20121129 TZCA Mbeya2

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: BWANA. J.A.• MANDIA. J.A. And KAIJAGE. J.A.) CRIMINAL APPEAL NO. 149 OF 2011 EXAVERY MALATA..................................................... ~ ....................... APPELLANT VERSUS THE REPUBLIC .............................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania · at Mbeya) (Mackanja. J.} . .. . [ \ Dated the 3 rd day of November, 2004 i \. .~- / in Criminal Appeal No. 57 of 2002 .......................... JUDGMENT OF THE COURT 29 th November, 2012 BWANA, l.A.: The appellant was charged with and convicted of the offence of rape contrary to section 130 (2) (e) of the Penal Code as amended by the ~· \ _.,; Sexual Offences Special Provisions Act, 1998 (SOSPA). He was alleged to have raped one Vumilia Mpembwe, a child aged three years. The offence is said to have been committed on 24th Septe.mber, 1999 at about 16:30 hours at Manienga Village of Mbarali District. The Mbarali District Court (the trial court) sentenced him to the mandatory. statutory sentence of life 1 l j; imprisonment. His first appeal before the High Court was unsuccessful, hence this second one. · Before us, the appellant was unrepresented while the respondent Republic was represented by Mr. Vicent Tangoh, learned Principal State Attorney. The facts of this case as discerned from the record, are brief but to the point. Madawa Wimila, PW1, the mother of the victim child, left the latter sleeping in their house when she went to collect water from a well. When she came back, she found the appellant "infiagrante delictd', raping the said child. Examining her child, she saw sperms on the private parts and clothes of the child. Upon seeing PW1, the appellant ran away and was later arrested while hiding in a nearby bush. The appellant lived in a house next to where PW1 lived. Although the appellant pleaded not guilty to the charge when he appeared before the trial court, he did, however, change his stance in the course of his defence. This is what he stated in his defence:- 2 11 1 live at Matemeta Village. On 24/9/1999, PWl left me at home with his (sic) husband She went to harvest maize. I admit that I raped the child. It is true. I raped the child. I have no defence. I am sorry." [Emphasis provided]. The trial court convicted the appellant on the strength of the prosecution evidence and on the basis of the appellant's admission in defence. The first appellate court held that what the appellant said in his defence amounted to an unequivocal admission of guilt. It upheld both conviction and sentence. Before this court the appellant raised several grounds of appeal which may be summed up as that: PWl's evidence needed corroboration; and that the PF3 was tendered in evidence in contravention of the provisions ,of section 240 (3) of the Criminal Procedure Act (the CPA). 3 We do agree with the appellant that the PF3's production in evidence did not follow the procedure provided under section 240 (3) of the CPA. So it ought to be and we do proceed to expunge it from the record. The PF3 expunged, the rest of the evidence is still sufficiently cogent to ground a conviction. PWl's evidence was admitted as being credible. Her demeanor before the trial court could not be doubted. Both courts below did not hold otherwise on those factual issues. We have no reason, as a second appellate court, to fault those findings particularly when the appellant himself did admit in his defence, to have committed the offence. PWl's evidence leaves no doubts that she found the appellant raping her 3 years old child. We have no reason to doubt her version. We further hold that such evidence needs no corroboration in order to ground a conviction, in terms of section 127 (7) of the Tanzania Evidence Act. The foregoing notwithstanding, it is evident that PW1 's evidence was corroborated by PW2. Therefore the prosecution case was proved to the required standard, that is, beyond reasonable doubt. 4 All the foregoing considered, we find no merit in this appeal. It is dismissed in its entirety. DATED at MBEYA this 29 th day of November, 2012. S. J. BWANA JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL S. S. KAIJAGE JUSTICE OF APPEAL ~ c :::lpikya) SENIOR DEPUTY REGISTRAR COURT OF APPEAL 5