IN THE COURT OF APPEAL OF
AT
ARUSHA
(CORAM: MROSO,J.A., KAJI, J.A. And RUTAKANGWA,
J.A.)
CRIMINAL
APPEAL 224 OF 2007
ISIDORI
PATRICE ………………….………. APPELLANT
VERSUS
THE
REPUBLIC …………………………… RESPONDENT
(Appeal
from the Decision of the High Court
of
Tanzania
(Jundu,
J.)
dated
the 24th day of July,2006
in
Criminal Appeal No. 35 of
2001
------------
JUDGMENT
OF THE COURT
17 & 30 October,
2007
RUTAKANGWA, J.A.:
The
District Court of Moshi convicted the appellant as charged of the offence of
attempted rape contrary to section 132 of the Penal Code. It sentenced him to thirty years
imprisonment. He appealed against the
conviction and sentence to the High Court at Moshi. The appeal was dismissed in its
entirety. Still believing to be innocent
he has lodged this appeal.
The
appellant’s memorandum of appeal contains five grounds of appeal. These are to the effect that:- One,
the prosecution did not prove the charge beyond reasonable doubt. Two,
the trial court erred in law in not holding a preliminary hearing contrary to
the mandatory requirements of section 192 of the Criminal Procedure Act, Cap.
20 R.E. 2002 (the Act). Three, the trial court erred in law in
failing to comply with the mandatory provisions of section 240 (3) of the
Act. Four, the two courts below erred in law and fact in holding that
the appellant was positively identified.
Five, the two courts below
erred in fact in failing to hold that failure to summon the investigator in the
case violated the provisions of sections 142 and 143 of the Act.
Before
discussing these grounds of appeal and the respondent Republic’s response
thereto, it will be refreshing to state briefly the facts which prompted the
prosecution of the appellant.
The victim
of the attempted rape was one Selestina d/o Michael (PW1) of Shirimatunda Moshi
District. On 12th December,
1998 at about 7:00 pm she was walking on her way back home from work when the
appellant got hold of her, dragged her into a shamba and undressed her.
She raised an alarm which was promptly responded by one Joseph Kijolo
(PW3) and Daniel Stephen (PW2). It was
PW3 who first arrived at the scene of the attempted rape. However, neither PW2 nor PW3 found the
appellant at the scene. But PW3
testified that as he was heading towards the said scene of the crime he met the
appellant along the way who was “running
fast”. PW1 told the two witnesses
that the appellant had attempted to rape her.
PW2 told the trial court that the crime was committed in the bush and
PW1 was “soaked in mud”. On his part PW3
testified to the effect that the offence was committed in a coffee plantation
and PW1’s body was covered in dust. The
appellant was apprehended and charged accordingly.
In
defending himself the appellant testified that when he returned home from work
on the evening after the alleged incident he was told by his father that
rumours were circulating to the effect that he had raped a girl. He never said anything in response to that
accusation. He went about his work until
after one week when he was arrested and taken to Shirimatunda Police Post and
subsequently charged. He denied
committing the alleged offence.
As already
pointed out above the trial District Court convicted the appellant as
charged. It was satisfied that on the
evidence of PW1, PW2 and PW3 which it took to be wholly true, the charged
offence had been proved. It was also
held by the trial court that the culprit was positively identified by PW1 and
PW3 to be the appellant. The learned
first appellate judge was equally settled in his mind that PW1 did not mistake
the identity of her assailant. He said:-
“There was no mistaken identity as to who had dragged
PW1 in the coffee plantation and attempted to rape her. It was the appellant”.
In this
appeal the appellant advocated for himself.
At first he had nothing to say, opting to hear first the respondent’s
response to his grounds of appeal.
The
Republic was represented by Mr. Mzikila, learned State Attorney, who resisted
the appeal. The learned State Attorney
urged us to dismiss the appeal because the charge against him was
satisfactorily proved by the credible evidence of PW1 which was supported by
that of PW3. He impressed on us that the
offence of attempted rape is committed when a person’s resolve to commit the full
offence is frustrated before he commits it fully. He was candid enough to admit that he had no
decided authority to support his proposition.
