20110902 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA (DC) CRIMINAL APPEAL NO. 79 OF 2010 (ORIGINAL KONDOA DISTRICT AT KONDOA COURT- CRIMINAL CASE NO. 200 OF 2007) AMIM U IDD ........... ~........... .. .. APPELLANT versus THE REPUBLIC .................... RESPONDENT 3/06/2011 & 2/09/2011 REASONSFORJUDGEMENT HON. MADAM, SHANGALI, J. The appellant AMIMU -- -· IDC>J, -- ______ .. -~ young -- -~-- ·--- . man ageg ~Q_y~~r_sc_ ____ _ ·--. - - ·. ----. -·--·--·-- old was cl1arged and convicted with the offence of rape contrary to section 130 and 131 of the Penal Code as amended by section 5 of Act No. 4 of 1998. He was sentenced to serve thirty years impris_on_ri,-ent an-d--to slJffer twelve strokes or the cane. 2 ... Aggrieved by that decision the appellant preferred this appeal intending to impugn it. On 20 th April, 2011 when this appeal was called for hearing the appellant appeared in person and unrepresented, while the respondent/Republic was represented by Ms. Shio, Learned State Attorney. In his memorandum of appeal the appellant had raised a number of issues including failure by the trial District Court to comply with the provisions of section 240 (3) of the Criminal Procedure Act (Cap 20 R. E. 2002), lack of sufficient evidence to connect the appellant with the offence, failure by the trial District Court to consider defence evidence and confusion as to who exactly committed the offence against the victim. The appellant categorically protested his innocence and alleged that he was wrongly convicted and sentenced. In .. her:. ample submission; Ms. Shio refuseEI- to support the decision of the trial District Magistrate and supported the grounds of appeal raised by the appellant on the ground that the prosecution case was not proved to the standard. required in ct=iminat~cases-be.-beyohd- reasonable-doubt:- -- -------· -·· · -~ --- ··· , · •• • - C ~:'==:::::.:-c::-'. - - -----·- .. 3 On the first ground Ms. Shio concede that the trial District magistrate ought to have informed the appellant his rights under section 240 and afford the appellant an opportunity to cross- examine the maker of Exhibit PF3 as required by the law. Two, Ms. Shio, Learned State Attorney was not pleased with the way the trial District Magistrate decided to ignore the appellant's defence evidence and accorded no weight to it at all and dwelled sorely on the prosecution's evidence as if the appellant had said nothing in his defence. Three, the Learned State Attor·ney conceded that there was _no sufficient evidence to es_tablish w_b_a_ arrested the appe.1-la-R-t a-nd-- - - where the arrest was made. Four, the Learned State Attorney submitted that the evidence on record i.ndicate that the alleged victim was a mentally retarded l?ersgn wt)_Q_ c:IC;Jirned t~at . t.~~ a_pr2.,ell 9_J]t __ - .. • ,~~ ~ - • ~--T~~~•-••ce•. ~ .._... ---- <------• • - attempted toJover her.· It is also on record that the victim -=--~-- --·- . . ~·- --- --?£-::r..~;.- 4 claimed that the person who attempted to love her was Hamim Ijumaa. The learned State Attorney was of the considered opinion that the victim being in the said condition, her evidence should have been taken with caution but the trial District Magistrate did not explain as to why he opted to find the victim's evidence credible and watertight despite of her condition and discrepancy. Upon hearing the submission from both sides, and having" gone through the record of proceedings and the judgement of the lower court, I immediately on 20th April, 2011 allowed the appeal, quashed the conviction against the appellant and set aside the sentence of thirty years imprisonment and corporaP punishment imposed against the appellant. I also ordered for the appellate immediate release from prison unless he was held in connection with another different matter. I also reserved my reasons for such an order, which I am now revealing __ in this ' -- --~-- - ·--- ---··- -- ···-·-··-·-- - judgement. . I totally and completely agree with - Ms. Shio's . -~ - position --- and - ' . ~ . .. ~ .. , ' . . ,,. - submission. There was no sufficient evidence to connec:t the • 5 •' appellant with the alleged offence. It is not certain as to why the trial District Magistrate decided to contravene the provision of section 240 (3) of the Criminal Procedure Act. It is neither clear as to why the trial District Magistrate decided to completely ignore the defence of the appellant. In the case of Hussein Idd & another Vs. Republic (1986) TLR pg.166 it was held that, it is a serious misdirection on the part of a judge to deal with the prosecution evidence on its own and arrive at a conclusion that an accused person truly committed an offence without considering the defence evidence. I am also in agreement with the learned State Attorney that the trial District Magistrate should have warn himself before believing the evidence of the victim taking into consideration her mental status and kind of the evidence she was attempting to a_d_duce. B_y all str=e-tGt1- of -!magi-nation the wo-rds-- attempt t6 lov€?7 · 11 have no relation or connotation with rape. In my considered view the trial District Magistrate decided to treat a serious case of rape lightly to the detriment of the appellant. • 6 In conclusion, it was for those reasons that on 20 th April, 2011 I decided to allow the appeal quash conviction, set aside the sentences and ordered for immediate release of the appellant from prison. Reasons for judgement delivered to-date 2 nd September, 2011 in the presence of Ms. Shio, learned State Attorney for the respondent/Republic and the appellant present in person. ~ - .-- _----,- ~-~-~~~~ ...