ally hamadi nateule vs republic 2016 tzhc 2053 1 december 2016

THF. HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA CRIMINAL APPEAL NO. 122 OF 2016 [Appeal from the decision of the District Court of Liwale (R.E. Kangwa, DRM) dated 30th September, 2016, in Criminal Case No. 33 of 2016] ALLY HAMADI NATEULE ......................................................... APPELLANT VERSUS THE REPUBLIC ........... ................................................... RESPONDENT Twaib, J: The appellant, Ally Harr.acSi Nateuie was the accused person before the District court of Liwale in Criminal Case No. 33 of 2016 where he was charged of raping one Fatuma Kasimu Mchwembo, a girt of 15 years of age. At the conclusion of ilk fe vi3s convicted"' es charged-tind^soraencoG^ to t}ii;ty.- (*30) ..y*&rs •imprisGm&ent. Aggrieved,'be .has lodged Wis appeal. His petition of appeal',, which con la ins seven grounds, ohollenges both, the conviction and sentence.' However, tfc'e seven grounds may be condensed into'three grounds, as follows: 1. That in convicting and sentencing the appellant, the trial court did not take into account the fact that the appellant was aged 16 years. i 2. That the case against the appellant was fabricated as PW1 had grudges against the appellant. 3. That the appellant die; not commit the offence because on the alleged date' and time he was sick and was at his home with his family. And that he was denied and opportunity to call witnesses At the hearing of the appeal before me, the appellant appeared in person and had no legal representation: The Respondent Republic was represented by Mr. Makasi, learned State Attorney. In his brief submission, the appellant ostensibly added a new ground and submitted, in essence, that though he is, as of now, 18 years old, he was only 17 at the time of the alleged commission of the offence. He further argued that the •ircs&mt-Gastf has feecsn 'cooked'* up Ly the victim's father because he owed'him be convicted o f r$$flg fee sanfe "nl, Blit"-trie.father was not happy wjiisfe: Pji«isda^«t bfrc&stfejie vv?-g :j G r f \ a ^ : r r t j f e - period of community service. That was why, lamented the appellant, the father came up with this case—to ensure that .he (the appellant) is this time around sent to prison. On his part; Mr. Makasi'supported the conviction. He contended tfoat the issue- of age was not disputed at the trial court. “Ptee charge sheet and.the.facts case together with the appellhr.i's dofen.ee state Iis; age as 18 years old: Qn the app'ellant's-’asserdon-irt ojne of the grounds ©f appeal was,cte«i3d — i an opportunity to call witnesses, Mr. Makati responded that tKe record shows that the appellant promised to call three witnesses. But he only brought two. The last one was reported sick and the appellant closed his case. Hence, he had ample opportunity to call witnesses. As for the grievances between the appellant and PW1 (the father of the victim),' Mr. Makasi submitted that the appellant did not bring up the issue at the trial court. To him, this is an afterthought and cannot be entertained at this stage. He referred to the evidence of the alleged victim (PW2), who told the trial court that she had a relationship with theappellarit since 2015, and that they had sex on the material date. Counsel further submitted that there was evidence from DW2 and DW3 that the appellant was not at home on the day and time of the incident. Mr. Makasi submitted further that the best evidence of rape is that of the victim, in view of the holding in the case of Simon Lucas v Republic, Criminal Appeal No. 286 of 2013 CAT at Arusha (unreported). It is therefore his view that apart from other evidence the evidence of PW2 was sufficient to prove the offence On fcha. issue senfenca, Mr, Hakasi sub.rrattsdvtkat the sentence Imposed was ^^ad f c t .r ^ d Jfcg oou.rf- shctsid favo Briaffe:;£d its mind to section 131 (2) (b) o f the Penal Code. However, after the court prompted him to read the section, he conceded that the' section was not in line with his proposition for a more severe punishment. He- therefore withdrew his argument on sentence, and acknowledged that the sentence war> proper. . . T h e 'te s ts ’ tor the courts are 'mairity two: ©me, whether the- ■i i *• • * * \ cffenee o f rape' against* tjie appel&frf was proved^ey^nd reasonable doubt-two, w^Mfcer the sentence imposcd 'on'the 'appellant* was-excessive andfH'legal. On the first issue, Mr. Makasi viewed that the evidence of PW2 who is the victim of rape was