feza Secondary School for graduation ceremony her niece, certain Heriet, informed her about the appellant's immoral behavior/acts. She intimated to her aunt of his conduct towards the victim. Upon hearing what her mother was being told, the victim (PW2) started crying. She then, revealed to her that the appellant had been ravishing her on different occasions. PW1 reported the matter to the police and the appellant was arrested. The victim was taken to Palestine Hospital where medical examination was conducted by Dr. Mwanaasha Mustafa (PW4) and it was observed that the 2 victim had no hymen and that she had bruises on her private parts. Thereafter, the appellant was arraigned before the Court. In defence, the appellant denied the commission of the offence. He told the trial court that he was incriminated with the offence after having demanded to be paid his salary because he wanted to go home to visit his parents. At the end of the trial, the appellant was found guilty, convicted and sentenced as hinted earlier on. On 22n d October, 2021, Joseph Kipeche, learned advocate for the appellant lodged a memorandum of appeal consisting four points of complaint to the effect that one, the evidence of PW2, PW3 and PW6 was taken in contravention of section 127 (2) of the Evidence Act, [Cap 6 R.E. 2019] (the Evidence Act) since the witnesses took oath without ascertaining whether they knew the nature of oath or not Two, the appellant was convicted based on incredible evidence of PW4 and Exh. PI (the PF3) while PW4 failed to establish her credentials or qualifications so as to ascertain that she was a qualified doctor. Three, the prosecution's evidence was at variance with the charge sheet; and four, the defence evidence/case was not considered. 3 Yet on 20th December, 2021 the appellant also lodged a self-crafted memorandum of appeal on thirteen (13) grounds of which Mr. Kipeche opted to abandon grounds nos. 1,2, 7, 8, 10, 11, 12 and 13 while retaining grounds nos. 3, 4, 5, 6 and 9 to the effect that: one, the trial and first appellate court did not consider the defence evidence; two, the PF3 (Exh. PI) was admitted un-procedurally as it was tendered by the prosecution. Three, the evidence of PW2 and PW3 of tender age was un-procedurally taken as they did not promise not to tell lies, which contravened section 127 (2) of the Evidence Act. Four, PW6's evidence was taken after conducting voire dire test while it was not required under section 127 (2) of the Evidence Act. Five, the trial court relied on the discredited and unreliable evidence of PW4 for want of her qualifications and explanation on the cause of bruises on the victim's private parts. At the hearing of the appeal, the appellant was represented by Mr. Joseph Kipeche teaming up with Ms. Juliana Lema, both learned advocates, whereas the respondent Republic enjoyed the services of Mr. Yussuf Aboud assisted by Ms. Dhamiri Massinde, both learned State Attorneys. It is noteworthy that, both counsel submitted at length on all remaining grounds of appeal of which we are grateful for their industry. However, in our determination, we propose to begin with ground no. 3 of the substantive memorandum of appeal in which the appellant's complaint is that the first appellate court upheld the conviction and sentence based on the prosecution evidence which was at variance with the charge sheet. In elaboration of the said ground of appeal, Mr. Kipeche prefaced his submission by restating that it was the duty of the prosecution to prove the offence under the charge sheet. However, he contended that in this case, although the charge sheet as shown at page 1 of the record of appeal indicates that the offence was committed on diverse dates in 2016 to November, 2017, the evidence from the witnesses did not prove it. In his further elaboration, he contended that PW2 informed her mother (PW1) that the accused started abusing her in 2017, however, when she was under cross- examination, she said that it started from 2017 up to 2018 while 2018 is not indicted in the charge. Mr. Kipeche went on to assail PW3's evidence who testified that she witnessed the appellant abusing PW2 in April, 2018, while the date was not stated in the charge sheet. He also took us to pages 39 and 40 of the record of appeal to show that PW6's evidence was not credible as she did not remember when the appellant went away and that she did not even remember the date of rape. He also wondered why PW4 told the trial court under cross examination that the victim was raped from 2017 while on examining her in 2018, the date 5 was not covered in the charge sheet, she observed bruises (fresh wounds) in the victim's private parts. In this regard, it was Mr. Kipeche's view that the charged offence was not proved and hence the prosecution failed to prove the charge beyond reasonable doubt. In response to this ground of appeal, Mr. Aboud conceded that according to the charge sheet the offence was committed between 2016 and 2017. He also conceded that the witnesses' evidence related to some other periods not covered in the charge sheet. However, he contended that, despite that fact, the evidence partially covered the period indicated in the charge sheet. He maintained that, PW2 was a credible witness having in mind that the best evidence comes from the victim despite the fact that PW6 