19730629 TZHC Mwanza3

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ILNTh1ddT ... ......... ........ .. ...... .. . iari o/p V NIrI0 HV0 ' j- 'bs 'SU11Sf0MW 'N0J0JeS OMSON 40 401J451({ umseW JO 4Jr1O3 4OtJq.st 91(4 JO iL61 JO ON 0803 IUWTJ3 1 0 UT 1 JO 16i d O 09t °N IddT DJNINIT3 tL]flOO HDIH • V1NZNJJ1 JO JiJflOD HDIH FRI NI e -2- Mwagala, Aria, Dr. Ud.uji (P.W.12), Bether, Magdalena (P.W.5), and Maganga (P.W.2) said that.they did not see the appellant pregnant. And Jane d/o Mathias (P.w.8), a relative of the appellant at Binza, said that it was trw that the appellant visited her atabout 5 p.m. on the.8thof December 1971, where she stayed for about J hr., but she did not de]4ver4.a baby at her 'housed She said the dp ~ ellint -went to inform her that she was proceeding to Bukoba. ,Qfl the next cLay.. She,, too,. said that she did. £lotsèe if the appel- lant was 'pregnant. The appellant was arrested in Bukoa, and she was escorted, with the baby, to Maswa by woman.police constable .Halima d./o Salqn. (w..13)... But before she was taken, she was sent before the Medical . Officer Bukoba where she was examined and a report made as per exhibit A. The appellant claimed. (and is still claiming) that the baby.boy who was found in her possession was her true baby and that she had not stolen any body's aby. I haive stated all the facts which are not subject of dispute and which, in a clear judgement, were found to have been proved. I will now turn to the evidence. The learned trial magistrate ex&l-uded. the medical evidence, Exh.A, on the basis that, .ji the absence of the evidence of the Medical Officer. who made it, it was hearsay. With due respect, 'the learned trial magistrate misdirected himself on -this point. This being medical evid.enc it was admissible under the provisions of Section 213 (1) 'of the Criminal procedure Code Cap. 20. He should have acted on its contents, and this court would rely on it :in this appeal. The medical reort' reported tha there was no sign of childbirth o.' recent pregnancy when the appellant es examined on the 20th of December, 1 971 - As it can be seen this evidence, coming from an. expert. as' it did.', is a refutation of the appellants claim that she delivered a baby''o'n the 8th of December, 19'71. Neerthè1ess, the learned trial megistrate came to a similar conclusio' even wi, thout the medical evidence. He found tht there was no evidence that the appellant was pregnant between June and.November 1971. The appellant con -tended that this was erroneous asshe was in fact pregnant although the prosecution witnesses did not notice this. With respect, I am 'inclined to believe that the appellant had a pOint'her. None of these witnesses who,, claimed that they did not see the appellant pregnant ever examined the appellant. The state of pregnancy can be illusive although ahormal ere can accurately guess by external observation the existence of such a state, but such observation •1eae.open the 'possibility that the state may not beone of pregnancy. Such possible mistake can only be avoided by examination by those experts iersed in this field.. Hence, in my view, the evid.ence'on this point was not as conclusive as it was believed. The learned trial magistrate also accepted the opinion of Dr. Uduji when he said that it'was medicall., impossible for a woman who aborted. in June 1971 to deliver a IaIy in December. 1971 and that it was virtually impossible for a wornän to deliver during the night and proceed on a long safari on the following day. I think the matter is controversial especially when the appellant ias "discharged in good condition" in June 1971, end the said doctor had to admit that he was not certain whether the appellant was or was not pregnant between June 1971 and December 1971 - It is not clear whether a successful birth can or cannot be had in a pregnancy of 5 or 6 months, The appellant was con- • tending, that when she delivered she was either 5 or 6 months advanced in pregnanéy, and. due to the immaturity of the baby found in her possession, there was some Q'bvious correlation. As for the 'ability to trarel so soon after deliery, is equally a controversial point. It seems to me that this ' would depend on the stamina of the woman. Be that as it may, 1 agree with the learned trial magistrate that there was evidenc6 which left no reasonable , doubt that the appellant had not delivered any baby"as she claimed. although I rely on evidence which the larned trial magistra - e had 'rtfled as inadmis- sible. In her petition for appeal, she argued that the baby boy was deliver- ed by her, and repeated her stand.. She argued that she could' not have had such appetite when she was still producing. She said she has 3 surving children and that she was stiLl productive, and, 'therefore, she