Chesco Mhyoka vs Republic (Criminal Appeal No. 82 of 2014) [2014] TZCA 2159 (12 June 2014)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA ( CORAM: MSOFFE. 3.A.. KAI3AGE, 3.A. And MMILLA. J.A.^ CRIMINAL APPEAL NO. 82 OF 2014 CHESCO MHYOKA ........... . ......................................................... APPELLANT VERSUS THE REPUBLIC................................................................. . RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Songea) (Teemba. 3 .^ dated the 17th day of April, 2013 in— DC. Criminal Appeal No. 25 of 2012 JUDGMENT OF THE COURT 9t h & 12t h June, 2014 MSOFFE, J.A.: This appeal arises from the decision of the High Court (Teemba, J.) upholding the conviction of the Appellant for attempted rape contrary to section 132(1) of the Penal Code and the sentence of thirty years imprisonment meted by the District Court of Songea (Mwalunyungu, RM). The courts below were satisfied that on 7/4/2011 at about 11.00 hours at Magingo, Songea District, PW2 Esther Nguwila was in a farm where the Appellant ambushed and raped her. As to what exactly happened, PW1 had this to say:-

He successfully holded (sic) me about seventy (70) metres and carried me on her shoulders holding on my nake (sic) throat so that I cannot continue making alarm taking me into the bush. But I managed to come out from his hands and started to run away again. But he then successfully upholded (sic) me with his hands and weared (sic) out my clothes and layed on top o f me. He weared (sic) out my underpants and my pair o f trousers and I remained naked. He decided to make sexual intercourses with me after wearing (sic) out his pair o f kaptura and his underwear. He did not weared (sic) out his Tshirt. He then decided to rape me. I felt much pain when the accused decided to rape me on my secret parts (vagina). (Emphasis supplied). In response to an alarm raised by PW2, PW1 Makaliusi Matanda went to the scene where, according to him:- " . . and after going a few steps there I found Mr. Chesco s/o Mhyoka laying on top o f a young girl and when he saw me coming towards him he started running away. It was almost few steps (fifteen foot steps o f an adult person). When laying on top o f that young girl Chesco was wearing only a Tshirt without wearing a pair o f trouser or underwear. In fact he

was naked. The young girl was laying down facing the accused person and the accused person was laying on top of her facing down her. (Emphasis supplied). It was basically on the basis of the above evidence that the Appellant was convicted and sentenced as aforesaid. The Appellant has preferred an eight point memorandum of appeal. In essence, in the memorandum he has raised a number of complaints i.e. that there were contradictions and inconsistencies in the evidence of PW1 and PW2, that there was need for an identification parade, that there ought to have been evidence by a doctor to establish exactly whether or not there was an attempt to rape PW2, etc. For reasons that will emerge hereunder, we do not propose to address all the above grounds of appeal. We are of the view that our decision on the complaint under ground eight of the memorandum of appeal will dispose of the appeal.

The complaint in the eighth ground of appeal is basically that the prosecution case against the Appellant was not proved beyond reasonable doubt. In other words, the Appellant is of the view that the evidence on record did not establish that there was an attempt by him to rape PW2. Apparently under ground 6 of his petition of appeal to the High Court he had canvassed this same point. In addressing the complaint the judge on first appeal opined and held, inter alia, as follows:- "Looking- at the evidence o f PW1, PW2 and PW3, it has been clearly established that the offence o f attempted rape was committed. To constitute an offence attempted rape there must be an intention o f the accused to have intercourse with a woman notwithstanding resistances on her part. The second element is an attempt to put his intention into effect." With respect, the complaint in the above ground has merit. As correctly submitted by Mr. Renatus Mkude, learned State Attorney for the respondent Republic who argued in support of the appeal, our starting point will be the charge sheet. In our jurisdiction the framing of a formal charge or information is governed by sections 131 - 136 of the Criminal Procedure Act (CAP 20 R.E. 2003) (the Act). Section 132 is clear that the

offence has to be specified in the charge sheet with the necessary particulars. It reads:- 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 o f the offence charged. (Emphasis supplied.) And section 135 provides the mode under which offences are to be charged. Section 135 (a) (i) (ii) and (iii) reads:- 135. The following provisions o f this section shall apply to all charges and informations and, notwithstanding any rule o f law or practice, a charge or an information shall, subject to the provisions o f this Act, not be open to objection in respect o f its form or contents if it is framed in accordance with the provisions o f this section- (a) (i) A count o f a charge or information shall commence with a statement o f the offence charged, called the statement o f the offences; 5

(ii) the statement o f offence shall describe the offence shortly in ordinary language avoiding as far as possible the use o f technical terms and without necessarily stating all the essential elements o f the offence and, if the offence charged is one created by enactment, shall contain a reference to the section o f the enactment creating the offence; (Hi) after the statement o f the offence, particulars o f such offence shall be set out in ordinary language, in which the use o f technical terms shall not be necessary, save that where any rule o f law limits the particulars o f an offence which are required to be given in a charge or an information, nothing in this paragraph shall require any more particulars to be given than those so required. Needless to say, the requirements under sections 132 and 135 (a) (i), (ii) and (iii) above, are couched in mandatory terms. A close look at the charge sheet in this case will show that it has two basic shortcomings:-

