Omary Amanzi vs Republic (Criminal Appeal No. 353 of 2022) [2024] TZCA 1240 (11 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: KEREFU, J.A., MWAMPASHI. J. A. And FELESHI. J.A.^ CRIMINAL APPEAL NO. 353 OF 2022 OMARY AMANZI......................................................................... APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Tiqanqa, J.) dated the 17th day of May, 2021 in Criminal Appeal No. 154 of 2020 JUDGMENT OF THE COURT 02n d & 11th December, 2024 MWAMPASHI. J.A.: Omary Amanzi, the appellant herein, was arraigned before the District Court of Geita at Geita ("the trial court") facing two counts, to wit: rape contrary to sections 130(1) (2) (e) and 131(1) of the Penal Code [Cap. 16 R.E. 2002, now R.E. 2022] ("the Penal Code") and impregnating a school girl, contrary to section 60A (3) of the Education Act, [Cap. 353 R.E. 2002] as amended by section 22 of the Written Laws (Miscellaneous Amendments) Act No. 2 of 2016. He was acquitted of the second count but found guilty of the first count of rape. On that count, it was alleged

by the prosecution that, on diverse dates and time between July, 2019 and 02.02.2020, at Nyankumbu area within the District and Region of Geita, the appellant had carnal knowledge of a 16 years-old girl, who for the sake of protecting her privacy, we will be referring to her as "PW1" or "the victim". The appellant pleaded not guilty to the charge. However, after a full trial, he was found guilty as charged, convicted and sentenced to 30 years' imprisonment. Briefly, the evidence from both sides at the trial was as follows: The victim who testified as PW1 told the trial court that, she was born on 22.04.2004 and completed standard VII in September, 2019 at Nyankumbu Primary School. She was selected to join the Kivukoni Secondary School but she could not do so because, she became pregnant. As on how it happened, PW1 testified that, in July, 2019, the appellant, who was known to her as she used to see him around Nyankumbu fetching water, seduced and asked her for sexual intercourse promising that the two would get married. Expecting that she would get married to him as promised, she agreed. It was further testified by PW1 that, the first time to have sexual intercourse with the appellant was when he took her in a room belonging to his friend. While in the room, the appellant undressed, asked her to lay down and inserted his penis into her vagina. Few days later, the two had sexual intercourse for the second time in the 2

same room. The last time to do so was in August, 2019. Sometimes later, PW1 realized that she was pregnant and when her mother took her to Geita Government Hospital for pregnancy test, it was confirmed that, she was 7 months pregnant. It was also testified by PW1 that, she named the appellant as the responsible person for the pregnancy. The testimony of PWl's mother, Jenipher Selemani Msangi (PW2), was to the effect that, PW1 is her daughter who was born on 22.04.2004 at Buzuruga Dispensary. To that effect, an affidavit sworn by her, was admitted in evidence as Exhibit PI. PW2 went on telling the trial court that, it came to her knowledge that PW1 was pregnant on 19.02.2020 and that, the appellant was named to be the one responsible for the pregnancy. She then, reported the case to Geita Police Station where they were provided with a PF3 which they took to Geita Government Hospital where it was proved that PW1 was 7 months pregnant Rashid Luguisha (PW3), the Assistant Medical Officer from Geita Government Hospital, medically examined PW1 on 02.03.2020. According to him, PWl's hymen was not intact and she was 7 months pregnant. To that effect, a PF3 was admitted in evidence as Exhibit P2. G. 206 D/C Matete (PW4), a police officer from Geita Police Station testified that, he was assigned the duty of recording the appellant's 3

cautioned statement on 01.03.2020. He also told the trial court that, in his statement, the appellant admitted to have raped and impregnated PW1. The said cautioned statement was admitted in evidence as Exhibit P3 without objection from the appellant. The testimony of the last prosecution witness came from the headmistress of Kivukoni Secondary School, Mbusilo Marwa (PW5). She told the trial court that, PW1 was selected to join Kivukoni Secondary School but she did not report for registration. Some days later, she was notified by a letter from the Geita Regional Administrative Secretary (the RAS) that, PW1 had joined another school at Mwanza. The said letter from the RAS and the list of the students selected to join Kivukoni Secondary School, were admitted in evidence as Exhibits P4 and P5 respectively. In his affirmed defence evidence, the appellant disassociated himself from the offence in question. Raising a defence of alibi, he contended that he was not in Geita until on 18.10.2019 when he arrived from Dar es Salaam. Then, on 15.11.2019, he was employed by Itilima Security Group as a security guard on a monthly salary of Tshs. 100,000/=. He claimed that his employer failed to pay him the salary and on 29.02.2020, he was sent to the police station where he was accused of breaking into a shop and stealing certain goods, to which he denied.

