19750129 TZHC Mwanza

IN 5'111E HIGH COURT OP TANZANIA IIIG1-I 00[mT cRIL1IN;.:' APc?EAL 10. 434 OP 1974 Original Criminal Case Uo. 18 of 1974 of the District Court of. Liwanza District t before L.G. Rugainukonu, Esq., D.t. ALLY ATIKI .......................... .............•.APPELIjANT (Original. Accused) versus THEREPUBLIC .. . ...................•. ......... . . .. .RESPONDNT (Original Prosecutor) CHARGE: Rae c/s 130 and 13 1 of the Penal Code. JUDC-LIEITT. 1.TPALILA, J.. The ape1lant is appa1ing against both his conviction and sentence of three years imprisonment for the offence of rape contrary to sectior 130 of the Penal Code. The facts as narrated by the corimlainant LI\'ANAARUSi 01IARI (pw.i) are stranger: than fiction. She said that during the night of 5/1/74 ahot± a.ra the appellant, forcibly broke down the door to her o'om forced his way in and started assaulting her*p Sh -iushed out of the room raising alarms. The other inmates of the house cene out of their rooms in answer to these alerx.s, but they simply stood by and watched while the appellant was assaulting her and dragged her out of tile house half .naked to some grassy area behind the house where he raped her until she became UflCOflSC1OUS. Apparently in the course of the rape the appellant had also inserted his penis in her mouth because when she 'woke up" she found her mouth full of semen. She reported the incident to her sister in a: nearby house, and her brother in law Hamisi (who did not give evidence) took her to police station. Early that morning she led the police to the appellant's house where they found and arrested him. It must he clear to anybody from this resumk of the facts that the complainant did not tell the whole truth. She was certainly lying, when she told the trial court that she knew the appellant by sight only. If she knew him by sight only how did she know his residence to where she easily led the police who arrested him ? This clearly shoWs that she knew him more than by sight.. ?hen she raised an alarm and was struggling with the appellant., the other inmates of the house cane out and simply looked on. Isn't this odd, for the other residents to just stand and look on while One of them is being attacked by a stranger and completely shutting their ears to her pleas for help? What would be the eplanatiOn for SUCh odd conduct. The answer was partly supplied by Rashid Shariff (Pw.3). He told the trial court that he saw the appellant and the complainant understandingly going out together holding hands. This was after they had argued whether the complainant should cone with the appellant tp his house. From this it is clear that the other residents did not inteiene in the initial fracas between the comi.iainant and the appellant because quite rightly they thought it was a "loverst affair". I em therefore satisfied that the appellant was not such a complete stranger to the complainant as she alleged. The next Question is, was the complainant raped that nigut? I do not think the answer is certain. The medical chit is certainly inconclusive. Vaginal bruises and bleeding from the uterus cannot he evidence of rape. And if indeed the complainant was raped behind the house, and she was raising an page . ... /2. .... 2. alarm, why didn't she cccli out her sister and brother in low Hanisi who she 11ecd liven just in the next house? For all thes6 reasons, the iroocution. case is not as clear to rio as it was to tile trial ua,istratc. I an completely unccrtain whether the complainant was rai.'ed that night or she had nerely had too mach sexu1 mt course s and that even if it be said that she was raped,' whether it was the appellant who did it considering the fact that ho was her lover at least the new one after the depa.rture of. her Dld...ae Shab.arii Amrani to Shinyanga. For these reasons I an satisfied that it would not be safe to allow the appellant's conviction to stand. Ills appeal is allowed the conviction quashed and the sentence set aside. • He should he released from prison immediately unless he is otherwise lawfully held. • Delivered in Court at Hwanza this 29th day of January 1975. r HWAHZA, • L. MFALLA 29th January, 1975. •. J1JDGE.__-