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(From Original Criminal Case No. 33/2016 in the District Court Of

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(From Original Criminal Case No. 33/2016 in the District Court Of IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF ARUSHA AT ARUSHA CRIMINAL APPEAL NO. 113 OF 2017 (From Original Criminal Case No. 33/2016 in the District Court o f Ngorongoro at Loliondo by Hon. D.S Nyakunga, DRM dated l? h day o f Ju ly 2017) SAIMA S/O KASIANDO............................................. APPELLANT VERSUS REPUBLIC............................................................ RESPONDENT JUDGMENT ON APPEAL. S.M. MAGHIMBI, J: The appeal before me is against conviction and sentence passed on the appellant in Criminal Case No. 33/2016 at the Loliondo District Court. At the District Court, the appellant was charged with and convicted on three distinct counts and was subsequently sentenced to a total of 36 years imprisonment on all counts. The first count that the appellant was charged with was rape c/s 130(1) &(2)(a) and Sect 131(1) of the Penal Code, Cap. 16 R.E 2002 (The Penal Code), whereby it was alleged that on or between the unknown times of the days of August and October at Malambo Village within Ngorongoro District of Arusha Region, the appellant had sexual i intercourse with the victim/complainant. On this first the appellant was sentenced to serve an imprisonment term of thirty years. The second count was assault causing actual bodily harm c/s 241 of the Penal Code to which it was alleged that on or between the unknown times of the days of August and October, 2016 at Malambo Village within Ngorongoro District of Arusha Region, the appellant willfully and unlawfully assaulted the victim by using stick before raping her. On the second count he was sentenced to serve one year imprisonment. The third count was defilement of a husband of a wife under 15 c/s 138 of the Penal Code, the appellant was alleged to have committed the offence on the 24th day of August, 2016; at day time at Malambo Village within Ngorongoro District of Arusha Region; when he willfully and unlawfully married the victim who was aged 14 years without her consent. On this count he was convicted and sentenced to serve 5 years imprisonment. Aggrieved by the conviction and sentence, the appellant lodged this appeal to which he has raised si* grounds of appeal that: 1............... Before this court, the appellant was represented by Mr. Shillinde Ngalula while the respondent the republic, was represented by Ms. Cecilia Foka, learned State Attorney. Mr. Shillinde begun his submission by addressing the third ground of appeal that the charge sheet was defective by demonstrating the particular of the defectiveness of the charge sheet. His main contention was that the particulars of the offence of rape and of the third count were inadequate. 2 He submitted that for the offence of rape, the particulars of the offence in the charge are insufficient and inadequate rendering the charge sheet incurably defective. That undoubtedly, the prosecution omitted to mention the date and year in which the accused committed the offence charged c/s 135(f) of the Criminal Procedure Act, Cap. 20 R.E 2002 ("The CPA"). He argued further that on the same count of rape, the words "without consent" are missing as the charge sheet simply say that the appellant willfully and unlawfully had sexual intercourse with one .... A girl of 14 years. Mr. Shillinde pointed out that Section 132 of the CPA provide that: "Every charge or information shaii 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." He argued that the purposes of giving out the particulars of the charge is to enable the accused to plea on the account of the particulars given and allow the accused to prepare defence in response of the particular offence and the particulars. That the trial court did enter the conviction on the first count without critically considering the facts on the particulars which are contained in the charge sheet. What was expected of the prosecution based on a particular charge was for their evidence to establish that the victim was raped in the manner provided under the provisions of Section 130(l)(2)(a) and Section 131 of the Penal Code. He submitted further that in the Section 130(l)(2)(a) it was essential for the period and lack of consent be explained to the accused to make it a proper offence. He hence 3 argued that the omission is so fundamental and cannot be cured by the provision of Section 388 of the CPA. It occasioned miscarriage of justice and prejudiced the appellant as the particular of the offence were not clear to the appellant for him to put a defence hence it was quite unsafe for the trial magistrate to convict the appellant in the first count without ascertaining the correctness of the offence charged in which the particulars of the offence of rape were insufficient and defended defectively. Mr. Shillinde submitted further that the offence may have been committed at any time which we do not know when and it may have been consented by the alleged victim. That if the prosecution was quite clear that the appellant had sexual intercourse with a girl of 14 years, the proper provision of law would have been Section 130(l)(2)(e) and Section 131 of the Penal Code in which consent is immaterial. He hence argued that the appellant was charged under the wrong provisions of the law. c - As for the 3rd count, Mr. Shillinde submitted that the particulars don't support the offence charged. That in general, the particulars speak about forced marriage by simply saying "Saima Kaisando charged that on 24/08/2015 at the day time at Marambo Village within Ngorongoro District in Arusha willfully and unlawfully did marry one Natajeo Paulo a girl aged 14 years with or without her consent" while the offence itself is defilement by husband and a wife. He hence argued that the law u/s 138 of the Penal Code is clear and is speaking about a girl marriage and the husband who attempts to have sex before she reaches 15 years of age while the particulars in the charge sheet talks of forced marriage. That the particulars of the offence do not support the offence itself which is an irregularity which cannot be cured by the provisions of Section 388 of the CPA. He hence argued that the failure of the trial magistrate not to realize that the charge sheet upon which the accused was charged in the 1st and 3rd count was defective, nevertheless went ahead convicting and sentencing the appellant to 30 years in the first count and to five years in the 3rd count. That it was an error of law and it occasioned miscarriage of justice, he hence urged this court to quash the conviction and set aside the appellant's sentence in count one and three. On the first ground of appeal, Mr. Shillinde submitted that the trial court proceeded to hear the evidence of a child PW1 alleged to be a child of tender years without her promising the court to tell the truth and not to tell lies which was contrary to mandatory requirement of the provisions of Section 127(2) of the evidence Act, Cap. 6 R.E 2002 as amended by Section 26(a) of the Written Law (Misc. Amend) No. 2(Act) of 2016 *• (Collectively referred to as The Evidence Act). He submitted further that a child of tender age is defined under Section 127(4) as amended by Section 26(e) of the Evidence Act to mean a child whose apparent age is not more than fourteen years. That the complainant in this case was the age of 14 years hence subject to the mandatory provisions of Section 127(2) of the Evidence Act as amended and the trial court was duty bound to ensure that the witness being of tender age was to promise the court to tell the truth and not lies. Mr. Shillinde submitted further that such promises must be vividly exhibited to the satisfaction of the court before the witness is allowed to give evidence by oath or affirmation. That the witness was not subjected to that process instead the witness was called to testify without 5 making that promise and the evidence was given under oath. He argued that under the circumstances, the evidence given under oath has to be reduced to unsworn evidence which needed enough corroboration in order to amount to a conviction. He then moved to make a quick scanning of the evidence to corroborate the evidence pf PW1, which according to him, would be the evidence of PW2, PW3, PW4, PW5 and PW6. He argued that those pieces of evidence are much contradicting and rendered the evidence unreliable to convince the court to enter conviction against the appellant. Demonstrating on the contradictions, Mr. Shillinde submitted that while PW1 told the court that the accused is her husband whom they have stayed under one roof for above a year, the PW2 and PW3 said that the appellant married the PW1 by force and was raped and beaten by the appellant. That at large the evidence was hearsay as nobody testified to have seen the appellant raping and beating the victim. The version of PW6 is far by what was said in court by PW1 and PW2. Mr. Shillinde submitted further that on the hand, the evidence of PW4 a police officer indeed was hearsay and unreliable as he did not see the appellant raping and beating the victim.
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