He went on testifying that, he was remanded at the police station till on 01.03.2020 when he, for the first time, saw PW1 whom he was accused of raping and impregnating. Thereafter, he was taken in the interrogation room wherein he was tortured and forced to admit to have raped and impregnated PW1. He also claimed that he was forced to append his signature on the cautioned statement (Exhibit P3). Having heard the evidence from both sides, the trial court was satisfied that, the fact that at the time the offence was allegedly committed, PW1 was 16 years old hence under the age of 18, was proved by PW1, PW2 and Exhibit PL The trial court did also find that, PW1 was a credible, reliable and the best witness in terms of the Court's decision in Selemani Makumba v. Republic [2006] T.L.R. 350. It also found established that, PW1 had been penetrated by no one else but the appellant. The appellant's defence of alibi which was raised late without notice was accorded less evidential value. The offence of rape was thus, found proved against the appellant to the hilt and, as we have alluded to earlier, the appellant was duly convicted and sentenced to serve a mandatory sentence of 30 years' imprisonment. On appeal, the trial court conviction and sentence imposed on the appellant were upheld by the High Court, hence, the instant second appeal before us. 5

The two memoranda of appeal which the appellant lodged in support of the appeal, raise the following ten grounds of complaint: One; that the memorandum of the matters agreed was not read over to the appellant at the preliminary hearing; two, that the charge sheet was defective as the particulars of the offence were at variance with the evidence in regard to the last date PW1 allegedly had sexual intercourses with the appellant; three, that PW2's affidavit (Exhibit PI) was not read out; four, that sections 9 (3) and 10 (3) of the Criminal Procedure Act, [Cap 20 R.E. 2022] (the CPA), were not complied with; five, that there was undue delay in arraigning the appellant; six, that the age of PW1 (the Victim) was not proved; seven, that material witnesses were not called to testify; eight, that the two lower courts erred in relying on the cautioned statement (Exhibit P3); nine, that the conviction was not entered and finally, that the case against the appellant was not proved beyond reasonable doubt. At the hearing of appeal, the appellant appeared in person unrepresented. Upon being invited to argue his grounds of appeal, he just adopted them and let Ms. Verediana Peter Mlenza, learned Senior State Attorney, who represented the respondent Republic, to respond to the grounds of appeal first. He, however, reserved his right in rejoinder if need to do so would arise. 6

Before we proceed any further, we find it apposite to restate that, this being a second appeal, the Court should rarely interfere with the concurrent findings of facts by the lower courts unless there is a misapprehension of the substance, nature and quality of evidence occasioning a miscarriage of justice or resulting into an unfair decision. See- Director of Public Prosecution v. Jaffari Mfaume Kawawa [1981] T.L.R. 149, Jacob Mayani v Republic (Criminal Appeal No. 558 of 2016) [2020] TZCA 1744 (24 August 2020; TanzLII) and Wankuru Mwita v Republic, Criminal Appeal No. 219 of 2012 (unreported). Beginning with ground 1 on the appellant's complaint that, the memorandum of the matters agreed was not read over to him at the preliminary hearing, Ms. Mlenza, readily admitted that according to the record of appeal at page 5, though, it is indicated that the appellant appended his signature, there is no indication that the memorandum of undisputed facts was read to the appellant. Nevertheless, placing reliance on the decision of the Court in Jovin Daud v. Republic (Criminal Appeal No. 481 of 2020) [2024] TZCA 97 (23 February 2024;TanzLII), she argued that, since the aim of the Preliminary Hearing is to accelerate trials and as in the instant case, the appellant fully participated in the trial, then the omission did not prejudice him. She thus, contended that the omission is curable under section 388 of the CPA. 7

As conceded by Ms. Mlenza, it is not in dispute that, the memorandum of matters not in dispute was not read over and explained to the appellant as it is required by section 192 (3) of the CPA. However, as rightly argued by Ms. Mlenza, considering the circumstances of this case, where the case was tried to its end and where the appellant fully participated in the trial, the omission did not prejudice the appellant or occasion any injustice. The infraction is thus, curable under section 388 of the CPA. It should be restated that, the aim of the preliminaryhearing is acceleration of criminal trials. The position is also settled thatwhere there is non-compliance with section 192 of the CPA, it is only the preliminary hearing proceedings which is vitiated not the trial proceedings. See- Jovin Daud (supra), The DPP v. Jaba John (Criminal Appeal No. 206 of 2020) [2022] TZCA 406 (11 July 2022;TanzLII) and Hassan Said Twalib v. Republic (Criminal Appeal No. 92 of 2019) [2020] TZCA 1858 (20 November 2020;TanzLII). In the latter case, where the memorandum of undisputed facts was not read over and the appellant did not sign, the Court stated that: "777/5 was contrary to section 192 (3) o f the Criminal Procedure Act [CAP 20 R.E. 2002]. However, the infraction did not vitiate the proceedings considering that, the trial was fully conducted as the prosecution paraded witnesses

who testified at the trial and the appellant had the opportunity to give his defence to counter the prosecution case. Thus, the infraction did not prejudice the appellant in any manner and no injustice was occasioned". Based on the above settled position of the law, we find that the omission to read over and explain to the appellant the memorandum of matters not in dispute, did not prejudice the appellant and the omission is curable under section 388 of the CPA. Ground 1 of appeal is thus, without merit and it is accordingly dismissed. Ground 2 of appeal is on the complaint that the charge was defective because the particulars of the offence were at variance with the evidence of PW1 regarding the dates she allegedly had sexual intercourse with the appellant. On this ground, it was submitted by Ms. Mlenzi that, since according to the particulars of the offence, the date of the commission of the offence was based on span of time between July, 2019 and 02.02.2020, the evidence of PW1 in that regard was not in variance with the particulars of the offence and the charge was thus, not defective. She thus, implored us to find that, ground 2 is devoid of merit. Our observation on this ground of complaint is that, according to the particulars of the offence, PW1 was allegedly raped on diverse dates 9

between July, 2019 and 02.02.2020. In her evidence PW1, is on record testifying that, she was raped by the appellant not once but on several occasions. That, the first time to be raped was in July, 2019 while the last time was in August, 2019. In that regard, it is our considered view that, since no certain date was mentioned when the rape in question was allegedly committed in the particulars of the offence then, the statement that the rape was committed on diverse dates between July, 2019 and 02.02.2019 cannot be said to be in variance with PWl's evidence which was to the effect that, she was lastly raped in August, 2019. It is obvious that August 2019 is within the period between July, 2019 and 02.02.2020 stated in the particulars of the charge. We are thus satisfied that, under the circumstances of this case, as we have explained above, there was no variance between the particulars of the offence and PWl's testimony which can render the charge defective as complained by the appellant. The particulars of the offence as stated in the charge sufficiently enabled the appellant to fully appreciate the nature of the offence facing him. We find that the charge sheet was properly drawn in terms of section 135 of the CPA and as we have alluded to above, the charge sufficiently contained a statement of the offence and necessary particulars giving reasonable information as to the nature of 10