Once the appellant had dragged PW1 into the plantation and began to
undress her only to run away when some people arrived, that was sufficient to
constitute the offence of attempted rape under section 132 (2) (a) of the Penal
Code, he maintained.
On
non-compliance with the mandatory provisions of sections 192 and 240 (3) of the
Act, Mr. Mzikila conceded that that was an error. All the same he urged us to hold that the
omissions were curable as they did not occasion any injustice. The appellant was not prejudiced at all by
the failure to hold a preliminary hearing and/or to call the doctor who filled
in the PF3, he argued. He went further
and submitted that the conviction would stand even without the PF3. On section 142 and 143 of the Act Mr. Mzikila
was of the view that the prosecution had the sole discretion in deciding which
witness to call and which one to omit.
If the appellant thought the evidence of the investigator was material
to his case, he ought to have requested the trial court to summon him as his
witness, he argued. He accordingly urged
us to dismiss the appeal.
In response
to Mr. Mzikila’s submission the appellant argued that injustice was caused to
him because he was sentenced to thirty years imprisonment. On the issue of identity, he argued that he
was mistakenly identified as at the alleged time he was on duty at Kibo Match
Factory.
We think
the issue of non-compliance with the provisions of the Act, mandatory as they
are, need not detain us. Having gone
through the record of proceedings and the submissions of both sides in this
appeal, we have decided to accept the reasoning of Mr. Mzikila. The appellant was not prejudiced at all by
the conceded non-compliances. We note
with satisfaction that the trial of the appellant began within ten (10) days of
his formal arraignment. The prosecution
closed its case within one month after the commencement of the trial. The appellant had more than 30 days at his
disposal to marshal his defence.
Clearly, failure to conduct a preliminary hearing did not prejudice the
appellant. We agree with Mr. Mzikila
that to establish an offence of attempted rape in this particular case, did not
need the receipt of the PF3 in evidence.
We also do not see the relevance of section 143 of the Act because no
witness summons was issued to the investigator and he or she failed to
appear. So the issue of issuing an arrest
warrant could not have arisen. Regarding
the complaint based on section 142 we accept Mr. Mzikila’s contention that if
the appellant thought the investigator would have given material evidence in
the case and the prosecution, either deliberately or inadvertently, failed to
produce him/her, he would have sought the assistance of the trial court to have
the investigator summoned either as a court witness or as his witness.
The
remaining ground of appeal is a bit intractable. Mr. Mzikila has urged us to hold that the
charge of attempted rape was proved to the hilt. The appellant is of the opposite view. In approaching this issue we shall remain
alive to the fact that there is now a special specie of the offence of
attempted rape. This was brought about
by the Sexual Offences (Special Provisions) Act, 1998, No. 4, (SOSPA
henceforth). Before the advent of SOSPA,
the offence of attempted rape was found in section 132 of the Penal Code.
Before its
repeal by section 6 of SOSPA, the said section 132, in full, read as follows:-
“Any person who attempts to commit rape is guilty of a
felony and is liable to imprisonment for life, with or without corporal
punishment”.
As this section did not contain a definition of
attempted rape, the courts used to resort to section 380 of the Penal Code
which defines the crime of “attempt”. Section 380 defines “attempt” as follows:-
When a person, intending to commit an offence, begins to
put his intention into execution by means adapted to its fulfillment, 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.
For this reason, a charge for attempted rape, as for any
attempt for other statutory offences, was always framed on the format of the
charge for the full offence of rape by inserting the words “attempted to” before the words charging the full offence,
i.e. “to have carnal knowledge of …..
without her consent”.
With the
coming into force of the SOSPA, the offence of attempted rape has assumed a new
dimension. It has been statutorily
defined and its essential ingredients spelt out, outside which there can be no
offence of attempted rape. The same is
found in section 132 of the Penal Code.
However, unlike the repealed section 132, this one has two
sub-sections. The full section reads as
follows:-
“132 – (1) Any person who
attempts to commit rape commits the offence of attempted rape and except for
the cases specified in sub-section (3) shall be liable upon conviction to
imprisonment for life, and in any case shall be liable to imprisonment for not
less than thirty years with or without corporal punishment.
