Thomas Okoth Ojwang vs Republic (Criminal Appeal No. 620 of 2020) [2024] TZCA 1009 (30 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: MUGASHA. J.A.. KITUSI. J.A. And MASHAKA. 3.A.1 CRIMINAL APPEAL NO. 620 OF 2020 THOMAS OKOTH OJWANG..................................................... APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) (Galeba. J.1 dated the 17th day of July, 2020 in Criminal Appeal No. 17 of 2020 JUDGMENT OF THE COURT 29 th & 30 th October, 2024 MUGASHA. J.A.: In the District Court of Tarime, sitting at Tarime, the appellant was arraigned as hereunder: - " STA TEMENT OF THE OFFENCE: Rape c/s 130 (1) (2) (e) and 131 o f the Penal Code, Cap 16 R.E.2002. PARTICULARS OF OFFENCE: That THOMAS S/O OKOTHI OJWANG'charged that on 21st day o f September 2016 at night time in bush area at Roche village within Rorya District in Mara Region did have sexual intercourse with one VRO (name withheld) a girl o f 11 years old."

The appellant did not plead guilty, whereupon in order to establish its case, the prosecution featured a total of five witnesses and two documentary exhibits. On the fateful day, the victim who was a ten year old pupil at Roche Primary School happened to be at a disco at Ongere together with Kezia Onyango (PW5), Nokwe, and Ilidi. While they were at the entrance of the disco hall, it is alleged that the victim was asked by the appellant and she obliged and went outside with him to be given water. However, when they went at the house, the appellant ravished the victim and gave her TZS. 200/= so that she does not reveal the fateful incident. Upon returning back to the disco hall the victim revealed the incident to (PW5). About two months later, the victim's father Onyango Omachi (PW2), upon being told by PW5 that the victim had contracted gonorrhoea, he interrogated the victim who revealed that it is the appellant who infected her with the contagious diseases. The matter was reported to a hamlet chair Otieno Obeche, PW3 and the appellant was arrested and taken to Roche Ward Office. It is alleged that, upon being interrogated by Philomena Subira (PW3) the Ward Executive Officer, he confessed to have committed the offence and asked forgiveness. The appellant was then taken to Utegi Police Station whereas the victim was taken to Utegi Health Centre and later to Tarime

District Hospital. Upon being medically examined by Samwel Isaya Odiero (PW4), a medical doctor on 21/11/2019, it was established that the victim was raped as she had no hymen and was infected with gonorrhoea and syphilis. Also the appellant was subjected to medical examination and was found to be infected with gonorrhoea and syphilis, like the victim. In that regard, PW4 tendered the PF3s which were admitted collectively as exhibit PI. On his side, the appellant denied the accusations levelled against him by the prosecution. He told the trial Court that he was arrested by two militia men on 21/11/2016 while at the farm planting cassava, taken to the hamlet chairman and later to the police. He was then arraigned in court on allegations that he had raped the daughter of PW2 on 22/9/2016. When cross examined, the appellant told the trial court that the case was fabricated because he had a land dispute with the victim's father, PW2. On the whole of the evidence, the presiding learned trial Magistrate was impressed by the version told by the prosecution witnesses. In the upshot, the appellant was found guilty, convicted and sentenced to a term of thirty (30) years imprisonment. Before the first appellate court, the verdict of the trial court was not varied. Therefore, the learned Judge of the High Court besides expunging the evidence of

the victim because she did not promise to tell the truth before adducing evidence dismissed the appeal in its entirety. Still discontented, the appellant presently seeks to impugn the decisions of the lower courts in a memorandum which enlists five (5) points of grievance as follows;

1. That, both the trial and the first appellate court erred in law and fact in convicting and sentencing the appellant to serve 30 years imprisonment withoutproofbeyond reasonable doubt.

2. That, the trial and the first appellate Court erred in law and fact to convict and sentence the appellant by relying on the evidence o f all prosecution witnesses and exhibits which are very contradictory.

