19740524 TZHC Arusha

• .U_ - ' IN THE HIGH COURT OF TANZANIA AT TANGA APPELLATE JURISDICTION t h. TANGA HIGH COURT CRIMINAL APPEAL NO0 14 OF 1913 ORIGINAL CRIMINAL CASE NO. 56 QF 1973 OF THE DISTRICT COURT OF HANDENI DISTRICT AT HA­ND_ E-NI 4 - Before BSHoza, Esq0, District Magistrate B AXARI ONARI APPELLANT versus THEREPUBLIC OO000OO .00O O OOO.ORESPONDENT • CHARGE: Rape c/ss 130 and 131 of the Penal Code • JUDGMENT Makame, J. - - .- Tf,~e appellant was sentenced to three years jail by the District Magistrate Handeni upon his conviction for raping P0W01, the wif a of SALIM ALI:p0W020 Mr0 D'Souza on behalf o f Mr0 Pirthipal 3 ingh conducted the appeal to this court which in my view had no merit and was apparently admitted merely as a courtesy • an advocate was appearing0 - The evidence accepted by the learhed trial ntagistrate was • that the •appe11ant, minus his pants was found by P0W02 in Fragantode1ctd on.top of the complainant, in a maize shamba0 The husband had gone to the scene in answer to his wife's cries for:'help, which cries also summoned to the spot P0W03, the cell • lea l er to whom the appellant admitted after some hesitation that e"Id indeed invited himself to the cothplainant's favours against her wish0 Mr0 'ingh put forward as one of the grounds of appeal; -4 "i'he learned magistrate failed to make a proper and A criti6a1 analysis of the evidence as a whole in that the learned magistrate erred to take into account • - that appellant admitted before ten cell leader the offence whdreas the evidence of ten sell (sic) leader ° • 10e0 P0W03 reads "I did ask the accused as to (sic) or not he did rape P0W01 to which reply he denied't, t.. and Mr0 D'Souza sought to associate himself with this submission0 I wt to hope' that neither learned Counsel sought to -mislead this court deliberately for thésentence quoted by Mr0 Singh is immediately followed b another one: "The accused at last did agree to have raped P0W01 11 0 In his defence the apeliant said',that the complainant was related to her but that he did not eien see her on• the material day0 This failedtoimpress the learned.District Magistrate and does not rais any doubt in my mind either0 The fact that the medical report was i.inconclusive was neither here nor -there really because the medical examination was conducted quite some time after the alleged incident0 The relevant ingredient here was penile intrbmission, which I am satisfied was established, and nobruises orinjury to the private parts0 The appeal is accordingly dismissed0 - Mr D'Souza for Mr0 Pirthipal °ingh for the Appellant0 Mr0 Alimwike for the Republic0 Delivered in Court at Arusha this 24th day of May , 1974 /cwm (L0 M. MAKAME). JUDGE .1