Lazaro Charles vs Republic (Criminal Appeal No. 525 of 2020) [2024] TZCA 1299 (23 December 2024)
Judgment
IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA fCORAM: SEHEL. 3.A., KIHWELO. J.A And MDEMU, 3,A J CRIMINAL APPEAL NO. 525 OF 2020 LAZARO CHARLES..........................................................................APPELLANT VERSUS THE REPUBLIC........................................................................... RESPONDENT (Appeal from the judgment of the Court of Resident Magistrate of Katavi at Mpanda f Naiawana. RM -EXT. JUR.) dated the 27th day of February, 2020 in DC. Criminal Appeal No. 8 of 2019 JUDGMENT OF THE COURT 25th October & 23rd December, 2024 MDEMU. J.A.: The District Court of Mpanda, in Criminal Case No. 74 of 2019, convicted and sentenced the appellant to life imprisonment, for the first count of incest by male and to a prison term of thirty (30) years for the second count of impregnating a school girl. As per the particulars of the offence in the two counts, the appellant allegedly committed the offences to his daughter, PW2 or the victim, who was fourteen (14) years of age and a standard seven pupil of Majengo Primary School on diverse dates between 1s t January, 2017 and 29th April, 2019 at Mjimwema area within Mpanda District. The first count of incest by male was contrary to section 158 (1) (a) l
of the Penal Code, Cap. 16, and the other count of impregnating a school girl was contrary to section 60A (3) of the Education Act, Cap. 353 as amended by section 22 of the Written Laws (Miscellaneous Amendments) (No. 2) Act, No. 4 of 2016. The facts leading to this incident are traceable from 29th April, 2019 when Sophia John Kutela (PW1), the acting Head Teacher of Majengo Primary School subjected to pregnancy test, nine pupils the day they reported to school after a recess. The exercise was conducted at Sabato Dispensary in which PW2 was detected pregnant. She was thus taken to Mpanda Police Station in the company of a Social Welfare Officer one Agness Buraganya (PW6) where a PF3 was issued. Thereafter, Athuman Jumanne (PW3) conducted clinical examination and, according to the filled PF3 (exhibit P3), the victim was detected to be five months pregnant. In a further investigation, the victim named her father, the appellant to be responsible for the said pregnancy. She narrated during trial that, they started love affairs with the appellant in 2017. On that unnamed day, when her mother had travelled, the appellant, who was drunk by then, commanded the victim to undress herself, and then the appellant smeared some traditional herbs in her face, undressed himself and then inserted his manhood in her vagina. From that date, the duo continued with their infidelity relationships. The mode of communication between the duo was 2
through written messages in a piece of box which they used as a communication device. In that devised methodology, whoever needed to interact with the other, had to write in that piece of box and leave it planked in a window. The other partner would, as usual, visit, read the message, compose a reply and would return for a response, expectedly there would be one. With such information, H. 311 Detective Constable Emmanuel (PW5) seized the piece of box and recorded it in a certificate of seizure (exhibit P8). Later, PW5 collected handwriting specimen of the appellant and the victim and took them to the handwriting expert. H.3400 Detective Constable Steven (PW4) did the job and concluded that, the handwriting found in a piece of box and the collected handwriting specimen were written by the victim and the appellant. Having done so, PW4 prepared a letter (exhibit P7) accompanying the report to that effect. The appellant was thus arrested and charged accordingly. He denied taking part and also called his wife Marietha Kipeta (DW2) to support him. On her part, DW2, who is also the mother of the victim, categorically stated that, the appellant never committed the infidelity and also refuted to have travelled anywhere leaving a space behind for PW2 and the appellant to engage into sexual relationship as alleged by PW2. 3
That besides, the trial court trusted the victim and found her evidence the best within the principles stated in Seleman Makumba v. Republic [2006] T.L.R. 379. It thus proceeded to convict and sentence the appellant as aforesaid. The appellant was not happy, thus registered his dissatisfaction on both conviction and sentences in the two counts. He henceforth, appealed to the High Court which, in the course, transferred the appeal to Katavi Resident Magistrate Court, presided over by Ngigwana, Resident Magistrate with Extended Jurisdiction. That first appeal was allowed partly by upholding the conviction in the first count of incest by males. It however varied the sentence from life imprisonment to a prison term of thirty (30) years. The second count of impregnating a school girl was found unproven. This was on 27th February, 2020. The appellant was yet unhappy thus staged the instant appeal before us on the following two grounds:
