19791226 TZHC Tabora2

:.' IN THE HIGH COURT OFTANZNIA •' AT TABORA. S APPELLATE. JURISDICTION j. HIGH 'COURT CRIMINAL APPEAL NO.27 OF 1979 (Cf. Cr. Appeal No.44/79) (Original Criminal Case No.24 of 1973 of the District Court of Kasulu.Distrjct at Kaslu - before MTONGOLE, D.M.) ADIL,IANO MZEHE, APPELLANT (Original Accused) versus .. THE REPUBLIC . . . . . . . . . ............. . . . . . . . . . . . RESPONDENT (Original Prosecutor) CHARGE: Rape c/s 130 ahd' 131 of the Penal Ccde Cap.16 of the laws. 1 UD GMEN CHIPETA, J: The two' appellants, Adiliano.s/O Mzehe (the first accused at thetrial) and Faresi s/o Npoma (the th±d accused) were jointly charged with a third person, one 'Benà s/b Mazingo. (th.e .econd accused) with the, offence ofrape c/ss. 130 and 131 of the Pemal Code. For ease of reference, I am going to retain their descriptions at the trial. The first and third accUsed persons were convicted as charged and were each sentenced to eight (8) years imprisonment plus eight (8) strokes of corperal punishment, while the second accused was convicted of the lesser offence of indecent assault and was sentenced to three (3) years imprisonment. The second accused has not, to the knowledge of 'this court,' appealed. The first and third 'accused persons have appealed to this court, and their appeals have been consolidated., In brief, the prosecions evidence was that during the evening of 21st January, 1978, the complainant, Bernadetta d/o Ndihaga€i (P.W.2) and her two sisters, namely, Maltrida (P.W.3) and Dorothea (P.W.4) were on' their way toMuganza village frorn'Kimobwa village in Kasulu District. When they were in Heru forest., the three accused persons approached them from behind and started assaulting them. P.W.2 fell down and was overpqwered by the first and third accused persons. P.W.3 and P.W.4 run away, pursued by the second accused. The second accused, however, failed to apprehend any of the two girls, and so he returned to the place where his colleagues were. .. ./2 Meanwhile, 2 Meanwhile t the first and third accused pescns dragged P.W.2 off the path into the bush. There,. they tore away P.W.2 1 5 underpants and underskirt. herupon, the third accused held her down while the first accused had sexual intercourse with her inspite of her resiscance When the first 'accused had gratified his sexual desire, he pulled out a knife and threatened to kill her if she continued to resist. As the first accused wielded the kn1f threatening over her, the third accused took his turn and also had sexuai intercourse with her. iThe se.cond. accused, although present at all material times, did not in any wa sexually assault the complainant. When the third accused was through with herb the, first accused suggested that they must kill her, bu his colleagues desuaded him by saying that in any case she was as good as dead. While all this was happening, P.W04 hid herself in the bush while P.W03 went to some village to eport the matter. Shortly afterthat, P.W.3 returned to the scene Q accompanied by several people, among whom wereP,W05 and P.WO6 O Guided by the criespf P.W.2, P.W.3 1 P.W05 and P.W.6 went to the scene where they found the three accused persons with P.W.2. On seeing the witnesses, the three accused persons took to flight. The: second and third accused wer.e, however, apprehended at the scene, but the first accused escaped. He too, however, wes arrested a few day later. On medical exarninatic;n, the complainant was found to have blood strains d nthe thighs, bruises on her hymen, a tear on the posterior fox, and dead. sperma.tozoea at the rear of her vaina 0 ' In his defence, the fitccused said that he ws':arres.ted for no reason while he was attending a C.C.M. festival in the National Stadium at Kasulu G The third qcused said that he and the second accused were on their way home o4 the material day, and suddenly they were set upon by a group of people for no reason at all. ' The learned trial district magistrate accepted the prosecution's evidence without reserve and rejected the accused persons stories. He th'en convicted the two appellants as charged, and the second accused of indecent assault. On my cn view of the evidence, there can be no doubt that the three accused persons were clearly identified by no less than five prosecution witnesses. Indtod 7 the three girls had earlier on the same day seen the accused persons at a shop. There was, therefore, ample evidence of identifidation. ...../3 Likewise, Likëwis, there Was ample evidence that the complainant .hádbeei raped. Her torn clothes, her cries f and the bruises and blood strains, all go to show that the complainant was an i*wil1ing party to the se&ual interdourse. For these reasons, the convicion, of the first and third accused persons cannot be assailled. Indeed, the only reason these appeals were admittedt? hearingwas