iddi so daudi vs republic 2007 tzhc 458 2 july 2007

IN THE HIGH COURT 03? TANZANIA Agr.jEA30gA APPELLiVTE JURISDICTION (Tabora Registry) (DC) CHIMINAL AIPE&L NO. 102 OF 2002' {Original ?r<5riLiir3«l Gesc uo* 32a of 2001 of the District Court of Tabors at Tab ora Before j N. A* S. Mwakasanga, P.D.ii.) IU D I £/C DAUDI »o •• .. . - JilpJEILLAifj? V I«J R S U S THE REPUBLIC +• •• .• «• ,. %0 - BESPCNDEIv’T JSSS^S M W« I- ^Tn vAV k.^Ju V* : 6 . U t2006f 2.7 ,2007, Idfli Dau&a. W£S eonvieted of rape d^ntjr-ry to sections 130 end 131 of tbs Psnal Code end iS(^ntttfio£;£ to 30 yoajcs. JUjpri*r7T)Q^iit. by the District Court of Tabora. Achieved by both conviction end sentence, Iddi Daudi (Appellant) has appealed to this Court, At the hearing of this appeal the appellant argued the ap£>eal in person# TheRepublic had the services of Mr* Mkobs, learned State Attorney# at the trial the prosecution called one witness, P.W.l, ix Hswa Abdallah, the complainant-. P.W.l testified to the effect that she was staying at Tandika Area, Dar Es Salaam and was working in a hair Saloon. She had mental problem. On 15*8.2001 she had gone to her neighbour where she net the appellant, a native "doctor" who was treating her neighbour. The appellant told P.W.l that he could cure her but she had WI10X>6 to coae with him to Tabora, his home, the medicine was. P.W.l agreed and left for Tabora with the appellant on the same day. On arrival at Tabora they went to

Mbiti Village, the appellants home village* P.W.l was ftiven a room. At ni^ht the appellant went to her room and had sexual inter*:.,''■' course with her without her consent as the appellant told was ' her that/one of the met&ods of tre^tinr; a patient. P*W«1 stayed at the village for two months one was havinc sexual intercourse with the appellant without her consent during that period* On 16«11*2001 the appellant came to Tabora Municipality to see other patients* F*W.l used that opportunity to escape from the appellant’s home* In his defence the appellant tola the Court that he used to go to Mbagala Area, Dar es Balaam to carry on his business cs a native "doctor1*. On 8*5*2001 he met P*W.l at Mwembe Ysn^c in Dar es Salaam* The two became friends, and P*tf*l introduced him to her i>arents at Temeke* Her parents allowed him to nerry her* The appellant and P*W*1 went to live at Mbacala Kizuiani. Then the appellant came with P.W..1 to Tabora as his wife and not as his patient. In Novembers-20^1 P.W*1 escaped from his hone because the appellant had another, wife. With the exception, of bovine secual intercourse with a girl under 18 years ot age, ?:ant of consent is the essence of rape* The question in the instant tase is whether or not P*W«1 consented to sexual intercourse with the appellant* In ABASI S/C 3AKABHAEE V. R. (1969) H.C.D, n. 226, 31RON, J. said: MIt cannot be gainsaid

that the requirement of corroboration in sexual offences is a very salutary rule, founded on good reason and, I may add, know— ledge of human nature* It is by no means unknown for women to r.oke false accusations of sexual assault even where there has been n? assault at ell c .e. Further, even where fehe woman has consented to sexual’^nterlJovia!'^'she ~iaay-afterwards, for a variety of reasons? not, I think, necessary to elaborate, deny consent and accuse her partner in the- act, of rapen. V. REHJBLIO (1970) E.A. 370 at p. 31* MWENOTj£« C*J*f said* n###® it has been said a(rein <^nd ago in that in cases of sllerecl sexual offences it is really dangerous to convict on the evidence. o£ the women or girl alcne. It is dangerous because human experience has shown that girls and women do sometimes* tell an entirely false stpry which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons and soraefcim^s for no reeson at all* In every case of an alleged sexual offence the magistrate should * warn himself that he has to look at the particular facts of the particular case and if, having Giv^n full weight to the warning, he comes to the conclusion that in the partioular case the wonan or rirl without any real doubt is speaking the truthv then the fact that there is no corroboration n-^d not stop his convicting# The need for

corroboration in sexual offences hc>s bfeen relaxed by subsection (7) of the Evidence i.ct (Cap. 6 I^i# ' 2002)# Conviction can be based on the uncorroborated evidence of the victim of the sexual offence, if for jpeasons to be Recorded in the proceedings, the Court issatisfied that the victim of the sexual offence is telling nothing but the truth# In the instant case it is not in dispute that sexual $ intercourse did take place on a number 6 t occasions# What P#W#1 appears to say is that she was cheated by the appellant that was part of the treatment. There is no allegation that her consent to sexual intercourse was induced byuse of force or fear of use of force. Section 130(2) paragraphs (b) to (e) give illustration of situations when the girl*s or womanfs consent to sexual intercourse is no real oonsegjg The circumstances of the^ instant case do rot come or/not covered by that provision* It appears^ however, that in terms of section 130(3)(d) of the Pensl Code it is an offence for e male person, being a traditional healer takes advantage of his position and -commits rape on a girl or a woman who is his client for healing purposes 4 The appellant specifically charged under* this provision, J3llb&&etiQn (40(b) of section 150 reads: ”®vidence of resistance such as physvUcal injuries to the body is not neo^s&ary to prove that sexual intercorse took place witJbot^ consent”. In the

instant the trial Magistrate belie'Mj 4k^ fcomplWLnant story rather than the appellant*s# Maters of" credibility of witnesses are the domain of the trial Court which has the advantage of seeing and heeding the witnesses testify and assess;*!-> their demeanor and *\ h ■ evaluate their credibility rather than an appellate CoU£t\ which merely reeds the transctipt which is normally v tranaloted# ? I can see no ground for faulting the trial Magistral*#* The sentence imposed is the statutory minimum * The appeal is accordingly dismissed in its ^entirely* v D* M. KWITA* JUDGE* 1st June, 20074 ORDER: The District egistrar to read this judgment to the parties. D. M. MWia?A. JUDGE. 1st June, 2007,. /m u Bate : 2nd July, 2007. Coram : S* B. Bongole, District Registrar. Appellant l Iddi Daudi present under custody* Respondent : The Republic, represented by Miss Ndsweka* State Attorney. Court Clerk : Nhelegani, R*M«A. COURT* Judgment delivered. S. B. BONGOLE, DXrrrJCT REGISTRAR, 2nd July, 2007* /AIIM#