- That, the trial court erred in iaw and in fact when convicted the appellant with the offence o f incest by male contrary to section 158 (1) (a) o f the Penal Code (Cap. 16 R.E. 2002), meanwhile the evidence adduced by the prosecution side, proved the offence o f rape and that the evidence o f the prosecution does not tally with the charge sheet facing the appellant
- That, the trial court erred in law and in fact on the issue o f evaluation and assessment o f the evidence which was adduced by the parties. The trial court looked the evidence of the prosecution side in isolation of the defence evidence which had 4
casted doubt or rebutted the prosecution evidence. The triai court was supposed to iook the evidence as a whole. The appeal came before us for hearing on 25th October, 2024. The appellant appeared in person whereas the respondent/Republic had the services of Mr. Calistus Kapinga, learned Senior State Attorney, who did not oppose the appeal. When invited to address the Court, the appellant submitted that, his fronted grounds of appeal be considered and he be released for no offence he had committed. He however reserved his right to make a rejoinder when a need to do so would arise. Arguing ground one of the appeal, Mr. Kapinga submitted that, section 158 (1) (a) of the Penal Code requires the prosecution to establish presence of prohibited sexual relations and that there was penetration. He thus referred us to the evidence of PW2 who clearly stated that, the appellant is her biological father. This, to him, was not a problem because the appellant conceded. The learned Senior State Attorney added that, PW2 tried to explain how their sexual relationships with her father commenced. This is what Mr. Kapinga pointed to be the challenge calling upon a proper consideration, particularly on how the two courts below evaluated the evidence. He thus turned to ground two of the appeal. 5
Submitting in ground two on failure to analyse evidence, Mr. Kapinga stated that, the basis of conviction in this case was in the evidence of the victim, PW2. He referred us to page 15 of the record of appeal where PW2 explained how the duo fell into love affairs. But Mr. Kapinga was sceptical to find truth in that evidence because PW2 did not clearly explain what was up on that day and the days followed thereafter regarding such love relations. Mr. Kapinga also submitted that, PW2 should not have been believed because of the inconsistencies in her evidence. He pointed out one example that, at first, PW2 testified to have no any lover other than her father, but later, she changed her story that, she had other boyfriends. This, to Mr. Kapinga, seemed to raise some questions on the credence of PW2, thus thought, it was not proper to base conviction. This is what he submitted to us as the basis for supporting the appeal. The appellant's turn for rejoinder came. He had nothing useful to add. He simply reiterated what he submitted to us earlier on that he be released for no offence in law he had committed. Having heard attentively from the submission of the parties and duly considered the entire record of appeal, the issue for our determination is whether the offence of incest by male was proved to the hilt. Let us begin with the letters of the law in the first count which the appellant allegedly 6
crossed and was found guilty and convicted for that matter. It is in section 158 of the Penal Code reading as hereunder: " 158 (1) Any male person who has prohibited sexuai intercourse with a female person, who is to his knowledge his granddaughter, daughter, sister or mother, commits the offence o f incest, and is liable on conviction- (a) if the female is o f the age o f less than eighteen years, to imprisonment for a term o f not less than thirty years; (b) if the female is o f the age o f eighteen years or more, to imprisonment for a term o f not less than twenty years. (2) It is immaterial that the sexual intercourse was with the consent o f the woman." In the above quoted section, Mr. Kapinga rightly submitted that, there are certain elements to prove for the offence of incest by male to exist in the instant case. First, the existence of relationship, that is, father and daughter in this case, and second, the existence of the actus reus, that is sexual intercourse. In the two elements, according to Mr. Kapinga, and rightly so, that, the prosecution proved through evidence that the appellant was a biological father of the victim. This is clear in both the prosecution and defense evidence. We need not to re-emphasize. 7
Next is the evaluation of the evidence complained by the appellant that, it was not properly scrutinized. As submitted by Mr. Kapinga, Both courts below based their conviction in the evidence of the victim (PW2) because she was found credible. That credibility, among others, centered on the correspondences/communication made between the appellant and the victim. Appreciatively, the record of appeal at page 145 through 146 speaks for itself as follows: "On reading the provisions quoted above and the hereinabove case, and having carefullygone through the evidence o f PW2, this honorable court is satisfied that the trial court hadjustification to find that PW2 was a credible witness and that the evidence o fPW2 is no more but the truth, and that her evidence was corroborated by the evidence o f PW4 and PW5. To appreciate the kind o f communication between the twof I have decided to produce part o f it as it appears in one o f the letters seized from the victim by PW5 and duly examined together with another specimen by PW4, Appellant: TUSIFANYE LEO KWA SABABU HAUJACHEZA. TUTAFANYA KESHO UNAHEMA SANA A TASIKIA MAMA YAKO Victim: Sawa tusifanye 8
