Sanke Donald @Shapanga vs Republic (Criminal Appeal No. 408 of 2013) [2014] TZCA 2193 (12 May 2014)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: RUTAKANGWA. J.A.. BWANA. 3.A.. And MANDIA. J.A.^ CRIMINAL APPEAL NO. 408 OF 2013 SANKE DONALD @ SHAPANGA..................................................APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Chocha. J.^ dated the 5th day of July, 2013 in Criminal Appeal No. 34 of 2010 JUDGMENT OF THE COURT 6th & 12th May, 2014 RUTAKANGWA. 3.A: Before the District Court of Mbeya District, the appellant stood charged with two offences, namely Rape and Causing a child not to attend school regularly. He had denied the charges but the trial District Court convjcted him on both counts. He was sentenced to thirty years imprisonment and six months imprisonment respectively. His appeal to the High Court at Mbeya was partly successful. The conviction and sentence relating to the second count were quashed and set aside while the i

conviction for rape was sustained. Aggrieved, he has lodged this second appeal. Before us, the appellant has presented a memorandum of appeal containing eight (8) grounds of appeal. All the same, we have found the first and second grounds to be the most crucial in the determination of this appeal. In the first ground, the appellant is reproaching the learned first appellate judge for failing to hold that the prosecution had abysmally failed to prove that charge against him. In the second ground, the appellant is faulting the learned judge for sustaining his conviction which was predicated on fundamentally contradictory prosecution evidence. The respondent Republic which was represented by Mr. Basilius Namkambe, learned State Attorney, had at first resisted the appeal but after revisiting the evidence, found merit in the two grounds of appeal and urged us to allow the appeal. In disposing of this appeal, we have found it apposite to begin canvassing the first ground of appeal. In this complaint, the appellant is contending that the learned first appellate judge "erred when he

dismissed" his "appeal relying on the evidence of PW1 which contradicted the charge sheet." We have found ourselves unable to resolve this criticism without looking at the charge sheet. The particulars of the charge against the appellant reads as follows:- "That SANKE S/O DONALD @ SHAPANGA is charged on the 30rd (sic) day o f December, 2008 at about 20.00 hrs. at Ikuti - Iyunga area within the city, District and Region of Mbeya, did have carnal knowledge to (sic) one ADELA D/O NSAJIGWA a girl aged 15 years old ." So, the charge thrown at the door of the appellant which he had to answer, was that of raping PW1 Adela s/o Nsajigwa, a girl aged 15 years, on 30th December, 2008. He unequivocally denied the charge, as already alluded to above. Having denied the charge, the prosecution marshalled evidence to prove its case, which had to be proved beyond a reasonable doubt. This evidence came from PW1 Adela, PW2 Shabani Solomon, PW3 WP No.

1085 Ssgt. Catherine and PW4 Hilda Sekele. While PW2 Shabani was the elder brother of PW1 Adela, PW4 Hilda was their grandmother. Indeed, PW1 Adela was staying with PW4 Hilda at the time. There is no gainsaying here that apart from the claims of PW1 Adela that she was raped by the appellant, none of the other three prosecution witnesses testified to have witnessed the appellant rape PW1 Adela on 30th December, 2008 or on any other date. To us, this is not unusual. But what trigged the arrest and subsequent prosecution of the appellant? The answer is provided by the undoubted evidence of PW4 Hilda and PW2 Shaban. PW4 Hilda told the trial court that Adela, who is an orphan, was born in February, 1993, and in 2008 she was in standard VI at Lupeta Primary School. Without mincing words, she went on to testify that on 30th December, 2008, for the first time she suspected PW1 Adela to be pregnant. As any caring grandmother - cum - guardian, she resolved to interrogate her. Much to her surprise, apparently, PW1 Adela vehemently denied to be in the family way. When PW1 Adela refused to divulge the

truth, PW4 Hilda sent for Adela's brothers, who too interrogated her. Adela was adamant. She was not pregnant, she insisted. Adela's brothers, who included PW2 Shabani, had no option but to resort to threats. It was these threats which forced PW1 Adela to concede that she was pregnant. She then mentioned the appellant to be the person responsible for the pregnancy. Concluding her evidence in chief, PW4 Hilda tellingly said:- 7 heard her saying that she was forced to be carnal (sic) known by him. I did not know Sanke this accused, it was from that date I heard of this . " (Emphasis is ours). The evidence of PW2 Shaban was to that effect too, while PW3 Ssgt. Catherine testified to having issued PW1 Adela with a PF3 on 5th January, 2009. The PF3 which was tendered in evidence as exh PI, shows that by that date PW1 Adela was in her third month of pregnancy. From the evidence of PW2 Shaban, PW3 Ssgt. Catherine and PW4 Hilda, it is crystal clear that nobody, leave alone the appellant, had carnal knowledge of PW1 Adela on 30th December, 2008 contrary to the

