19710720 TZHC Arusha

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IN THE HIGH COURT OF TANZANIA AT ARIJSHA

APPELLATE JURISDICTION CRIMINAL APPEAL NO. 178 OF 1971 ORIGINAL CRIMINAL CASE NO. 19 OF 1971 OF

THE DISTRICT COURT OF MBULU DISTRICT AT MBULU Before L.A.L. Mgonja, Esqa, District Magistrate REMI s/a MARAYARNANZA ........................APPELLANTACCUSED versus TH REPUBLIC . ................................ RESPONDENT/PROSECUTOR CHARGE: 1. Criminal trespass contrary to section 299 (a) Indecent Assault on Females contrary to section 135 (i) \. Indecent Assault on Females contrary to section 135 (1) Creating disturbance contrary to section 89 (l)(b) Stealing contrary to section 265 of the Penal Code. t JUDGMENT _J ' KWIKIMA AG. J. - On 9/7/71 I allowed tis appeal and ordered the immediate release of the appellant. I give below the reasons for my decision. Before the appeal was lod.çcd, this case was to come for revision It appearedeven.at that time that the appellant's conviction was not supported by tie evidence on the rerrd. Colnts 1 and 4 on ti'e fact: of them appeared to. be duplex. The sentence was manifestly excessive There was considerab1dowt as tothethër the appellant intended to assault the complainant indencent.ly or whefther he intended to steal her hurricane lamp. In his judgment thO learned magistrate who tried this case failed to address his mihd to these issues which were crucial to the ent.±e case.. I propose to handle the issues in the order in which I have set them out. The particulars to the 1st counts read as follows:- "The person charged on the 21st day

of January, 1971 at about 2.00 hours at Llbalu Minor Settlement. •Mbulu District Arusha Region unlawfully entered into the house. of one Vic'tor'ia' MzaVa' with iitent to ahoy the said VIctoria Mzava." Those on count 4 read as follows;- "The same perscn chargei on the same date, place and time, created disturbaae to one Victoria Mzava in such manner as likely to CUI.30 a breach of the peace, to wit he forced the door of .ie said Victoria Mzava shut to prevent her (Victoria ;ava) to go out." These two counts appear to be founde on the same facts. The appel1nt has suffered a dousle conviction on lentical facts and this has preudicod him. The distrbacc whi: i is the basis of the fourth count apoears to be the same "annoyance' w it oh the apeliant is alleged to have intended then he entered the cc.i1ainant's house. The evidence on indecent a,4 ult lacks ccnviction. Whereas the comp1ainant' gives considerable rietail on how the appellant wont about touching her breasts and priv[ c parts, her friend who was in the same room at the time of tie ci ged assault repeated no such detail. he simply told the Court t at the ap:cllant did at one time touch the complainant's private pai The learned magistrate who - .. •/2. a o El - 2 - who convicted thu appellant did not say whether ho took this to be corroboration but oven hd he addressed himself to this qu-stion, as he was bourc1 to do,

indecent assault being a sexual cffse, he could have hardly concluded that the appellant's acts and the ci±'cumstancesof the case supported the conclusion that the appellant indecently assaulted the complainant. There were two girls in the room. The ppellant was alone. He was unarmed and he has not been reported to hve threatened them with violence. Jll he did was to "threaten" sleeping with them both. From the evidence on record it appears that the gils were not worried with his threats, otherwise they should have cried for help. Then the tenants in other rooms in the same house would have coma to their rescue. The complainant herself admitted that the appellant had previously been to liar room apparently without aay objection from - her. If this be the case, is it not likely that the appellant and the complainant had agreed or were negotiating to become lovers? Is not liko.y that the complaina t was hiding the truth from the court before which she discredited herself by alleging That ''hausiku was also indecently asaaulted when Chausiku herself denied the allegation to her face? The acc.sed is alleged to have stolen the cemplainants hurricane lamp by walking away with it after this incident. He did not take it to his home to use it. Instead he left it at someone's place where the police seized it. Such act cannot with any certainty amount to theft. It leaves one in doubt

whether the appellant inronded to deprive the complainant of her lamp permanently. It is likely that the appellant seized the lamp and carrcd it away fiov a motive other than theft. It would serve no purpose to speculate as to what motive the appellant had at that time. The prosecution evidence was not sufficient to support the appellant's c'nviction. The complainant's story lacked conviction The acts of the a'pellant as related tby the witnesses did not strictl Sz-it1y amount to the charge preferred against him. The evidence against the appe1int wa nda4 by legal and factual doubts which had only to be resorved in his favour had the trial court examined the evidence more closely. It is clear that the conviction of the appellant could not have been properly founded and it is hereby quashed and the sentence thereof set aside. The appellant should have been released by now unless he is being hold in some other lawful connexion.. Delivered in court at Arusa the 20,h day of July, 1971. /(M H 11. KWIKIMII) . ~ AG. J U B G E j sm