confused the dates. Mr. Aboud insisted that even if the charge sheet was at variance with the evidence, such variance did not go to the root of the matter. He, therefore, urged the Court to find that this ground is unmerited and dismiss it. We have anxiously examined and considered the rival submissions on this aspect and, we think, the issue for our determination is whether the 6 charge sheet and evidence are at variance, and if the answer is in the affirmative, whether such defect can be cured by the law. Our starting point would be to reproduce the charge sheet in question as hereunder: "STA TEMENT OF OFFENCE "Rape contrary to section 130 (1) (2) (e) and 131 (1) o f the Pena/ Code [Cap 16 R.E 2002] PARTICULARS OF OFFENCE VITALIS JOSEPH , on diverse date in 2016 to November, 2017 at Tegeta Masait Area within Kinondoni District in Dar es Saiaam Region, did have carnai knowledge o f one L T (name withheld to conceal her identify) a girl of 9 years o f age". (Sad) STATE ATTORNEY [Emphases added] According to the particulars of the offence shown in the charge, the offence is alleged to have been committed on diverse dates in 2016 up to November, 2017. In criminal matters, a charge initiates the criminal trial and its purpose is to inform the accused person the nature and magnitude of the charge he is facing so that he/she can be able to prepare his/her informed defence (see Issa Mwanjiku @ White v. Republic, Criminal Appeal No. 175 of 2018 (unreported). In other words, it sets out the benchmark to be proved by the prosecution. What follows is for the prosecution to discharge its duty of proving it (the charge) against the accused person beyond reasonable doubt. See Ahmed Omari v. Republic, Criminal Appeal No. 154 of 2005 (unreported). In this case, there were six prosecution witnesses who were paraded to prove that the appellant committed the offence in the period as indicated in the charge sheet, which was between 2016 to November, 2017. PW1 testified that on 17th June, 2018 she was informed by PW2 about the appellant's conduct of abusing her. She did not know the time when the alleged offence was committed. PW2, who was the key witness testified that the appellant started to rape her in 2017 and during cross examination by the appellant she insisted that it was from 2017 to 2018. Here, PW2 left the period in 2016 stated in the charge sheet and mentioned the year 2018 while it is not shown in the charge sheet. 8 As regards PW3, she testified to have seen the appellant having sexual intercourse with the victim in April, 2018. Even when the witness was cross examined by the appellant as shown at page 27 of the record of appeal, she maintained that it was in April, 2018 when she saw him unzipping his trouser, taking his manhood and raping the victim. PW5 who was an investigator, upon being cross examined by the appellant (see page 26 of the record of appeal) told the trial court that the appellant raped PW2 in different dates from 2017. PW6 who, although did not state the dates in examination in chief, when she was under cross examination, she said, it was around 2016 or 2017 when she witnessed the incident, meaning she was not even certain of the date of incident she witnessed. Indeed, there is a glaring variance between the charge sheet and the witnesses' evidence. Thus, the appellant is challenging the two lower courts decisions on the ground of variance between the charge and the witnesses' evidence, particularly on the dates when the offence was committed. Ordinarily, the charge sheet ought to have reflected what was brought to the police by the complainant or rather the charge sheet ought to reflect what the complainant complained before the police as per the dictates of section 135 (a) (i) (ii) and (iii) of the Criminal Procedure Act [Cap 20 R.E. 2022] (the CPA) which basically gives guidance on how the charge or 9 information should be framed. And, we believe that the charge sheet was framed out of what the complainant (PW2) had complained to them. Also, we are mindful that in convicting the appellant, the trial court based its decision on the fact that PW2's evidence was corroborated with the evidence of PW3 and PW6 who testified to have been eye witnesses when the appellant allegedly raped the victim. Looking at the entire evidence of the prosecution witnesses there is no doubt as was conceded by both counsel that there is a variance between the charge sheet and the witnesses' evidence except that the learned State Attorney is of the view that part of the prosecution witnesses evidence covers the period stipulated in the charge sheet and that the variance is minor as it does not go to the root of the matter. Unfortunately, he did not cite any authority to support his proposition. On our part, we are not in agreement with the learned State Attorney that the variance is minor because, in the first place, as alluded to earlier on it is the duty of the prosecution to prove the charge beyond reasonable doubt. - See Ahmed Omari (supra). The contention that the charge was partially proved by the prosecution evidence which covered part of the period mentioned in the charge sheet cannot hold water in the circumstances of the 10 case. We say so because the mere concession that part of the offence was proved defeats the standard of proof in criminal matters that is beyond