19830208 TZHC Tabora

S. • :. 'J', iT 2L HIi CCL1T or TJz;NIf • : •. •.• .• \T TPi IrELL.•.T 4 •JUThtS5ICTION HIGH COURT CRIJIINL :TES5 L NO. 33 OF 1979 ORIGINAL CflIINL NO • 227 OF 173 O DITTUOT COURT OF FIGOTII DISTRICT AT KIGOMA 4 • rafo±o T.2. iIIiYO, Esq, RE3IDENT 1LC1I'TRAT] AJThDI'I\. • ..... . .. ,... ...14PPELLMT Versus THE flTJj3JIC: . ... .... . • 0•• .RESPONDENT CHMGE rt 3. dfile it of ;irl under the age of 12 years • c/s 136 (2) of t.h tS . J U tJ N'E N1 C1IPTA, J... •• • : The accused., ia si. Issa vs ci re3. with and convicted Of t offence of attc:cd efi1eL1ont of. gi1 der the age of twelve years c/s 136 (2) of the renal Code nd was sentenced - - to a stiger1n,r fivq (5) ycirs in;rison1eit. He now appeals. There can bé'.'n doubt at all t1it the conviction was fully 3uSt1fiO0 hQ 'iccused was found in flagrante delicto as he lay on thqePi1d, who woe aged 10 yenrs, as he rubbed his manhocd on the vagina of th girl The evidence clearly showed 1 at terO w i raiôn. B sinO the appellan.t had undressed the rir1 and hod hiniseif iindressed, coupled with the fact that his nonhood touched the girls vagina, there can he no doubt as to 'what his intentions were: he intended to defile the girl, and fro the vGrt acts established by the prosecutioh, it is quite clear that the offence of tmpted defilement c/s S 136 (2) of the renal Code had been established. As regards the sentence, I note thot the accused is a first offendor The aHoof the accused, however, is not given, either in the charge sheet or in the uvidonce. But from what the accused said: in ritiotin, na:e1y, that he was a school boy, it is apparent tbt he was relatively young. This court .hs ofte4 iO fltd -out that where an accused person is a youthful first off ondor, a sentencing court shoui lean towrcis the :f'r.ativc s 1 ctsf punis}ment, except where the offunoos 1.nvlvo1 and ! o, circumstances in which tet were j. comnrtteu. justify a otif2 sateace as a shock deterrent. It is, I hin:, "ls "1vilo that where a sentencing court has re sn to 'el±eve 9 s it had in the instant case, that the accue vno youth it nu1d hold au inquiry into the questlon of his ' - e eefre f esin sentence in order to avoid any possible oiisoorr:ia.e of justice. I res:ectfully agree with the leaned reithmt magistrate (as he then wis) that thisisa serious cricre. But in assessing sentence ) the seriousness of on offence must' betaknin-to accourft clan. with other extenuating or gravajng circumstances... In the instantcoe, in the absence of any finding as the oge of the occase, I an in—dined to give the ac.cused tne benefit of the doubt. For hc :oasnns, the arpeal aga1st_t convictior is hereby disnlssed But the zan lueace of five years imprisonnient is hereby set aside and substituted ±heref or is such sentence as will reult in the apellants inediate release from custody unless otherwise lawfully detained B.D. 713TA. JTTD(.E. -. - )e±ircrec l.a.oen.court at Tabora tflis jiaj or