IN THE COURT OF APPEAL OF TANZANIA

AT BUKOBA

(CORAM: RUTAKANGWA. J.A.. KIMARO. J.A.. And JUMA.J.A.

CRIMINAL APPEAL NO. 226 OF 2014

LEONARD MWANASHOKA........................................................ APPELLANT

VERSUS

THE REPUBLIC............................................................................... RESPONDENT

(Appeal from the Conviction and Sentence of the High Court of Tanzania at
Bukoba)
(Khaday, 3.)
dated the 29th day of May, 2014
in
Criminal Appeal No. 7/2013

JUDGMENT OF THE COURT

19th & 24th day o f Feb ru a ry,2015

RUTAKANGWA. J.A.:

The appellant was charged before the District Court of Bukoba with

the offence of "Attempt Rape c/s 132 (ii) (2) (a) (sic) of the Penal Code."

The particulars of the charge were as follows:-

"That Leonard s/o Mwanashoka charged on the

2Cfh day o f July, 2006 a t about 02:00hrs at

Nshambya within the M unicipality o f Bukoba in

Kagera Region, did unlawful attem pt (sic) to

 have carnal knowledge o f one Salome d/o

Alexander without her conset".

He denied the charge and a full trial followed.

The prosecution evidence was to the effect that the prosecutrix, PW1

Salome d/o Alexander, lived alone in her house at Nshambya. On the

material day and time, someone broke into her house and on entering told

her that he wanted to have sexual intercourse with her. She responded

urging the intruder to be patient, but managed to slip out of the house

while "screaming." In the course of her flight she fell into a "dumpster"

while being pursued. Her neighbours arrived and arrested the intruder,

who was allegedly identified to be the appellant, her neighbor. He was

arrested and taken to a 10-cell leader, who nevertheless did not testify.

The appellant was subsequently charged with attempted rape.

In his sworn evidence, the appellant denied committing the alleged

offence. He claimed that he was one the neighbours who rushed to PW1

Salome's home in response to her screams. He met about 10 people who

were claiming a Swahili speaking person had broken into her house. The

appellant is a Mha by tribe who is popularly known as "Muskuma". Then he

was arrested as a suspect, beaten and released. However, as it dawned on

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the arresters that he had been "heavily wounded" they re-arrested him,

took him to Bukoba Central Police station from where he was sent to

hospital.

In its short judgment, the trial court convicted the appellant. It reasoned

thus:-

"PW1, PW2 and PW3 a ll knew the accused ^

%
before the alleged incident as Msukuma and .
S i

also in regards to the issue o f identification the *

accused was arrested a t the m aterial tim e

when he wanted to run and therefore if there

was any doubt as to identification , it was

cleared when he (the accused) was arrested

Following his conviction, he was sentenced to a term of thirty (30)

years imprisonment. Aggrieved by the conviction and sentence, he •*

preferred an appeal to the High Court which dismissed the appeal, hence

this second appeal

The appellant's material complaints before the High Court were that

it was not proper to convict him as the arresting officer did not testify to _

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tell the trial court why he had been arrested in the first place and that no

investigator testified. Further, he complained that the trial Resident

Magistrate did not consider his evidence at all. The respondent Republic,

through Mr.Athuman Matuma, learned State Attorney, had supported the

appeal on the ground that the key prosecution witnesses contradicted each

other.

The learned first appellate judge dismissed the appeal because the

appellant was arrested at the scene of the crime "while on top of the

victim." She further said:-

"In Ground 6f the appellant com plained that his

defence was not considered by the tria l court.

He had no clarification on this. Nevertheless,

looking a t the record o f the tria l Court a t page

11 o f the typed proceedings dated 2/1/2007

we can note evidence o f the appellant a t his

defence. A s said before, the appellant had it

that he was arrested when attending and alarm

raised a t his neighborhood. In his judgm ent,

the tria l m agistrate summarized the defence

 evidence. He discussed and considered the

issue o f identification and found it in the

affirm ative much as it was not in the defence.

He found the prosecution had proved its case

to the standard required bv law. In b rie f i find

nowhere the defence case was disregarded. It

is oniv that the same was not found with m erit"

[Em phasis is ours].

We must quickly and respectfully point out here that that is where

the learned first appellate Judge got it wrong. We accept that the learned

trial Resident Magistrate "summarized the defence evidence" much as

he/she did summarize the prosecution evidence. But that was not the

complaint of the appellant. It is one thing to summarize the evidence for

both sides separately and another thing to subject the entire evidence to

an objective evaluation in order to separate the chaff from the grain.

Furthermore, it is one thing to consider evidence and then disregard it

after a proper scrutiny or evaluation and another thing not to consider the

evidence at all in the evaluation or analysis. The complaint of the appellant

was that in the evaluation of the evidence, his defence case was not

5
considered at all and this is one of his grounds of appeal before us which

was conceded by Mr.Hashim Ngole, learned Senior State Attorney.

