msurupei ndoinyo hosea daniel vs republic 2014 tzhc 2140 12 may 2014

IN THE HIGH COURT OF TANZANIA AT ARUSHA CRIMINAL APPEAL NO. 3 OF 2014 (Originating from Ngorongoro at Loliondo Criminal Case No. 13 of 2013) MSURUPEI NDOINYO @ HOSEA DANIEL -APPELLANT VERSUS THE REPUBLIC........ ................. -........ RESPONDENT Date of last Order: 25/3/2014 Date of Ruling: 12/5/2014 RULING F.H. MASSENGI, J. Appellant Msurupei s/o Ndoinyo was charged convicted with the offence of burglary c/s 294(2) of the Penal Code, Grievous harm c/s 225 of the Penal Code and rape c/s 130(2) & (a) and 131(1) of the Penal Code by the District Court of Ngorongoro. He was sentenced to 10 years imprison for burglary, 3 years imprisonment for grievous harm and 30 yrs. Imprisonment, 12 strokes and to pay 3,000,000/= as compensation to the victim. It was ordered the custodial sentences to run concurrently. 1 Appellant dissatisfied by the decision of the court he is now appealing against it on the following grounds:- 1. That, the learned trial Magistrate erred in Law and infact when he failed miserably to evaluate the evidence adduced by the prosecution witnesses and he arrived at erroneous decision 2. That PW2 simply advanced a generalized accusation that she was raped the crucial ingredient of penetration was not proved as per section 130(4)(a) of the Penal Code Cap. 16 3. That, the learned trial magistrate erred in law and fact in not finding that the Appellants cautioned statement was taken outside the period stipulated under section 50 of CPA Cap 20 4. That, the learned trial magistrate erred in law and fact in holding that the Appellant was properly identified by PW2 5. That, the learned trial magistrate erred in law and in fact by not complying to section 131(2)(a) and (b) of the Penal Code Cap 16 6. The learned trial magistrate erred in law an fact in ignoring the appellant's defence evidence. In the cause of hearing the appeal, appellant stood on his own as he was not represented and the Respondent/Republic was represented by the learned State Attorney Mr. Kombe. In supporting his appeal the appellant resorted he his grounds of appeal and added that the victim in her identification could not tell the intensity of the torch light. And on the issue of being raped she didn't elaborate as to what exactly happened. He also challenged the 2 sentence imposed on him was over and above and prayed the appeal to be allowed. On his part the learned State Attorney did support the conviction but didn't support the sentence impose on appellant on the ground when appellant was convicted he was not entitled to corporal punishment. Briefly the facts from which the appeal emanates from are that prosecution are alleging on the night of 10/6/2013 at Kirtalo sub village in Soitisambu area within Ngorongoro District appellant broke into the house of the victim Norkirotiti Rukeine who was sleeping alone in the house and did took other clothes and raped her. The victim managed to identify him through torch light which she had and after telling him she has managed to identify him, appellant did hit her on the head with a club and wounded her. The victim lost consciousness and when regained she raised an alarm and people come to her rescue and she immediately named appellant as her invader. She was brought to Police Station and issued PF 3 and went to hospital for treatment. Accused was arrested and through cautioned statement he admitted to have committed the offences. Appellant in his defence he simply denied to have committed the offences. In his first ground of appeal the appellant is attacking the trial court for failure to evaluate the prosecution evidence and hence arrived at an erroneous decision. Though appellant didn't elaborate 3 this ground but I have gone through the trial court's record and especially the judgment and I am of the firm finding the evidence was properly evaluated by the trial magistrate. Though the trial magistrate informed the appellant of his right of calling the doctor who examine the victim to be called for cross examination but he didn't record the reply by the appellant so to ascertain whether the appellant has exercise his right and decided whether the doctor to be called or not and yet in his decision he considered it, even if the PF3 is expunged from the evidence still there is another prosecution evidence to prove the victim was raped and wounded. I therefore find the 1st ground of appeal to have no merits. I will then jump to the third ground of appeal as determination of the second ground depends on the determination of 3rd ground of appeal. On the 3rd ground of appeal, appellant is challenging the caution statement that it was taken out of the prescribed period. As well the appellant didn't elaborate on this ground but he didn't raised his concern when the cautioned statement was tendered in evidence nor he didn't object the admission. As the appellant is the one who alleges the statement was not taken in prescribed period he should not prove. And I therefore find this ground to have no merits as well. I now come back to the second ground of appeal that PW2 the victim generalized the accusation of rape and the crucial ingredient was not proved. But the cautioned statement fully demonstrate as to how the act of rape was committed and the ingredient of rape is also 4 proved. Therefore the cautioned statement collaborated the generalized accusation. I now come to the 4th ground of appeal whereby the appellant is challenging the identification evidence that he was not properly identified. According to PW2 the victim; she identified appellant through torch light which she had. The appellant is challenging the intensity of the torch light. I have considered the circumstances and especially when the victim told the appellant she has identified him and it is then he hitted her with a club on head. It's obvious the light was enough for identification and that is why the appellant hit the victim with a club after he knew he was identified and therefore the magistrate didn't eva in holding the appellant was properly identified and I therefore find he was properly convicted. In regard to the sentence I fully agree with appellant and the learned State Attorney that he was wrongly convicted as when he conducted the offence he was 18 years old and he was a first offender he was not entitled to custodian penalty as per section 131(2)(a) which provides: Notwithstanding the provision o f any law, where the offence is committed by a boy who is o f the age o f eighteen years or less, he sha/l- (a) I f a first offender, be sentence to corporal sentence only. That being the case then appellant was wrongly sentence to 30 yrs imprisonment in regard to the offence of rape. In regard to the offence of burglary appellant was sentenced to 10 years imprisonment. I admit the sentence was excessive and over and above the sentencing powers of the trial magistrate per section 171 of C.P.A. I have considered the period which accused has being in prison and find that it enough punishment to him that is seven months while appellant didn't deserve custodian sentence and find it is prudent to let fix. That being the case, this appeal is partly dismissed in regard to conviction and it is partly allowed in regard to sentence. F. H. MASSENGI JUDGE 12/5/2014 COURT: Accused to be released from prison immediately unless held for any other lawful reason. (SGD) F. H. MASSENGI JUDGE 12/5/2014 Delivered in court in presence of appellant and Mr. Kombe S/A for respondent. Right of further appeal fully explained. 6 (bfciUj I-. M. M A b b t N b l JUDGE 12/5/2014 be a true copy of the original DISTRICT REGISTRAR ARUSHA 0 -3 I > / /</ FHM/hj 7