19951020 TZHC Songea

J IN T&; HIGH cou~~'I Ci.Ii' :~;rn::.,;,NIA NI: SONG~.:!, -~~~.-:, DC. HIGi.i COURT G'Ril·illd.L A ?i.-'~U:, NO. 12, 01 1 11 1994 ORIGIN.t.L C.:UMIL:.L C~-8:1: HO a 20 OF 1993 OF Till.: DIS'.cfilCT CJUHT uF JvIU:FilJDI DISSJlICT 1'l.T Mtn?IlIDI UASSONI Siil~GA t ~ • • ., , o o o • • , • • • ,.., • ,. • • • Jl.??:;sLLANT (Orie;inal Accused) THE Rli:?UBLIC e ~ :, e •• C (; O o o e O <I• G C ,a Cle e e Iw:sPOND~NT ( Original l.lrosecutor) -r.r:w:,.~ JUD GM . .EN . . . . ., .,Ti. lfo.Dson Se.nga, the ar:._Jcl12nt wn.s;; be::"orc rlufindi District Court~ chnrg8d with and convictA of dcfileDw1t c/s 136 (1) and (4) of the :;:anal Code as nvend.0d :iy the written LC'..WS (llt.scellan.<c•ous aoendments) (No. 3) ,,ct• Act Lo. 19 of 1992 c.nd sent ..mcei to twenty (20) years' imprisonDent with ten (10) st:cokes of the 02..nc. 'i'his appeal jo against conviction and sentence. '.;:111..., fo.cts relevant to the app"-~-, · ~+, -.Tula.g.ile Sanga (FWI) thirt'"en yGars' old e'.;andc.rc;, V :,,)upil0 She stays with her 1'.'10 cvppe:llant iE' rel ,t:2. ~~- ~. 1 :.:,a.rents at Ifupila village, Mufindie 'by COUS:lll3Uinity~ "..round. ~ ·l-'erJ• on 24/11/92 ?WI wr,s study:i.ne- r.t r_01ae with one Eric Hohcmf."Cl., LO Her younger broth"'r wac also preE :mt" Th0 n.ppellant called and .:;.sked for her mother.. Sha we.a n~.t at lu1::e .:mcl 1,0 was her father.. Tl1,~ latter had. accor;rJa.ni1..:d his wife to h0s1i to.l. 'l1he appellnnt aske.d to borrow c. . hoe. 1'~11 t,Jld hi.J3 tru:i.t it was in thu t}hr,nba., '1:he 2,ppellant then c.sked her to 2.ccor.1i:;any hiu to hL.i hor.x, wr.ero hu se,id he intended to send her sood pl~;ce to got !:1is l':..l.{sgat:;eo ?WI c,;r.eodo lt.s to what hapr•m.ed on rcn.chin;; the- ;J,l)pella.nt I s rcs.i. ,cmc0 1ut HvI t .. kc up the story: I) He ( :1ppella.nt told ;.:e to 0::-.t ugc1li.~ I. ate it" He took his candle c•.nd 0!1tered in his rooo • ••ftL;r eating u .sali 7- told ,?.caused (Ap:i,iellnnt) that ho shoulC. sen:: ne whore he i-Jnnted raa too - 2 Lccused told ee to go in hi1:, br.d.roe::-1c I refused saying, thc:t h•, wanb:;. ne to sond me to cu.:ery his laggag·e" He im:d.sted 110 to go in, ,md camo to tJ:1e si ttinc :room wl'1ere I was o.nd pulled m€; to the bccJ.room. I raised an alarm. · Ha pulla'.l a ha.n/Ji-·,..,rchief c.:od covered 11y mouth w1 th .i. t sc th;',t ;:ry alarm uhould not be heard. He fol:l. mo on his bed and pulled off uy clothes and -;,:ix1r.:erwear ., He · undressed his clothes, he t.o,)k :C,is rsnis and p.:lerced it in ey vagi::la• I felt great pains and I f.elt very unhappy. ,,:Cter finis1:'ting up bis will I wont outside c:-,;L,:·.ring t:N ~lothee •••• • l'WI -;rent straight to her niece Robecc:. Sax::g"' {PWII). PWII saw that she w2.s c:.:-ying and h,;r walk was. ur,:c1taar..y • Jn hearing what be fu:..l her she took h1r to the cell leade~ Sha.5bu Kitillu:co (FWIII). He was not there. They wont to slee1i and ,called Gt hiD again in tht:t morning. 1 HlIII took them to Anyawile Tweve (.?WIV) the aPP'Jllant' s landlord. They went to the appellunts residence. Ifo was Y-,ot there al though the doors were not locked. Following the :roturn of :i-H.L',s ·rather ehe wag t:J.ken tc, Mafincla. Distric.t H9spHE.le • Dr. Joh:,1 MQ.sha (PWV) is a speoLJ...i.nt in v1,1nc,real diseases and h"lY • He exnr.1.in~d ?WI on 28/11/92. His fi.ndi.ngs tJ.: ·.set out in a -PF3 (exhi'bit PI) show: li.ii!:x:2.13ined and intorroga.ted -~ o,pp.::crent c:,ga 13 years. l~lleged of bein;:; :r-cipJd 5 d.,::ya prior to my cxru!lµlation. J?inclingss- a- Vulva stained whit.~_R,,,, rH sch~,,.,~e .tron the vagina (f,;tJ. sncll ir:;;) o :- reoaining tags of to:i.n bync"" (caru,.~culae I:1J-ritifo:rues) 0 :- no bruises nor laccrc,ticnf.i "'""t' tearso 1- normal fossa naviculr-,:t:is, r·"'':'t and ante. CormSG'U.:'.'0 norLlG,i • :- tender intiloi ttJS anJ. can accom.":lodate 2 fing-'rs() ,_ nomal nons veneric with few mons hairs ,. bruises (left) knee EOW heal.in,;. I I The matter was rei:orted to the police "-ho advised. tho reporters inolucling ?WIV t,.o look for the appellant,. l.ftc,r a long search they got 'ldnd tha.t he was in Mbeya.They told the 1.JOlice. On 20/1/93 D/Sgt. 'lhoodore (HNI) was dispatched to Mbeya whore h0 .found. the appellant a.i-rested and. took him. baclc to Mu.fincl1. In e1.efence the appella..'t'J.t raised en s,libi,, He stc.t~d that a.t tho rna.teriaJ. tine he was employed by Stcl:'cvallcy Company in Mufindi a11d was staying as a. tenant in the house of PWI7. In October, 1992 he applied for a short lec.ve from his eL:ployer to go to Mbeya to bey used clothes for purposes of trading. H8 left for Mbeya that month. He did not bid ilis landlord forewell. Ey Janun...7 1993 he had not I returned to Mufindi• So it cane to him as a su:cprise when in that Jlontb he was arrested for an offence he allagec.ly comitted 1n Mufindi ill November, 1992 when he was in Mbeya.. There is no doubt but that on the basis of the evidence of PWI, supported as it were by that of PWV, PWI is agec:1. thirteen yeaz:a ~ that in the night 0! 24/11/92 she was defil(;)d. PWI named the appellant a.a her ravisher. She describeu in t:,i:reat d9tai l. how the appellant lured her to go to his house where it turned out that his intention was but to gratify his sexual desires. She repe~tcl th~ same story the same night to PWII and to ?WIII and PWIV the noxt norning. '11h11 ovidence shows that the ap:r,1ellant is known and related ·~o :i:·WI · 2.nd the condi tione and c;µ-cunstances for identification were not only f:'JOd but excellent, So too question of mistaken identification can not '";.rise. Could l'WI have wrongly accused the appellant as his ravisher? Like the trial court I find no motive let o.J.one a. plausible ono. The appellant was a tenant in the house cf HilVo He was not seen ~t the house from 25/11/92 which w~s c dey- following the incident. I'wtV was left to wonder why the appellant, his t.:mant, left the house unattenclea., unlocked and without notice. To cr6wn it 3.ll he had not even paid llis rent. If the appellant's missicn to Nb:1ya wa.s a.s innocent as he claioed what was the hurry for? It seems tc no that he ran off to Mbcya. w.ithout dischn;rging his social obligations in a llid to escape from the apparently long o.rn of the law. Without further ado I find the appeal a 6ainst convictfon devoid of neri t. ._., 1 I turn to the appeal against sentence.. '11110 offence was committed on 24/11/92 2.lld thG appellcnt was sentenced unde:;:- the pro·11aions of the written Laws (Miscellaneous lloandnents) (Hoo ;) (Act, Let !foe 19 of 1992. :But this Act was assented to (and oaoo into offcct?) on 28/12/92 ~hich - 4 - is n.bout a nonth o.ftcr tho coomission of the offence. The issue is whethc,r the appellant fell to be sentene,;;d under act Ho. 19 of 1992. It is enacted under the provisions of section 49 of the inter1:iret0,tion of Laws and. General Clam,os ,,ct, 1~ct No, 30 of 1972 as followsi 0 49. Where wxy act constitutes c-in ' offence, and the penalty for such offence is aIJanded between the time of the cor:inission of such offence and the conviction therofor, the offender shall, unless the contrary intention appears, be liable to the penalty prescribed at the tine of the corar:u.ssion of such o.ffence 11 • Punc.1 st::i.tutas lack retrospectiv9 force. The appellant "there.fore fell to be sentencetl under the provisicns of sub-section (1) of section 136 of the renal CotlG read together with the provisions of s~ction 17e · of the Cri.ninal ?rocedure .i1ct, 1985 and not under the provisions o! 1..ct No, 19 of 1992. · Consequently the scnt0nce iuposecl on the appellant by tho trial court was ,illegal and can not str::ml. ::t t is quashed, Instead thG appellnnt is now sentenced to twenty (20) yeo:rs' iBprisonoent with ten (10) strokGs of the cane. +n sentencing the appellant the -t..dal court had reoarketl, amongst other things~ that, 1iThis offence of dcfilewmt of little children is now like a daily meal in the District 11 ,, If·this bd the cn.se I have no doubt in my nind. but that the sentence mw i:~posec.l on the appellant ·will turn his t~ste to a socially accep~~bl8 nenu~ \l,t.--\.>..,._ 1/ W.N oB• Ka;)eya PIDC,, :.:JXT, JuriF:iiction 20/10/95. Dolivorcd in chamber this 20th C.,::y of October, 1995 in the presence of Nr. Waryuba; l0arned State i::ctorn<Jy and in the absence of the appellant, I' ', j \~------'}VA-.'-'/ . W.N.~a. Kapeya .,, PRf'!ie Ext., Jurisdiction :20/10/95. i1T SOHGEA