reasonable doubt. Apart from that, it is apparent that the evidence proved certain period in the charge sheet while also proving a certain period not shown in the charge sheet. The fact that there was a period (2016) indicated in the charge but not proved and the other period (2018) not indicated in the charge but testified by the prosecution witnesses rendered the charge sheet defective which required amendment to be done. It is trite law that, in case any defect in the charge is discovered in the course of the trial, it is a duty of the prosecution to move the trial court to amend the charge under section 234 (1) of the CPA. Once that is done the accused person is required to be accorded an opportunity to respond on the amended charge as per section 234 (2) (a) of the CPA. For ease of reference, we reproduce the said provision as hereunder: " '234(1) Where at any stage o f 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 o f the charge either by way o f amendment o f the charge or by substitution or addition o f a new charge as the court thinks li necessary to meet the circumstances o f the case unless, having regard to the merit o f the case, the required amendments cannot be made without injustice; and all amendments made under the provisions o f this subsection shall be made upon such terms as the court shall deem 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." In the matter at hand, much as there is a glaring variance between the charge and the prosecution witnesses' evidence, neither the prosecution prayed to amend the charge nor the court ordered for the alteration of the charge. Had that been done, it would have followed by giving an opportunity to the appellant to plead to the altered charge. As that was not done, it was a clear contravention of section 234(1) of CPA. Since the trial court failed to order for an alteration of the charge or to cause the charge to be amended so that it could reflect the new evidence which did not cover the period in the year 2016 and covered the period of 2018 not mentioned in the charge sheet, it implies that the variance which 12 was in the charge sheet is a fundamental irregularity and must have prejudiced the appellant. In other words, such irregularity cannot be cured under section 388 of the CPA. This ground is, therefore, meritorious. Having found merit on the 3rd ground of appeal, it is our view that, it would have been sufficient to dispose of the entire appeal. However, for purposes of completeness, we find it appropriate to deal with other more grounds of appeal relating to the issue of credibility of prosecution witnesses; and failure by the two courts below to consider the appellant's defence evidence. We start with the issue of credibility of witnesses. It is trite taw that every witness is a credible witness entitled to be believed unless there are good reasons for disbelieving him/her. Among the reasons for not believing the witness may be where the witness has given an improbable or implausible evidence; or where his/her evidence is materially contradicted by other prosecution witnesses - See Goodluck Kyando v. Republic, [2006] T.L.R. 363. We also agree with Mr. Aboud that in sexual offences cases the best evidence comes from the victim - Selemani Makumba v. Republic, [2006] T.L.R. 379, Iddy Salum @ Fredy v. Republic, Criminal Appeal No. 192 of 2018 and Joseph Paulo @ Alex Makua v. Republic, Criminal Appeal No. 342 of 2019 (both unreported). 13 However, having examined the evidence of PW2 who is the key witness, it is our view that her credibility is questionable as shown earlier on. Much as her complaint as per the charge sheet seems to reflect the period from 2016 to November, 2017, her testimony both in chief and under cross examination showed that the offence was committed between 2017 to 2018. As alluded to earlier on, her evidence, leaves out the period covering 2016 as stated in the charge sheet while it adds the period relating to the year 2018 which is not indicated in the charge sheet. Apart from that, the other witnesses such as PW3 and PW6 who were found by the trial court to have corroborated the evidence of PW2 testified on the incident of 2018 that was not indicated in the charge sheet meaning that their evidence did not offer any corroboration to PW2's evidence. Moreover, PW2's evidence raises doubts as to how, when she went to complain before the police, she was able to recite the incidences which had taken place in 2016 to November, 2017 while forgetting to mention the recent incident of 2018. The doubts raised makes her evidence to be suspicious hence, leading us to the conclusion that she might not have been a credible witness as was undeservedly treated by the two courts below. 