19731201 TZHC Mwanza

-

IN THE HIGH COURT OF TAUZIA AT HWANZA. APPELLATE J1JRISDICTIsI HIGH COURT CRIMINAL APPEAL iO. 447 OF 1972 Original Criminal Case No. 184 of 1972 of the District Court of Bukoba District at Bukoba — Before . R. Mrnba Esq., Resident Magistrate, DESIDEPLY G10RiEL . . . . . . . * . . . . , ....... . . . . . . . . . . • . APPELLANT Or±nal Accused) versus THE:REIUBLI0 •••••*•sI........ . .............. ... RESPONDEJTT (Orinal osecutor)

TUDGEMETT PEF'.ALILA, J. In the Resident Magistrate' $ Court at Bukoba the appellant was charged with two offences. In the 1st count he was charged with burglary c/s 294(1) of the Penal Code and in the 2nd count he was chaged with attempted unnatural offence c/s 155 of the Penal.Code. He was purportedly convicted on the 1st count oil. his own plea of .gu.il-ty and sentenced to 3 years imprisoument A plea of not guilty was entered in the 2nd count for which a. ul1 tral was condueted at the end of which the appellant was convicted and sentenced to 12 months imprisoument which sentence was Ordered to nm concurrentlr with the sentence on the 1st count. If the facts that were narrated by the prosecutor in respect of the 1st count were accepted as they were then I. don?t see why the appellant was not convicted on the 2nd count because tiose facts clearly included the alleations on the 2ndcount. But this is not important ae it will appear hereinafter. According to Cosmas Eajas 0112) the father of Sosthenes Cosmas, the complainant in the 2nd count, he said that he has a housin Kanoni village, Kamachumuin which he lives with his wife Kolmteta (P113) and his children. He alleged that on the day in question at abou-t 11.00 p,m o as he and his wife were sleeping he was suddenly aw4kened by his son Sothenes who complained that a man has entered his room and that this flian had sensually

assaulted him. Cosas rushed into his son' a bed—rbom. and found the áppellait there. As the appellant was tryilig to escape through the window he Was arrested and taken to the Police Station. At that t1e Cosmas noticed that his son' a bedroom window had beñ broken. The witness for the 2m1 count was the complainant himself the boy SostheneC (PIll). He said that on the day in question as he was asleep he felt somebody crawl into his bed and immediately started removing his clothes and insert his private organ into his rectum. The boy got stat1ed and reported to his fathex. The appellant denied these allegations against him dnd said that he imoWs Cosmas 1 s fanily very well and that he usually visits them. On this particular day he had gone to his house and found the fily in the sitting room and as soon as the cp1ainant saw him he started to assault him for reasons which are not clear and that it was after this assault that,màde these allegations against him in ox'der to justify the assauJ.t, I must say at once that this case has a lot of problems surrounding it With regarl to the count on burglary the - prosecution t s evidence was conflicting. According to the prosecutor who narrated the facts, it appears that the appellant broke into the house through the door whereas the rest of the evidence indicates that it was a window which was broken. With regard to the 2nI count apart

from the fact that no other evidence was offered to support the boy' s al1egatiois, the allegations themselves sound preposteroU. • For quite dearly it is not usual for people in their nonnal seses to break into other peo51e's houses solely for the purpose of sexually assaniting little boys who might be sleeping thee. The offence itself is unnatural enough without thd need to dramatize it by a burglary. Even those offenders Who rape women u after breahing houses t that is normally not thOirriivar motive. I am thereforiextremely reluctant to accept the boyt 5 Word that he was assaulted in the way he described .d since the evidence on the bmald.ng was conflicting I am equally reluctant to accept the complainant's word, rather 1am inclinedto accept the c ompla nant.! a version: of what happened. Mr. Mwanyika the learned State Attorney who appeared. for the republic did not seek to support the appellantts conviction and in my view quite rightly and for the reasns indicated earlier this appeal succeeds The appellant's cenviction on both counts are quashed sentences set aside with an order for his immediately release. PH Delivered in court at Mwanza this day of March, 1974. IVIWANZA: Uuk,, (i. JUDGE. MPMjILAJ MARCH, 1974 I r 10-- IN THE HIGH COURT OF TANZANIA

AT MWANZA Appellate Jurisdiction Criminal Appeal No:448 of 1972 Original Criminal Case No:624 of 1971 of the District Court of Bukoba District at Bukoba Before: W.R. Mramba, Esq., Resident Magistrate0 (Original Accused) versus The Republi Respondent (Original Prosecutor) J Ti ID :o T PATEL,JO - Appellant was convicted of "Burglary" and "Stealing" and is sentenced to 2½ years imprisonment respectively and to run concurrently0 He now appeals against conviction and sentence0 In his memorandum of appeal he says prosecution witnesses lied in Court and trial magistrate was wrong in his conclusion0 He further said identification was poor0 Learned Senior State Attorney said complainant and appellant were known to each other and there is strong evidence to support conviction and this appeal should be dismissed0 Mariam d/o Kamayango testified she saw the appellant in her home on the night in question had a struggle with him but he ran away0 She raised alarm, people came and accused was seen hiding nearby with a knife in his hand but was apprehended by people0 Appellant was previously seen drinking pombe sold by Mariam and one eye witness testified that as he ran in response to Mariam's cries for help, he saw appellant running out of Mariam's house but failed to catch him0 Besides there is other evidence on record which conclusively proves the identity of the appellant and what he did

that night. Learned trial magistrate considered all evidence before him including defence, weighed it and then made his finding and I see nothing wrong in his arguments, reasoning and conclusions. There is nothing in record, Judgement or memorandum of appeal that will make me reverse Lower Court's finding0 Sentence is minimum under the laws0 For these reasons this appeal is dismissed in its entirety. Delivered in Court this 1st day of December, 1973 in presence of Mr., Rutarnirwea. J.B. PATEL 1st December, 1973 JUDGE 0 ft -