19900129 TZHC Dar es Salaam

Di THE HIGH COURT OF TANZANIA AT DAR .E§ SALA.ii.ld · .HIGH COURT D,B.I.w!Jbi.fl.L. .Al?P.8.la.1 NO. 102 OF 19,SS Dri.ginal -OX-im:1.nal Case lfo. 86 of 19,8-8 I,£ tb4 , Distr:lc.t -court of Kibaha Di.st.ri-ot at Kibaha &fore F.s.c·. Mango, - Eaq., P.D. Magistrate ALLY KIB\VANA MSIGARli. • •:-• ••• •-.-~·• •• APPELL.ANT Versus JU.DG11'1ENT AW;f KZBWANJ~ MSIGAR/, was charged with and canvi.ated o! d ~ .... _ . .an ,uot 91' imbo;i,1~ e/ s 137 o:f the Fenal Code• He we.a, aa.n~ ,,.,. M¥1U u-,. ' ', •, --~ ,now app~als as.ainat. th9- t,.01l1Ci o,tj.on, ~ ~ef1·. fhefe is 1pfftcient evidence that the woman the appellant is · S.Cfjlljl1 of_. having ~et'il8,d is an idiot o.r imbecile •. Ther.e .:i.s furt.ber- ~i~~u.t and .ind~t-ahl.e,'~~idence that the appellant was alone ~ith tb~I ~i¢ or imbecile inside the house of the idiotts grand JllQtbet dijring the t.ir.ie · the prosention alleges the appellant h,a.d d~;'J,.led the idiot •.,. The appellant maintained before the trial eourt that he had ~erely sat on the bed on which the idiot was sleeping when the said bed gave way. The trial magistrate rejected the appellant's story and accepted that iy DaTid Kikoti (PW4) that he (appellant} bad been lyi~g on top of the idiot half naked and when 0 ral>uked bj the said David. Kikoti (PW4), got up and left in a hurry. I can find no fa~lt in the learned trial magistrate's acceptance of the evidence by PW4. It is fully corroborated in many material details. The evidence b/ PW4 is fully corroborated by that of Juma (PW5); it is further corroQorated by th~ state of the bed on which the idiot was sleeping, it was broken and it was the sound of its breaking that had drawn the attention of PW4 to the house to investigate what was amiss •. PW4 was no busy body but a straight forward and 2 - dependable neighbour. ~vents of the day proved his worth and the fact that the trust Namweyo Mshamu (PW1)~ the idiotli grandmother had on him had not been misplaced. I icoept PW4 1 s evide6ce that he had found the appellant half naked on top of the idiot and when made to leave, he (PW4) found the idiot naked, with her back lying on the ground. I further accept the evidence of PW5 that the appellant ran away on g~tting out of the house. In the circumstances, I ask myself, as ~id the learned trial magistrate, why? Like the learned trial inagistr.ate, I dismiss as inconceivable, the possibility that the appellant had ran away frofil the house for feur that PW1 was going to come up in arms ·against hiw for having caused the bed, after sitting on it, to break notwithstanding the fact that that bed was described by WP 869 Sa:rda as "old, weak and small". I hold, like the learned trial magistrate 9 that the appellant had ran away because he had defiled the idiot and he knew that the evidence ·that he had left behind on ·•··-··the.id.i.ot would be recognised for_what it was by PW1. I accept· as true the findings of PW1 on her grand daughter and as correct her conclusi~ns that the appellant had defiled her grand daughter • . · -~ I see no merit in the grounds of appeal in view of the overwhelming evidence and the changed nature of the story by the appellant. What is now stated by the appellant is a repu~iation_of his defence during trial. This .. new stance adds weight to the credibility of the The appeals against the conviction and sentence '-k ,--,~--~ - . ~- ~~--\c:i ~ Yahya Ru~ma Judge 29.1.90 0