14 The findings of the trial and first appellate court that PW2 was a credible witness coupled with Mr. Aboud's contention that the best evidence comes from the victim, in our considered opinion, is not applicable in this case. At most, there was misapprehension of the substance, nature and quality of evidence leading this court to interfere and find that PW2 was not a credible witness. On the other hand, we note that, the appellant in his defence raised an issue to the effect that he was implicated with this offence because he had demanded to be paid his salary as he was not paid so that he could visit his parents at home. The appellant's complaint in ground no. 4 of the substantive memorandum of appeal and ground no. 3 of the supplementary memorandum of appeal is that the defence evidence was not considered in both two courts below. In elaboration, Mr. Kipeche argued that failure to consider the defence evidence was contrary to the law and it prejudiced the appellant. In support of his argument, he referred us to the cases of James Bulow and Others v. Republic, [1981] T.L.R. 283, where the Court held that failure to consider the defence evidence is fatal to the trial proceedings. Also, he made reliance to the case of Hussein Iddi and Another v. Republic, T.L.R. [1986] 135 at page 137, where it was held that failure to do so prejudiced the appellant. 15 On the other hand, the learned State Attorney conceded to the anomaly. However, he was quick to state that previously such omission was fatal but now the Court can step into the first appellate court's shoes and do what it was supposed to be done by it. He referred us to the case of Omary Hamis @ Mponela and Another v. Republic, Criminal Appeal No. 414 of 2019 page 9 (unreported). He submitted further that, even if this Court evaluates the defence evidence still there is a strong prosecution evidence to support the conviction. On our part, we agree with both counsel that both courts below did not consider the defence evidence. We also agree with Mr. Aboud that previously, failure to consider the defence evidence was fatal and it prejudiced the appellant (See James Bulow and Others (supra) and Hussein Iddi and Another (supra). However, it is now settled principle that where the courts below have failed to consider the appellant's evidence, the Court is empowered to step into the first appellate court's shoes to evaluate such evidence and determine whether or not it raises reasonable doubt. (See Omary Hamis @ Mponela and Another (supra) and Iddy Salum @ Fredy (supra). In the latter case, when the Court was faced with an akin situation it cited the case of Mzee Ally Mwinyimkuu @ Babu Seya 16 v. Republic, Criminal Appeal No. 499 of 2017 (unreported) where the Court stated as hereunder:- "As already pointed out the fact that both courts below in the present case did not consider the defence case is in our view a misapprehension o f evidence and entities us to intervene, in an endeavour to put matters in their proper perspective. We have sought guidance from our earlier decision on the point in Joseph Leonard Manyota v. Republic, Criminal Appeal No. 485 o f 2015 (unreported) in which, encountered with a situation like the present, we appraised the appellant's defence and weighed it against that o f the prosecution witnesses in relation to the matter at hand . " In the case of Omary Hamis @ Mponela and Another (supra), the Court also emphasised the need of this Court to step into the shoes of the first appellate court and do what it failed to do as we hereby do. Having gone through the defence evidence, we have noted that it is true that the appellant testified that he was employed by PW1 to work as a gardener and to take care of the dogs at her house whereupon they had agreed that he would be paid a salary of Tshs. 60,000/= per month. He told further the trial court that, he worked from 2015 to 2018 and that on 6th June 17 2018 he told the complainant of his plan to go back home to visit his parents in July or August and therefore, he demanded to be paid his unpaid salaries but the complaint refused to pay him. He said, on 17th June 2018, PW1 told him that, that was his last day to stay there and later in the evening she came with two people who arrested him and took him at Mbweni Police Station until he was arraigned before the court for the offence of rape. However, as hinted earlier on, the two courts below did not consider the appellant's evidence. In our examination of the evidence, we find that, given the circumstances we have explained earlier on, it raises a reasonable doubt in the prosecution evidence. This is due to the fact that, the evidence of PW2 who is the crucial witness in this case is questionable. PW2's evidence was not coherent on the issue as to when the offence was committed and the manner she handled the matter leaves a lot to be desired. She did not report the matter to anybody for a period of almost two years. Also, in reporting to the police she recalled the incidences of 2016 to 2017 while forgetting the most recent incident that happened in April, 2018. In the premises, given the fact that there was variance between the charge sheet and the prosecution evidence, coupled with the two anomalies concerning credibility of PW2's evidence and the doubts raised by the appellant, we find the appeal merited. Consequently, we allow the appeal, is quash the conviction and set aside the sentence imposed upon the appellant. We further order for his immediate release from custody unless he is otherwise held for other lawful reasons. DATED at DAR ES SALAAM this 16th day of December, 2022. R. K. MKUYE JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL The Judgment delivered this 19th day of December, 2022 in the presence of the appellant in person linked-Via Video from Ukonga Prison and Mr. Adolf Kisima, learned State Attorney for the respondent, is hereby certified as a true copy of the original. 19