Elibariki Martine @ Maugu vs Republic (Criminal Appeal No. 221 of 2022) [2024] TZCA 1288 (13 December 2024)

AT DODOMA fCORAM: LILA. J.A.. MURUKE 3.A. And MDEMU, J.A,! CRIMINAL APPEAL NO. 221 OF 2022 ELIBARIKI MARTINE @ MAUGU .............................................. APPELLANT VERSUS THE REPUBLIC .................. . .............................. . ............ - RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dodoma) (Kaaomba, J.1 dated the 25th day of May, 2022 in Criminal Appeal No. 177 of 2020 JUDGMENT OF THE COURT 2n d & 13* December, 2024 MURUKE. JA.: The appellant, Elibariki Martine was charged before the District Court of Singida at Singida (the trial court) with two counts. The first count was on the offence of rape contrary to sections 130 (1) (2) (e) and 131 of the Penal Code. It was alleged that on diverse dates between January and July, 2018 at Unyianga area, in Singida District and Region, the appellant had the carnal knowledge of a girl aged 14 years. The second count concerned the offence of impregnating a secondary school girl contrary to section 60A of the Education Act as amended by section 22 of the Written Laws (Miscellaneous Amendment) Act, No. 2 of 2016.

It was alleged that, in the same months and year, the appellant impregnated a school girl aged 14 years of Unyianga Primary School. For the purpose of this Judgment, we shall refer to her as "the victim" or "PW2" in order to hide her identity. The appellant denied the charge. Thus, a full trial ensued whereby the prosecution called a total of eight witnesses namely; the victim who testified as PW1, Maria Ibrahim, the victim's sister(PW2), Amina Fakih Abdalla (PW3), Rozi Mery Njiku, the victim's mother (PW4), Fredinanda Michael Mjau (PW5), WP 7596 D/C Veronica(PW6), Christowaja Soa (PW7) and Jackson Kilasi (PW8). The appellant defended for himself, he did not call any witness. The prosecution also tendered six exhibits, namely; caution statement of the appellant (Exhibit PI), affidavit of the birth of the victim (Exhibit P2), extra judicial statement of the appellant (Exhibit P3), attendance register (Exhibit P4), medical examination report (Exhibit P5) and the victim's clinic card (exhibit P6). The prosecution evidence was as follows; explaining on the ordeal, PW1 claimed that one day as she was putting a baby (PW2's baby) to sleep in the appellant's room, the appellant walked in the room and asked her to sleep but she refused. So, he pulled her on the bed, removed her underpants and his trouser he then began to put fingers in her vagina

then left. She further explained, on the other day while taking the baby to sleep in the absence of PW2, the appellant chased other children out of the house. He entered the room and found her getting out. The appellant then took her back to the bed, undressed her underpants, undressed his trousers and then took his male organ and inserted in her vagina. PW1 explained that, she felt pain and washed some blood stains in her vagina, but could not tell her sister on both incidences as she was afraid that she would be chased away, because the appellant is the one who was paying for her school fees. From that day, they continued to have sex regularly. The last time they had sex was in September, 2018. When at her school, she was discovered pregnant. PW7, the victim's teacher at Unyianga confirmed that, PW1 is her student through attendance register (Exhibit P4) she had tendered and she recalled that on 8thOctober, 2018 she noticed that, PW1 had problems thus called PW2 and advised her to take PW1 to the hospital for examination. PW2 explained that, she went to hospital the next day for a pregnancy test where it was found that, she was pregnant. When inquired by PW2, the victim revealed that it was the appellant who was responsible and it was all done during the afternoon hours. PW2 thereafter decided to report the matter to the police station where she was given a PF3 and

went to Sokoine Health care, where they were attended by PW8, a clinical officer. According to PW8 the victim was confirmed to be 5-6 months pregnant. He then filled the PF3 and enrolled the girl to clinic. The clinic card was admitted as Exhibit P3. After that revelation, a case was filed and the appellant was arrested in relation to the said offences. PW3 interrogated the appellant where he confessed to have carnally known PW1. Later, the caution statement (exhibit PI) was recorded. Further, the appellant was taken to the Justice of Peace (PW5) who told the court that, the appellant did confess to have had sexual intercourse with his in law, the victim. He thereafter tendered extra judicial statement (exhibit P3). On the part of the defence, the appellant (DW1) denied to have any sexual relationship with the victim. After a full trial, the trial court was satisfied that the appellant was guilty as charged, convicted and then sentenced him to 30 years' imprisonment for statutory rape and, 5 years for impregnating a school girl. Aggrieved with the said decision, he appealed to the High Court at Dodoma vide Criminal Appeal No. 177 of 2020, which upheld the conviction and sentence of the trial court on the 1st count, but quashed and set aside the conviction and the corresponding sentence in the 2n d

offence. Undaunted, the appellant preferred the instant appeal on 6 grounds paraphrased as follows;

