Sungura Athuman vs Republic (Criminal Appeal No 291 of 2016) [2018] TZCA 466 (19 November 2018)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MUSSA. J.A.. LILA. 3.A., AND MWAMBEGELE. J J U CRIMINAL APPEAL NO. 291 OF 2016 SUNGURA ATHUMAN . ............................................................. APPELLANT VERSUS THE REPUBLIC ......... . ......... . ............................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Shinyanga) (Makani, J.1 Dated the 6th day of May, 2016 in DC. Criminal Appeal No. 21 of 2016 JUDGMENT OF THE COURT 31st August & 19th November, 2018 MUSSA. J.A.: In the District Court of Shinyanga the appellant was arraigned for rape, contrary to sections 130.(1) (2) (e) and 131 (1) of the Penal Code, Chapter. 16 of- che-Revised Edition 2002 of the. haws of Tanzania. The particulars of the charoe sheet alleged that on a divers day in March 2015, at Upongoji area, within' the Municipality of Shinyanga, the appellant had sexuaUntercourse with a certain "MJ."{PW1) who then was ten years of

The' appellant denied the charge following which the prosecution featured five witnesses and one documentary exhibit {PI) comprised of a Police FormNo; 3. In reply, the appellant had himself, as a sole witness and, as it-were, he completely disassociated himself from the prosecution accusation. At the height of ..the trial proceedings, the trial Magistrate was impressed by the version told by the prosecution witnesses and, accordingly, found the prosecution case to have been established to the hilt. In the result, the appellant was convicted but, in the course of so convicting, the learned trial Magistrate said thus:- "... so the accused person convicted (sic) as per S. .312 (1) o f CPA (Cap. 20 R.E 2002) (sic) after observation o f the whole evidence done by this Court." Upon conviction, the aooellant was sentenced to a term of thirty years imprisonment'. flisfirst appeal to the High Court was dismissed' in its entirety (Makani, J.), hence, 'this second appeal which is upon a memorandum of appeal with a supplementary memorandum attached to it. 2

The two memoranda may conveniently be crystalized and paraphrased as follows:-

1. Tbat _ tl ie ' vo/re dire examination was : inadequately.conducted;
2. That there was no proof of age of the alleged victim;
3. That the case for the prosecution was undermined by contradictory evidence from its witnesses;
4. -That the trial Magistrate erred in predicating the conviction under section 312(1) of the CRA;
5. That the PF. 3 was improperly adduced into evidence; and
6. That the trial Magistrate did not consider the appellant's defence. At the. hearing before us, the appellant was fending for himself, unrepresented, whereas the respondent Republic had the services of Ms. Margareth Ndaweka, learned Senior State Attorney* who was being

assisted by Mr. Shaban Massanja, learned State Attorney. As it turned out the; appellant fully adopted his two memoranda of appeahbut deferred their elaboration to a . later !stager:.if needv be, after the submissions, ofethe respondent. For her part, -MSr-Ndaweka commenced her address by. fulJy. supporting the conviction as well as the sentence meted out against the appellant. Nonetheless, ahead of our consideration and determination of the points of contention, we think it is pertinent to outline, albeit briefly, the factual background giving rise to the apprehension, arraignment and the eventual conviction of the appellant. h; Our starting point is the evidence of the alleged victim (PW1). The witness introduced herself as a ten vears old and, thus, the Court had to conduct a voire dire test ahead of everything. During the exercise, the court iput to her several questions before making a finding to the effect that she understood the nature of an oath and PW1 was, accordingly, sworn. In her sworn testimony, PW1 told the trial court that she was a standard IV; pupil"at Kambarage Primary School and'that she knew the appellant as a resident of Upongoji area within Shinyanga Municipality. Her evidence was to the effect that someday in March 2015 she was walking

towards home after knocking off from school. Midway, she bumped across a friend o f<hers whom we shall henceforth refer as "MT." 'As it turned out, MT .a’sked: PW1 to escort her„to Upongoji- toLwhich request the latter- .obliged; MT.then led PW1, to..the house of.the appellant unto which both entered and found the appellant therein. MT allegedly informed the appellant: '■This is the girl /'whereupon the latter welcomed the visitors to his fbedroom.' According to PW1, whilst there, to -her surprise, MT undressed her and, soon after, the appellant inserted his manhood into her vagina. PWl,claimed to have felt untold pain in consequence of which she cried but )her wailing was discontinued by the appellant amidst a threat that he would stab her. At the end of the ungodly act the appellant rewarded PW1 with some sweets. Thereafter,^ PW1 returned home but she did not disclose what befell on her .to her grandmother, henceforth referred to as (PW2). She, however, told her that she was unwell following which PW2 took her to Shinyanga government Hospital where she was attended: According to PW2, that was on the 2n d March, 2015. A little later, on the 5th March,,2015 PW2 took PW1 to her school where the head teacher punished her with a cane for not1 attending school for five days. It Was in the course of the chastisement when PW1 repealed her ordeal with the appellant

