19980525 TZHC Dar es Salaam

IN Tlff, IIIGII CO( TRT OF TANZANfA AT DAR l~S SA LAA.M HIGH COURT CRIMINAL APPEAL NO. 38 OF 1997 ORIGINAL CRIMINAL CASE NO. 502 OF 1995 D.P.P...................................... :·······.,\.l>PELL,'\Nl' RAMA-A~, A-Lt. .JUDGKME.NT KALEGEY A, J. TI1e Respondent, Ramadh;mi Alfy Simha was charged with Defilemc1/ :lf a girl under 14 years of age cis 136 of the Penal Code. "I11e Court found as established the following; that Anna ~chaei a standard III pupii aged 12 years, ha"ing been sent by her mother to Respondent's place to buy "chapati" the latter lured her into his room; had his penis introduced into her vagina as exemplified by the medical examination medical repo~ (PF 3) runs a..q follows, · "10 years old child with I)i~charg7 from the vagina ~howed spermatozoa a picture consistent i/c ejaculation despite of Hymen bcing intact with slight bruises ... \ ) '----, Having so fow1d the court proceeded to !!late, "In the final analysis, therefore, I find the prosecution has proved beyond reasonable doubt the offence of Indecent assault on fcrnales or girls c/s 135(1) of the 1'enal code". ·l11e court dulv entered com,iction and ~enlencc:<l accu.~cd lo-~ _vca,·~ imprisonment with an ~,rdcr lo compensate Ilic victim in the sum of shs.20.oow--. Aggrieved by the manner the com,iction was entcrc(l and so is the sentence the Director of Public Prosecutions appealed to tlrn; court challcng.ing that "The learned . ; ..t; trial magistrate erred in the law and fact in substituting the charge of defilement or a girl under 14 years els 136( 1) of the Penal crnk with lhal uf indecent a~~ault els 13 5(1) of the Penal code, whereas in the circumstances of the case he ought to have it substituted with section 136(2) of the Penal code". and also that the sentence was manifestly inadequate and grossly below the minimum prescribed by law. :Wlr. Chi<lowa, Stc1lc Allomey, argued furcdi.1lly lh;.tl onct.: evidence cslablishctl penetration of the vagina by the Respondent• s penis, notwitJ1standing the intactness of the hymen, the offet1ce of <lefilemcnl d~ 136( I) Penal co<lc wa!i prove<l beyond <louht. This appeal proceeded in the absence of the Respondent because he has never surfaced since the closure of his trial. Even the judgement of the lower court and sentencing were delivered in his absence. Todate he has not been apprehended. Now turning to the complaints by the Director of Public Prosecutions, save \'I.1th minor contradictions which I Vvill shortly show. I can outrightly say lhat they arc fully justified. Once the trial Court found as established the above enumerated facLq we are lefi wondering why it did not proceed lo comict the accused (now Respondent) on the offence with which he waq charged ,,ml inqfc:ul, without :my explanation, .c;uh~tituted it ·with indecent 3SS3uJt c/s 13 5( 1) of !he penal code. Herein above I have indicated that the DPP's complaintq are fully jw,lificcl "wilh minor (.onlradiction'". 111c contradiction lies in the manner by which the DPP launched the complaints. In his memorandum of appeal the DPP says that substitution should have been made to S. 136(2) which refers to attempted defiJement. Howcvrr in hi~ ornl submi~~ion Mr. Chidowa foUy argued on 136(1) and did not even refer to S. 136(2). On the facts available there is no question of attetnpted defilement or indectnt a-.~ault. Tt wa!:: e~tahfoihe\l beyond ilnuht that the . Respondent's penis penetrated :\nna·s vagina. in the ,rrocess ejaculating therem as verified by the presence of the ~pcnnalozoa. On theRe facts. found hy the cou11 as established by evidence, com-icri,m should have been on defilement of a girl under 14 years c/s 136(1) and not indecent assault els 135(1) of the Penal code. ) For reasons discussed above. the tti;ll court substituted com.iction on S. 135(1) of the Penal CO\ie if-1 qna~hell and ~d asi,lc and in suh:-ititution thereof i~ (;ntered a conviction for defilement of a girl under l 11 years c/s 136( I ) of the Penal code. 111c sentence of three years passed hy the trial ..:ourt is also quashed and set aside and substituted thereof is the minimum sentence of 20 years imprisonment as prescribed under S. 136(4) of the Penal code (As amended by Act 19 of 1992). The order for cumpersalion remains umlislurbt:tl. Appeal - accordingly allowed. I should however make: an oh!!c1vation on Rc~pomlcnt'~ unpro~urnhility to serve his sentence. When being granted bail the accused gave his address as 1\ifagomeni ri\ Kagcra, rv1weka street No. 8. 111is procedure by court oflicials of not getting full l - contact address of people to be released on bail can only earn condemnation. An . - (. accused should clearly state foJt particularn including the house he occupies, its mvner aml lhe relevant Len cdl leader or t!<(Uivalcnl. ff the Court i!4 in clouhl ii 1,;an ever call for evidence to satisfy itself on the particulars. Only then can their appearance be guarantted. All this seems not to have hecn done in this case. 111at apart, it would seem further that the court made no attempts to call upon the police lo hunt for him or his surety. His surety's address is given as. Khalifh3 B. Mtai. holder & identity card No. PF.0306, working \\ith SAFARI RNIBRPRJSF.S AND CONSTRl TCTION COl'vfPA~"{, T,111. Surprisingly again no physical addre:i1s of the said Company wa~ recorded! The above notwithstanding if due diligence to procure the Respondent is made !'!urely he can he traced. 111c lnwcr c1 ,11rl is directed to take the ncccs-.ary steps towanl~ that end so th.at the culprit serves sentence according to law. KJ\I.EGEYA .HJI)GE JU,,4/98 .1 Delivered today the 25th May, l 99i, in the presence c,f i\,frs Kahisa, S/ A and absence of Respondent. KALEGEYA JUDGE 25/5/98 r .. --- l I I • . • ·"' 1 •• r,h.., 2s - 5