that.the sentences appeared to be illegal. To that question I will presently turn. But before Ideal with the question of the sentences imposed on the first and third accused persons, I would like to deal with the case of the second accused. As he has not appealed, 1 will doso In the exercise of my revisional powers. The evidence on reôord leaves, no doubt at all that the second accused was present at thescene at all material times and said what was happenning, and yet he did nothing to prevent the'comrnission of raeo Indeed,the evidence.clearly suggests that. he approved of what' his colleagues were doing and associated himself with what happened for he iquoted to have.said to the firt' accused: "Do not kill her before, we decide.". Section 22 (b) of the Penal Code provides as follows:- "22 When an offence Is committed, each of th€ following persons is deemed to have taken part incommitting the offence and to be guilt' of the offence, and maybe charged with actually ccmmittig it, that Is to say — (a).. o....a... - (b) every person who does or omis to do any act for the purpose of enbiirg or hiding another person to cornmjt"the offence;O The second accused, therefore; was as much a principal offender as were the first and third accused persons in the commission of the offence of rape. He therefore ought to have been convicted 6f the offence of rape.. The offence of indecent assault did.not come in at all. The conviction for indecent assault, therefore, was wrong. The next question that arises is whether, in view of the fact that the second accused's conviction of Inddcent assault was wrong, this court can substitute a conviction for rape. I do not think so. This would have been proper If the Republic had appealed against the decision in respect of the second accused. The Republic has not done so.. My hands, therefore, are tied. I can do nothing more than quash the second accused's conviction, which I hereby do. The sentence of three years impriz)nment is consequently set aside, and it is cc.red that he be set at liberty forthwith unless otherwise lawfully detained. ..../4 1 - 4 - I now turn to the question of sentences imposed on the appellants by the trial court. As was pointed out by wy learned brother Napigano, 3.) when he admitted these appeals, the sentences of eight years imprisonment were illegal. Illegal b:ecause the learned magistrate had no jurisdiction to pass such sentences. Section 7 of the Criminal Procedure COde cl.rly forbids the passing of such sentences by'a magistràte of the rank of the trial magistrate it this case. •For his benefit, I will I quote the relevant part of that sectiO. The section states, inpart: .... . . . . 11 7 - (1) A subordirate court may, in cases in which such sentences are authbri'zed by law, pass the following sentences:-.. . . (a) impisonment for a term not exceeding five years: Provided that where a court convicts a person for a 'scheduled offence, it may, if such sentence is - authprizd b''law, pass a settence. of imprisonment for such offence fcr.a term o€ exceeding eight years;" Rape is not a scheduled offence. Therefc, the maximum sentence the learned District Magistrate could have imposed Ofl : each of the accused persons was five y.ears impris.hiflent. If. he was of the view that sentences in excess of his jurisdiction were called for. in the, circumstances of the case, he should have committed the ..accused persons to this court for. sentencing. For these'reasons, the sentences of eight years imprisonment imposed on each of the appellants are. hereby set aside. In deciding the proper sentences.for the appefl.arits, I have taken into consideration the fact that rape is .a ery.sezious. offence punishable with up to life imprisonment with or without corporal punishment; the fact that the offence .was committed. in . brutal. manner, and that one of them actually conte.mpl.ated taking the complainant's lIfe as she lay there helpless. The circumstances, therefore, as the learned magistrate pointed out, clearly called for deterrent sentences I. therefore, senterice each of the accused persons to six () years ithprisonmerit.1 ......./5 As . . - ... 5 As to corporal punishment, I am aware that this type of punishmeritis rarely resrtedto nowadays. But the fact that provisions for imposition of the same are still in our penal statie, I think the legislature must have realized that there may be cases in which corporal punishment may be deserved. In my view, few cases of rape can be more deserving of the imposition of corporal punishmentthan the ihstant one. The sentence of eight strokes of corporal punishment imposed by the trial court on each of the appellants will, therefore, remain undisturbed. Save for the variation in the sentences, these appeals are dismissed in all other respects. TABORA B. D. CHIPETA, 26/12/79 JUDGE. f . /