19951120 TZHC Dar es Salaam

C ..... :J:N T;LJ IIIGH COT.m.T OF Tll.7.TJJ.UA ... : AT D&l. DS ·Sl11A.tJ.:. CRU1DTAL ,h?:_'3A,L 1W. 231 OJ? 1994. AN.AFI I(.\Sfil\liU' o o o • o o o o o o o o ·• o o o o o o o o.A:2:::>ELLAJlT Tllli IDTIT:.]) REPUBLIC • • • o o • • • • • • • • .R"JSPo.tIDEi'JT. ,BtJREBHI' J • T'.0.e appellant Alu.FI K.li.S:0:{ was convicted of th0 offence of committing an una.tu..:-:-al offence c/s 154 (1) and was ~cntenccd to serve an imprisonment term o:f 4 yrs and 8 months. IIe 11as also o:..-tlerccl to compensate the :notion some Shs 50,000/= for injtu•ies suffered. ?.!r. Fgasalla learned 001.1.nsel appeared for ·t;he appellant during tri~ At the s·1 al't of hearing o:f this appeal the 102:;:noo. counsel nae absent and the appeEant opted t~ /Oond.ucAis own app~al. In his filed memorandum of appeal tl:e appellant raised some four 3rounds to challenge the judgment of the t;;:-:~al court. T'J.1e aj_):::,ellant attackoci_ the circumstantial evid~nce relied upon by the trial com·t as being too uea::: to support conviction, that a lo:i.g time haa; · l~pscd "'.;le tween commission of t:ie · offence and tho time ........... the complo.:i.Ji:at was medically ex.amil1ed. That tho prosecution evidence· lacked cor;·e;mt corroborative evidence. The appellant also challen$ed the evidence of the doctor as being of no pro·t)ati ve value in that the medical expert did not say ·when the offence had taJ.r..en plave, I u..11derstand by this to mean· that su.oh an offence coulo. have been commi ttoo. by .some one else and the appellant be used as the seape goat. T'.u.e appellant also lbook shol tm.' under what he called tho bad character of the complainant. Tl10 appellant contended. that he was performing a · ,,,.-r-"~- humanitarian act by k.eepin,2'. the complainant who comes from a broken home. Hence he should not be cond0mnod for this i1oocl sa:-.iaritan · act, if 1:1,t all he should be blamed for not taldng the com9lai11ant to proper authorities such as the social welfa7.'e depa:rtment. Mr~ Eohome learned State Attorney fu.llJr supported. both the convicti~n,• · ' and sentc:lce imposed. I have to re evaluate the evidence and see whether I can come to · the same finding as did the trial court;. PWI Alleh John, a child of about 10 yrs but whom the trial Hacistrate found· to be int~lligent enough to understand the meaning-of oath gave the . . t ' sad story4 It was estlished that this 1i tti:a boy is indeed a product of broken home and. the1°efore resides with his partenal grandmother. Pt-TI 0• left their house .early on 24,4,.94 and went t~ Shindo Guest Hov.se uhore the a._ppellant is one of the persons who show Video movies at the premises~ That the little boy pt.r.( stayed ther,e untiJ. 9 pm and as it was getting late the appellant told. PlH to wait for him z.nd. both left after midnight for Chaka. Ouest House .where the ap::;,ellant ua~ allocated a room which he shared with . . others• PWI told the court that on certain occasions that room will be occupied by.other people as well but otherwise only PWI and the appellant would sleep in the room. According to PT-i'I it was 1men they slept ir.1. that Further according to i'lTI there developed. an as~ociation . between room _the two of them that PHI wculd notice pa.in in the abdomen and . anus• PUI and the . . . appellant to the ·extent of the latter buying Pi'TI some clothes to wea.:r (mi tumba) soft d.rinlcs and some chips. T'.iat P~IT would drink soft d!'inlcs bought by appellant and after that he PWI would feel drowsy and drunk. PrTI would also nd)tice apaxt from,the pain he felt, wet bedsheet indicative of his being sexnaily molested by the appellant.- PUI was assertive that nothing ha_ppened to him during the night ,men there were others sharing that room. The doctor who ef..amined PWI was ca.lled by the court. In •his op:mion the complainant had been sodomized although he could not be specific as .to the date. PW4 Omari Athuman is another pers·on· who supported Pl'TI story, Acoord'ing to PW4, the ap:9ellant and PWI visited Mchaka Guest house on 24.4,.94 at midnight, uh.ere.the appellant rented a room which he shared with Pi-TI.whom he described. as his young brothero PlT4 als? sa~d that the appellant and PlTI slept at the Guest house for a number of days and later P'W'4 was informed that PWI had ran awa.yo PW4 evidence was attaclced by the defence particularly on the issue of non production of the guests register. The appellant's version was that he did not rent a room but that he shared ., th"e room with others free of .charge as the owner of the house is ra.lated to him.- Th.is contradiction in my view is not material. Whether the ap::_)ellant rented the room or not the fact remains that the appellant took PlIT to the Mchaka Gues·i.; I:kuse. Pi-14 was not challenged by the appellant on the fa.ct that the appellant spent the night with PT!TI on 24.4,94 and also on 7.5.94. •• 3/ -3- The ap:,ellant raised tho issue of tine factor~ that it coul:d not be established ·when exactly tho offonc0 was coDJL1i ttod. In my humble view the important issu.o here is whether the coml)lainant PT-TI ha_s boeri sodomised or not. It may not be easy to esta1)lish the actual date. The trial Ifa.giatrate found the evidence of PUI wo:rl try of belief 9 that is that her -was sexnally abused by the appellant an.d I think she was entitled to come to that conclusion. That the complainant PHI could have been so:x:nally abused by some one else and then pick out tho· appellant, is in my mind, rather far fetched; -why, one would ask should the complainant lie ·about the appellant. After all they had stayed toc;othcr for some two weeks or so with the appellant buying tho appellant sorne clothos; food and drink. Such a proposition is not supportod. by tho cvidonco on record. The appellant has attacked the complainantl s bad character. It is. a fact th:J.t PUI comos from a broken homo but tl1cn this is no· licence for . people lj.:·.ce the appellrmt to ta~ce ad.vantage of such situations. The appellant .-~s duty 0ound to take PWI back to his parents or take him to the rol0va11t state orcans. That ho ontcrtainoct and encouraged PWI to stay 'td th him .all that long isg to say tho lee.st very weird. I think such yo"Lmt persons the like of ?l-TI should ~)O asaisted in tho rigi1t dirootion and not abused in this ma.rmcro Hence tho bad character of Pi'1I wo-v.ld not render tho appellant lessor of a CriminalD All in all I do find that ::?WI' s cvidomic worthy .of belief as did the trial coill:t and I cannot fault the decision o:f tho trial Magistrate in this regard. Tho u.p:peal fails· in its· entirety. 1i· \, lJ, ,!__y· 1.y,f. Appellant p:roscnt in person .A.. Go l3lJJID3IlI State Attorney absent. JUDGE ·20/11/95