3. That, having expunged the evidence o f PW1 (the victim) and exhibit PEI from the record, the entire evidence by PW1 and exhibit PEI creates doubt and there was no evidence remaining on the record which would justify the first appellate Court to uphold the conviction o f the District Court.

4. That, the first appellate Court erred in law and fact for relying on the evidence o f the clinical officer (PW4) and conclusive examination report Exhibit PI, which was relied upon to convict the appellant.

5. That, the first appellate Court erred in law and fact for relying on the evidence of PW2, PW3, PW5 as witnesses but they were told later on by PW1, their evidence carried little or no probative value, since It waspurely hearsay evidence. As discerned from the grounds of appeal, the appellant is faulting the two courts below in grounding his conviction on the basis of the evidence which was not proved at the required standard after the evidence of the victim was expunged from the record. At the hearing of the appeal, the appellant appeared in person unrepresented. Besides, adding three more grounds all faulting the propriety of conviction. Subsequently, he adopted the grounds of appeal and opted to initially hear the submission of the respondent in respect of the appeal. On the other hand, the respondent Republic had the services of Ms. Sabina Choghoghwe learned Senior State Attorney who co appeared with Ms. Agma Haule and Ms. Beatrice Mgumba, both learned State Attorneys. It is Ms. Sabina Choghoghwe who addressed us on the appeal and she initially opposed the appeal. However, upon reflection, she supported the appeal on ground that the charge was not proved to the hilt. In her brief submission she pointed out that, the victim's account

has no evidential value as she did not promise to tell the truth prior to adducing the evidence and as such, section 127 (2) of the Evidence Act [CAP 6 RE. 2019] was contravened. In this regard, she submitted that although the learned High Court Judge was justified to expunge the victim's account from the record, the evidence of the victim was wrongly relied upon to convict the appellant. Thus, she added, in the absence of the victim's account the remaining prosecution is hearsay and it has no evidential value to sustain the conviction of the appellant. Upon being probed on the value of the alleged confession of the appellant before the Ward Executive Officer, she conceded that the alleged confession is questionable because it is not certain if it was freely made because the record shows that, he was taken to the Ward Executive Officer by the militia and villagers. With this submission, Ms. Choghoghwe implored us to allow the appeal and set the appellant at liberty. The appellant made a brief rejoinder reiterating that the charge was not proved against him and thus urged the Court to set him at liberty. Having considered the grounds of appeal, the record before us and the submissions made by the parties, the major issue for determination in this appeal is whether the charge was proved against the appellant

beyond reasonable doubt. Our answer is in the negative and we shall demonstrate. At the trial the crucial prosecution witness was the victim because there is no other person who witnessed the rape incident besides being so told by the victim. However, instead of letting PW1 promise to speak the truth the trial magistrate conducted voire dire test which is currently not a legal requirement. Given that the victim was a child of tender age, she was obligated to promise to tell the truth and not lies before giving the unsworn account as per the mandatory dictates of section 127 (2) of the Evidence Act which stipulates: "127(2) A child o f tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell any lies." However, no promise was made by the victim and yet the trial magistrate relied on such account to ground the conviction of the appellant. Before the first appellate court, the learned High Court Judge expunged the evidence of PW1 on account of the pointed out omission which was properly so. Yet, he continued to rely on the victim's account to sustain the conviction of the appellant as reflected at pages 57 and 58 of the record of appeal as hereunder:

"KEIZA ONYANGO PW5 suddenly did not find ABC who had been with her at the disco. Soon ABC appears crying condemning the appellant for having raped her a while previous. For reasons not disclosed but which however cannot defeat justice, after two months, KEIZA ONYANGO PW5 tells ONYANGO OMACHI, PW2, her father that her young sister, ABC is ill as she has gonorrhoea ONYANGO OMACHI PW2 asks ABC what happened to her, ABC tells her father that It is the appellant who raped her. ONYANGO OMACHI PW2 caused arrest o f the appellant. The latter admits raping ABC in the presence not only o f ONYANGO OMACHI PW2 but also PHILOMENA SUBIRA PW3 and pleads for lenience in case he was to be punished. PHILOMENA SUBIRA PW3 calls the police who confine the appellant pending trial. SAMEL ISA YA ODIERO PW4, a medical doctor examines ABC medically and finds that the girl has no hymen with her and that she had contacted gonorrhoea and syphilis. He infers rape o f the child. He examines also the appellant, and like the victim, the man was found to be suffering from gonorrhoea and syphilis. This story Unking importantpoints o f the offence, including the fact that the appellant admitted raping the girl, points to no other person who

