19700728 TZHC Dar es salaam

IN THE HIGH COURT OF TANZMIA • At Dar es Salaa no Criminal Appeals No. 384 and 385 •d 386 of 1970 Original Criminal Case No. 255 of 1970 of the District Court of Kilosa District at KilosaY. Before::_ D.M.M.Mwakitosi, - District Magistrate WALES CHIGOLO JONAS PAMEA M'cTNO MSILAGI .. . . ... . .APPELLANPS versus THE REPUBLIC . ,. .... . .RESPONDENT. JUDGMENT HAIvILYN, J. - The ajpeiiants were convicted in the Kilosa District Cort of an offence of rape, contrary to section 130 of the Penal Code and were each sentenced to fi± teen months imprisonment. They all three now appeal to this Court against such convictions. The case for the prosecution opened with the evidence of the comainant, who gave clear evidence as to the act complained of•. She stated that she was in bed on 20th September•, 1969 9 when she heard peiple outside her door. On inQuiring who they were, a voice infoied her that it was one \Vales (the first appellant) who was outside and he stated that they would force their way in. Immediately upon hearing this reply the complainant told the Court that the door of her house was forced open and that the three accused entered; she tri.d to escape, but she was struck by the first appellant, stripped off her clothes and dragged outside. The third appellant then had sexual intercourse with her against her will, the other two holding her on the ground in an appropriate position for this to take place. The complainant's houts were heard by her daughter, a girl of about 14 years of age, who gave her evidence at a later stage of the proceedings on oath; she amply supported the testimony of her mother. One Kilongota who is a ten-house leader and lives nearby was aroused by the cries and went to the complainant's house where she infonned him of the accurrence, naming the three appellants who were known to the witness; this man took the complainant to his own house for the remainder of the night; and / the next day she was sent to the Police who had her medically / examined. The complainant, in cross-examination by the three accused, maintained her story. She stated that the three appellants were known to her. The second withess was one iCisongola who also knew the three appellants. He also heard the alarm from the house of the complainant and went thither where he found the three accused hulIng the complainant down and saw the third appellant having sexual intercourse with the woman; he'stated that it was bright moonlight and he observed and identified the three men positively. Upon his advent, the three accused took to theIr heels and ran into the bush. It was after this that the ten-house leader arrived to whom. the complainant told her story. The daughter of the complainant then gave evidence and confirmed very closely the evidence of her mother. She also identIfied the three Intrudes as the three appellants. The three accused, on having their rights of reply explained to them, elected to defend - the fjrst accused by giving an uasworn statement, the second by giving evidence on oath and the third accused by remairlin& silent. The first two accused mer ly denied the charge and did not desire to call witnesses and the case thereupon closed for the defence. . . ./2. 400 2 - The trial magistrate found ttiat the edence was ample to support a conviction and in reaching this conclusion he was clearly justified; there was ample corroboration of the evidence of the complainant by two eye—witnesses and of the complaint which she made immediately to the local headman. There is nothing in the Pett.ions of Appeal which could make this Court think that these appeals have any substance whtever.. This Court considers that the evidence before the lower Court leaves no reasonable doubt as to the.guiltof the three accused and that their appeal are without substance. Sentences imposed upon the three appellants are considered to be too lenient in view of the fact that the complainant's house was broken into while she slept and that she was dragged there- from so that the three men could accinplish their purpose. After reading the record this Court is satisfied that the appeals against convictioric have been lodged without any sufficient ground of complaint and that they must be rejected which is hereby ordered. In so far as sentences are concerned, I set aside the sentences of fifteen months imprisonment imposed by the trial Court ind pass son .ence upon each of the three appellants of thirty months. Save for this erihancemnt of Sen ences, the appeals are summarily, rejected. Dar es Salaam. (0.T. HALiLYN) 28th July, 1970. JJi)J1.