IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

AT BUKOBA

CRIMINAL APPEAL No. 16/2016

(Arising from Original Criminal Case No. 35/2014 in

the RM's Court of Bukoba)

BETSONHAMIS ---------------------------------- APPELLANT

VERSUS

THE REPUBLIC----------------------------------- RESPONDENT

JUDGMENT

23/11/2017 & 9/3/2018

KAIRO, J.
This Judgment was formerly delivered on 23/11/2017 wherein the court
quashed and set aside the conviction and sentence by the trial court in
Criminal Case No 35/2014 determined at RM's Court of Bukoba. The court
reached at the said decision following the Respondent to concur with the
grounds of appeal. The court there after went through the court record and
joined hands with the parties accordingly. However the court reserved the
reasons for the said Judgment to which the same is being delivered herein.

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In this appeal, the Appellant decided to impugn the decision of the RM's
court following his dissatisfied with the same. According to record, the
Appellant was charged with the offence of defiling an idiot or imbecile c/s
137 of the Penal Code Cap 16 RE 2002 of the laws of Tanzania. It was alleged
that on 2/2/2014 at Magoti Kibeta and within Bukoba Municipality, the
Appellant did have sexual intercourse with one Jeneroza d/o Kazaura who
was an idiot or imbecile. Upon adducement of evidence, the Court found
that the Appellant was guilty thus entered conviction and sentenced him to
serve fourteen years imprisonment in absencia.

He was aggrieved thus preferred this appeal to challenge both conviction

and sentence.

The Appellant first filed three grounds of appeal but later prayed to file
additional grounds, which prayer was granted. He thus filed twenty
additional grounds of appeal. When invited to make submission orally to
amplify the grounds of appeal, the Appellant prayed to submit his written
submission instead. The Respondent didn't object and the court accordingly
granted the prayer.

According to the submission by the Senior State Attorney he contended that

the grounds of appeal has centered on issues of penetration, credibility of
witnesses and hearsay evidence. The State Attorney conceded that Pwl's
evidence was hearsay. He clarified that during the examination in chief Pwl
who was a mother of the victim testified that he got the information from

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one George Kazaura that Generoza was raped when she was gone to
Kagondo. Mr. Matuma rightly argued that the proper person to testify in
the said circumstances was Jackson Kazaura.

The State Attorney went on that P I also explained how Generoza conducts
herself when he said that "Generoza sometimes understands things but
sometimes doesn't".

It means therefore the evidence of Generoza needs to be taken cautiously

as to be certain of whether or not Generoza was in a state of
understanding what was going on during the incidence.

Mr. Matuma went further to fault the evidence given on the prosecution
side asserting that Pw l conceded when giving evidence in chief that the only
person who witnessed was Jackson Kazaura who according to his testimony,
he saw the victim and the accused person coming from the toilet and not
that he witnessed the actual rape. He went on that the comment by the
court at page 9 of the proceedings that Pw l was avoiding to answer the
asked question has affected the witness credibility and denied the court to
thoroughly analyze the offence alleged to have been committed by the
accused.

When coming to Pw2 who was the victim, she denied to know the meaning
of "truth or false" when asked during her testimony. It goes that she doesn't
know what was false or truth in what she testified. Further to that at page
10 of the proceedings, the court also commented that sometimes Pw2

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seems to understand and sometimes she seems to be confused. The court
also asked Pw2 who was Pwl to her (pointing at her mother) and she replied
that it was her grandmother while she was her mother. I agree with the Mr.
Matuma that the trial court was to be extra cautious to take Pw2's evidence.
Besides, the court was to corroborate with other pieces of evidence so as to
reach to a just conclusion. Besides it shows that her ability to comprehend
and to make proper identification was so small. In my view Pw2's evidence
tainted with the pointed out deficient cannot legally be corroborated [Refer
the case of Ally Msitu vrs R [1980] TLR 11 CAT - which held that, "It is now
well settled that evidence which itself requires corroboration cannot act as
corroboration". Thus it is unsafe to rely on the evidence of Pw2 which as
above pointed out was weaknesses.

