Kalebo Charles vs Republic (DC. Criminal Appeal No. 10890 of 2024) [2024] TZCA 969 (15 October 2024)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA DC. CRIMINAL APPEAL NO. 000010890 OF 2024 KALEBO CHARLES .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT JUDGMENT Fly Notes

Facts

Ratio Decidendi

A. K. RWIZILE, J Before the district court of Kigoma, the appellant was charged of rape contrary to section 130(1)(2)(e) and 131(1) Penal Code [Cap. 16 R.E 2022]. It was alleged that on 3rd September 2023 at Mwanga in Kigoma district, the victim, a child aged 10 years, was at home with other children learning. The appellant, who was common to them appeared, and asked them to accompany him to go and meet his wife. A victim and her sister complied. The appellant took them to Sebabili guest house where he had rented a room. It was alleged further that the appellant gave them alcohol and tune music on TV. The appellant, it was stated, undressed the victim, himself and then raped her while Pw4 a fellow child was enjoying music on a TV. Before the appellant had finished raping her, someone knocked at the door. The appellant quickly dressed and a discharged them from his room, after opening the door. It was further said, he gave them an amount of TZS 2,000.00 as a token of appreciation that they have lunch. When they arrived at their home, the victim and a fellow told grandmother about what the appellant did. Her father was called and so informed. They were led to the guest house room where the appellant was identified as to have been seen with kids in room No.8, which he had rented days before. He was therefore arrested and taken to the police station. The victim was taken to the hospital for medical examination. Hon. AUGUSTINE RWIZILE Page. 1

Later, the appellant was charged and denied the charges. He was tried, convicted and sentenced to life imprisonment, and the court was clear that he should also suffer five sticks on the buttocks so that it can be a lesson for those who behave like him . Aggrieved, by the decision, he has appealed to this court with the following grounds of appeal: -

1. That, the Hon. trial Magistrate erred in law and facts by convicting and sentencing the appellant as charged while the prosecution side failed to prove the charge beyond reasonable as by law enjoined.
2. That, the Hon. trial Magistrate erred in law and facts by convicting and sentencing the appellant basing on the defective charge sheet which did not disclose ingredients of the charged offence as by law enjoined.
3. That, the Hon. trial Magistrate erred in law and facts by convicting and sentencing the appellant without giving right to be heard.
4. That, the Hon. Trial Magistrate erred in law and facts by admitting prosecution exhibits which was illegally procured.
5. That, the Hon. trial Magistrate erred in law and facts by convicting and sentencing the appellant while the judgment was erroneously reasoned as it did not consider the law. The appellant appeared in person, while the respondent had services of Ms. Edina Makala learned state attorney. The appellant submitted generally that the offence against him was not proved beyond reasonable doubt. He referred to the evidence of the medical doctor and the guest house attendant and concluded, that their evidence did not prove that the appellant had committed the offence. Finally, he asked this court to allow the appeal. Ms. Edna Makala, contested the appeal for the Republic. She argued that the prosecution proved the case beyond reasonable doubt. She added, the offence was statutory rape with elements of the offence to include age of the victim which was proved by a victim-Pw2 and her father, Pw3. It was according to the learned attorney all elements of the offence, including penetration, were proved by Pw2, supported by the doctor’s report. In respect of identification, it was submitted that the victim identified the appellant because he had seen him before the incident, since he had rented a house of the victim’s grandmother. The incidence, she argued, occurred in daytime and it was reported immediately thereafter. It was further argued that the chargesheet was not defective and it was properly drawn. It contained ingredients of the offence and that the appellant was heard in all aspects, his rights were observed by the trial court throughout the proceedings. On evidence, it was the view of the learned attorney that oral evidence and exhibits were admitted as it is the requirement of the law. It was her final prayer, that this appeal be dismissed. Having heard the submissions of the parties. The main point to determine is if this appeal has merit. To start with, I think, the 2nd, 3rd and 4th grounds of appeal have to be determined first. The 1st and 5th grounds will be dealt with last. Hon. AUGUSTINE RWIZILE Page. 2

It is true of the appellant that a defective charge cannot support conviction. Essentially therefore, a defective charge contravenes section 132 of the Criminal Procedure Act [CAP. 20 R.E. 2022] which explicitly state that every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged . It follows therefore that a proper charge informs the accused all elements of the offence sufficient for him to make his defence. This is important because, it is the basic standard for which a fair trial is measured. It was noted by the Court of Appeal, that for the trial to be held fair, (See Rejeli Kalegezi and 2 Others vs R, Criminal Appeal NO. 141, CF 142 CF 143 of 2009), at least the following items must be complied with;

1. To understand the nature of a charge
2. To plead to the charge and to exercise the right of challenge.
3. To understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged.
4. To follow the course of the proceedings.
5. To understand the substantial effect of any evidence that may be given in support of the prosecution; and
6. To make a defence or to answer the charge." Basically, the charge sheet below is what the appellant considers a defective a charge; “STATEMENT OF THE OFFENCE Rape contrary to section 130 (1)(2)(e) and 131 (1) of the penal code [CAP 16 R.E 202] PARTICULARS OF OFFENCE KALEBO S/O CHARLES on the 3rd day of September 2023 at Mwanga area within the District and Region of Kigoma did have carnal knowledge of one ... (identity hidden) a girl ,10 years old.” Upon perusal, of the charge sheet and its particulars, with respect to the appellant’s submission, it is sufficiently, in my view clear, and informative. It has all elements of what it takes to inform the accused the charges levelled against him. The particulars of the offence were framed with clarity to enable the appellant to understand he was arraigned of statutory rape of a girl aged 10years. The second ground of appeal therefore is not merited. Perusing the record of appeal further, it is clear to me, that the appellant was given an opportunity to be heard and he testified in brief that he was not involved in commission of the offence. Hence, his right to be heard was not denied. In the same force, I find no merit in the 3rd ground as well. Although the appellant did not elaborate but he simply said, in the 4th ground that the exhibits were not properly procured. The prosecution tendered three exhibits, P1, a PF-3, P2 guests register from Sebabili, and a crimes scene rough sketch. Although, these two exhibits were marked as P2, it is sad that they are separately admitted and not collectively. I will as matter of fact, refer the same as marked by the trial court. The appellant did not object admission of exhibits P1 and P2. Hon. AUGUSTINE RWIZILE Page. 3