the offence charged as required by section 132 of the CPA. Ground 2 of the appeal lacks merit and it accordingly dismissed. The complaint on ground 3 of the appeal is that, PW2's affidavit (Exhibit PI) was not read out. On this ground, Ms. Mlenza took us to page 9 of the record of appeal where it is on record that the contents of Exhibit PI were read over and explained to the appellant. On our part, we agree with Ms. Mlenza that, according to the record of appeal, at page 9, immediately after being admitted in evidence, Exhibit PI, was read over and its contents were explained to the appellant. The complaint that Exhibit PI was not read out is thus, misconceived and the respective ground 3 is dismissed for being baseless. Regarding ground 4 of appeal which is to the effect that, sections 9 (3) and 10 (3) of the CPA), were not complied with, it was conceded by Ms. Mlenza that, indeed, the relevant provisions of the law were not complied with. However, basing on the decision of the Court in Elibariki Naftal Mchomvu v. Republic (Criminal Appeal No. 332 of 2019) [2022] TZCA 606 (5 October 2022;TanzLII), it was argued by Ms. Mlenza that, the contravention is curable under section 388 of the CPA. She also contended that the appellant did not request for the relevant statement to be furnished with the same and that PW2 who gave the information to li

the police, was called as a witness and was cross-examined by the appellant. She thus, contended that the omission did not prejudice the appellant. It is provided under section 9 (3) of the CPA, that: "Where in pursuance o f any information given under this section proceedings are instituted in a magistrate's court, the magistrate shall, if the person giving the information has been named as a witness, cause a copy o f the information and o f any statement made by him under subsection (3) o f section 10, to be furnished to the accused forthwith In the instant case, as also admitted by Ms. Mlenza, a copy of the complainant's statement made to the police was not served on the appellant. In Elibariki Naftal Mchomvu (supra), we reiterated that, the accused's entitlement to the statement or information under section 9 (3) of the CPA is one of the key tenets of fair trial. However, for the omission to be of any significance in favour of the appellant regarding his complaint, it must be demonstrated that the omission caused him any injustice. As argued by Ms. Mlenza, the appellant fully participated in the trial by cross- examining PW2 and other witnesses which is indicative that despite not being furnished with the copy of the complainant's statement, he was able

to well mount his defence. We are thus satisfied that the omission did not prejudice the appellant and that the same is curable under section 388 of the CPA. Ground 4 of appeal is thus, accordingly dismissed. Ground 5 of the appeal is on the complaint that there was undue delay in arraigning the appellant. The response by Ms. Mlenza on this, was that there was no undue delay to arraign the appellant. She submitted that the appellant was not arrested on 19.02.2020 as claimed by him but on 01.03.2020 and was arraigned on 17.03.2020. She insisted that, there was no undue delay in arraigning him. Section 32 (1) of the CPA, provides that: "Where any person has been taken into custody without a warrant for an offence other than an offence punishable with death, the officer in charge o f the police station to which he is brought may, in any case, and shall if it does not appear practicable to bring him before an appropriate court within twenty-four hours after he was so taken into custody, inquire into the case and, unless the offence appears to that officer to be o f a serious nature, release the person on his executing a bond with or without sureties, for a reasonable amount to appear before a court at a time and place to be named in the bond; but 13

where he is retained in custody, he shall be brought before a court as soon as practicable". It is our observation, in the instant case, that, there is no clear evidence from the prosecution on the date the appellant was arrested. The evidence given by PW4 is that on 01.03.2020 when he recorded the appellant's cautioned statement, the appellant was fetched by him from the police lockup. On his defence, the appellant testified that he was arrested and remanded in custody on 29.02.2020. That being the case, it is our finding that the date the appellant was arrested is 29.02.2020, as testified by him. We also note that, according to the record of appeal, the appellant was arraigned before the trial court on 17.03.2020. In that regard, the crucial issue for our determination is whether, under the circumstances of this case, the delay for the period from 29.02.2020 when he was arrested to 17.03.2020 when he was arraigned before the trial court, is undue delay. In other words, the issue is whether the said delay vitiated the trial and the resultant conviction and sentence. The Court has, in a number of its previous decisions, already pronounced itself on issues regarding delay in arraigning accused persons. As it was recently restated by the Court in Eliapenda Zephania Zakaria @ Kicheche v. Republic (Criminal Appeal No. 675 of 202) [2024] TZCA 728 (14 August 2024;TanzLII), it is settled that, delay in arraigning an 14

