19710730 TZHC Arusha

in IN THE HIGH COURT OF TANZANIA AT ARUSHA AFELLATE JURISDICTiON CRML APPEALS no 53,15 OF 1971 CASE NO. 1515 OF 1969 OF THE DIDTRICT COURT OF KILIMANJARO DISTRICT AT MOSHI Before J.B. Fatal, sq., Senior Resident Magistrate. FRANCIS s/o DAUDI ) ACCUSiD NO.1 BAKAII s/o PTR .... o.....PPaL1JA!TS/ACCUSED NO, 2 CHARGE: 1. Rthbbery with viblence contrary toction 285 and 286 of the Penal Code Vol. 1 Cap. 16 of the Laws. 2. Attempted Rape contrary to section 132 of the Penal Code Vol. 1 Cap. 16 of the Laws. &UD...MENT KWIKIMA, AG. J•• The appellant and another Were convicted of robbery and attempted rape. They were awarded each the statutory minimum sentence of two years and twetfur strokes. The appellant is now seeking to avoid conviction and sentence. There was no evidence of attempted rape, really. All the appellant and his co—accued are said to have done to the complainant Ester was to drag her to a ditch, pat her to the ground and put their fingers on her buttocks. Thetr bid to remove her inde'pants miscarried. If this was all that they did,. and the record has no evidence, to suggest that they did more, thea then could not be held to have gone near enough to attempt rape.. They should have undressed first. Their act was a mere act of preparation to rape her,.. if at all, What they did.was held not to cons±iato the offence of attempted rape in the case of R v Har.dnaI-brahim 1967 HCD 76 the full report of wiich reads:- "Accused was convicted of attempted rape (section 132 Penal Code) The evidencewas that he had dragged the complainant'.to a ditch' placed his hand over her mouth and pulled down her underclothes while lying on her, when he was observed by a passerby and fled. There was no evidence that at the tim• he fled (he was) undressed. Held: The acts of the accused did not constitatA attempted rape since he had not undressed ......... ' The acts didhowever constitute the crime of indecent assauj -t.• A conviction of indecent assault was substituted." - The evidence ofi record leaves a lot of room for doubt as to whether the appellant and his co—accused actually 'obbcd the complainant. Although they were caught in the act of assailing her, the allegey stolen articles were not found on them. The appellant and his accomplice wont about their act of assault without caring to cover their i'tentity or to avoid being see n by the pu1i'c. 'Indeed, Ester herself speaks of how the people came to "separate the appellant and his accomplice from her. is only reasonable to presame that the appellaflt intended to rape the complainant and that in the ensing stugle,, the complainant lost her brassiere and headdress. Any rapist would have every reason to"vnatch" his victim's brassiere as the apeellant did in order to reach her breasts. The headdress is not an item which is so secure on the body as not to fall off in the course of a fracas • For these reasons I find it unsafe to uphold the conviction of robbery. 6 . 4.64 • . ./ 2. I!: . - 2 * In the result I would quash the conviction an robbry and attempted rape and set aside the sentences tnereof. In substitution to the lattor i I would convict the appellant ahd. his accomplice of indecent assaulti As they hawe been languishing in jail since 14/11/70. I would find them to have received more than their du.e Accordingly I would order that they receive such sentence as will result ih their .imediate releaseanless thcre be lawful cause for their contihued detentiOn Arusha 30/7/71 (M,H0i. KnIKIMA) AG J U D 0 E . j sm