19761216 TZHC Tabora

4 IN THE HIGH COURT Of TANZ4NTA AT TABORA. .:

APPELLATE JURISDICTION S • HIGH COURT CRIMINAL APPEAL N0024 OF 1976 (Cf. Cr. Appeal No.25 of 1976 (Original Criminal Case No. 41 of 175 of the District Court of Kasulu District at Kasulu — before C. A. Lwelengera, D.'M.) •• ',• ELISHA. JERAD ......... a aaaa a aaa aa aaa aaaaa aaaa a a APPELLANT • S (Original Accused) versus THEREPUBLIC •eoaOcoSooeoaeaa000.00OcaoaocOOOee.. RESPONDENT - (Orgina1 Prosecutor) charge; 1st count: Malicious damage to propty c/s 326 ofthe ena1 Code Cap.16 Vol.1 of the T/R. Laws. 4 2nd count: Personating Public Offeis c/s 100 (a) of. the Penal Code Cap.16 Vol.1 of the TJR/Laws. rd count: Rape c/s 130 &131 of the Penal de.of the • T/R/Laws. - J U D G M E N T. SISYA, J: The two appellants, ELISHA JERAD and RASHID RANADHANI, were jointly, charged in the District Court, Kasulu, on three counts of Malicious damage to property, Personating a public officer and Rape respectively. The appellant Elisha who, incidentally, appeared as the first accused at the trial and whom I shall, purely on grounds of convenience, continue throughoub hereafter, to call first accused was convicted on the first and third counts, that is for Malicipus damage to property and rape. The appellant Rashid whom I shall hereafter call the second accused. was convicted only on the rape count. The first accused was sentenced to twelve months impr1t3onment on count one and to four years

imprisonment on cou*t three with an order that the sentences should ran consecutively. The second accused was also sentenced to four years imprisonment on the rape counib Both accused are now appealing and their appeals are consolidated. • .S Evidence was given at the trial by the woman complainant,, one Zakia Nachumi (P.W.I) to the effect that on the evening of 3/4/75 at about 9.00 p.m. She entered a pombe club, owned by o*e Kibalize. Among the people whom she found in the said pornbe. club were the first 'nd second accused.. She drank soc - 1- • -- " d expre. I - 3 - The first accused then tore off the complainant's clothes before he perched himself in between her legs and he was intimate with her. After satsifying his lust the first accused got up and held the complainant's legs. The second accused then took his turn. He too had a full act of sexual intercourse with the complainant. Eventually he got up and suggested to the first accused that they release the complainant but he, i.e. first accused, insisted that they should take her to the Police Station. • Later when they arrived at a road junction the two accused forced the complainant to take the road which led to the prison. They, i.e. the accused, told the complainant that she was under arrest. They went on past the prison and stopped further on a slope. While there, again, the first accused had sexual intercourse

with her against her wish while second accused held her legs in position. Thereafter., as at first the second accused tou took his turn. Eventually the two accused released the complainant. The first accused, however, retained her piece.of kitenge to which she had tied her room key. The first accused refused to return. the same to her., She, however, had her other articles of clothing which first accused tore before assaulting her sexually on the first instance. These were a sweater, an underskirt, a piece of kitenge and a bra which were produced as exhibits and marked Exhs. A. B. C. and D respeátively. As it was then past midnight she returned home. She could not, however,.get into her own house. She, therefore, spent the night in some other persons house. On the following morning she went and reported the matter to the police. She described her assailants to the police. She was then. sent to the hospital for examination with a PF.3(Exh.E). According to the PF.3 were, however, no marks of violence. The first accused in his defence admitted visiting Kibaliza's - pombe club on the material evening in the company of the second accused. However, according to him after drinking beer he and second accused returned straight home at about 10.40 p.m. On 5/4/75 he was arrested by the police at a footbailfield and he was subsequently charged. The second accsed in his defence gave the

same. story as did the first accused. He was however arrested at his home on 7/4/75 and he was subsequently charged. - The learned trial magistrate reviewed all the evidence adduced • before him. He was satisfied that the tearing of the complainants tho wr -- . u'd a2ne no to • •• ,•* • - 4 -. He acquitted both accused on he second aount of Personating a public officer be.ause, according to the magistrate, the charge sheet did not specify the subsection of section 100 of the Penal Code under which they were chrged0 On the third dount the learned trial magistratewarned himself of the dnngers of convicting on uncorroborated evidence .bf the complaina?rit in sexual offences. He was, however, satisfied that although there was no corroboration on the evidence of penetrationas testified by the complainant the lattis i.e0 the complainant's, evidence on this aspect of the case could not be but true, 7 The accuseds' petitionsof appeal do not contain any new line of defence' apart, of course, from their protestations of innocce'. •.' '.: . On count otiO,to rd"it'ounds clear, on the evidence of the complaina'ht herself that the first accused tQre her to articles of clothing in his zest to asault her sexaully. With respet:-I, do not think that the learxed trial magistrate was, therefore, right' to hold that the tearing of articles of clothings by the first accused was an indi.dual

act notivated by sheer malice. There is not -even a scintilla of evidence to support this finding. That being so then I think the decision in the case of LEO PGANGOMA V.R. (1967) H.C.D. 131 - is relevant to'the decision on thi cunt Iñ'Pigangoma's case the accused was conryited of assault causing actual bodily harm, common assault and malicious damage to property. In the course of the assault the accused tore the complainant's shirt, vest and broke'his spectacles. On appeal it was held by this court (per Platt J) that where an assault takes place which causes damage to property worn by or in the possession of the complainant such damage is to be considerd merely incidental to the assault, rather than a separate offence, unLess there is evidence d'f wilful damage to the property as such. As I pointed out earlier there was no evidence that the tearing of the clothes was wilful as uch, It is my considered opinion that the first- ccused tore the clothes in his over zeal to reach the complainantts naked bodyo For these reasouis the conviction in count one cannot°therefore stand, The.atne is quashed and the sentence imposed thereon is set aside s - 5 - - As for the rape count apart from --he complainant herself there is the evidence of P.W.2 and P.W.3 both of whom testified to have seen the two accused dragging the comp1ainnt while alleging that she had taken their money and that they

were taking her to the Police Station. Both accused, however, denied the allegations. According to them nothing of the sort as narrated by the complainant,'P.W.2 and P.W,3 ever took 'place. The learned trial magistrate acdepted the evidence of the complainant, PI.W.2 and P,W.3 to be true and I have absolutely to datise to gay that he was wrong in so doing. In the circumstances it is not, to my mind, insignificant to note that if the accuseds' allegations that the complainant had taken their money and that, therefore, they were taking her to the Police station were true then one would have expected them to stick to their original version of the story. This is, however, not what they have done. As I pointed out earlier the two accused denied, at the trial, doing what P.W.I, P.W.2 and P.W.3 said they did. The evidence of P.W.2 and P.W.3, both of whom are Independent witnesses., in my mind, affords the basis for believing the complainant's story even to the extent that what happened to her took place without her consent. This view is also strengthened by Exhs. A. B. C. and D. All in all I am satisfied that the two accused were properly convicted in count three. Turning to sentence, though harsh I feel it was well earned. These two youngmen behaved like real savages towards a woman fit to be their own mother. The sentences of four years each will need confirmation by this court is thus accordingly confIrmed. - In the final result, save to the extent indicated (allowing the appeal in count one) these appeals are otherwise dismissed. Delivered in Court at Tabora this 16th day of December, 1976 6 H. E. D. SISJ,

JUDGE