19931108 TZCA Arusha7

I rn THE COU.:.'f OF /uTEAL OF TAJ:~Z/.HIA ·· · ---AT ·AJ.U,3HA CJ.I!JJ;AL AFPE.iJ. NO. 116 OF 199:3 f-;.AS:-IT!JI S. !W,:.[JCT • . . . . . . . • APF:2:LLAHT . AND 1'I-;E Il.EF'lDLIC • • • , • • • • J.:E;3F"-Ol'rJENT (Appeal from the Sentence of the High Court of Tanzania at Arusha) (N,N, Mushi, J,) t dated the 25th day of March.1 1992 ( in Crimin,§], 5esaions Ca~_..1?...,Q.f.1.21l2 Befo~ t.:~ :·!id~ Court, of 'l'am:.ania, at lfosh:i, (N.M. Hush:i 1 J,) the appellant Has convicted of the offence of (iQ:fi.l,emen±, o£ .A su-1 b«l.•'4 "t.be age of fourteen years ccntrary to section 136(1) of the Penal Code. He was charged. Nith the offence of incest 1:Jy male contrary -t¢ section 158{1) of the Penal Cotte as a first count and the charge of defilement contrary to section 1J6(1) of the fenal Code in the altel·native. At the end of the trial,- the a~,pellant 1·1as convicted of t~1e offence of def"i..:l_ing a girl under the age of fourteen (14) years. He has nm·1 aµpealed to this com·t against the sentence of_ 10_ years of :illlprisonment. The facts are m·ief but unpallatable and are on the whole undisputed. Tl1e incident took place on 21st AprH, 1988 at a place .. ,/2 • . :./' ' 2 / / callecl. Shanty tavm within tl1e outskirts of the ri,unicipality of Moshi. I j The ,:i.ctim of this unsavoury episode is o~e Mwamvita (P.W.4) who ,1a::, at tlie time of the incident nine (9) years of age. d/o ~..ashidi At the time o~ ~11~ trial (1991) slw __ _l1c1d_reached the ar,;e of thirteen years of age. In 1976: the appellant ;;ot marrietl to Asfa Zuberi (P~W.2). In 1978 again l1e (ap1.ellant) started liv-lng 1-1ith Clu·istj_na Sarwat (P.1·1,1) in a separate hou3e from that of Asia Zuberi (P,H ,2) (not. a legal marriage), By that t.in1e 1 Christina Sarwart hacl a child of her O\<m with anot.ller pe1•son. This is the victim of this ugly sexual incident, Mwamvit.a ~filiidi (P .1-r .,4). The appe.JJ.a.,t uas therefore a footer father to Mwamvita (F .w ,4) 11ho was stayin3 lfo.th her e;ranclmotl1er the r,1other of appellant in the said a.Tea of Shanty tm-m in Moslu.. On the day of incident, (21.4.1988) the ap-pelJ.ant upon vicitinz his root.herts house 1 found Mt·:amvita in the comi)any of other two chi:W.ren - .&lwarcl (F.1'1 .3) and Rashitli ,1ho was not caJ.le0. in a_t __ ~~e _trial to c,;ive evidence. ¼11e .:,,ppel.l.a.ni:. ~"'Uctecl El:1\-Jard ( r. U,3) and the other chil~ Rashidi to go out of the house to attend to some shamba work near~, H ~ Rashidi '"•' was therefore left bel-i:;.nd alone Hith the appellant to clean up the servant I s quarter. It was clur~ this ti.me tbat the ai-.pelJ.ant sexually assaulted 1-!wamvita Rasl:idi.. ID,·iarcl (P .li ,.3) Nho was with Ramadhani at a nearby shamba on hea1·:in5 Mwamvita crying, rushe6. to see •hat \-ras happen:i..ng. He ( r ,U •.3) sa,~ the alJ!Jellant in the kitchen holding on to Mwamvita' s mouth. Thereafter. the matter was re)orted to Asia Zube1·i (P .l·J ,2) and Christina -Sa.r1·1art (P ,\-1 ,1) the wives of the a~,pellant. To both F ,1'Y .1 and ' •• /.3 • I I'. ;. J P. :·!. 2, I·1'.·1amvita narratec~ in detail all that the appellant ha.cl done to I I her. The chilc.l victim of the incident N\·rar.ivita (P,H.4) was taken to ~. the hospital by l' ,i'T .1 for meC::.ical e;:amination.. In the normal manner in such casesi Ff 3 was issueC::. as a basis of medical investigation. The police took up the case for investigation which finally resulted in the prosecution of tl1e appellant w'.10 \1as as e:;:plained earlfor I convicted and sentenced to 10 years imprisonment. At the start of the trial, Hr;-rtemba, learned counsel tlas assigned to defend the appellant. }IO\•rever: for some reason .. in_.tlw course of the _trial the appellant showed lack of confidance :in Hr. Iternba., Consequently:. another counsel Mr, A.M, Shayo: learned Advocate ,·u·,s ~A~;-e;rv'd to defend the appellant thr<,ui)hout the trial, The appellant 1 s line of defence at the trial '.:las denial -of t.ho .e.!!etiee. He claimed t,hat all the· v1itnessas part.icu.l,a.rly his tdve:i P,i'I,l and r.w.2 we.re all out to fabricate evidence :in order to f:i.x him (appellant). The trial jud~ rejected thi, ,1r,fP.noe ri{~ht.ly pO in ~ opi.z:d,on, This was a case whose d.eterr.1ination cle1Jendell on the credibility anc. acceptance oi ) tl.e e-vio.ence of the wj_tnesse:;. In our view; the tdal juc:lge quite l properly ancl thorou[:;h.ly analyseo t.he e-v1dence -or tha v:u.t.asses -u.'u,c..'. ~ accepted as truthful. As a result t11e appellant was convicted o.f the offence of defiling a gi.rl below t11e ar;e of 14 years contrary to section 136( 1) of the Penal Code. His appeal to this court is against sentence 11inly, In the course of hearin 0 the appeal . ancl a::; al.ready incli :ated 1 the a)pellant persistently raisec.l arguments against the conviction He alleged that the \Jitnesses •.. /4 • --,_. --·----·-----· ···--- ---------,.,-- _,._ ' . ...... . . , .. :,•7. I I 4 parti.cularly P.~i.1; F;d,2 his wi-.en l1a'-l conspireci. to frame the case a[;ainst h:iln, LiJ,e1·1ise; he cla:iJnec1. that Jvlwamvita (P .H .4) the v-~ctim of the sexual ansault anc~ &:h·1arc~ (L'·'.3) were all tauc)"1t by ?.'.I,1 and P.U.2 to frame up evidence ac:ainst him, He :insisted tllclt the1·e was n• evidence that Jvlwamvita (P ,\-l .4) Has se;:ually assaulted as no PF 3 was tendered at the trial. The ap;.:,e1la.'1t further asserted that he llad. :intended to call witnesses who 1·1ere not callee:. to 6:i_ve evidence in support of his defence. He finally pleac:.e-:.:. ,vith t:,is coust to be len:i.cnt d.th him as the sentence of 10 yeru·s is e;~cessive. There 1·ms credible evidence of an unusual I ( conduct on tl1e pa:ct of the a;_)pellant who disappeared soon after this incident as the a);)ellnnt Ha:, com:ing from the hospital :in the company of l1is wife .Asia Zuberi (?.i:-l.2) Nl·1er-e P.U,4 1 Mwamvlta had been taken for medical e,:aminat:..on, Accm•d:i.J1e:; to P. U. 2, clurjng the time when the appellant Has in hic1.:;_ng; she ( P ,'·I. 2) received a l3t ter from the appellant in 1·1hich he .-.rrote: "Mimi nais'.1.i poi':i.ni angalia watoto." The appellant c:.en:,. ecl to have disappeared or tvritten such a letter. He are in agree,,1ent uith the lea.i.·nec1. t::.·:i.al judGe that it is incomprehensible that all these l'litnesses particularly his 1-,ives zhoulcl fabricate evidence against the a1-:;,JeLlant. Ho\Jever. the Court ar1;a:0.. n reminded the a:c,pellant that he hac~ been allowec:. to cor.1e to this Court on the question of sentence only. This bein;:; an appellc.te Colll't._ matters of c1•etlibility of the ~1itnesses are :Jrima.i.~j..]_y tl1e c,o,nain of the trial court which has the advanta,:;e of assess:ln~ the demeanour of tl1e witnesses an6. evaluating the credibility of such evidence. This Court 1·1iil not reacLi_ly interfere with the decision of the trial court on such an issue • • I 5 For the Re).)ub]_:Lc: llrs. Sumari lerucned State Attorney suppQrted the conv:i.ction anc~. sentence, 3he submitted tliat thou5h this llas net an ··appeal . a,iainst conviction but as the appellant had argued at J;-en-~h en conviction, she urGes U,at the convlction was properly feund~ She,i, ~ t.hat tlY3Z'& ,1.1e abundanee ~ oreclible e v l . d ~ ~ ,_.. ~ by the trial jucl 6-e. The le-~necl State Attorney uondered ~~ all ~6' conviction was 1-;:i_thout merit, it should be dismissed in its; ~•et.y 1 of the PF .3 rega1·c.ing the medical .a;:a;ni.nation of P/·r .4.,. did. not_in arzy -.cir. cumstances of the case: •·Mi.e--sentence imposed against the appellant act. Thou 0h indeec~ as ri;;;htly pointeci out by i:irs. ~una.•ii. --t!>A l.AA>:o-4 evidence on record. anc', the persistent ar(;IJ!llent c.