had no cause to resort to theft. I admire her obviotis intelligence, as the whole case showed, and I appreciate her argument, but 1 think this is a question of fact and not a matter of 'deductions 'from state of affirs such as those she mentioned.. As I have said the medical officer foUnd no traces of recent pregnancy or child birth,. and 'this 'concludes 'completely that 'the appellant -3-- was not telling the truth when she alleged that she deilvered on the 8th of December 1971. Her untruthfulness also appears when one examined her explanation as found above. She told Mwagala and Ana that she delivered at Binza, but her relative Jane denied that she had delivered, any baby when she was at her house. I cannot Imagine a relative such as Jane would deny a fact to the detriment of the appellant. She then refused to take the baby to the hospital when she knew, if she told the truth, that the baby boy could not have been more than 6 months old. She was an employee of the hospital. It was reasonable to presume that she was familiar with such matters as premature cases of biriths and babies. If the child was indeed hers, she would not have hesitated to take the baby, and probably herself, to the hospital. Her act of refusal is very telling against her. Similarly, although it was possible, the act of travelling distances very soon after child birth is most unusual. She was due to go on holiday, but she would probably not have gone had she really delivered a baly prematurely. But the main issue was whether the alleged baby was identified by Nkamba, the mother, and those who saw it when it was still in the hospital ward. The baby had a ma'k on its head. And the baby boy found in possess- ion of the appellant had such a mak. It is conclusive evidence of identif- iation. I agree with learned trial magistrate that the prosecution pr.ved beyond reasonable doubt that the baby boy was the baby of Nkamba and, in the circumstances, the appellant must have stolen it. The appellant had access into the children ward, like anybody else. it is, true that there was a watchman guarding "the area", but this was not effective prevention. I would respectifu.J4y uphold the conviction of the appellant for child stealing. The sentence of 18 months was fair. Apart from causing anxiety and concern to the mother of the baby and the employees of the hospital, the whole stealing was intelligently planned. The time was good. It was when the appellant was due to go on her holiday. 'Herdisappearance would not have created impression that she was running away, since it •was known that she had off duty day and was to proceed on holiday on 11th of December, 1 971 - The object of theft was equally ideal. It was a child born prematurely. It fitted the appellant's plans because, realising that she had just aborted. in June 171 and had not been medically examined, the baby fitted her plan of pretending that she too had prematurely delivered a baby. But she forgot that modern medical science can frustrate an otherwise perfectly plaed scheme, and that she might leave some telling trails along. The sentence is accordingly confirmed. ORDER: This appeal is dismissed.' in toto. Delivered in Court at Mwanza on the 29th day of June 1 973- 7 Z.N. El—Kindy 29th June, 1973. JUDGE Appellant - absent. Mr. Mbilinyi - S.A. for Republic. IN TEE HIGH COURT OP TANZANIA at blwanza HIGH COURT CRfl•1INAL APPEAL NO. 168 OP 1972 ORIGINAL CRI1II1AL CASE NO. 35 OP 1971 OF THE DISTRICT COURT OP TABORA DISTRICT AT TABORA Before S. N. Kaji Esq. ......... District Liagistrate ABDALLAI-1 iIOHMJEDI ............ ........... Appellant versüs THEREPUBLIC.............. ............Respondent % Charge: Bur1ary and Rape, contrary to sections 294(1), 130 and 131 of -the Penal Code. JUDGEiiflNT. MAXAEE, J. - At the District Court, Tabora, the appeJ4ant was found Guilty of Burglary and Rape, for both of which he got an effective sentence of two years. He was also ordered to suffer twenty four strokes for the Burglary as the law then demanded. He appealdd tb this court, and when. his appeal cane up for hearing on the 15th of November, 1972 I respe:c.u1ly agreed with Hr. Meela, the learned Attorney of the Republic, and allowed the appeal. I aow say why. It.is not controverted that late at night on the 9±h of January, 1971 the appellant was in the house of P.i.1, Mirien, referred to by the learned trial magistrate as Saananes "big 'wife,U evidently Saanene'ssenior wife. The appellant agrees it is true that he enjoyed the woman's iavours' that night, but t1iroug1out h'e has maintaiiied that it was with the woman's consent. Miriam told the trial court that earlier that day she and her husband went to a ponbe shop to drink and that f±'on there her husband went to th e homestead of the junior wife while she, Miriam, was