20190604 TZHC Mbeya2

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF MBEYA AT MBEYA DC. CRIMINAL APPEAL NO. 75 OF 2016 (From the District Court of Momba at Chapwa. Oriqinating Criminal Case No. 26 of 2016) DAVID SIKONDE............................. APPELLANT . VERSUS THE REPUBLIC ....................................... RESPOISJDENT -. JUDGMENT • 23 May, & 04th June, 2019. NDUNGURU, J. The appellant one.David /o Sikonde was charged at Momba District Court at Chapwa for the offence of Rape contrary to Section 130 (1), (2) (e) and d31 (1) of the Penal Code, Cap 16 (Revised Edition 2002) The prosecution alleged that on 24 day of January, 2016 at night hours at Mkutano Village within Momba District in Mbeya Region did have carnal knowledge to one Sharifa d/o Zaire aged 14 years. Page 1 of 11 Briefly, the prosecution case in which conviction of the appellant was grounded is as follows: On the fateful date on 24/01/2016 in the evening PW2 one Sharifa d/o Zaire (victim) went to fetch some water, the appellant who was hidden at the bush hunting for her caught her while threatened to cut her with a machete which he had on his hand and commanded her to go with him at his home where the, appellant had sexual intercourse with her. That PW2 stayed with the appellant from about 20:00 hours to 21:00 hours. That at about 2 1:00 hours her mother and cell leaders went to look for her when they knocked the house of the appellant, the appellant escaped, PW2 was found in the house of the appellant. It is the evidence of PW2 that she was taken to the house of the ten cell leader where she stayed till next date that is 25/01/2016. That on 25/01/2016 the \appellant with his colleagues went to take her to the campat the farms where she stayed from 25 - 28/01/2016. That during all that time the appellant was having sexuai intercourse with PW2 till when her father went to take her. That PW2 was sent to the hospital for medical examination. Page Zofil PW1 the Medical Officer testified on how he received PW2 on 29/01/2016. He said having examined her found her to have no hymen and he found her with dead sperms and bruises around her vagina, he said that there was penetration. He tendered Exhibit "P1". PW3, the father of PW2 on how he went to search the house of the appellant having been informed that PW2 was seen entering the house of the appellant. PW3 testified that it was on 24/01/2016 at about 20:00 hours having noted that PW2 is missing at home,'he started looking for her. He went to report to PW4, the'ten cell leader, he with PW4 went direct to the home of the appellant. PW4 told the appellant to release PW2, but the appellant denied to have PW2 in his house. PW4 entered the house and started looking for PW2. PW3 said PW4 found PW2 hidden in another room. PW4 tdok PW2 to his home because PW3 was very furious. ............. That 6(25/01/20I6'when PW3 traced PW2 at the home often cell leader (PW4),he could not find her, he (PW3) was told that the appellant has freed PW2*PW3 told the court that they started looking at PW2 till on 28/01/2016 when PW3 got informed that PW2 is working with the appellant at the appellant's farm. PW3 said he went to the Ward Executive Officer who gave him the militiamen who went to the farm of the appellant Page 3 of 11 11 where they found PW2 working with the appellant. The militiamen arrested the appellant and took PW2. PW4 told the court that he was a ten cell leader, that on 24/01/2016 at about 20:30 hours he with PW3 went to the house of the appellant having been informed that the appellant had taken PW4 the daughter of PW3. at the home of the appellant, PW4 said hing knocked the door, told the appellant to release PW2, but the appellant ran away, PW4 said he called one of the parents of the appellant, he with the parent of the appellant entered the house and stthed koking for PW2, she was found 2 - \ hidden underneath the bed. PW4 told the èourt that they took PW2 to his home. PW4 said next date on 25/01/2016 PW2 ran with the appellant. PW2 was found with the appellant on 28/01/2016 PW5 a militiarnan, testified on how he arrested the appellant having found him with PW2 working (weeding) in the appellant farm on 28/01/2016. PW6 one E. 6578 Dectective Coplo Rashid as an Investigator, told the court that he was assigned to interrogate the appellant on his involvement in raping PW2. PW6 said during interrogation the appellant Page 4 of 11 denied to have involved in raping PW2. PW6 further said he asked the victim (PW2) who told him the whole story on how she was raped with the appellant. He said having gathered evidence he (PW6) prepared a charge. In his defence, the appellant denied to have raped PW2, he said, if the parents of PW2 came to rescue her why did she hide herself under the bed, why was she not taken to the hospital insfeâd she was left at the home of the ten cell leader and not to her parents' home. He further said the evidence of PW1, PW2 and PW6 was contradicting. From the above summary of the prosecution and defence evidence, the trial court was satisfied that the prosecution case was proved beyond reasonable doubt. The trial court therefore, convicted and sentenced the appellant for the offence of rape. / Aggrieved by thewhole decision of the trial court, the appellant filed this appeal. In this appeal the appellant is appealing against both conviction and sentence of the trial court. In his petition of appeal, the appellant raised twelve (12) grounds of appeal, though on repetition. All grounds of appeal can be summarized PageS of 11 into one ground that the charge against the appellant was not proved beyond reasonable doubt. When the appeal was due for hearing of the fixed date the appellant appeared in person unrepresented, while respondent/the Republic was represented by Rosemary Mgeni, the learned State Attorney. N Ms. Rosemary, the learned State Attorney prompted the court to look on whether the sentence passed by the trial court was proper. Ms. I Rosemary submitted that the appellant was 'charged under Section 130 (1) (2) (e) and 131 (1) of the Penal code, Ca 16 (Revised Edition 2002). In the judgment the appellant was convicted as per Section 130 and 131 of the PenalCod, Cap 16 Revised Edition 2002. She submitted further that the provisions the apellant was convicted with are very general not N specifth. She subriittèdfurther that the judgment is in contravention with Section 312 of the' Criminal Procedure Act, Cap 20 (Revised Edition 2002). She thus invited the court to invoke Section 388 of the Criminal Procedure Act, Cap 20 to make findings it deems just. Page 6 of 11 Going through the evidence on record objectively, I am of the considered view that, the evidence available is weak to sustain conviction. In the premises I do not find it rational to remit to the lower court the records for proper conviction and sentence. Being said and done. I allow the appellant's appeal. I hereby quash conviction and set aside the sentence. The appellant be release from the prison forthwith unless lawfully held for another cause. It is so ordered. D. B. NDUNGURU'- JUDGE O4/O6/2O19 A Page 10 of 11 Date: 04/06/2019 Coram: Hon. D. B. Ndunguru, J Appellant: Present For the Republic: Mr. Kihaka - State Attorney B/C: Zena Paul Mr. Kihaka - State Attorney: The case is for judgment, we are ready. 5' Appellant: I am ready. Court: Judgment has been dlivered today this 04th day of June, .T201 in the presence of Mr. Kihaka State Attorney and the Appellant. ..,1 1 /. D. B. NDUNGURtJ JUDGE 04/06/2019 Right of Appeal explained Page 11 of 11