We have read carefully the judgment of the trial court and we are

satisfied that the appellant's complaint was and still is well taken. The

appellant's defence was not considered at all by the trial court in the

evaluation of the evidence which we take to be the most crucialstage in

judgment writing. Failure to evaluate or an improper evaluationofthe

evidence inevitably leads to wrong and/or biased conclusions or inferences

resulting in miscarriages of justice. It is unfortunate that the first appellate

judge fell into the same error and did not re-evaluate the entire evidence

as she was duty bound to do. She did not even consider that defence case

too. It is universally established jurisprudence that failure to consider the

defence is fatal and usually vitiates the conviction. See, for instance,

(a) LOCKHART SMITH vs. R. [1965] EA 211,

(b) OKTH OKALE v UGANDA [1965] EA 555,

(c) ELIAS STEVEN v. R. [1982] TLR 313,

(d) HUSSEIN IDD & ANOTHER v.R. [1986] TLR 283,

(e) LUHEMEJA BUSWELU v R., Criminal Appeal No.

164 of 212 (unreported),

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 (f) VENANCE NKUBA & ANOTHER v.R., Criminal

Appeal No. 425 of 2013 (unreported), etc.

In VENANCE NKUBA (supra), this Court categorically stated that:-

"777/5, infraction alone would have sufficed to

quash the conviction but■ as we sh all shortly

demonstrate, the case for the prosecution was

sim ilarly undermined by some other disquieting

factors."

As already alluded to above, Mr. Matuma had sought for the reversal

of the appellant's conviction on the ground that the prosecution witnesses

had contradicted themselves. The appellant has raised the same complaint

before us. Dismissing the contention of Mr. Matuma the learned first

appellate judge said:

"Lastly, I do not agree with Mr. Matuma that

there are contradictions found in the evidence

o f PW1 and PW2 on how PW1 and the

appellant were found. The two had evidence

 that the appellant was found on top o f the

Victim. No contradiction was there".

With due respect to the learned first appellate judge, we were unable

to glean from the record evidence going to support the above conclusion.

Indeed, while it is true that PW2 Badru Hamadi claimed so, the victim

herself never claimed so. In fact while responding to a question on re­

examination, she stated clearly that the appellant "never approached her."

If the assailant never approached her then it cannot be seriously argued

that he was "on top of her." Furthermore, while PW1 Salome testified that

he was "wearing a short" only, PW3 Anajoyce Renatus, who contradicted

PW2 Badru on who as between the two was the first to arrive at the

scene, claimed that the appellant was "wearing a short with stripes and a

bed sheet". If the appellant was "found on top" of PW1 Salome as claimed

by PW2 Badru and PW3 Anajoyce, then the former would not have failed to

see the "bed sheet" as she was supposed to be closet to her assailant.

Another disquieting factor is the inconsistency found in the evidence of the

prosecution witnesses. While PW3 Anajoyce alleged that the appellant tried

to escape but was arrested, PW2 Badru's evidence is to the contrary. To

him, when he arrived at the scene and found the appellant 'bn top of" PW1
Salome who was screaming saying "Nisaidie Msukuma ananiua" (words not

testified to by either PW1 or PW3), he arrested him immediately and tied

him with a rope. We believe that had the two courts below considered

these patent contradictions and embellishments, side by side with the

appellant's defence, his evidence most likely would have been believed.

After all, an accused person has no duty to prove his innocence.

The above findings notwithstanding Mr. Ngole supported this appeal

from another perspective. He predicted his stance on the naked fact that

the particulars of the offence did not disclose the essential ingredients of

that the offence of attempted rape as introduced by the Sexual Offences

Special Provisions Act (No 4 of 1998) (SOSPA). He found the charge, which

was drafted identically with the ones in MUSA MWAKUNDA v.R.,

Criminal Appeal No. 176 of 2006 and ISIDORI PATRICE v. R, Criminal

Appeal No. 224 of 2007 (both unreported), to be incurably defective. He

further contended that this patent irregularity was not cured by the

proffered prosecution evidence. We are entirely in agreement with him.

Admittedly, the particulars of the charge did not disclose at all the

essential ingredients of the offence of attempted rape, which is now a

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special specie of attempt offences brought about by the SOSPA. As we

held in both M. MAIKUNDA and I. PATRICE (supra), it is settled law

"that where the definition of the offence charged specifies factual

circumstances without which the offence cannot be committed, they must

be included in the particulars of the offence" The Court in I.PATRICE

specifically held:-

"J/7 a charge under section 132 (1) and (2),

therefore, the factual circum stances which o f

necessity m ust be stated in the charge are

those specified in paragraphs (a), (b), (c), and

(d) o f sub- section (2) in addition to the

m entioned specific "intent to procure prohibited

sexual intercourse."

In the present case this was not the case and as correctly pointed out by

Mr. Ngole this deficiency was not remedied by the evidence of PW1

Salome.

In conclusion, notwithstanding the incurably defective charge, we are

satisfied that the prosecution evidence was highly suspect and unreliable to

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ground a conviction for attempted rape. We accordingly allow the appeal,

quash the appellant's conviction and set aside the prison sentence. We

order his immediate release from prison, unless he is otherwise lawfully

held.

DATED at BUKOBA this 24th day of February, 2015

E.M.K. RUTAKANGWA
JUSTICE OF APPEAL

N.P.KIMARO
JUSTICE OF APPEAL

I.H. JUMA
JUSTICE OF APPEAL

tyc-t ___
is a true copy of the original.
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