frank so mathias vs republic 2008 tzhc 108 8 september 2008

IN THE HIGH COURT OF TANZANIA ATTABORA APPELLATE JURISDICTION (Tabora Registry) DC. CRIMINAL APPEAL NO. 112 OF 2007 ORIGINAL CRIMINAL CASE NO. 55 OF 2003 OF THE DISTRICT COURT OF MASWA DISTRICT AT MSWA BEFORE: R. MASIGE Esq., DISTRICT MAGISTRATE FRANK S/O MATHIAS............................... APPELLANT (Original Accused) Versus THE REPUBLIC........................................ RESPONDENT (Original Prosecutor) JU DGM EN T 11/8/2008 & 8/9/2008 KADURI. J. The appellant Frank s/o Mathias was charged and convicted of Rape c/s 5 (1) and (2) and section 6 (1) of the Sexual offences special Provisions act, NO. 4 of 1998. He was sentenced to 30 years imprisonment. The respondent Republic does not support the conviction for rape but prays that is be substituted with a conviction for grave sexual abuse c/s 138 of the Penal Code. The appellant was employed by PW2 Tungu s/o Ponda to drive cattle to Dar es Salaam for sale. The payment for each trip was 40,000/=. The victim is the daughter of PW2 and she is aged 5 years. On 1st June, 2003 PW1 Tatu d/o Daudi, around noon found her daughter Tinde missing. She asked for her where about and she was told that she had been called by the appellant. In her testimony PW1 stated that she went to the house where the appellant lived. There she found the appellant sleeping on the floor with the victim. She pulled her daughter away. She raised alarm and traditional guards, Sungusungu responded. The appellant was arrested and taken to the Police. When she examined her daughter she found spermatozoa spreading over her thighs and area of the vagina but detected no bruises to the child. In his defence the appellant stated that he had grudges with the wife of his boss, PW1 who promised to do something bad to the appellant as the appellant had left a cow to die. The appellant further claimed that PW1 could not allow the appellants boss to pay the appellant areas of his salary that is why they fabricated this case against him so that he losses his payment. There is no doubt whatsoever that no time was wasted between the arrest of the appellant and the report to traditional guards, the police and altmately to hospital where the victim was examined and found with spermatozoa spread over her thighs and area of her private parts. I would agree with the learned State Attorney that there is no proof of penetration. What PW1 & PW2 saw is spermatozoa spreading aver the victim's thighs. The medical Report has also confirmed their testimony. The learned State Attorney has submitted that the appellant ought to have been found guilty of the lesser offence of Grave Sexual Abuse c/s 138 C (1) (a) of the Penal Code R..E. 2002. He invited this court to invoke the provisions of section 300 (2) of the CPA and convict the appellant even though he was not charged with the offence of Grave Sexual Abuse. I agree with the learned State Attorney that rape was not proved in this case. The victim was observed to have spermatozoa on her thighs and area of her private part but no bruises were seen. The girl is aged five years and penetration of male organ of the age of the appellant an adult who was then aged 27 years could have made the victim cry in pain as the appellant argued in his grounds of appeal. It follows therefore that rape was not committed. Under the provisions of section 300 (2) C.P.A. when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it. The learned State Attorney has submitted that the appellant's act was intended to gratify his sexual pleasure. I respectfully agree. The victim is a child at the time the offence was committed she was aged 5 and therefore below the age of consent. There is no proof that the appellant inserted his male organ in the victim's female organ. The proof we have is of spermatozoa spreading on the victim thigh and area of her female organ. This in my considered opinion amounts to sexual gratification on the part of the appellant by use of his genital on the private parts of the victim which lead to spermatozoa spreading on the victims thighs and area of her private parts. I therefore quash the appellants conviction of rape c/s 5 (1) and (2) and section 6 (1) of the Sexual offences Special Provisions, act No. 4 of 1998 which amends the Penal Code section 138 CPC as amended by S. 12 of act No. 4 of 1998. I find the appellants guilty of the offence of Grave sexual abuse C/S 138 C (1) (a) Penal Code R.E. 2002. Under the provisions of section 138 C (2) (b) a person who commits grave sexual abuse on any person under 15 years of age " is liable on conviction to imprisonment for a term of not less that twenty years and not exceeding thirty years and shall also be ordered to pay compensation of an amount determined by the court to any person in respect of whom the offence was committed for injuries caused to that person. The sentence of thirty years is also set aside and substituted with one of twenty years. The compensation order for 200,000/= to be paid to the victim for injuries suffered as determined by the trial court is left undisturbed. The appeal is dismissed. JUDGE 27/8/2008 Judgment delivered this 8/9/2008 in the presence of Mr. Juma Masanja, State Attorney and the appellant. L.K.N. KADURI JUDGE 8/9/2008