19751202 TZHC Dodoma

zl-/ ZyA 1 171 IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION : HIGH COURT CRIMNL AtPE?L NO. 21C OF 1974 ORIGINAL CRIMINAL CASENOC.9 OF 1974 OFT1.. pS. IC1 cOURT IRAMA DISTRICT AT KIOMBOL BEFORE S. N. HARIANY DtSTRICT Mi.GISTRATE LYANAS/OMAGINGAee0oo,00noo0ooe_APPELLANT VERSUS :T -1EREPBLIc CHARGE Dofilement of a girl under the age of 12 years c/s 136(i) of Pexial Code0 JUDGMENT MWESIUMO, AG0 J. Lyanga sb Makala otherwise known by the name of Lyanga sb Magenga, hereinafter to be referred to as the appellant was, on 13/3/74 convicted of defilement of a girl under the age of 12 years c/s 136(1) of the Penal Code and was sentenced to three years' imprison- ment. Aggrieved by that decision of Kiomboi distr 4 ct court, presided over by Si,N. Shariany, District Magi.strate Lyanga now appeals to this court against botI.onviction and sentence0 The evidence before the trial facts: - Th bthlainant I.oice d/o Petro (PW1) dhring a room with her brother.one Yesaya s/o Petro (PW2) and the appellantwho was a guest of that family was sleeping in the same house but in another room. During the night of 6th January, 1974 the appellant quietly left his room and went to where the girl/complainant was sleeping, stretched himself on her and ravished her by penetrating his penis into her vagina so forcebly that in addition to sustaining bruises in and outside the vagina the girl's hymen was ruptured. When she cried in agony the appellant left and went back to his room. The evidence of the complainant was in all material aspects fortified by that of PW2, PW3 and PW4 who were in the same room with her and who in 'flagrante delicto 'saw the appellant ravishing his victim, the complainant. The medical officer (PW5) who examined the girl the following morning testified as to the injuries sustained by the girl as described above. Being presented with such fulminating evidence, as demonstrated above, no reasonable tribunal could come to a conlusion otherthan that arrived at by the trial couLt in this case0 ..... 2 - 2 - This court hol tI- atth cbnviction of the appellant was rightly earned on the evidence before, :ti at .:ou rt ad it will thus on my Vorder stand.unditrbad In his vague memoraium of appal the appellant raises nothing now in defence or complainant and as rightly pointed out by the learned Sttë Attorney, Mr0 Iinabo, wio appeared £ or the Republic in this appal.:Ee grounds of appeai attract no seriou discussion before this court"0 I am respectfully in entie agreement with that observation0 Accordingly appeal against cdn.viction is dismissed0 V As to the se te nce V of thte è r ears ' imprisonment, in my personal view, if anything, it could attract condemnation for leniency, since the Republic has not expressed any wish to have it enhanced I would leave it to stand as it is and .sine it eqüires con fi rmati on by this court the same is heri3by duly confirmed0 In the final result, therefore, this appeal fails in its entirety and it is as such whollyV dismissed0 Delivered in open court at Dod oma this 2nd day, of December., 1975. V 6 E. A. Mwesium AG JUDGE V For appellant: Absent and unrepresented. V For flespondent/Republic: Mr.W0 X, Mbiliny.iState Attorney.