The record also reveal that Pw2 when giving her testimony said that it was
her first time to have sexual intercourse and added that she felt good (page
10 proceedings). The State Attorney commented that her statement (Pw2)
was contrary to what other victim of rape would say on what they
experienced; for example pains even if it was not their first time to have
sexual intercourse. The court went through the pointed out record and
observed that what Mr. Matuma's commented on that aspect to be true.
This increases court's doubts whether Pw2 comprehend what she was asked
thus creating doubt on her credibility as a key witness in this offence. I am
very much aware that matters of credibility of the witness is the domain of
the trial court which had the advantage of assessing the demeanor and

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evaluate the credibility of the given evidence. However and with much
respect to the trial court, the credibility of Pw2 is questionable having in
mind her testimony and even the trial court's comment. To say the least, her
evidence is unreliable.

Mr. Matuma went on to point out the shortcomings of the evidence

adduced. He contended that when Pw2 was ready to testify, the prosecutor
informed the court that Pw2 doesn't know Swahili but only Haya tribe. (Page
9 of the proceedings) However when sgnt Eliza (Pw4) was cross examined
(the one who took the victim's statement) by the accused during her
testimony she said that they used Swahili language (page 15) Mr. Matuma
argued that with that contradiction the testimony of Pw4 died a natural
death, which argument I concur with. Logic demands that if the victim
doesn't know Swahili thus the evidence of Pw4 is doubtful and thus can't be
considered by the court. The State Attorney also stated that, the only
witness on the prosecution side to prove that Pw2 was raped was Jackson
Kazaura who testified as Pw3.

Pw3 in his testimony testified that that he witnessed the victim and the
accused coming from the toilet but he doesn't know what transpired in the
toilet. In this respect therefore, the person to answer that question was the
victim (Pw2), unfortunately his testimony is questionable as above analyzed.

Further to that, another evidence that would have assisted the court to
prove whether the victim was raped is PF 3. The court when going through

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it, observed the comments of the Doctor who examined the victim "no
sperms seen, no blood stains, no bruises etc" which in my conviction negate
the presence of penetration which is the necessary ingredient in the offence
of rape as rightly argued by the Senior State Attorney.

Mr. Matuma also pointed out the procedural irregularities which also made
him to support this appeal. He contended that Pw5's evidence was given in
the absence of the accused, now the Appellant (Page 18 proceedings) which
action contravenes the principle of natural Justice of a fair hearing. The
courts have repetitively decided that, however good is the evidence but
where one is denied the right to a fair hearing which is also enshrined in our
constitution (Article 13) the same has to be discredited and consequently
annulled. CITE CASE.

Mr. Matuma also argued that PF3 was tendered and admitted in court in
contravention of section 240 (3) of the CPA as the accused was not informed
of his right to request the presence of the Doctor who examined the victim.
The law provides that, such right can only be waived by the accused.
However in the case at hand, the said section 240 (3) of the CPA was not
complied with when PF3 was tendered, thus the same is to be expunged
from the court record. The court when went through the record founds that
the argument by the State Attorney with regards to tendering and admission
of the PF3 to be true. However its presence in the court file is not fatal, as
was analyzed above that it doesn't support the signs of penetration.

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Another discrepancy pointed out by Mr. Matuma is the change of
Magistrates who presided over the case to which I also noted when going
through the court record.

According to the proceedings, there were three Magistrates who presided

over the case. However it has been observed that section 312 (1) of the CPC
was not complied with to justify the change of hands/ presiding Magistrates.
The Court of Appeal has persistently condemned such habits. In the case of
Salim Hussein vrs R Criminal Application No 3/2011 the Court of Appeal
when faced with similar situation observed that the decision of a case
should be given by the presiding Magistrate. And that no judgment is to be
written by the Magistrate who didn't hear the case, unless abides to section
312 (1) CPC, short of it the proceedings are rendered a nullity and order
retrial. Mr. Matuma however argued that in the circumstances of this case
he wouldn't pray for retrial to which I totally agree with him. The reason are
not farfetched; that is in the light of what has been analyzed above
concerning the prosecution witness its goes without saying that nothing new
would ensue to change the position/findings.

All having done and said, the court has found that this appeal has merit as
the prosecution has failed to prove the case to the standard required that is
beyond reasonable doubt [ Refer the cases of Said Hemed vrs [1987] TLR
117 & Mohamed Matula VR [1995] TLR 3

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I therefore quash the conviction and set aside the sentence imposed upon
the Appellant unless held for other legal cause.

It is so ordered.

Appeal allowed.

R/A Explained.

9/3/2018

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Date: 08/03/2018

Coram: Hon. L.G. Kairo, 1

Appellant:
>■

Respondent: J Absent
B/C: Peace M.

Court: The reasons for Judgment which were reserved on 23/11/2017 are
ready. The same are read over in the absence of both parties in open court
today 8/3/2018.