the best evidence to prove rape. According to him such evidence was sufficient to prove the offence. This being a case of statutory rape, the prosecution had a burden of establishing two sets of facts: One, that the victim was below the age of 18 years and that there was penetration of the male sexual organ into the victim's sexual organ; two, that it was the appellant who was the culprit. In this case, the victim's father (PW1) testified that his daughter was aged 15 years and that she was a student of RM Kawawa Secondary School. This testimony, according to law, was sufficient to establish that the victim (PW2) was below 18 years, because in law the evidence of the parents regarding the age of his/her child is considered most reliable. In the absence of any other evidence to the contrary, I accept it as a fact that PW2 was 15 years old at the time. On the issue of penetration, the evidence of PW3, a doctor who examined the' victim and filled a PF3, corroborated the testimony of PW2 herself, who toid the c^3fMho!> of $.e victim's -private patfb. Meace, the •' j . A s for' tN^a<4;‘tft|i'eVgdlri6e caftje m t" tr*c \8t$rn i nsrsife' Sh'c t e s t i f y •a - a t f• t\h i : Isiii." J :r -tMe ^ tUey had. 3’exual- intercourse. Reading the testimony of. PW2, it is apparent' that the witness was honest in what she stated against the appellant. Her testimony does not suggest that she cooked the story against him. As rightly argued by Mr. Makasi, the offence-of rape was sufficiently proved against the appellant. The trial was therefore correct in convicting him as charged. ■SNhzp now reraaiijs is the issue ^f^crAfcnca I .-go n o t'ag^ e- w ih Mr. Msfcas-i's proposition tfostt&e-' sertfboce was proper.- Tljouyh tfto appel&nmvas a second" offenSer, Mr. Makasi ought-to1have' considered tge feih the a^elbntrvvas aged' 18 years old at the time of the commission of the offence. In rape cases, a boy who is aged 18 years must be sentenced under section 131' (2). of the Penal Code, which provides (emphasis mine): 4 (2) Notwithstanding the provisions o f any law, where the offence is committed by a boy who is of the age of eighteen years or less, he shall- (a) if a first offender, be sentenced to corporal punishment only; (b) if a second time offender, be sentenced to imprisonment for a term of twelve months with corporal punishment; (c) if a third time and 'recidivist offender, he shall be sentenced to life imprisonment pursuant to subsection (1). Mr. Makasi appears to hold.the view that the appellant does not fall under the seefib:n because is stated 'to‘ be 18 yeans of age. With etoe'&rspis&t; I'd©- not-lk-tak ’tttat-is'a proper interpretation of tfae law. Nowtee-re in committed the offence. The charge sheet says he was 18, the facts of the case say the same, and when the appellant himself gave evidence in his defence, the trial Magistrate recorded him as saying the same thing. He is not once referred to as a person above 18 years of age. The g£c r-efenarjcxv wj^fy.det&rnjiRiRg serat^race-is* the d a is te*. committed^tHe oifrjcnce. 1 think' ttfat to ‘re;mbve a convict from the-benefits of foe ‘ provisions Gf' S«k:^n .l31 (1) and-(2) of trie Penal Code, itm iist be shown that the offender was a£ £tat point in time at* least* a day older than IB years. What this means is that on the offender's eighteenth birthday, he is still entitled to the benefits of section 131 (1) and (2) of the Penal Code. 5 It is not disputed that the appellant is a repeat offender. He has already been convicted once of raping the same girl (PW2). Therefore, he falls within the provisions of 131 (2) of the Pena! Code. The proper sentence for him would have been twelve months imprisonment with corporal punishment. In the final result, while the appellant's conviction is confirmed, the sentence of thirty years imprisonment is set aside. In its stead, I substitute a sentence of' twelve months imprisonment. The fippsKant has been in prison for slightly over eight months since his conviction and sentencing on 30th September 2016. Considering the one-third •[/ statutory remission, eight months covers the period he is supposed to spend as a prisoner. He has also spent 18 days over and above that period. That, in my *view, plus I ! a g o ; ' . / on;.jvi;;y a>30-year bonl^hce hanging over his head for ail 'iih-s liija-..'L o,"iCL-.r* p .f't. 3 -"C.y:* lmr/frei\' i.; k;SS hc.b L-eirx heto-ir c r z j i f for scr;20.'othi'jriov;fi:l csccc:. • V^r u .^ r ; c ,?y of r-vv.» 2C J . " ■ ■■ F. A. Twaib Judge 6