20041105 TZCA Dar es Salaam

r . - ' ,. , .. IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: LUBUVA, J.A., NSEKELA, J.A. And KAJI, J.A.) CRIMINAL APPEAL NO. 85 OF 2001 BETWEEN ATHUMANI ABDALLAH ........................................... APPELLANT AND THE REPUBLIC ................................................... RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Moshi) · (Munuo 1 J.) Dated the· 20 th day of January, 2000 In Criminal Appeal No. 76 of 1999 JUDGMENT OF THE COURT LUBUVA, J.A.: In the District Court of ·Moshi, at Moshi, the appellant was charged with and convicted of the offence.of defilement of a girl under the age of 14 years contrary to section 136(1) of the Penal Code. He was sentenced to twenty (20) years imprisonment. Unsuccessfully, he appealed to the High Court and hence, this appeal. · At the trial the case against the_ appellant was that on 19.12.1996 during to the night at Kiyungi Village Moshi 2 District, the appellant had carnal knowledge of Safina d/o Juma, a thirteen year old, step daughter. That after having had carnal knowledge of the victim,. Safina d/o Juma, the appellant fled through the window so as to avoid being caught up ready handed by' his wife (PW1) and PW3, a neighbour. Upon entry in to the room, PW1 and PW3 found the victim, Safina d/o Juma dressing up. On interrogation, .Safina d/o Juma, admitted that the appellant had had sexual intercourse with her._ The matter was reported to the police and Safina. d/o Juma was taken to the hospital for medical examination and treatment. According to the evidence of Dr. Omar Mushi (PW6) and PF.3 form Exh. P.1, the victim had been sexually assaulted because spermatozoa were observed in her private parts. The trial court, believed the evidence of PW1 and PW3 as truthful. The appellant who, simply denied the charge, was convicted and sentenced to -twenty years imprisonment. On appeal to the High Court, (Munuo, J. as she then was), the appeal _was dismissed. 3 Before us in this appeal, the appellant was unrepresented. He filed eight (8) grounds of appeal which in our view, do not raise any issue of substance. From the totality of these grounds, perhaps two points emerge which we wish to address briefly. First, the appellant complained that as the alleged offence was incest under section 158(1) of the· Penal Code, the proceedings were a nullity because there was no consent granted by the Director of Public Prosecutions. There is no merit in this ground of complaint. The appellant was charged with the offence of defilement of • a girl under ·the age of 14 years contrary to section 136( 1) of the Penal Code. Unlike section 158 (1) charges under section 136(1) for defilement of a girl under the age of 1-4 years, as was the case with the appellant in this case, the consent of the Director of Public Prosecution is not required. The· appellant was charged with defilement of a girl under the age of 14 years because the victim, Safina d/o Juma was not his child. The complaint raised in this regard is without foundation, it is dismissed. 4 The second. point worth considering is the fact that the . trial was conducted throughout in the absence of the complainant, the victim of the sexual assault. This, the appellant alleges in ground 5 of the memorandum of appeal. was not only improper but it also showed that there was no such complainant, the case had been fabricated against him. In this case, Mr. Mwarl}po.ma, learned Senior State Attorney submitted, the victim of the sexual assault could not . be called as a witness because her father being disgusted with What the appellant had done to her, took her away to an unknown destination. As a result, the Senior State Attorney further urged, it was not possible to summon her to court to testify. At any rate, he also submitted, her absence at the trial did not in any way affect the essence of the evidence in support of the prosecution case. 5 While we are in agreement with Mr. Mwampoma that it may well be that Safina d/o Juma could not be traced to be served with summons to come to testify in court, it is to be pointed out at once that the circumstances under which her statement Exh. P4 was admitted in evidence do not fall within the ambit of the · provisions of section 34 of the Evidence Act, 1967. It was therefore improperly admitted in evidence. However, there is no scintilla of doubt in our minds that . even if this aspect of the evidence is discounted, the remaining evidence was sufficient to sustain the conviction against the appellant. First, in his cautioned statement, Exh. P .2, the appellant admitted having had carnal knowledge of the complainant, the victim, Safina d/o Juma. Second, the evidence of Anastasia Mathia (PW3) is pertinent. In her evidence,· she stated that on the day of incident, at night time, with the aid of electric light she saw the appellant, a next door neighbour, climbing down the window from the 6 room where Safina· d/o Juma was sleeping. The appellant was half nake~, he fled and she raised an alarm. Among the people who came in response, ·was. Mariam Ath·umani (PW1 ), the mother of the victim,. Safina d/o Juma. PW3 and PW1 went to the room· of Safina d/o Juma who was found dressing up.· Safina was taken to the hospital where as PF.3 . . ·.· ._ . . . . : . . . ' ' form shows, she was seen w.ith ·spermato'zoa in her private parts. ·Furthermore, her hymen was also seen to have been perforated and tender. ·_From such - medical. evidence and the evidence of PW3 who, the trial magistrat~ having seen and assessed her , . . .. ' . credibility, was satisfied that she was· a credible witness, there was, as urged by Mr. ·Mwampoma sufficient evidence to sustain the conviction . . In the upshot, we are satisfied that there is no merit in · the appeal which is dismissed iri its entirety. 7 th DATED at ARUSHA this 5 day of November, 2004. D.Z. LUBUVA JUSTICE OF APPEAL H.R. NSEKELA. JUSTICE OF APPEAL s.·N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original. ( S.A. AMBURA) SENIOR DEPUTY REGISTRAR