might have raped the girt, but the appellant. In the circumstances,, the 5t h ground o f appeal is refused." Having expunged the victim's account, legally, the victim's account ceased to exist and as such, it was improper to rely on such evidence to ground the conviction of the appellant. Thus, in the absence of the victim's account the remaining account of the victim's father, PW2 and PW5 is indeed hearsay with no evidential value because it is PW1 who told them about the rape incident In the premises, the question as to who raped the victim remains unanswered. Regarding the alleged confession of the appellant which is in the evidence of PW3, it raises a lot of questions than answers on the alleged confession. The evidence adduced by PW3 is at page 17 of the record as hereunder: "PW3 - Philomena Subira, 52 years, Ward Executive Officer, Christian, sworn and states XDbyPP lam working as Ward Executive Officer stationed at Kyangasaga, before been transferred was stationed at Rochi Ward. I have an experience o f 19 years into the office, I know the accused person, he is called Thomas

Okothi Ojwang a resident o f Rochi Village, I know PW1 and PW2, I remember on 21/11/2016 the accused person was brought at my office under arrest by the villagers. The accused person was alleged to rape the victim; the victim also was brought by her father (PW2) on the very day, having been told that I interrogated the victim whether she was raped by the accused person she claimed to be raped by the accused person during the burial ceremony o f the deceased Ngele Agunya. I also interrogated the victim whether she did raped by the accused person accused person admitted to rape the victim on 21/9/2016 in addition the accused person requested for leniency by reducing the same into writing thereafter I communicated the same at Panyakoo Police Station. The police officer respondent the call, they came at my office and took both, the victim and the accused person, I remained at my notice, I went at Panyakoo Police Station on the following day." A confession is a narration whereby a person admits to have committed a crime. It is settled that, an oral confession made by the suspect, before or in the presence of reliable witness, be it a civilian or not, may be sufficient by itself to ground conviction against the suspect. However, such an oral confession would be valid as long as the suspect

was a free agent when he said the words imputed on him. (See: POSOLO WILSON @ MWALYEGO VS. REPUBLIC, Criminal Appeal No. 613 of 2015 (unreported). In the present case, it cannot be ascertained if the oral confession was freely made by the appellant. We say so because while PW2 stated that the appellant was arrested by local militia who were so directed by the hamlet chair, PW3 told the trial court that the appellant was taken to his office by villagers. With such state of evidence, it is unknown if those villagers or militia left the Ward Office when the appellant made the oral confession or if PW3 was only with the appellant. In the premises, it cannot be safely vouched if the appellant freely made the alleged confession. Regarding the evidence of PW4, the medical doctor, he examined the appellant and PW1 on 21s t November, 2016 which was almost three months after the alleged rape. He found PW1 with no hymen, she had some bruises and was infected with sexually transmitted diseases such as, gonorrhea and syphilis and the appellant was found with same diseases. Although in sexual offences medical evidence can prove the crucial element of penetration, it is not conclusive proof as to who raped the victim. Thus, having considered the facts in totality and the law, the fact that the appellant was suffering from gonorrhea and syphilis like

PW1 is not a conclusive proof that it is the appellant who raped the victim. In view of what we have endeavoured to discuss, theappeal is merited and it is allowed. Consequently, we order the immediaterelease of the appellant unless held for other lawful cause. DATED at MUSOMA this 30th day of October, 2024. gment delivered this 30th day of October, 2024 in the presence of Appellant in person un-represented and Mr. Felix Yona Mshama, learned State Attorney for the respondent / Republic, is hereby certified as a true copy of the original. S. E. A. MUGASHA JUSTICE OF APPEAL I. P . KITUSI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL