fuku lusamla vs republic 2013 tzhc 2056 20 august 2013

IN THE HIGH COURT OF TANZANIA AT TABORA APPELLANT JURISDICTION (Tabora Registry) (DC) CRIMINAL APPEAL NO. 107 OF 2012 CRIMINAL CASE NO. 205 OF 2010 OF THE DISTRICT COURT OF KAHAMA BEFORE K. M. MTEMBEI RESIDENT MAGISTRATE FUKU LUSAMLA ............................ APPELLANT VERSUS THE REPUBLIC ............................. RESPONDENT , 30th July 2013 - 20thAugust 2013 , . JUDGEMENT HON. S. B. LUKELELWA, J. The appellant Fuku Lusamula was on 13.09.2011 convicted by Kahama District Court on a charge Rape contrary to section 130 (2) (e) and 131 (1) of the Penal Code and sentenced to thirty years imprisonment plus 12 strokes of the cane. Six strokes at the beginning of the sentence and six strokes at the end of the sentence. 1 It was alleged in the Particulars of offence. That FUKU S/O LUSAMULA is charged on 20th day of May, 2010 at about 11.00 hours, at Mwanyanguli Village Choda within Kahama District in Shinyanga Region did rape one Helena D/O Mihayo a girl of one year and six months of age. PW1 Pendo Masanja satisfied that Heleni Mihayo is her daughter and she is one year and six months of age. On 20/05/2010 the appellant appeared at her home drunk. He asked for a place to rest. She gave him a place to rest in her room. He then called her and asked to boil some water for him. He then made advances to her which he turned down threatening to report him to her parents; then he gave her shs. 5,000/= which she divined to take. Her child was outside. Then she left for her shamba while in the shamba she heard her child crying in the house. She went to the house and found the child moving from the room where Lusamila was resting, and at the same time Lusamila was nowhere to be seen. The child was naked, her pants and dress was under the bed was under the bed and was bleeding having been seriously injured in her vagina. She was full of sperms and something had penetrated though the vagina. PW1 called her mother PW2 Helena Yangiri is the mother of the husband of PW1 she testified that she was at her shamba when PW1 came and told.her that Fuku had raped her child. She was carrying the child who had plant of sperms and blood on her dress. The appellant was no where to be seen. She informed village leaders who instructed village vigilantes sungusungu to trace the appellant. He was arrested at Bukumbi village which is a neighboring village of Mwanyanguli village in Chele ward. The child was taken to hospital by her mother and father. PW1, tendered a PF3 which was admitted in court and marked exhibit “P” PW3 Mashaka Mashamba is the father of the child. The appellant told the trial court in defence that sometimes on 18/05/2010 a certain woman came to him at 9.00 hours asking him to buy her rice; but told her that he had no money. She then told him that she was leaving him with unhusked rice and he would pay later. She had three tins of rice which she was selling at shs. 15,000/= at a price of shs. 5000/= per tin. The mother of. the woman one Mwanayongilo was also present at his house. 3 He did not get money on the material date, he decided to return the rice to them on the following day. Then Mashaka asked him about the rice, they started to fight. The Mwanayongilo followed him, admonishing him far having told Mashaka that she had sold him the rive. On 20/05/2010 he was arrested by two people, he was taken to WEOS’ office where he was told that he had raped a child. He was beaten up while being forced to admit committing the rape. He refused telling them that the case had been fabricated because of conflict over sale of rice. In convicting the appellant the learned trial Resident Magistrate held that the appellant had over whelming chances to commit the offence since he was the only person who had chance to rape the victim as he was left with the victim at home. The immediate departure of he appellant when the child began to cry proved that the appellant had committed the offence. The appellant has raised six grounds of appeal in the petition of appeal. I go a long with the appellant that the PW3 exhibit “PI” was admitted without adhering to section 240 (3) of the Criminal procedure Act, hence the same is expunged from the record. 4 However PW1 and PW2 had seen the child vagina having been penetrated through by something and was bleeding and having sperms, PW1 and PW2 being adults knew what sperms was and penetration into the child’s vagina. PW1 had testified that the appellant was a friend of her husband that is why he let him rest in her room as he was drink, he was therefore not a stranger as claimed by the appellant. I agree with the learned trial Resident Magistrate that the Circumstantial evidence, irresistibly showed that the appellant had committed the offence and had no other reasonable explanation than the guilty of the appellant. •I therefore find that the appellant deserved the conviction. I therefore dismiss the appeal on conviction. As regards the sentence imposed on the appellant, section 131 (3) of the Penal Code provides that.” Notwithstanding the preceding provisions of this section whoever commits an offence of rape to a girl under the age of ten years.shall on conviction be sentence to Life imprisonment. 5 The victim Helena d/o Mihayo was aged one year and Six months according to the evidence of her mother PW1 Pendo Masanja. The sentence of thirty years imprisonment imposed on the appellant was therefore illegal, and it is hereby set aside. I substitute thereto a sentence of LIFE IMPRISONMENT. The Corporal punishment is left undisturbed. Save for the variation of the sentence, this appeal is dismissed. Order accordingly. JUDGE. 20th August, 2013 6