Appellant: HALAFU TABIA MBA YA NILISHAKUKA TAZA, ANGALIA NITAKUMALIZA.... SUAANGALIA WEWE MTOTO WANGU Victim: Sawa, tufanye ieo mara moja na kesho Appellant: TUNAPANGIANA, NIMEKUAMBIA TUFANYE KESHO...SITAKI KIBURI KUNIFANYIA MIMI, NIMEKUAMBIA TUFANYE KESHO Victim: Mimi nimekueiewa....sawa." Our interpretation in the foregoing extract in the judgment of the first appellant court, lead to the following: one, the learned Resident Magistrate exercising Extended Jurisdiction imported his own words in the written piece of the box. The words "appellant" and "victim" referred in the correspondences do not form part of exhibit P9. Two, both courts below used those conversation to establish that there was sexual intercourse between the appellant and his daughter. We think the learned trial Magistrate and the learned Judge in the first appeal overstated. The Criminal jurisprudence in sexual offences such as rape, incest by male, and or unnatural offences, require penetration, however slight, of a male organ into the vagina or anal for unnatural offence, as an ingredient. The written correspondences in a piece of box such as "tufanye kesho, unahema sana atasikia mama yako" or "tufanye Ieo mara moja na kesho" etc. in the case before us, in themselves, do not indicate penetration 9
of the appellant's manhood into the victim's vagina. They may portray to something else which we do not need to speculate. The least we comprehend is that, the written messages in a piece of box may not, by all standards, be used as evidence to prove that the appellant and the victim engaged themselves in sexual intercourse. Three, again, as urged by Mr. Kapinga, the victim was not a witness of trust. We have picked some few extracts in her testimony as a revelation to this. For example, at page 16 of the record of appeal, PW2 testified: "We were sexing inside the room when my relatives have siept" Later at page 17 during cross examination, she stated: "When we were doing sex, my mother was not there. You caught me with two boys, I know where they live. ...... I know the said boyfriends one is called Abe! and Mussa, but I did not do [ with] Mussa, but I did not do sexual act with them." However, initially, she refuted to have any relations with any of those boys as at page 16 of the record of appeal, that: 7 have no any other boyfriend more than my father." Looking closely the foregoing reproduced patches in the evidence of PW2, a lot may be raised with no expectation of ascertainment on the 10
credence of PW2. One would wish to conceptualize the circumstances in which the appellant and the victim had sexual intercourse in a room where other children, whose number and age remain undisclosed, had their sleep. She later changed a goal post, lamenting to have sexual intercourse with the appellant when her mother was away. Her mother, DW2 declined to have any travel. Yet the boys were there. At certain point, she refuted to have any, but later responded positively naming them as Abel and Mussa while affirming to be in normal relationship not allied to sexual intercourse. We think this should have clicked in the mind of, if not the trial court, then the first appellant court that, PW2 was not to be believed. It was not therefore proper to apply the principles in Seleman Makumba v. Republic (supra) because the credibility of the victim is questionable. See Pascal Yoya @ Mganga v. Republic (Criminal Appeal No. 248 of 2017) [2021] 36 (24 February 2012; TanzLII). Both courts below treated her with respect and based her evidence to hold the appellant criminally liable. Mr. Kapinga declined to give credit to that evidence. He is certainly correct, and we have the same view. That said, we have cautioned ourselves not to interfere with such concurrent findings of matters of facts as held in Salum Nicholaus Mnyumali v. Republic (Criminal Appeal No. 327 of 2020 (unreported) unless the two courts made misdirection or misinterpretation of the evidence. Nonetheless, as alluded to, the two courts slipped in the n
application of evidence and did not direct themselves properly on such matters which, in our considered view, resulted in a miscarriage of justice. Having said that, we find merit in the instant appeal, which is accordingly allowed. Both the conviction and sentence for the offence of incest by male are hereby quashed and set aside. Our final order is for the immediate release of the appellant from custody, unless he is lawfully held for some other causes. DATED at DAR ES SALAAM this 16th day of December, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgement delivered this 23r d day of December, 2024 via video conference from High Court of Sumbawanga in the presence of the appellant in person and Mr. David Mwakibolwa, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original.