19720818 TZHC Dodoma

1 (c 14 IN TEL1 HIGH :OUR O AT TUKUY(J ORIGINAL JOF.IDICT ION (DoDoN. REGISTRY) CRIMINAL SE SlUMS CASE NO 14 OF 1972 T'1C REPUBLIC Versus BURTON s/o MWMIDIFILE CIiARGE Incest by Males - c/s 158(1) of the Penal Code.. JUBG NEN T I DINZ A The accused, Burton s/o Mwambipile, stands charged with Incesi by Males c/s 158(1) of the 2ena1 Code. The prosecution allege that the accued on or about the let day of June, 1971, at Ikapu village, .Nasoko division in Tukuyu. district had carnal irnowledge of one, TJ\BBYA, who was to his irnowlecige his daughter. The accused pleaded not guilty to the charge. Tabeya (P,W. 2) related to the court that sometime 4 in June, 1971, she was at her father's riceshamba where she was chasing birds from eating the crop, when her fatheTi the accused, emerged. Accoiing to her testimony her father told her to accompany him to a nearby bush threatening her that if she did not comply he would cut her with a panga he was carrying. Tabeya told the court that the accued dragged her to a bush and there he ordered her to lie down. Ulien she asked her fethor to elain to her what he meant the accused is alleged to have fo±cibly throrn the complainant to the ground, pulled her gown up, und'essed himselfalad had sexual intercourse with her. After this the accused is rerorted to have warned the complainant not to tell her motber lest he would kill her. Tabeya further related to the court that after the accused had finished with her he ordered her to gO home, and that she went home accompanied with the accused. She told the court that hext,dy the accu:ed, as usual, tpld her to go to the rice—shamba to chase birds and that from there she uett to her mothe.r?s place and repoedwhat the accused had done to her. Her mother reported the matter to local authorities and later to police s t ati on, Tukuyu. ..* S - 2 - Dr. Othman (PX 1) . told the court that he examined the complainant on 2nd Juno, 1971. According to, his evidence he found that there were bruises around the complainant 's wa/ vagin.. He/also of the opinion that the complainant was about 11 years old and that she was still virgin. GJJTI (P.W. 3) gave evidence to the effect that sometime in June, .1 971, the complainant complained to her that her father, the accused, had slept with her; nd that the complainant was crying as she was relating the story to her. Accoing to her evidence she, with another elderly lady, examined Tabeyas genitalia and found her to have three bruises around her va gina. She told the court that complainant s hymen was not rsptured. NOSES (P.w. 5) a cell-leader also gave evidence. He told the court that after receiving Tabeya's complaint he asked two ladies to examine Tabeya and that after the ladies had reported to him that Tabeya had injuries around her private parts he arrested the accused and handed him to the police. TUMOKYE, (P.1. 61 another elderly lady, related to the court how she examined the complainant. She also told the court that Tabeya had bruises around her gcnitalia. She was also of the opinion that Tabeya had lost her virginity. YABUE (P.W. 7) gave similar evidence as that of Tumokye (P.. 6) with the exception that according to her Tabeya had not been deflowed. The accused in an unsworn statement from the dock denied the aUegation against him. He told the court that he has been a victim of a cooked up story by his former wife Eva (P.W. 4), his former sister-in-law G-aneti (P.w. 3) and his daughter (P.W. 2), the complainant. According to his defence Eva decided to manufacture stories against him because he had turned down her request that he takes her back as a wife. After surncing up to the gentlemen assessors, both assesaors were of the unanimous opinion that the accused was guilty of Incest and accordingly entered a verdict of d guilty. In this case I warned the assessors in plain language that in sexual offences it is daugerous to convict on the evidence of the complainant alone. I also told them that there was no evidence corroboating the complainant 's testimony in material particulars, but that if they wexe satisfied in. their own minds that the complainant's story was truthful, then they could convict notwithstanding the lack of corroborative evidence. Both assessors told the cirt that it was unthinkable for a Nyakyusa girl to manufactui" such serious accusation against her rather. They were of the view that Tabeya told the court the truth. The learned defence counsel argued that the court should not accept the, complainant's testimony as it was suffering from lack of corroboration. I agree that it is a rule of practice that Sin sexual off ences it is unsafe to convict on an uricorroborated evidence of a complainant .. The reason hy there should be such a rule of practice is simply because experience has shcin that female complainants . . . .• . . .'./3 —'3- have, on various occasions, told lies for various reasons. But thero are cases where it may he very clear that a complainant cannot be telling lies. Such cases are like LLot11er the present one Here is a girl who has been living with herL and later! with her aunt (Pw 3) soon after her mother had divorced the accused There is not the slightest evidence to show that the complainant 'had any reason to tell lies against the accused. It is difficult to believe that an African girl would,. out of malice, decide to level such serious allegations against her father. The accused's defence that it was Eva (P.W. 4), his former wife, who instigated all this is not compatible with the evIdence. The evidence before this court is that Eva Is the one who divorced the accused. She told the court that she was tired of living with him and so divorced him. Why then should she come back, only after two years, and ask the accused to re—marry her? The accused's story would have been understandable if it was he who had divorced Eva. I tend to agree with the unanimous opinion of the assessors that Tabeya's evidence is nothing but truthful notwithstanding the fact that it is uncorroborated. It is almost impossible to imagine that a I girl of complainants age would come and tell the court that her father had slept with her unless such a story is truthful. Though I accept the story of Tabeyà as truthful, I, however, fail to see how the accused can, on the evidence, be found guilty of Incest by Males c/s 158(1) of the Penal Code. To find, the accused guilty of Incest, the prosecution has to prove at the very least that the accused penetrated the complainant. The complainant's evidence is that the accused penetrated her. Against her evidence, we have the evidence of the doctor (Pi, i) who told the court that there were only bruises around the complainant's genitalia. Ganeti (P.W. 3) and Yapuge (P.w. 7) also gave similar evidence. Further more the doctor as well as these ladies who examined the complainant only a day after, the offence, told the court that the complainant's hymen was intact and that she had not been deflowed. There is,&+gree, the .1 evidence 0:' Tumokye (P.ii. 6) who told the ôourte complainant was ruptured. Her evidence is, in my view, of littic value taking into account the doctor's evidence and that of Ganoti (P.w. 3) and Yapuge (P.J. 7) iJ The evidenc/, in m y view, more consistent with attempt to commit 'Incest c/s 158(3) than with Incest c/s 158(1). I accordingly find the accused not guilty of Incest, c/s 158(1) but guilty of attempted Incest c/s 158(3) of the renal Code and he is so convicted. TUKUYU, N. . ZAV 18th August. 13 72. J1JDGE'- PROSECUTION: Nothing 1mo against the accused. . . . . . . . if - 4 - 1 ThTMITIGAT I ON (E: May it ..pleaae your 1ordsiip The accused is married with three children. He is in remand for 13 months. I ask the court to exeicise leniency while sentencing ACCUSED: I have nothing to add. S N TEN CE: Th-is..is. a terrible offence. The accused behoved more like an animal than a man. However, much as I would have liked to sentence the accused to a severe sentence, I see that he has unblemished record but for this most extra—Ordinary offence. . . . I also take into account that the accused has been in remand for thirteen months. Taking all thees factors • Into account, I feel that the justice of the case wOuld be met if the accused is sentenced to eight (8) months inprisonment. HE IS SO SENTENcED. TTJXUYU, N. 210 18th Augist 1 972. JUDGE RIGHT OF .APPEAI TQ E .A.C.A. EXPLAINED TUXUYU, N. S •ffTT•..H. W 18th August , 1212, JUDGE ORDER,• The court divests the accused of all authority over Tabeya and appoints Tabeya's ALTHT G-LNET to be the gudi,an of Tabeya during her miJibrity. TUXUYtJ, N. El, ZAVA 18th g2st, I97..