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~ IN THE HIGH COURT OF T ANZAl\JIA AT DODOMA APPELLATE JURISDICTION (DODOIIJA REGISTRY) HIGH COUH.T CRIMINAL APPEAL NOo 82 OF 1977 CF. CRIMINAL AP1.)EAL NO~ 84 OF 1977 ORIGINAL CRIMINAL CASE NOo 434 OF 19,76 OF THE DISTRICT COURT OF SINGIDA DISTRICT AT SINGIDA Before H. Fe Nyalusi. • o • • • ~ • ~ o • District Magi stra.:: GWAO SOA. • 0) MWANGA Ml?EPO. '0'00000 . ) • o APPELL1\NTS Versus THE REPUBLIC. • 0 0 0 0 O ~ Re sponde;-1 t -.....- I CHARGE:, 1st Court: Burglary c/s 294 (J.) of the Penal Code 2nd Count: Robbery with violence c/ s 2f35 & 286 of the Penal Code n 3rd count: Rape c/s 130 & 131 of the Penal Codee J U D G ME N T The two. appella.'1.ts were convicted of bur0lc1ry 1 robber'.· and rape. Each of them was sentenced to 3 years imprisonment for burglary 7 years i;11prisonment for robbery and 18 months imprisonm: for rape~ The sentences in counts 1 and 2 were ordered to run concurrently while the concurrent sentence was to run conseq,.1tive.:. with the sentence in count 3,., Being dissatisfied with the decision the two appealed to this court against both th0 convicti, ., and sentence~ The two appeals are consolidated. The particulars of the~ three offences allegE:d that tr:· appellant with five othP.rs still at 1 arge •·· on 21/9/76 at about 10.,00 p~m" and a:rmed with a bill-hook: a torch an't:l a knife, brokr: into a dwelling house of one Amina Juma 3.nd in thE]re thr12atened the occupants - all females - with instant dc~ath if they dared resist before they ransacked thP. house and raped a 9irl child of Amina Juma in turns, The things stolen included sorghum, some c~. and a bucket - all val\.:2d at shs 592/"" the property of Amina Jurr. o It was the prosecution case that while in,s::.de the house the bondi ts lit fire and awakened all the occupun ts. None of them had disguised himself, so that the complainants hnd a clear view of them allo For a while the two appellants stood guard of the mother/owner of the house while others took out their loot. Thereafter the two appellants and another undressed the girl child and ravished her in turnsr to the utter dismay of the whole family., She was a school girl and a virgin,, Bleeding and screaming would not deter these scoundrels from grafi:..::£ying their sexual lust. The complainants were shocked to see the intrudt~rs insid(~ the house and the doors open for they had locked all the doo;:-s. /wi:idows, before they J:etired.. At the identification parade· 'the complainant/_had no dif:hculty in 1 identifying both appellantso 2 First appellcmt denied -:;h•'; cha:,:ge and advanced mistake:. identify while tho other chose to rer:1ain silent. The- two infonned th<2 court that they h::i..d no witnesses to -call. I hc:,.ve gone throuch th0 r6cord and :im satisfied the case was conducted with extreme care. The trial mr--:,gistrate considered all the aspr:cts of th::-~ case and the law involved including thG question of identity and arrived at the conclusion that the tvro had br32n sufficiently identified e.nd that 2J...l the o:i'fences had been clearly established. In all the circumstanc:~s th8 conclusions cannot be faulted. There was ampl8 8vj_c1 ence to establish burglary and stealinc It was also clear from the evidence that the complainants were terror-stricken as a result of utterances by the bandi·: _ sugt:;esting instant death if they dared resist or raisG an 'alarm durinc the stealing and raping. And on th8 mudical evidence th,~ girl was defloW(::Jred. I am satisfif::d the bandL; were ar:c:ied with a bill-hook,Lknif,, e.nd ·a torch as alleg,:d. There can be no qu:-;stion at o.11 about the three offences havip.g be(m corn,1itted. On ·c;_JJ~ evid"3nce, I 91n satisfied the; prevailing conditions favoured co:r-rect id.en:t: ification wi t::l<T. any difficulty. The fire i:·ms lit uhen three of ths b2ndit:-:. ra,p8d thr:1 girl in turns_ - before the whole:; family. Two of -·__ · victims also had occasion to talk to them ·w:-:i en the three r.:·,=.: the girl ... In addition the c0mpl2.in:-.nts had known 2nd ) appe 11.:?.nt :for long. The appellc:'..nts were proprsrly ideI1tif'i.-,c.. Accordinely their ap})eals age.inst conviction are dismissed • . . As prop(~rly co;·,.m1:~nted by tb. -~_trial m..:..gis trats the ap:G)e1l;j,nts. 1 acts were morally dirty r::>.nc'l al togethe.r barbaric. They certa,inly dE:iserved the sent enc es passed. Their appeal against sentence: are nlso dismiGS(Jd. They ought to serve the consecutive sentr:mce as order:·,d. Deliv~ff,Jd in Court at Dodo:r!1a. this 25th day of July, 19