19780619 TZHC Arusha

A-A C, IN THE HH COURT O Tii•ZANIA AT kRUSHA JPELLTE JURl.ITION • . . . i ..H:I0H COURT CRIMINAL NO 185 OF 1976 ..... ORIGINAL CRIMINAL CIE N.O.278 OF 1976. OF THE DITPICT COURT OF NULU DI3TLICT uT MBILU BeforeP.N. Mosha ------------ -- --------- District Magistrate HbWAY..SALITI . ---- 0 - APPELLANT ( Original Accused) THE REPU3LIC --- -- --------- -------- ---- -- -RESPONDENT 0• - (Public proséutbr) J. U 0 G . E M E N T •. - - MN Z V'j'zS J. * H . . ••• The two appellants, Haway Salit and Tichema Ama, (and anothcr p.rson who has not appa1ed) were jointly charged with and convicted of rape c/ss 130 and 131 of the Penal Code nd each sentenced to two ycars imprisonment0 The cmplinan, The6desiad/o Akunay gvé evidePce to the a éffect'tIiat on 3O011.75 at bout 06 p.n she was'returning home from shoping when she overtook € acuéd who were apparently going in the save direction0 8he tOld the1oier oUr't that soon- aftershe had pas'ed thetd the accused held bnd , tihed her to the. ground,. drged her into r'avine and raped One Gbr.iel •Gersi... (P2), Was.apparentiy walking along the s'ne foot-path 'whérr;he heard, infrorit of .lriim .voceof .a lady cry.ng sayihgz "you want to kil.i! m you want to kill me". The witness proceeded to whre the voice: was coming from, and, according to his evidence, he saw three people running aay and could identify their faces. .., . . In his submisso. the learped, state attorney did not support the con.ction on the qround that the complainant had delayed in reporting her assailants to the police. it.was also argued that 2vidence of a complainant in a sexual of Eence must he corroborated. before 0 conviction is entered and that there ws no evidence corroborative of complainants story in this case0 With respect to the l.errn:d state attorney he has misdirected. himself both on the evidence and on the law regarding corroboration in seicual offnces. First on the evidence it was amply proved that the complainant could not have mistakn the identity of the accused. it was in broad day light- when she .as ravished and she kneW all the accused before the incident0 That the accused were the people who draged hr to the ravine is fully supported hy Gahri:l, (PW 2) Who came to 2- the scene hethree 'ccused tuking to their heels from whee the complainant was lying0 The complainant reported to her husband ' that.had.happered on the same--evening and when hr husband advised her.to report to the pIice-she did so, though helatedy. In the the case her failure to report to the police soon after the incidenL cannot he said to be arefiedtjôn on her credibility takij into, account the evidence of Gabriel, PW 2. As for the learned tate attorney's argument that evidence of a-complain.ntine sei . pffce must be corroborated before it on to the detriment of an accused I would, with respect, say that this is not the lay. The law is tht it is a rule of practic'e thtéidence corro oreting côrhprainant's evidence 'in 'a S ..xuCl offence Is required to suppdrt' th'.-thstiony.of - :the'cornpiainant, it is not the law that ik Of coroYOrtive°evidence in a sxuai off:n'ce"Otom"tically viciates a conviction in a sexual off dnce. Indeed even if there is no evidence corroborative of complainant's evidence the court can convict in a sexual offence prOvided that the court W'nS itself of th,edanger convicting in,.the absence of corroboration, but never - theless, finds ,.that the evidence is so convincing that'it feels that it is snfe to convict. See the decision of -th is Court in R V. RASHID MOHAMED (1968) HOC.D 369. See also the Aeci§inns in William Petro V R (1968) HOCOD 260. and SHALNI S/a HAJ'IIS R (1973) L.R.T. I. V In the prese:ot case co-miainant"s e'ideO'e was fully corroborated by Gnbriel" (PW 2) w,hb saw the acciije'd -urhin from where "the complainant was lying. The evidence of GabrieL s'howed not only that the offence had been "committed--as alleged by the 'cbnipJ ia'nt- hut-that it were the accu:ed• who hadcomnitted,jt.,:: There was in my view ample evidence 'in this case in support of the learned trial mag-istrath's finaing tht the appellant raished the complainant on the material evening. The sentences of two years imprisonmnt imposed on each appellant 'cannot be saId to he manifestly excessive. The sentences are hereby conirmed. In the eventthese appeals are dismissed in their entirety. ' NOS, JUDGE 19.6,78 Appellants absent and unrepresented Mtincjole for the Republic/Respondent NSM/GKK