A .good deal later, on the 23r d March, 2015 the despicable episode was eventually reported.to Shinyanga Police Station before a woman police. Constable (PW4). Soon after, PW1 was presented to a medical officer whom we shall simply call (PW5) of Kambarage health Centre, for medical examination. Having examined her, PW5 found the genital organs of PW1 to be in order without any bruises or tears. The little girl was however, without the hymen and the medical officer formed the opinion that PW1 had been exposed to sex several times. According to a detective Corporal, simply named as (PW3), the appellant was apprehended in April 2015 after having bumped across a relative of PW1. With this detail, so much for the version which .was unveiled by the prosecution witnesses during the trial. It is, perhaps/ pertinent to observe that, save for PW5, the evidence of all the prosecution-witnesses was not, at all, tested by the appellant in cross- examination. We have already intimated that the appellant gave sole testimony in which he completely disassociated himself from the prosecution accusation. His account was to the •effect that on the 8th April, 2015 he was-confronted by two persons while having lunch with his paternal uncle and family. Those two told him that he was required at Shinyanga Police Station, tfp

heeded to the call and, upon reaching there, he was, to his surprise, implicated by the rape atcusatiori*of which he knew nothing about. That concluded the.-appellant's-version of the accusation against-him. We have already indicated the extent to which both courts below were impressed by the version as told by the prosecution witnesses. Again, as we have hinted; upon," Ms. Ndaweka commenced her address by supporting the conviction as well as the sentence meted out against the appellant. To begin with, she/ nevertheless, conceded that the learned trial Magistrate wrongly predicated the conviction under section 312 (1) of the CPA in lieu of the provision under which he was charged with. The learned State Attorney .was however quick to rejoin that the shortcoming did -not occasion any miscarriage of justice and was, to that extent, curable undei section 388 (1) of the CPA. As regards the appellant's other points of grievance, Ms. Ndaweka approached them generally and submitted that, on the whole,*the evidence was overwhelmingly against the appellant and left no doubt that he, indeed, committed the'offence charged. As the learned Senior State Attorney concluded thus, we intervened to enquire from.her'as to whether .or not the failure to feature MT during the .trial either as an f,abettor or a witness could ' prompt -an adverse 7

inference being drawn against the prosecution. To this enquiry Ms. Ndaweka conceded that ah adverse inference may, indeed, be^in the offing and, in fact, our intervention xompletely^derailed the learned Senior State Attorney to the extent of refurbishing.her. earlier stance by not supporting the conviction upon a second thought. Speaking of the rule on adverse inference, it is not quite the obligation of the prosecution to call a superfluity of witnesses. On the contrary, the prosecution is expected, as it is, indeed, in the best interests of justice, for it to always be concerned with the shortening of trials. Thus, where in a particular case, an incident is deposed by a large number of witnesses, the non-featuring in court of some of the witnesses should not be taken as a cause for disbelieving the prosecution version. Nonetheless, thefgeneral and well known rule is that the prosecution is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are vital and* able to testify to material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court>may draw an inference adverse to the prosecution {See - Azizi Abdalah Vs The Republic [1991] TLR 71).

In the matter at hand, there was no telling-whatsoever from the prosecution, let-alone a sufficient one, as to why it did’not feature the -referred to MTeither as an abettor.to-the crime or as a-witness. As it were,. MT outspokenly featured in the testimony of PWl,. If the-prosecution was not minded to employ her for use, the proper approach would have been to discard her at the closure of its case and offer her to the defence. As thatrwas not done, an adverse inference is, indeed, in the offing and, we are afraid to say, the same throws into doubt the entire account of PWl. As fate would have it, the absence of MT is not the only disquieting aspect'of the case giving rise to this appeal. It is evident from the trial court's judgment that the learned Senior District Magistrate did not, at all, .consider.:-the defence •version ahead of his decision to uphold the prosecution version without more. That was the, judgment which was upheld by the High Court which fell into the same trap of not considering the appellants defence. As it turns out, in his fourth ground of complaint, the appellant criticizes” botfi "courts below for turning a blind eye'to his. defence. It is now settled that failure to consider the defence case is fatal with the effect ofvitiating a conviction (See/Tor instance, 'Lockhart - Smith Vs Republic [19653 E.A. 211; Elias Steven Vs Republic [1982] TLR 9

313; Hussein Iddi & Another Vs Republic [1986] TLR 283; and the unreported Criminal Appeal:No. 19 of 2010 - Siza Patrice Vs Republic.) With-theforegoifig'shortcomings in mind;-we are-constrained-to * aIlow the. appeal and.rhoid lhat:’.it is unsafe to sustain the conviction of the appellant. The same is, accordingly, quashed just as the resultant sentence is set aside. As such an order will suffice to dispose of the appeal, we need not belabonon-the other complaints raised in the appellant's memoranda. In the end result, we order the appellant's immediate release from prison custody unless he is otherwise lawfully held. -DATED at DAR ES SALAAM this 20th day of September, 2018. K. M. MUSSA JUSTICE OF APPEAL S. A. LILA JUSTICE OF APPEAL J. C. M. MWAMBEGELE I * * - " JUSTICE OF APPEAL I certify that this is a true copy of the original. H.S. MUSHI DEPUTY REGISTRAR COURT OF APPEAL - 10