1. The trial court and 1st Appellate Court wrongly convicted the appellant withoutproof o fguilt beyond a reasonable doubt
2. The trial court and 1stAppellate Court failed to recognize that, after expunging the evidence, there was no remaining evidence tojustify a 30-years sentence.
3. The trial courtand 1 stAppellate Courtimproperly convicted the appellant based on a defective charge with an unendorsed alteration in the charge details.
4. The trial court and 1st Appellate Court mistakenly relied on cautioned and extrajudicialstatements that were not obtained according to legal requirements.
5. The trial court and 1stAppellate Courterred by using an extra judicial statement withoutaddressing significant discrepancies that caused injustice.
6. The trial court and 1st Appellate Court failed to adequately consider the appellant’s defense during their evaluation o f the evidence. First, it is worth noting that, the 1st appellate court expunged the testimony of PW1, Exhibit P2, Exhibit P5 and Exhibit P4 from the record. As a result, the 2n d count of impregnating a school girl was not proved. However, the Is t appellate court did ground conviction of rape to the appellant solely basing on exhibit PI and exhibit P3

At the hearing of this appeal, the respondent/Republic was represented by Ms. Neema Taji, Mr. Nuru Chiwalo and Ms. Sara Anesius all learned Senior State Attorneys, whereas the appellant was present in person not, represented. The appellant requested the Court to receive his grounds of appeal as his submission in support of his case and prayed for the Court to allow his appeal, quash conviction, set aside sentence, and set him at liberty as he did not commit the offence he stood charged at the trial court. The respondent's side, in reply, at the outset, supported the appeal basing on ground 4 and 5 of the appeal relating to caution statement and extra judicial statement that the 1s t appellate Court relied on in upholding the sentence of 30 years' imprisonment for the offence of rape. On ground 4, Ms. Anesius submitted that, although exhibit PI the appellant's caution statement was received without any objections by the trial court, the same was improperly received because it was taken outside the 4 hours provided by section 50 of the Criminal Procedure Act. With the above anomalies, the respondent's counsel insisted that exhibit PI was wrongly admitted and relied upon to convict the appellant.

Next, Ms. Anesius argued the 5th ground that exhibit P3 ( extra judicial statement) contains serious anomalies as follows: One, looking at exhibit P3 as seen at page 35 of the record, there is a word "Nimelazimishwa" that was deleted and replaced with the word "sijalazimishwa na mtu yeyote". She added that, there is no signature of the person who deleted and replaced the two words above. This, to the learned State Attorney, makes the statement suspicious. Two, Exhibit P3 has been recorded contrary to Chief Justice's Circular. In totality therefore, the respondent's counsel urged the Court to expunge exhibits PI and P3 as they were wrongly admitted and relied upon. In the absence of exhibit PI and P3, there is no any other evidence to ground conviction by the trial court. Thus, urged the Court to allow the appeal. Starting with the fourth ground, the complaint by the appellant is that the cautioned statement (exhibit PI) was wrongly admitted and relied upon in evidence. In response, the learned State Attorney readily admitted that the cautioned statement was taken out of time prescribed under sections 50 and 51 of the CPA. It is on record that the appellant was arrested on 09/10/2018 as stated in the evidence of PW3.

However, it was not said at what time he was arrested. For clarity, the evidence of PW3 Inspector Amina Fakih Abdailah at page 13, reads that: "Case was then filed and accused arrested. He was broughtatpolice at 14.00 hours and having him at police I interrogated him and record his statement". Again at page 14 of the record, PW3 testified that he can recall that statement contains his hand writing and has his signature and recorded it from 14:28 hours to 15:10 hours. However, PW3 did not say when the appellant was arrested for the Court to ascertain whether the statement was taken within 4 hours from the time the appellant was arrested in compliance with section 50 of the CPA. We entirely agree with appellant and Ms. Anesius that, exhibit PI was improperly admitted and wrongly relied upon by the trial court to ground conviction because it was recorded outside the time prescribed by section 50 (1) of the CPA. That section provides that: "50-(l) For the purpose of this Act, the period available for interviewing a person who is in restraint in respect o f an offence is