allegations contained in the charge. The evidence of PW1 Adela did not advance the prosecution case anywhere. Contrary to the charge sheet, PW1 Adela told the trial court that she was carnally known, against her consent, by the appellant on 8th October, 2008 at his home while she was on her way home from school. Again, contrary to the clear evidence of PW4 Hilda, PW1 Adela told the trial court that after being so forcibly carnally known by the appellant, she went straight home and narrated to PW4 Hilda what had befell her. Furthermore, contrary to the evidence of PW2 Shaban, PW3 Ssgt Catherine, PW4 Hilda and the PF3 (exh.Pl), she claimed that upon reporting to PW4 Hilda they immediately went to hospital. Worse still, the evidence of PW1 Adela does not show that she was carnally known by the appellant or any other person on 30th December, 2008. In the light of this evidence, we have been constrained to agree with the appellant that the prosecution totally failed to prove even on a balance of probabilities that the appellant raped PW1 Adela on 30th December, 2008. In a number of decisions, this Court has consistently held that on charge of rape, it is incumbent upon the prosecution to lead evidence to

prove that the accused committed the offence of rape on the date mentioned in the charge sheet: see, Anania Turian v. Rv Criminal Appeal No. 195 of 2009 (unreported). In the case of Anania Turian v. R., (supra), the simple facts were that the appellant had been charged in the District of Mbeya District, with raping one Zela d/o Lackson, aged 8 years, on 24th August 2001. At the trial of the appellant, four witnesses, including Zela, had testified for the prosecution. Contrary to the charge against the appellant, the prosecution witnesses gave evidence going to show that the appellant had raped Zela on 22n d August 2001. The appellant was, nevertheless, convicted as charged, a conviction which was sustained by the High Court on appeal. In a second appeal to this Court, the respondent Republic through Mr. Prosper Rwegerera, learned State Attorney, supported the appeal on the basis that "no scintilla o f evidence was given by the prosecution to show that the appellant had carnal knowledge o f PW2 Zela on 24h August 2001 . " It will be highly instructive to return to what the Court held in Anania Turian v. R. Agreeing with Mr. Rwegerera, the Court held thus:

"This Court has faced identical situations before. The more recent were in the cases RYOBA MARIBA @ MUNGARE V R., Criminal Appeal No 74 o f 2003 and CHIRISTOPHER RAFAEL MAINGU V . R., Criminal Appeal No. 222 o f 2004" (both unreported). In the case of RYOBA, the appellant was charged with raping one Sarah Marwa on 20th October 2000. Sarah testified generally that she "was raped in October and November, 2000 without more." The Court in allowing the appellant's appeal against conviction, held that it was incumbent upon the Republic to lead evidence showing exactly that Sarah was raped on 20th October, 2000 as alleged in the charge the appellant was facing and was expected and required to answer. The same situation arose in CHRISTOPHER MAINGU's case, whose conviction for rape was similarly quashed. The rationale for this is not far to find.

When a specific date of the commission of the offence is mentioned in the charge sheet, the defence case is prepared and built on the basis of that specified date. This defence invariably includes the defence of alibi. If there is a variation in the dates, then the charge must be amended forthwith and the accused explained his right to require the witnesses who have already testified recalled. If this is not done the preferred charge will remain unproved and the accused shall be entitled to an acquittal as a matter of right. Short of that a failure of justice will occur." We subscribe wholly to the above reasoning. And on the basis oi that impeccable reasoning we have found ourselves constrained to allow the first ground of appeal and hold that the two courts below erred in law and fact in finding the appellant guilty as charged. Although the above holding totally disposes of the appeal, we find it our duty to comment on the second ground of appeal which we find to be

compellingly meritorious. From our earlier analysis of the prosecution evidence, there is no doubt that PW1 Adela was not a truthful witness. Her evidence was fundamentally contradicted by that of the other three prosecution witnesses. It is our finding that PW1 Adela lied first, to PW2 Shabani and Pw4 Hilda when she told them that she had been raped by the appellant without telling them the date she was so raped and later to the trial court. Had the two courts below objectively adverted their minds to the patent fundamental contradictions in the evidence of PW1 Adela on the one hand and that of PW2, Pw3 and PW4, on the other, they would not have readily held that the appellant had carnal knowledge of PW1 Adela at all. The appellant, in our considered opinion, was a victim of circumstances and is entitled to an acquittal. All said, we allow this appeal. The conviction of the appellant is accordingly quashed and set aside as well as the sentence imposed on him.

The appellant must be released forthwith from custody unless he is otherwise lawfully held. DATED at MBEYA this 9th day of May, 2014. E.M.K. RUTAKANGWA JUSTICE OF APPEAL SJ. BWANA JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the original.