19780620 TZHC Arusha

IN THE HIGH COURT OF Ti.NZANIA AT ARUSHA .................. .JURISDCTION ........ :. ....... HIGH COURT CRIINLL ./1fpIL•NO: 236 OF. 1976 . 'dRIGNLCIhINJL C/ENOO7 O'976 ..... OF THE ITRI COURT 'OF T1NGA DISTRICTLT .PIJ4GA Before J.H.Moffqo, - Resident aglstrate MUKO HOTEL - ---- --------------------- ------ -APPELLANT versus THE REPU3LIC ---------------------------- - RESPONDNT (Original Prosecutor) .. . JUDGEMEN•T MNZAVJS,'J. The appellant was chrged with and convicted of defilement - c/a36 (1)'o the Penal Code and sentenced to 3 years imprisonment. The prosecution ce was to the effect that the appellant had, on the 30th day of December 1975, carnally known one Subira Mshiri, a girl un cr the age of twieve y€ars. . .. .. .R' his memor-andurti .9f . appeal.. the rn acus.d, argued that although there was, evidence that the .c.ompleina.t..a,been s 9 x.ally assaulted there was no evienc irnplicating,.hi'wi.th..the sexual., assault on the complainant. He argued that one, Amina, (PW 1), who gave evidence against him, did so hE-cause of old enemity between them. in his sui,mission the learnad-at e~t'6 attorney argued that there was ample evidence in support of .t,hg,conviction and referred the court to the evidence of Amine, (PW 1), and thatçf comleinant's grand-mother, (PW 7). With respect I agree with the Republic submission that there was ample evidence in support offcnviction of defilement. The evidence showed that the appellant lived in the same house with the parents of the complainant; a girl three years old. On the day of the incident the appellant re.turn.d from his place of work and entered his room. While in his room the complainant followed. him in the reoom. Complainant's mother and grand-mother, (PW 1. and PW 7 respecti 4 ely) were at the material time sitting outside the house. A few mihues later the complainant came out of appellant's room holding her under-part crying. The mother and grand-mthers' evidence was to the effect that when they exam±ned complainant's private parts they saw 'watery fluid" and ti -iat the parts were swollen. They report'd to the police what had happened and the accused was consequently arrested and charged with defilement. Doctor's report was to the effect that complainant- vagina was hypereemic •• . • /2 that she had been sexual'y assaulted There was no dispute in thiscase that the complainant followed the accused in his room on the mat'rial day.. There was also undisputed evidence that the mher and grand-mbther. of the complainant wee sitting outside the house when a few minutes af ter she had entered accused's room, the complainant came out.holdingherTunderparts and apparntlyinured in her private parts. As there was no other person in accus'd's rthom at the material time the only reasonableinfrercewas that it was the. accused who sexually.assaulted the girl. Appellant's defence that Amna (PW1), told lies because of their old enemity was, in my view rightly rejected by the leerned resident magistrate. ta3çinginto account th . evidence of the grand- mother., (PW 7),.which,evid.,ence was similar to that bfAmjna, (PW 1). There was no reason why the old lady, (PW..7),should. havealso .cookd up a false story against the appellant. .1 agreq ; with the Republic submission that the totalIty of..t1e evidenc.e irresistably pointed to the guilt of the appellant. The sentence of 3 years imprjson- ment is far from being excessive taking into account the seriousness of the offence, TJC sentence is hereby confirmed, Th he event this aopeal should be dismissed irits entirety and I so order. N JUDGE S A1U HA S 2,6.78 NSM/GKK• •: . . . . S