Exhibit P2, a visitors’ register book was a photocopy, the same was admitted as such. The law provides, exhibits should be produced under section 66 of Evidence Act [CAP. 6 R.E. 2022] that is they should be primary evidence. Secondary evidence may be produced provided section 67 of the Act is applied and complied with. Pw6 who tendered exhibit P2 guest register book, only appeared and tendered it. It was admitted without compliance of the law. It should be expunged from the record as I hereby do. Apart from this exhibit, the rest of the exhibits were admitted as the law enjoins. I find no merit in the 4th ground as well. Last, is determination of the 1st and 4th grounds which are to be dealt with together. The appellant, as shown before was arraigned of statutory rape, because the victim was a girl of 10 years. In order to prove statutory rape, it has been held, three things must be clear, the age of the victim, penetration and that it is the accused who did all that. Pw1 a medical doctor and Pw3 a father of the victim proved the victim was 10 years. After all, it was not disputed that she is not under 18 years. Since the best evidence in rape cases, comes from the victim, there is no doubt that Pw2 proved, she was penetrated. Penetration was also proved by Pw1 the Doctor who examine the victim. Key witnesses for the prosecution were Pw2, the victim, Pw4, who were 10 and 5 years respectively and I think Pw6. At law, both Pw2 and Pw4 are tender aged since they are below 14 years. The law provides, they may give evidence without oath or affirmation, provided, a promise to tell the truth and not lies is obtained. How that ought to be done, was stated in the case of Godfrey Wilson v R , Criminal Appeal No. 168 of 2018. In this case, however, the two tender age children testified under oath upon the trial magistrate was satisfied, although, it is absolutely abnormal, a child of 5 years to know the meaning of oath. All in all, I think, the law was complied with before their evidence was recorded. Apart from their evidence, there is also the evidence of Pw6, a guest attendant. Going through the record, Pw6 testified to the effect that she saw the appellant entering room No. 8 with two girls, Pw2 and Pw4. The victim testified that she was taken by the appellant into the room where the offence is alleged to have been committed. What transpired in the room, scene of crime as per the victim’s evidence, is quoted below on page 10 of the proceedings; - “... we were sitting on the bed, he took a bag and take a bottle of alcohol, he opened bottle then he gave us the alcohol( alitunywesha ),then he undressed me, my skirt and pant( chupi ) then he undressed his clothes (a trouser) and (boxer) then he came to sleep on top of me and inserted his penis into my vagina( he took “ kidudu chake na kukiingiza sehemu yangu ya kukojolea ) during the course, I was feeling pains and then I raised an alarm for help then the accused closed my mouth by using his hands..." Pw4, who also was in the same room and same bed seated, had this to say on page 17 of the typed proceeding; “...we went at the guest and enter inside the room, there was no one there, after entering in, the accused took ( kitenge) and started to cover the door (akaanza kuzibaziba mlangoni) he called “X” and underdressed her. I was sitting on his bed, also he undressed his clothes, he "X” to sleep and “X” slept then he took his penis and inserted the same to “X’s” anus, before that he gave us alcohol, its "X" who told me that was an alcohol. He inserted his penis in the anus, "X" was sleeping by using the stomach...” Hon. AUGUSTINE RWIZILE Page. 4

In material terms there is a conflict of the evidence between the two witnesses. It can be taken as material. It would be said, Pw4 is younger enough to understanding the difference between the vagina and the anus. But in the opinion of the trial court, which was able to see her and observe her demeanour, was of the opinion that she possessed sufficient intelligence as to know the meaning of oath. That is why she took her evidence under oath. Her evidence conflicts that of Pw2, since she said, they were all sitting on the same bed. She was therefore able to watch what was happening if it indeed happened. But in yet another contradiction, Pw5 a mother of Pw2 saw her, few hours after the alleged incident. She said, she took her daughter aside and examined her. She found bruises and blood. But Pw1, who did medical examination, said, in the PF-3, exhibit P1, that there were no bruises, no blood and there was no virginity but had its walls swelling. On one side, this court finds conflict in the evidence of Pw2 and Pw4 who were at the crime scene. Still, there is such other contradiction in the evidence of Pw1 and Pw5. It has been consistently held and it is the case that the best evidence of rape comes from the victim. I think, that is not a case in all circumstances, the court before arriving at such a conclusion has the duty to scrutinize the entire evidence on record and therefore be satisfied that it contains nothing but the truth. The trial which saw all witnesses, was clothed with the duty to assess the demeanour of each witness especially Pw2 and Pw4. The trial court ought to comment as to why she believed that Pw2 was telling nothing but the truth and believe her in such instances as Pw4 made a different assertion on the same issue which all witnessed. I doubt if the trial court was right by failure to do. Basing on the above premises, I can conclude that the case against the appellant was not proved. Therefore, I allow the appeal, quash conviction and set aside sentence. The appellant be released from custody forthwith unless held for some other lawful cause. Dated at KIGOMA ZONE this 15th of October 2024. A. K. RWIZILE, J JUDGE OF THE HIGH COURT Hon. AUGUSTINE RWIZILE Page. 5