20190513 TZHC Singida

IN THE bI5TRICT COURT OF SINGIIDA

AT SINGIDA CRIMINAL CASE NO 327 OF 2018

REPUBLIC v/S ELIBRIKI 5/0 MARTENE

JUDGMENT 12.03.2019 & 13.05.2019 Before: T.0 TESHA, RM The accused person one ELIBRIKI 5/0MARTINE stand arraigned with two counts one Count of Rape C/5 130 (1),(2)(e) and 131 (1) of the Penal Code (Cap. 16 RE 2002) and two of Impregnating a school girl C/560A of Education Act Cap 353 as Ammended by section 22 of the Written Laws Miscellaneous Amendment) Act No.2of 2016. Particulars of the first count are that, the said accused person on unknown dates between January to July2018 at Unyinga area Unyinga 1 ward, Unyakumi Division, within IDistrict and Region of Singida did have sexual intercourse with Jenifrida b/0 Ibrahim a girl of 14 years old. And as to the second count accused as the result of rape as to the first count did impregnate Jenifrida FD/O Ibrahim 14yrs old a standard four pupil at Unyianga Primary School. The accused person pleaded not guilty in respect of both counts that he stands charged. Hence shifted the burden of prove to the prosecution side under the provision of Section 110 (1) and (2) of the Law of Evidence Aèt Cap. 16 R.E 2002 whereby the Law requires that the one who alleges must prove. Hence a total of Eight (8) witnesses were brought before this court to testify against the accused person and these were as follows: Pw.1. Jenifrida Ibruhim aged 14 years old victim. Testified that, she was standard four at Unyianga Primary school. She went on to tell

this court that Accused person is her sister's husband one Maria Ibrahim. She reside with them together with their child at Unyianga. One day while at home with their child she take a child to sleep in the bed where accused and her sister do sleep. At that time her sister was not at home. While still there accused appeared and ask her to sleep together but PW1.denied. Accused pulled her on bed and undress her 2 13 then put his fingers into her vaginal then left. He warned the victim not to raise alarm and not to tell her sister as will chase her out of his home. The other day when accused's wife was away Pwl was also taking the child to sleep. In that house there were other children who were ordered to get out by accused person. Accused then get there in where he takes PW1 to the bed undress her and have sex with. After having done so accused went away. PW1. fearing to tell her sister as was worried to be chased out of that home and accused was the one responsible to pay for her school fees. From there on it become accused habit of having sex with PW1 Several times. It was being done at home after she comes back from school in the absence of her sister. Sept 2018 PW1 was discovered to be pregnancy at school. She was taken to police where PF3 was given and was proved at Hospital. Pw.2 Maria Ibrahim 26 yrs old testified that Jenfrida Ibrahim is her young sister and accused person

is her husband. She went on telling this court that she was residing with accused person PWland her children. She told this court that she is a peasant and also hair dresser. Her activity of heir dressing was taking place at Unyianga shopping center and it was taking place after PW1.come back from school where she remain home with children and PW1 went for this business. Accused person also use to repair shoes and bicycle at shopping place which is at a distance of fifteen walking distance from 3 their home. It was 8/10/2018 while at home Jenifrida appeared and informed her that was required at school. She responded and join her to school where she was informed that it was suspected that PWlwas pregnancy. She was advised too take her for test. The results shows that she was pregnancy and when asked who impregnate her mentioned accused person.PW2 asked PW2 how that happened where she told her that it was being taking place during the day when left at home with children after school. She did not tell PW2since was warned not to tell any one as will be chased out of home. PW2went on telling this court that accused person was the one who was supporting PW1 in providing for basic needs including school uniforms, exercise books and all other. She then report the same at police who give her PF3 which she use to take PW1 to hospital then give it back to police for their

actions. PW3.Insp. Arnina Fakih 48yrs introduces herself as police officer working with investigation department. Testified that, it was 9/8/20018 while in office. Appeared a woman before her, complaining that there was a girl who was pregnancy. Since she had that girl with her she give them a police and pf 3 for check up at hospital. The hospital result shows that the girl was pregnancy. The girl told PW3 that the person who pregnant her was her in law who reside with. PW3have accused arrested and recorded his statement where accused 4 13 person admitted to have committed the offence charged. Accused persons caution statement admitted as Exh P1. Rozemary Njiku 45yrs. testified that she is the mother of Maria Ibrahim, Jenfrida Ibrahim and others. She went on telling this court that Maria and Jenifrida reside together in the house of Elibarick. Elibarik is her in-law who married Maria Ibrohim (her daughter). She went on telling the court that Jenfridu has no birth certificate but affidavit in prove of age. The affidavit in proof of age admitted as Exh.P2. Frednand Njau 35yrs introduce himself as Magistrate working at Utemin Primary Court. He told this court that it was 9/8//2018 at noon hrs while on office appeared Police officer namely Noah who had accused person who wanted his confessional statement be recorded before security of peace. Since he is the Security of Peace he

