19771230 TZHC Mwanza1

IN '.L'ht.: HIGH COUi{'l' UY l"aJ~<..,rn\J:...,, APPELLATE JURISDICTION 'HIGH COURT CRIMIN/:.L 1\PPEAl NOo '.345 OF 1977 ORIGINi.L CRIMINAL CI,;sE NOo 115 OF 1977 OF THE DISTRICT COURT OF KAHAM,\ DISTRICT i,T KAHA.Mi\ _§_e_f(?~e YoK,o ·CH,~NZI, Esgo z. D I S T I U C ~ JULIUS HO ZhNI o • o • • o o . ' o ~ o o ~ ., • ;, ·.o • • • • • • o • o o o • o • o o • • o • o • • o • o • o • ., o ,'-1.PPE LLAI\J'T .(Original. _Accused) versus THE REPUBLICooooooooooooooooooooooocoooooooooo·ooooooooooooooRESPQNDENT (Original Prosecutor) CHARGE: Ri,PE c/s 130 and 131 of the Penal Code. -OoO- J U D GM ENT MFALILA, J., The appellant a school teacher was charged with the offence of raping one of his pupils a girl aged about 15 yearso He was convicted and sentenced to fifteen r.:· i'.ths imprisonment. He appealed strongly µrotestin9 his innocence as he has done all along. At the triai there were two important witnesseso The complainant herself the girl Shija d/o Manyanda (P.W.1) and the man who rescued her Juma Mgaki (Poi<io4). The complainar.t told the trial court that on th2 day in question she returned heme from a ngoma at about 8 p.m., when she found the appellant there. She said that the appellant who is her teach,:!r had come to their home looking for his friend anoher teacher one Mashimbao Mashimba she said was her aunt's lovero As Mashimba was not there 1 th~ appellant decided to return to his home but asked her to accompany him and show him the wayo This the complainant refused, but she was prevailed upon by her mother. She walked with the appellant and at his request as far as the mango trees. When they reached there, the appellant grabbed her fell her down and proceeded to rape hero Finally she managed to scrco.rn, and this attracted a passerby Juma who approached the scene and flashed his torcho The appellant then got up, dressed and ran away. Juma took the., 9irl back to her home~ where her mother attended to her injuries on her vagina. She was later medically examined and when the incident ,,_,·as reported ·i:o the authorities the} appellant was arrested and chargedo As remarked the appellant denied these allegations saying that while all this was allegedly taking place, he was asleep in his house. Not surprisingly this was rejected by the trial Magistrate. There was no rea- son why the complainant should have chosen to manufacture false evidence against her teacher. The appellant had be:en se2n at the complainant's home and in fact the complainant escorted him at the insistence of her mothcro The mother explained that she pursuaded her daughter to escort the appel- lant because she feared if her daughter did not, the appellant might punish her at school., TherG is no doubt that thG girl Shija was raped, and lilce the trial ~1agistrate I accept the evidence that she was raped by the appellanto All the points raised by the ar:pellant in his memorandum of appeal are so meaningless that I do not intend to waste my time consider- ing themo In the result the appeal against conviction is dismissed. As to the sentence, I was distressed to read the Magistrate's senti- ments that he was sorry for the appellanto I just did not understand hO\'T the appellant could attract the sympathies of any decent person. He lured a young girl, one of his own pupils to a lonely ~;lace and raped hero '.Iow could the M29istrete take pity on such 2. man., This misplaced symp2.thy o o/2 - 2 - ... '"' led the Magistrate to impose a very light sentenceo I do hope this Magisti.-nte will in future reserve his sympathies to more worthy causes than those of rapistso The sentence of_ 15 months though inadequate is hereby confirmed. Delivered in Court at Mwanza this 30th day of December, 19770 MWANZAo 30TH DECEMBE.~t.:.)977. JUDGE/ --?,.,.. _,;_: