shaban saidy vs republic 2021 tzhc 2187 26 february 2021

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY ATMWANZA HC. CRIMINAL APPEAL NO. 185 OF 2020 (Original Criminal Case No. 31 of 2019 of the District Court of Geita District at Geita) SHABAN SAIDY APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGMENT 17° & 26" February, 2021 RUMANYIKA, J.: Having been charged and he was on 05/08/2020 convicted and sentenced to thirty (30) years imprisonment for the offence of rape Contrary to Sections 130(1) (2) (e) and 131(1) of the Penal Code Cap 16 R.E. 2019, Shaban Saidy (the appellant) is not happy. Here he is much as particulars of the offence would read that between January, 2019 and January, 2020 at Mwatulole street, district of Geita the appellant had carnal knowledge of MMD ( name not real) 12 years old girl. The appellant had 4 grounds of appeal essentially which may revolve around points as under:- 1.That he victim (pwl) was not credible 2.That the trial court analysed the evidence improperly 3.That if anything, the 1 evidence of the child victim was improperly taken 4.That the prosecution case was not proved beyond reasonable doubts. The appellant appeared in person and he had nothing additional to his memorandum of appeal. Ms. Lilian Meli, learned state attorney appeared for the respondent Republic. In her brief submissions, she supported both the conviction and sentence as follows:- that it may have taken long (say a week) the victim to report the appellant yes, but with that one nothing was wrong because in her evidence she made a proper narration and spoke the truth even about the essential ingredient of penetration therefore a DNA analysis report was uncalled for under the circumstances much as also pw3 testified that the girl was no longer virgin and her parents cemented it nonappearance of the neighbours as witnesses notwithstanding. The young girl victim gave unsworn evidence yes, but her evidence was sufficiently corroborated. If anything, this one being a first appeal court on that one it be pleased to step into shoes of the trial court. In fact the prosecution case was beyond reasonable doubts proved the learned state attorney further contended. A brief account of the evidence on records would read as follows; 2 • sg Pw1 MMD for the reason of age having not sworn, but she promised the court to speak the truth, she stated that she was 15 years old a class IV pupil of Mwatulole Primary School. That as towards December, 2019 was around home and the appellant having had sent her to buy him some cigarettes and she was back, he raped her in the room that she felt pains but he pleased her also that previously he raped and sodomized her. Then she reported the appellant to sister one Grace and mother then to police and hospital. Pw2 WS (name also not real) a rice monger of Mwatulole street and mother of the victim stated that as she came back home from work on 15/01/2020 evening, consistently the victim told her that their stone through neighbour appellant used to raping her then the former was arrested and for that reason the victim was rushed to police and hospital for examination. Pw3 Dr. Agness Nyandigira (holder of Bachelor Degree in Medicine) of Geita (R) Referral Hospital she stated that as she was at work on duty on 22/01/2020 at about 11.00 am, among others she attended and noticed no wounds, bruises or anything abnormal in the victim's vaginal cavity but young as the girl was she was no longer virgin which suggested that the 3 latter have had regular sexual intercourse but she tested HIV negative ( copy of the PF3 Exhibit- "Pl"). Pw4 MD (name not real) stated that he was her father and the victim was born on 13/03/2007 ( copy of the affidavit regarding birth -Exhibit "P2'') that as he came back home at about 2.00 hours of 15/01/2020 but his wife (pw2) just having informed him about the odeal also the victim narrated the story. That's it. Dw (the appellant) denied the charges and he stated that the victim's father having hired his bicycle on 02/01/2020 for shs. 20,000/= to ferry some bags of charcoal around according to their agreement the bicycle returnable on 13/01/2020 latest, the father defaulted until 14/01/2020 then the appellant having replaced the old tyre with a new one, and as Hadija his daughter was around playing with the old tyre, pwl just snatched and took it away with her that as shortly thereafter the appellant found the daughter helpless but crying, for that reason he stormed in and out of the pwl's will took the old tyre back only shortly thereafter pwl to report the cooked charges to the appellant's wife hence the case just like that put into the legal machinery. That is it. 4 • The issue is whether against the appellant the prosecution case was proved beyond reasonable doubts. The answer is no for three main reasons; (1) young as she was, according to pw3 and the doctor's report the girl may have had some regular or several sexual intercourse but not necessarily/proven with the appellant (2) the victim may have had long time ago lost hymen yes, but it was common knowledge that sexual intercourse was not the sole cause. It is very unfortunate that neither the public prosecutor cross examined on this one nor did the doctor volunteer such as vital scientific observation/opinion (3) the moment it took her say seven (7) good days to report the appellant the victim's credibility was so questioned that possibilities of the appellant having been fixed by the victim and parents (pw2 and pw4) it shouldn't have been eliminated much as on this one I am aware of the rule in the famous case of Seleman Makumba V.R more so that true evidence of rape comes from the victim. I am also aware that the charges was statutory rape where consent of the victim it was immaterial. I think wherever and whenever, irrespective of the lapse of time, only on the basis of the victim's casual and plain allegations men were charged and convicted for rape, then possibilities of our prisons having been overwhelmed by 5 innocent victims rather than guilty men it could not be rule out. It is very unfortunate that the issue and defence of the appellant on the victim's parents having had the hatred sparkled by the bicycle or bicycle tyre it wasn't sufficiently observed and weighed by the learned trial resident magistrate. The appeal is allowed in it's entirely. The conviction and custodial sentence are quashed and set aside respectively. Unless he was legally held further, the appellant be released from prison immediately. It is ordered accordingly. Right of appeal explained. S. M 2 The judgment is delivered under my hand and seal of the court in chambers this 26/02/2021 in the ab e ce of parties. A.s ' ' ~ S. M. 4- a / J DGE Na . '.') 26/02/2021 6