19700522 TZHC Mwanza

5- S IN TIlE HIGH COURT OP T.NZANIA AT IiWANZA APPELlATE JURISDICTION. CRIlIINAI APPEAL NO. 34 OF 1970. ORIGINAL CRILIINAL CASE NO, 395 OP 1969 OF Ti-I' DISTINCT CO::RT OP i\TZGA DISTRICT AT NZEGA. BEFOE: P.M.K.Mwamwaja, District Magistrate. SAIDI LUBEJA. • , • , • . .........APPELLANT (Original Accused) versus THE REPUBLIC , • ...... . . . . . . ,RESPONDENT (Original Prosecutor). Charge: 1st Count: Burglary c/s 294°f the P.C. 2nd Count: Nape c/s 131 of the P.C. JUDGEMENT. Seaton J. This is an appeal from conviction on two counts of burglary and rape. The appellant was alleged to have entered at night the house of the complain ant, who is the concubine of Ramadhan, a friend of the appellant, when the complainant was alone in the house asleep. The comp1aint testified that at first she thought the appellant was Ramadhani Abdallah returning but when he cane closer, she recognized him by the light of a small lamp in her bedroom. The appellant was said to have slezod the complainant by the neck and pre- seed the complainant so hard that she urinated in the..hód, thereupon she ceased to struggle fearing the appellant would kill her and the appellant had sexual intercourse with her. There was no eyewitness to theappellant' s entry or the struggle and rape of the complainant. But there: were several neighbours who tcstilic7 that when the complainant came to their house to report immediately after the incident, they could see marks of human hails on her neck, which was bleeding. These neighbours also testified that on going to the co mplainantte house, they found the appellant coming out wearing only a pair of trousere and chased him to hisown house, where he was eventually arrested. The apsollant denied on oath visiting the coraplainant's home or having intercourse with her on the night in question. He also denied being a friend of Ramadhani Abdallah. He testified he had gone to the bar to drink coca cola and after returning home, he went to bed. While sleeping, he was arrested and charged with those offences. The appellant claimed that one neighbour (P.W.2) had a grudge against him because he refused to tailor his trousers. But he did not sugest reasons for the other neighbours (P.VT.s 3 and 4) tel1inlies against hii. The appellant has submitted in his petition of appeal that the trial magistrate erred in convicting him on the uncorroboratod evidence of the compiminant. hIrle But the magistrate warned himself on this point and after carefullyewing the evidence, was satisfied of the truth of the complainaiots testimonyand that it was safe to act upon it. I am of the view that there was no misdirection and the appeal against conviction is dismissed. The sentences imposed were 2 years imprisonment on each count plus 24 strokes corporal punishment onfirst count. The appellant submitted the trial magistrate erred in law in making the sentences to rii conr&cutivoly on counts one and two of burglary and rape. .....2 - 2 - Learned State Attorney has conccdQd that both offonces were part of the same transaction, the appellont having entered with the specific intention of co:uimitting rape. For these reasons I set aside the order for consecutive sentences. However, it is clear from the record that the trial magistrate considered there were aggravating circumstances calling for severe pcna1tis in this case and the offence of rape was more serious than the burglary. For these reasons, it is order ed that the sentence on the second count (of rape) be enhanced to three years imprisonment, but that it should run concurrently with the sentence on count one. Delivered in Court at Mwanza this 22nd, May, 1970. Mwanza. /20/ .Yi---- (E.EISEATON) JUDGE.