then records the statement of that person. He went on telling this court that in his statement accused person did admit the offence he was alleged to have committed and told him that it was which doctor who directs him so to do. Extra Judicial statement of Elibariki admitted as Exh P3. PW7 Christowaja Soa 36 yrs. testified that she was a teacher at Unyianga Primary School. That, PW1 was their pupil studying standard 5 -4 4 six 2018. She was suspected to be pregnancy where her sister was called and advice to take her for test where it was revealed that she was pregnancy. She further files in court copy of attendance register which was admitted as Exh.P4. Pw.8.Lenic Jackson introduced himself as physician at Sokoine Health Center. He testified that on 10/10/2018 while at his working place appeared one parent with a girl aged 14yrs and had PF3 which require him to test and see if the girl was pregnancy. He takes her for test where it was proved that the girl was pregnancy. He take her to clinic room where was registered and given clinic card for further actions. PF3 and copy of Clinic card admitted as Exh p5. This calls the end of prosecution case. bw.1.Elibarik Martine entered his defence under S. 231 of CPA Cap 20 R.E 2002. In short, he denied to have involved in allegations that he stand charged but admitted that Jenifrida Ibrahim is her in-law who resides with. I had had ample

time to examine the aforesaid evidence and issues for determination is whether Pw.1 was raped, if the first issue is proved in affirmative whether it was the accused person who raped her. For sure I am very much aware of the settled law that the best evidence to establish rape is the evidence of the victim herself see 4 11 SELEMAN MKUMBA VS. R. CRIMINAL APPEAL NO. 94 of 1999 Court of Appeal of Tanzania (Unreported). In the instance case Pw.1 that she was raped by the accused person. However in a recent case of MOHAMMEb HUSSEIN V. R (2004) Criminal appeal No. 31 HC at Arusha Rutakangwa, J as he then was rightly observed that: HIt goes without saying therefore that to prove satisfactorily the offence of rape, the essen tic! ingreo'ien ts of penetration, even the slightest degree of the male organ in to the femak organ, must be pro vec! beyond any reasonable doubt and should never be inferred 'Underline is mine for emphasize. Indeed the case of Mohammed Supra observes the principle of natural justice of which I think was also not dismissed in the case of Seleman supra". That being the position of law the only proof of rape to clear the doubts is the PF3 of the victim (Exhibit P.5) of which was thoroughly explained by Pw.8 a clinic officer that, after examining the victim found her pregnant. Such medical evidence has a strong connection with the offences that the accused person

stand charged. In the case of HILbA ABEL V. R (1993) TLR 240 The court of appeal observed that: VA 4 "court are not bound to accept medical experts evidence if there are good reasons for not doing so" In the case at hand I have no any reason to disregard the medical expert's evidence. Having the first issue proved in affirmative, now we turn to the second issue of whether the accused raped the victim. Going by evidence on record, the victim has mentioned the accused person as the one who raped her. It is well settled law that the best evidence to establish rape is the evidence of the victim herself see SELEMAN MKUMBA VS. R. CRIMINAL APPEAL NO. 94 of 1999 Court of Appeal of Tanzania (Unreported). In the light of the aforesaid evidence, I was convinced to find that PW.2, Accused's Extrajudicial Statement and report in PF3 corroborated the prosecution evidence from Pwl, hence clears doubt as far as the allegations of rape that the accused stand charged, hence successfully proved their case beyond reasonable doubt. In view of circumstances therefore, I find the accused guilt of the offence of rape C/S 130 (1),(2)(e) and 131 (1) of the Penal Code (Cap. 16 RE 2002) and Impregnating a school girl C1560A of Education Act Cap 353 as Ammended by section 22 of the Written Laws Miscellaneous Amendment) Act No.2of 2016 that he stand charged and I convict him accordingly. T.C. Tesha,

RM 13.05.2019 H. 4 PREVIOUS CRIMINAL RECORb. Nil Persecution antecedents We pray for sentence accordingly. Court Finding and Sentence. The law providing for punishment is very strict I can not reduce or add anything. Accused person is therefore sentenced to serve term of thirty (30) years imprisonment for the first count and five years imprisonment for second count. Sentences to run concurrently. It is so found and ordered. T.C. Tesha, RM 13.05.2019. Right to appeal explained. T.C. Tesha, RM 13.05.2019 RSJDENT MASTR1Th P.O.OX 2

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