£ tlle ePi:ieal be.tore us by the a!Jpellant 1 the ap)eal against conviction is, in our view, without any merit. Ue ru·e satisfied. that t:1ere 11as l)aucity of evidence of PS .1 and P .:J .2, the i-;ives of the appellant uhich was fully supported_ by the evidence of t,ic child victim of the sexual assault (? .H .4) and &h-,ard I, (P.H.3). '.Je fj_n( :i..t h:i.~)u.y incredible tl18.t both the t-rives of the appellant·· (-p .H ,1 -ancl P ,'.·J .2)· ·afitl the children (P. '.'I .4 and P .w •.3) should all conspire to fabricate evidence a 6ainst him. Even granted that ... /6 • k f / 6 P .u .4 1tas not the child. of t;1e appellant as the appellant would want t:U.s court to llel:Leve, that :l.n olli.· consic.,e~·ed vie.-1 1 is no reason for her (P,U ,4) to frame up a case of this natlli.·e against lu. The record bears no evic.~encc oi bacl relationslu.:) bete1een the appellant and the two wives. a ve;.•sion ,•,:dell the appellant vainly tried to canvass at the hearing of the a:'.")peal, Ue do not accept that. Though we could glean from the evidence that t:1e victjI,1 child of the se;ru.a.J. assault (P. T-1. 4) was experienced in oe::ru.al intercourse. for the reasons advanced by the pr<>secut:i.on (at page 19 of the record) that the PF 3 .-1lu.ch had been handed. ~ to the :police oOUJ..d not be traceci and the fact that P .1·r .4 ha0. been tol<.~ by the appellant to take a ,-,ash, we are convi.tlC,ad lil;e the Learnec": t.i•:i.al judc;e that Hwamvita (P.~l .4) uas se;:uaU:,, ~ t e d . F\lrthermore. ,1e a.re also satisfied i:..hat tile learned trial judge was justifiecl in !tls fincdn6 that it was the appellant wl:)o defiled-l·Iwamvita ( T) .L t-• •d • 4) • The conviction though not a .'.?}'.'ound of appeal to this court, ca.1r,-lauJ.te:·\ in tlW{;e circumstances. On the sent.once. in the e:Lroumstances of the case, there can be no doubt that tl.ic t-:<,.c a serious and shameful act of se:;;:uaJ. abuse aga.iD.st a cl1i.lcl of tend.er age, As the learned. trial jud.3e rightly remarked 1 it is an effence that calls for severe punj.shment. r ,U ,4_. a c!uld of tender ae:e must in Olli." vim; have suffered traumatic psycholo8ical and mental torture at the very thought of her foste;.• father fovolv:tng lri.lilself with her in th:Ls manner. At tl1e hearing of tlus api)eal; the api:iellant advanced no reasons to sl1oiJ eitl1er that the sentence ,ia:::; unlau.ful or manifestly e;ccessive. I·IavjJ1g listened to the a;_)pellant I s plea for .... /7 • ------- I I 7 I I leniency .rith Q-'eat sympathy_ we see no rea::;on to clej_)art f-.com the old time establi::;hecl ;_)r5.nci?le of criminal ,iust:i.ce in matters of sentence on appeal. That it is trite principle that befo~•o a Court of Appeal can interfere i-1itl; the trial court's sentence, the appeal court must be satisfied t:·iat eit11ej_• the sentence :L;1posecl was manifestly excessive or that the tr:'cal court ign01·ed to consider an important matter or ci.rcumsta- nee which ou;,ht to have been considered 1·11-cle ;_:,ass:i.nc,: the sentence or that the sentence imposed was 11rong in pr:Lnciple. In this a~1peal 1 1-1e are with res;_:>ect in a;;reernent 11ith the content:i.on of the learned .State Attorney, tl'.:at all the relevant circumstances of the case uere duly c- considered 1>y the learnecl trial ;judge uhen decidj.nr:; on the sentence. He see no 1·eason for inte~·fer;;.nr, with the sentence which, in our vietr cannot be said to be e;:cessive or unlawful. For these reacons t!~e appeal aga:Lnst sentence is accordingly clisrnissec~. DATE) at A·:.u:s::A this 8th <lay of Novernbe;.·, 199.3. ;.1. '.:'., IC( SAl'.iGA A. 3, L. R..l\l-iAJ:IAI-11 JUSTIGE_OF_AP:e_E.\L D, Z, LUGUVA JUSTICE or Al'fE;\L I certify that this j_s a t:tuc co·;_)y of tl1e orig-lnal, E, J. :'ff.PJ.•'.A5AGk""..A DEPUTY ~I.ST ;Arr, •