One, as intimated above, the charge was preferred under section 132(1) of the Penal Code. Before the enactment of the Sexual offences Special Provisions Act No. 4 of 1998 (SOSPA) the offence of attempted rape was found in section 132 of the Penal code which read as follows: Any person who attempts to commit rape is guilty o f a feiony and is liable to imprisonment for life, with or without corporal punishment. Since the above section did not contain a definition of attempted rape courts used to resort to section 380 (1) of the Penal Code which defines "attempt"as under:- When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such extent as to commit the offence, he is deemed to attempt to commit the offence. However, with the coming into force of the SOSPA the offence of attempted rape has been defined and section 132 now reads: 132. (1) Any person who attempts to commit rape commits the offence o f attempted rape, and except for the cases specified in subsection (3) is liable upon

conviction to imprisonment for not less than thirty years with or without corporal punishment (2) A person attempts to commit rape if, with the intent to procure prohibited sexual intercourse with any girl or woman , he manifests his intention by- (a) threatening the girl or woman for sexual purposes; (b) being a person o f authority or influence in relation to the girl or woman , applying any act of-intimidation over her for sexual purposes; (c) making any false representations ror ner ror the purposes o f obtaining her consent; (d) representing himself as the husband o f the girl or woman, and the girl or woman is put in a position where, but for the occurrence o f anything independent o f that person's will, she would be involuntarily carnally known. (3) N/A. (Emphasis supplied.) It follows therefore that in this case the statement of offence in the charge sheet ought to have cited both sections 132(1) and (2)(a). Two, in similar vein, the particulars of offence ought to have disclosed the basic attributes of the offence where the word threatening is the key element. As it is, the words "did unlawfully attempt to rape"\x\ the charge 8

sheet under scrutiny here were not enough because they did not reasonably inform the appellant the nature of the case he was to answer. The specific intent of the offence ought to have been disclosed. At least, the words "with intent to procure prohibited sexual intercourse threatened Esther Nguwiia" ought to have featured in the particulars of offence. Indeed, this Court's decisions in Isidore Patrice, Criminal Appeal No. 224 of 2007 (unreported) and Mussa Mwaikunda v. R. (2006) TLR 387 underscore this same point. Forinstance, in Mwaikunda this Court stated: . . . It is interesting to note here that in the above charge sheet the particulars o f Statement o f Offence did not allege anything on threatening which is the catchword in the paragraph. The principle has always been that an accused person must know the nature o f the case facing him. This can be achieved if a charge discloses the essential elements o f an offence. Bearing this in mind, the charge in the instant case ought to have disclosed the aspect o f threatening which is an essential element under paragraph (a) above. In the absence o f disclosure it occurs to us that the nature o f the case facing the appellant was not adequately 9

disclosed to him. The charge was, therefore, defective, in our view. (Emphasis supplied). Indeed, the principle of criminal practice that the accused must know clearly what the charge against him is, was well stated by this Court in Mohamed Kaningo v R (1980) TLR 279. Holding (i) thereto reads:- to convict an accused person o f an offence as set out in the statement o f offence but not-disclosed in Jihe particulars o f the offence offends against the basic principle o f criminal practice that the accused must know clearly what the charge against him is. The issue is whether the charge facing the Appellant was curable under section 388(1) of the Act. With respect, as was the case in Mwaikunda, we do not think it was curable. In Mwaikunda, this Court citing with approval the Ugandan case of Uganda v. Hadi Jamal (1964) EA 294, stated . . . With respect, we do not think that it was curable. We say so for two main reasons. One, since threatening was not alleged in the particulars o f offence the effect was that an essential element o f the 10

offence o f attempted rape missed in the case against the appellant. Two, at any rate, as already stated, the complainant did not say anywhere in her evidence that she was threatened by the appellant. I f she had alleged any threat may be there could have been room for saying that the appellant knew the nature o f the case that was facing him. Therefore, as per Jamal and Mwaikunda (supra), a charge which does not disclose any offence in the particulars of offence is not curable. There is yet another point worth addressing in this appeal. As already alluded to, the Appellant was charged with attempted rape. It was expected therefore that the prosecution side would lead evidence relating to this offence. As it turned out however, the evidence led by the prosecution related to rape instead of attempted rape which under our Penal Code are two distinct offences. This is clearly borne out by the evidence of both PW1 and PW2 mentioned above. It is no wonder therefore, that under paragraph 6 (supra) of the Appellant's petition of appeal to the High Court he was of the view that there was a failure of justice in view of the fact that there was no evidence of attempted rape in the prosecution case against him. Apparently the judge on first appeal did

not appear to appreciate the gist of the complaint in this ground of appeal. To this end, we are of the settled view that even assuming that a proper charge of attempted rape had been laid out against the Appellant still no conviction would lie or be grounded for want of evidence to establish the offence in question. Consequently, for the above reasons, we allow the appeal, quash the conviction andsetasidethesentenGe— The__Appellant is to be released from prison unless lawfully held. DATED at IRINGA this l-lth day of June,^2014,_ J. H. MSOFFE JUSTICE OF APPEAL S. S. KADAGE JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL 12