19950518 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT OOOOMA APPELLATE JURISDICTION HIGH COUR .r CRIMINAL APPEAL NO. 87 OF 1994 ------·---= 1 ------........ . . . . ">• (ORIGINAL CRIMINAL CASE NO~ 148 OF 1993 OF THE DISTRICT COURT OF SINGIDA DISTRICT AT SINGIDA - BEFORE SoS.S& KIHIO ESQo SRM) SHABA.NI JUMANNE 0 • • • • • • • • • APPELLANT versus THE :REPUBLIC o o o o o ,.. ·o a o o e RESPONDENT JUDGMENT In the District Court of Singida (Kihio - SRM) the appellant wa5 convicted of defilement of a girl under the age of fourteen years. ' He was then sentenced to the statutory twenty years term of imprisonment. This is an appeal against both the conviction and sentence. In its considered judgment the trial court found that one Elizabeth Emanuel was an infant. And that on the 14th day of September, 1993 the said infant was playing outside her family's house with other children when the appellant came and took her away on the excuse that he was going to buy her some sweets to chewo Instead he tob.k her to the strueture of an uncompleted building where he defiled her. PW2 Mwamin:i. Hathaniel: testified and stated that she actually witnessed the appellant earnally knowing the said Elizabeth in one of the rooms to the uncomple- ted building. At the time, the said Elizabeth was crying. On learning ef the incident, PW3 Julieth Ngalawa quickly ran to the place of ineident where she saw the appellant jumping out from the uncompleted building and running away. The appellant's defence, which was rejected by the trial eourt, was basically that of an ali":::li ioeo that on the said ':1,ate and time he was engaged in painting a certain house at Kindai area under the supervision of a r:1-::-:.son k..nown as '.::huma. In one- of his grour1 ...~.s o:: c1.p::;ieal the appe-llant he.s strongly urged that it was improper fo-:: the t:dal court to convict him in the absenc'3 of e·ridence from the y; ctirn of the .s.lleged defilement to the •••••• /2 •• 2 the ~ffect -0f the said criminal act o It is true that Eli.zabeth did not testify in court and no reason was advanced to explain her failure in doing so. If one may speculate though, perhaps she did not do so on account of her being too young to appear and testify in courte In fact according to RrJ2 Mwamini Nathaniel she was 11 a very young childi.' All in all, I do not thi ~it wns very necessary to have her evidence because as Mr. Masaju learned State Attorney correctly pointed out there were only two main issues for consideration and decision ioe• (a) Whether the victim was actually defiled; and (b) Whether the appellant was adequately identified to be the perpe- trator of the said crime. In my judgment, the evidence on (a) above is overwhelmingo PW2 was positive that she did not only see the appellant def1!!ng the young girl but she knew that he (the appellant) 11 injured Elizabeth ~manuel 1 s seeret parts~ Indeed PW1 Neema Nkenji examined Blizabeth and "found that her vagina was fractured and bloods werecomingout~ This evidence was e~rroborated by the Doctor's report (the PF3 - Exhibit P1) in whose examination it was revealed that there was a Hmidial tear about ¼ cm•! and bll'IOd oozing from the child's vaginae Regarding (b) - the evidence shows that the appellant was identified. J The appellant was known to the prosecution witnesses even before the date ef crime. Actually according to PW2 she knew him because he used t♦ visit one Mzee Mkuki who lived in the neighbourhooB! Further, the incident tl"lok place in broad day light (at around 5.00 Pomo)• .,~··Ii1 1the eireumstances, I do not think there could be a possibility of mistaken identity. The defence of alibi was properly rejected by the trial e~urt. While the appellant did not give the necessary notice ~r furnish particulars :· ;1 terms of So 194( 4) or (5) of The Criminal --- ...... ,., ... Proe ---- edure .... ... --_,........__...., ~ Aet.,_~l~82,, it is clear that the thrust of his evidence together with that. of hi5 witness (DW1 Misanga Hassani) essentially centred ~n their daily routine of work i.e. tt10y wouJ r' ·"epo.1'."t for duty nt Kinclai area at ·· 7eCO a.mo and W!!tulc:J. g<, ba~k home at arou:1d 7.00 porn. Nothing was said by particularly D1:J1 as to where t11e ,"3.ppellcmt was exactly at around 5.00 p.m. ~n the fateful dayt o o o e oo • e o/3/b~ o • o o et 3 The sentence meted is the statutory minimum under the law - s.136 (4) of T.he Penal Code enacted under Act Noo 19/92. The appeal lacks merit. It is dismissed in its entirety. /qr~ , {f:1!-' JoHe MSOFFE JUJ:X;E Delivered this 18th day of May, 1995 in the presence of the appellant and Mr. Masaju - State Attorney. JUDGE Ri.,::ht ; ~ . : :· ..:: :..;·1 '... of further appeal explained" JUDGE