(a) subject to paragraph (b), the basic period avaiiabie for interviewing theperson, thatis to say, the period o f four hours commencing at the time when he was taken under restraint in respect of the offence. "[Emphasis added]. In the case of Mohamed Juma @ Mpakama v. Republic (Criminal Appeal No. 385 of 2017) [2019] TZCA 518 (27 February 2019, TanzLII), the Court emphasized that: " The statutory periods available for the police to interview persons suspected to have committed offences are closely regulated by the law under sections 50(1) and 51(1) o f the CPA. Section 50 (1) (a) o f the CPA has prescribed the initialperiod o ffourhours forpolice interview, countedfrom the time when the accused person is placed under restraint in respect of the offence. In case an extension o f the time for interview is desirable, conditions for extension are prescribed under section 51 o f the CPA." See also Ester Jofrey Lyimo vs Republic (Criminal Appeal No. 123 of 2020) [2022] TZCA 197 (14 April 2022 TanzLII), Nzwelele Lugaila vs Republic (Criminal Appeal No. 140 of 2020) [2022] TZCA 423 (14 July 2022, TanzLII) Jafari Juma vs Republic (Criminal Appeal 252 of 2019) [2023] TZCA 216 (3 May 2023, TanzLII).

The effect of non-compliance with section 50 of the CPA is to render such evidence inadmissible and incapable of being relied on in evidence. Thus, we hold that the cautioned statement of the appellant was wrongly admitted and acted upon by trial court and confirmed by the first appellate court. We therefore disregard the same. Consequently, we allow the fourth ground of appeal. The appellant's complaint on ground 5 is the admission of exhibit P3 in evidence. We have revisited the testimony of PW3 who tendered the appellant's extrajudicial statement before the trial court. It is apparent, at page 34-36 of the record of appeal that, during the trial, when PW3 tendered the said statement for admission, the appellant did not object. That notwithstanding, reliability of the same is a matter of scrutiny as the same did not follow CJ's Guide. For clarity, exhibit P3 lacks the following: (i) The appellant was not asked where he slept before arrest (ii) Whether he real wish to make statement on his own. (iii) Not told if his statement will be used in court. On non-compliance with the Q's Guide, there is no gainsaying that the requirements as stipulated in the said Guide, being part of our laws imported by section 62(2) of the Magistrate Court's Act, have to be followed by Justices of the Peace when recording the suspects' 10

statements. The importance of the G 's Guide was restated in Japhet Thadei Msigwa v. Republic, Criminal Appeal No. 367 of 2008 (unreported) where the Court stated: "So, when Justices of the Peace are recording confessions o f persons in the custody o f the police, they must foiiow the Chief Justice’ s Instructions to the letter. The section is couched in mandatory terms." The Court went on to state that, the Justice of the Peace ought to observe, inter alia, the following: d ) The time and date ofhis arrest; 00 The place he was arrested; o n ) The place he slept before the date he was brought to him; ( iv ) Whether any person by threat or promise or violence has persuaded him to give the statement; M Whether he really wishes to make the statement on his own free will; and ( v i) That,\ if he makes a statement, the same may be used as evidence against him ." On the reasons and justification as to why the Justices of the Peace have to abide to the G 's Guide, the Court stated that: "We think the need to observe the ChiefJustice's instructions are twofold. One, if the suspect

decided to give such statement, he should be aware o f the implications involved. Two, it will enable the trial court to know die surrounding circumstances under which the statement was taken and decide whether or not it was given voluntarily. " The above requirements are mandatory once a Justice of Peace is recording extra judicial statement of the accused person. Exhibit P3 just contains the title extra judicial statement, but, its contents do not, by any stretch of imagination, portrays the said statement to be an Extra Judicial Statement. Worse enough, while in the caution statement, exhibit PI, the appellant signed, but in exhibit P3 extra judicial statement, the appellant did fix a thumb print. The difference of signature in the two documents, that is exhibit PI and P3 taken on the same day raises doubts as to their authenticity and admission at the trial court, though received without objection from the appellant. Following the discrepancies in exhibits PI and P3 that first appellate court considered and upheld trial court's conviction and there being no any other evidence, the conviction of the appellant is not safe. We therefore allow the appeal. We quash the conviction and set aside the

sentence, and order that the appellant be set free unless he is held for some other lawful cause. DATED at DODOMA this day of December 2024. S. A. LILA JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 13th day of December, 2024 in the presence of the appellant in person, and Ms. Rose Ishabakaki, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. f A , ' * v W. A. HAMZA p DEPUTY REGISTRAR 1 J COURT OF APPEAL