escorted hone b y a man called Edward. She used to meet the appellant at ponho shops and that day she left him at the club. At about 3 e.n. when she woke up she felt someone lying on her, and when she lit a lamp she found that the man was the appellant. She detected theTo evidence that the appellant had had sexual intercourse with her. She seized tiic appellant and raised an alarm, whereupon Manbolco, P..2, came to her rescue. The appellant managed to escape after ha,'iboleo' s arrival and the fo1lowin morning P.7.1 reported to the police. In an affirmed statenont the appellant told the trial court that -.rhen he made advances to th e complainant on the previous day, 8th January, 1971, she told him that she could not then think of a suitable venue but that she would let lain know on the following day. On tile 9th of January, 1971, they met when she was on her way to a flour mill and she intimated to him that her hOUSe would be a suitable rendovous that night because her husband would sleep at the house of the junior wife. She t3ld him he should go there during the night, lift a window blind and call her, and she would open the door for him. •*-f'--'4' "-s he did as she had directed him and, after they had had sexual. intercourso, he wonted to leave. The complainant was cheesed off by his failure to translate his appróctaien into the tangible form of cash and told him she would not let him go until she gave her shs. 3/= for her services. The appellant said he had not cone with any money because he had not known that he would be Deouircd to pay: he would give her the money on the following day. The complainant said in that case the appellant shuid own before Edvara, her top conildant, that he had obtained her favours an credit and would pay for tilcu the following day. This did not amuse the appellant who felt that if Saanan got wind of the matter he, the appellant, night be sued for adultery. He refused to go to Edward s place, so the complainant cried out and Liambolco came in response. The appellant told Iianboleo what had happened and, endorsing idirions view, hanboleo said that the beet thing would indeed be to ro to Edvyards. The appellant refused, and went away. Two days later he was arrosted the police. The complainant told the trial court that her door did not have hinges and that she fastened the shutter by means of a piece 01 wood, apparently a contraption propped.up iron the floor. The witness do:aonctratc hOw this was done, and, according to the trial magistrate's note, in a way she demonstrated none can open it from outside uiüess he pushes it by a'.ueh force or pushes his hand and opens from inside ] iricn told the ' court that the nppcllaaat, had never before been to her house. It is thus reasonable to opine that the appellant would not have known that he could open by pushing his hand and open from inside. If the complainS- ant's story is true, therefore, thin appellant could only hhve opened by pushing it by much force, which, I think, would have a\lakcned the complainant. Besides, there was no evidence of. any breaking.. In his Ptitión..to this doürt the appellant makes a ointvalid in r.W view.9 that he doiild hardly have daied into the house of a harried woman so- late t night unlcsbhe knew there were no other people izsidc, and dbout this tIere was, no evidence. 1 should also ob serve that, according to the couplainant when she-discovered that there was an intrudCr in the house., o. person.viho had had sexual intercourse with her -. without her consc-it, she first lit a lamp bfoie rrisihg an.alaru. I aja of ti-ic. .trong view that this, is out of character fr a woman, finding her- self in such, circumstances as the complainant says she did. Edward was suchh close fricnd of thefn4l that he was- trusted by Saonane to sec hono and, unhappily,_ it does happen son etines that some close friends take advantae of their frIends', confidence in them and either beconC their friends' wives' pramourO, dr plry riFT for them. I appreciae that it doOs seen odd that the complainant, a married wo:ann, should raise an alarm at the peril of her husband getting to know of the affair; but then, to some people cash has a stupendous effect. onders are many, but the greatpst of then all is IeIan.t The appellant t s version does not sound. sot&etoh as to b wiwortr o bclic.. T contcniy if the appellant's delence, in the absence of corroboration to the contrary doe& in nr view, tilt to balance in the tppe1jnnt4r favo, eially considering the nature and c,uality of the evidence on record. s ordered, if the appellant is not lawfully deprived of his liberty on account of someThing else, he should forthwith be released and set. free. Delivered in Court on the 20th of November, 1972. - (Ii. IT. Makame) 20th November, 1972 . JUDGE -S.