accused person does not vitiate the trial and the resultant conviction and sentence. See also- Paulo Machandi v. Republic (Criminal Appeal No. 244 of 2019) [2022] TZCA 430 (15 July 2022; TanzLII) and Isaya Msofe v. Republic (Criminal Appeal No. 31 of 2020) [2022] TZCA 147 (25 March 2022; TanzLII). In Paulo Machandi (supra) where the appellant had complained that he had been detained for about nine (9) months before being arraigned, the Court observed that: "...the law requires a person detained in custody to be brought before the court as soon as practicable. The question as to how soon is soon depends on the circumstances o f each case and in our considered view, it cannot be answered with certainty in the current case where delay in arraigning the appellant was neither raised during preliminary hearing nor at the trial. We agree with Ms. Mathayo that the appellant's complaint in this ground did not vitiate trial proceedings because the trial was conducted accordingly from the moment he was arraigned". Furthermore, in Isaya Msofe (supra) where the offence committed against a student was timely reported to the school administration and to the police but the arraignment of the accused person was delayed, the Court stated that: 15

"We agree with Ms. Mahundi that although it is not dear on what steps were taken or on what transpired after the sodomy had been revealed and reported to the school administration on 11.12.2018, the fact that the appellant was arraigned before the trial court on 08.03.2019, does not raise any reasonable doubt or defeat the strong evidence that was given to support the charge. The credibility o f PW1 and PW2 was not affected by the inaction on the part o f the authorities to whom the crime in question was reported. It could have been different if there was a delay in reporting the crime. Butin this case, the alleged crime was immediately reported to the school administration and the police, so we cannot blame on PW1 for the inaction by the authorities". Again, in Daktari Jumanne v. Republic (Criminal Appeal No. 602 of 2021) [2023] TZCA 18020 (28 December 2023;TanzLII), where there was a delay of 17 days in arraigning the appellant, the Court observed that: "In the case at hand, the records are silent as to what made the appellant be arraigned about 17 days after he was arrested, despite learned State Attorney's submission that, delay was caused by process o f investigations o f the offence. We have 16

seriously examined the record o f appeal, it is our finding that, despite delay to arraign the appellant, did not vitiate the trial. Thus, this ground lack merit". Guided by the above position of the law, we thus, find that the delay for the period from 29.02.2020 when the appellant was arrested to 17.03.2020 when he was arraigned before the trial court is not undue delay and does not vitiate the trial and the resultant conviction. We thus find that ground 5 of the appeal is baseless and we dismiss it accordingly. Ground 6 of appeal on the complaint that the age of PW1 was not proved, should not detain us at all. The basis for the complaint on the respective ground is that, since it is on the record that PW1 was born on 22.04.2004, then at the time the offence was allegedly committed, PW1 was 15 years old and not 16 years as testified by PW1 and PW2. As it was rightly argued by Ms. Mlenza, the complaint is baseless and misconceived. Since the offence was statutory rape, all what was mandatorily required, in as far as the age of PW1 is concerned, was for the prosecution to prove that, PW1 was under 18 years old. According to the evidence on record, the fact that PW1 was under 18 years old, was proved by PW1, PW2 and Exhibit PI. It was proved beyond any doubt that, PW1 was born on 22.04.2004 meaning that at the time the rape in question was allegedly 17

committed, that is, between July, 2019 and 02.02.2020, PW1 was either 15 or 16 years old, the age which is under 18 years of age. It is also our observation that contrary to the complaint by the appellant neither PW1 nor PW2 stated that PW1 was 16 years old when the offence was being committed. What is in evidence is that, at the time of the trial when PW1 and PW2 were testifying, PW1 was 16 years old. Ground 6 of the appeal is thus, also baseless and it is dismissed. Regarding the complaint on ground 7 of the appeal that, adverse inference ought to have been drawn against the prosecution for the failure to call the owner of the room in which it is alleged the appellant raped PW1 and the RAS of Geita Region who issued the letter (Exhibit P4) notifying PW5 that PW1 had been shifted from Kivukoni Secondary School to another school at Mwanza, as witnesses, we are, again, in agreement with Ms. Mlenza that, the said individuals were, under the circumstances of this case, not material witnesses. There was no evidence that the owner of the room witnessed the appellant raping PW1. Either, the fact that, PW1 was shifted from Kivukoni Secondary School to another school, was not relevant piece of evidence in proving the offence of rape in question. Apart from the fact that the appellant has not shown how he was prejudiced by the said prosecution's choice not to call the said two 18