(2) A person attempts to commit rape if, with 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 of authority or influence in relation
to the girl or woman, applying any act or intimidation over her for sexual
purposes;
(c) making any false representations to her for the
purpose of obtaining her consent;
(d) representing himself as a husband of the girl or
woman, and the girl or woman is put in a position where,, but for the
occurrence of anything independent of that person’s will, she would be
involuntarily carnally known;
(3) ….. not relevant”.
Having carefully considered the evidence on record, we
are of the settled view that an appropriate charge against the appellant ought
to have been laid under paragraph (a) of section 132 (2).
It is a
mandatory statutory requirement that every charge in a subordinate court shall
contain not only a statement of the specific offence with which the accused is
charged but such particulars as may be
necessary for giving reasonable information as to the nature of the offence
charged: See section 132 of the
Act. It is now trite law that the
particulars of the charge shall disclose the essential elements or ingredients
of the offence. This requirement hinges
on the basic rules of criminal law and evidence to the effect that the
prosecution has to prove that the accused committed the actus reus
It is now
incumbent upon us to look at the nature of the charge which the appellant had
to answer in the trial District Court.
As already shown it was a charge of “Attempt
Rape c/s 132 of the Penal Code”. The
particulars of the charge read as follows:-
“That Isidori s/o Patrice Masawe charged on 12th
day of December, 1998 at about 19:00 hours at Shirimatunda Village, within the
District of Moshi, Kilimanjaro Region, did attempt to have carnal knowledge to
(sic) one Selestine d/o Michael the age of 25 years (sic) without her consent”.
This charge
was framed on the model of the charges under the repealed section 132 of the
Penal Code. That apart, it will be immediately
realized that the particulars of the charge lack the basic attributes of a
charge for an offence under section 132 (1) and (2) of the Penal Code which
would have reasonably informed him the nature of the case he was to answer. This is so because these particulars do not
allege the specific intent of the offence that is an intent to procure
prohibited sexual intercourse nor do they allege or disclose any essential fact
of the offence as specified in sub-section (2) (a), (b), (c) and (d). At least the words “with intent to procure prohibited sexual intercourse threatened
Selestina Michael a girl/woman aged 25 years for sexual purposes” ought to
appear in the charge sheet. This
deficiency was not remedied by the evidence of PW1 herself. In the light of this glaring defect in the
charge, can it be held confidently that the appellant was properly tried for
and rightly convicted of attempted rape?
The answer
to the above posed question was conclusively provided by this Court in the case
of Mussa Mwaikunda v R, Criminal Appeal No. 174 of 2006
whose decision was delivered on 31st August, 2006. Apart from the names of the victims and
accused, the dates and places where the offences were allegedly committed, the
facts of that case and this case are identical.
Dealing with an identical issue, the Court said:-
“….. It is interesting to note here that in the above
charge sheet the particulars or statement of 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 of the case facing
him. This can be achieved if a charge
discloses the essential elements of an offence.
Bearing this in mind the charge in the instant case ought to have
disclosed the aspect of threatening which is an essential element under
paragraph (a) above. In the absence of
disclosure it occurs to us that the nature of the case facing the appellant was
not adequately disclosed to him. The
charge was, therefore, defective in our view.”
We subscribe wholly to the above reasoning and holding. In
addition to the reasons we attempted to give, we are of the firm view that the
charge the appellant was facing was patently defective. The next crucial issue now becomes, what
should be the fate of this appeal.
In Mwaikunda’s case (supra), the Court
followed the path taken in the case of Uganda
It is
unfortunate that the issue we have just determined was not brought to the
attention of the first appellate judge.
Had it been done he definitely would have quashed the conviction.
All said,
we allow this appeal for the reason given, quash the conviction and set aside
the sentence. The appellant should be
released forthwith from prison unless he is otherwise lawfully held
DATED at ARUSHA this 26th day
of October, 2007.
J. A. MROSO
JUSTICE
OF APPEAL
S. N. KAJI
JUSTICE
OF APPEAL
E.M.K. RUTAKANGWA
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(F. L. K. WAMBALI)
SENIOR
DEPUTY REGISTRAR
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