Mashala s/o Njile vs Republic (Criminal Appeal No. 179 of 2014) [2014] TZCA 2166 (26 June 2014)

IN THE COURT OF APPEAL OF TANZANIA ----- --~TTABORA {CORAM: MBAROUK, J.A., MASSATI, J.A., And MUSSA, J.A.) CRIMINAL APPEAL NO. 179 OF 2014 MASHALA s/o NJILE ........................................................ APPELLANT VERSUS THE REPUBLIC., ............................................................. RESPONDENT {Appeal from the decision of the High Court of Tanzania at Tabora) {Kaduri, J.) dated the 15 th day of September, 2010 in 25 th & 26 th June, 2014 MBAROUK, J.A.: Criminal Appeal No. 26 of 2009 JUDGMENT OF THE COURT Mashala s/o Njile, the appellant, was convicted by the District Court of Shinyanga for the offence of rape contrary to sections 130(2) (e) and 131(1) of the Penal Code Cap. 16 as amended by sections 5 and 6 of the Sexual Offences Special Provisions Act No. 4 of 1996. A sentence of thirty (30) years imprisonment was imposed on him. His appeal to the High Court of Tanzania at Tabora (Kaduri, J.) was dismissed. Undaunted, he has now preferred this second appeal. 1

The background of prosecution's case giving rise to this appeal is as follows; that on 8-8-2002 PWl Sharifa d/o Tibenda who was a standard VI pupil at Masagala Primary School used to assist her mother in the business of selling chicken meat in bars. , While doing the business at Tulivu bar at Maganzo, the appellant bought chicken meat from PWl. In the company of a woman, the appellant entered into Room No. 5 in the guest house within the bar. Thereafter, they got out of the room and the appellant asked PWl to serve him with some more chicken meat in Room No. 5. The appellant paid for the meat and the woman went out living PWl who undressed her, tearing her underpants in the process. The appellant, fell PWl on the floor, unzipped his trouser and inserted his penis into her vagina. PWl shouted for help and a bar maid heard the shouts and demanded the appellant open the door but he didn't. The barmaid locked the door from outside and went to call the Village Executive Office (V.E.O) who happened to be in the bar. The VEO together with other people kicked the door open and entered · into the room and found both the appellant and PWl naked. The appellant was ordered to dress and then taken to the police station. 2

In his defence, the appellant opted to remain silent and left the matter to the court to decide. As pointed out earlier, his appeal before the High Court was dismissed. The appellant preferred a two grounds memorandum of appeal, namely:- (1) That, the victim was examined a month after the alleged incidents of rape, that proves that the case is a mere fabrication. (2) That, the charge was not proved beyond reasonable doubt against the appellant In this appeal, the appellant appeared in person unrepresented, whereas the respondent/Republic was represented by Mr. Rwegira Deusdedit, learned State Attorney. At the hearing, the appellant opted to adopt his grounds of appeal found in his memorandum of appeal and allowed the learned State Attorney to give his reply first. On his part, the learned State Attorney from the outset indicated to support the appeal. He submitted that, the trial court 3

convicted the appellant of statutory rape and that decision was upheld by the first appellate court. However, he said the prosecution failed to prove the age of the victim. The learned State Attorney argued that, it is always necessary that when the accused person is charged with statutory rape, the prosecution should give a clear proof that the victim is within the age set out in the law in question. The learned State Attorney further contended that, there is a variance between the charge and the evidence of PW1 who was the victim. He said that in the particulars of the offence it was indicated that the age of the victim (PW1) was 24 years old. Whereas in the evidence when she testified, she said, her age was 14 years. He said, the variance of age in the charge sheet and that which appeared in the evidence creates doubt as to the correct age of the victim. The learned State Attorney added that, even PW2, Nazala d/o Ntembei, the mother of the victim - (PW1) remained completely silent on the question of the age of her daughter. Lastly, the learned State Attorney urged us to find that the issue 4

of not proving the age of the victim alone can dispose of this appeal even if were other irregularities. For that reason, the learned State Attorney prayed for the appeal to be allowed. In his re-joinder submission, the appellant agreed to the reply given by the learned State Attorney and had nothing to add. On our part, we fully agree with the learned State Attorney that in a case-where the accused-is-charged with statutory-rape~- --- ----- - as it appear in this case, it is important for the prosecution to prove the age of the victim. In support of that contention, this Court in the case of Charles s/ o Maka pl v The Republic, Criminal Appeal No. 85 of 2012 (unreported) held as follows:- "Taking into account that this is a statutory rape, it is important for the prosecution to give a clear evidence of age of the victim. Failure of that, will create doubt as to the real age of the victim in this alleged statutory rape. " In the instant case, there is uncertainty on the actual age of the victim. Firstly, there is variance between the age of the 5

victim stated in the particulars of the offence and that stated by the victim herself when she testified in court. In the particulars of the offence, it shows that the age of victim is 24 years, whereas the victim herself when she testified she said her age was 14 years. This Court in the case of Masasi s/o Mathias v The Republic, Criminal Appeal No. 274 of 2009 and Zengo s/ o Mahema and Three Others v The Republic (both unreported) observed that -variance between what is stated~in--the charge sheet as against the evidential facts from the testimony of the prosecution's witness renders the charge defective. As pointed above there is variance of age of the victim in this case, hence that renders the charge defective. Secondly, PW2, the mother of PW1 could have saved the day, but she was completely silent on the issue of age of her daughter. We are increasingly of the view that, that uncertainty creates doubt on the issue of age of the victim in this case where the appellant was charged with statutory rape. We are of the opinion that, had the two courts below considered that pertinent issue, they would have arrived at a 6

different conclusion. But by not amending the charge sheet and failure of the trial court and the first appellate court to notice the defect, it means that the appellant was tried under a defective charge. The defect was incurable. It cannot therefore be said that the prosecution case was proved beyond reasonable doubt in the circumstances. All said and done, we are minded to allow the appeal, quash the conviction and set aside the sentence. In addition to that, we order the appellant's immediate release from custody unless otherwise lawfully held. DATED at TABORA this 25 th day of June, 2014. M.S. MBAROUK JUSTICE OF APPEAL S.A. MASSATI JUSTICE OF APPEAL K.M. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original. TRAR FAPPEAL 7