individuals as witnesses, under section 143 of the Evidence Act, Cap 6 of the Revised Laws, there is no specific number of witnesses that must be called to prove a fact. It is entirely in the domain of the prosecution to call those witnesses it thinks will sufficiently prove the particular charge. That being the law, ground 7 of the appeal fails as well. The appellant's complaint in ground 8 of appeal is that the cautioned statement (Exhibit P3) was not voluntarily made and that it was recorded beyond the prescribed period of time. The two lower courts are thus, faulted for relying on the said exhibit. On this complaint, it was argued by Ms. Mlenza, that, based on the evidence on record, it cannot be argued that Exhibit P3 was recorded beyond the prescribed period of 4 hours. She also submitted that, since Exhibit P3 was admitted in evidence without objection then, the complaint that it was not voluntary is an afterthought. While we agree with the submissions made by Ms. Mlenza, as pointed out above, we have, however, observed that, it is on record of appeal that, the appellant's conviction was not based on the said cautioned statement (Exhibit P3). The fact that the appellant's conviction was not grounded on Exhibit P3, was also observed by the High Court in its judgment. That notwithstanding, the evidence on record shows, as we 19

have also alluded to above, that, while the appellant was arrested on 29.02.2020, his cautioned statement (Exhibit P3) was not recorded until on 01.03.2020. The same was thus, recorded beyond the prescribed period of 4 hours in contravention of section 50 (1) of the CPA. Exhibit P3 was thus, liable for being expunged from the record, which we hereby do. For that reason, ground 8 of appeal is allowed to that extent. Ground 9 of the appeal is on the complaint that, the conviction was not entered. Without beating around the bush, this ground is also baseless and misconceived. As rightly submitted by Ms. Mlenza, the record of appeal bears out at page 39 that, the conviction for rape was properly entered. At the said page 39 of the record of appeal, the trial magistrate is on record concluding in the judgment that: ".../for the reasons stated above and cases cited in this case; I found (sic) the accused person not guilty in the second count o f impregnating a school girl and is hereby acquitted whereas for the First count I found (sic) the accused person guilty and is hereby convicted". Ground 9 of appeal is thus, dismissed for being baseless. Finally, it is on the general ground of appeal that, the case against the appellant was not proved to the required standard. On this, it was the submissions of Ms. Mlenza that, the case against the appellant was proved 20

beyond reasonable doubt as required by the law. She pointed out that, all the ingredients of the offence of statutory rape were proved to the hilt. She thus, implored us to dismiss the appeal in its entirety. On his part, the appellant, by way of rejoinder, urged us to consider his grounds of appeal, find that, the case against him was not proved to the hilt and allow the appeal. On our part, we again, agree with Ms. Mlenza that, the offence being a statutory rape, in proving it, three ingredients have to be established beyond reasonable doubt. Firstly, it is the age of the victim. It must be proved that the victim was under 18 years of age. Secondly, it must be proved that, the victim was penetrated, however slight the penetration is, and lastly there must be evidence beyond reasonable doubt establishing that the perpetrator who penetrated the victim is no one else than other the accused person. Having gone through the record and basing on our finding in some of the grounds discussed above, we agree with Ms. Mlenza that, the case against the appellant was proved beyond reasonable doubt as required by the law. The age of PW1, that at the time the offence was being committed against her, she was below 18 years of age, was proved by PW1, PW2 and Exhibit PI. Penetration was proved by PW1 herself, PW3 21

and Exhibit P2. Finally, based on the best evidence given by PW1 which was found by the trial court credible and reliable, it was proved beyond any shadow of doubt that it was the appellant who penetrated or who had sexual intercourse with PW1. That said and done, we find no merit in the appeal and proceed to dismiss it in its entirety. DATED at MWANZA this 10th day of December, 2024. The Judgment delivered this 11th day of December, 2024 in the presence of the Appellant in person, unrepresented and Ms. Verediana Peter Mlenza, learned Senior State Attorney for the Respondent/Republic, R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL is hereby certif 22