19730531 TZHC Mwanza

• Z&rr r --r - L. J .LJ ..j..LT \. LT MW:ITZA. rrE1:TE JURISDICTION HIGH COURT CHIIiLL :FEL NC. 275 F 1972. (Original Criminal Case No. 40 of 1972o1 the District Court of Karagwe District at Karage Before F,IT Bubarwa, sq f , District Magiatrata. JOHNSON s/o B!SISIL' , • t • . . • . . . . . . . .iPI'EL .NT

VERSUS T:4; R2'PUBLIC . , • , • . • . • , • • . . . . . . RESPONDENT H!RGL': Rapc c/s 131 of the Penal Code Cap. 16 Vol. 1 of the laws, J U D G ' M i& N T. ELKiNDY, J, Johnson s/o Basjsile was charged with and convicted of rape contrary to sections 130 and 131 of the Penal Cods Cap. 16. he was sentenced to imprisonment for 3 years subject to confirmation by the High Court. He appealed against conviction and sentcncc-. The anpellant ws absent at the hearing of this appeal as he indicated that h. n did notwih to attend, but his grounds of appeal were taken into account. The learned State Jttorn3y, r. Butrnbala appeared for the respondent Republic. The evidence, which was accepted by the trial court, disclosed that on tc 11ti day of March., 1972, the complainant (and the victim) Teodoria w/o fmani (PU1) and Lgnes w/o ?ikuta (PLI2) were walking towards the house of' one Zuceda. Th time was 8 p.m. The complainant carried a lit hurricane lamp and ignes carried a lit electric torcli. Ls they walked along, three people—males—confronted them. gnes was walking infront of the complainant and the three male persons grabbed the complainant. It was alleged that one of the men wore a heavy overcoat. The complainant was draged towards the corperative society building 4 and on the wey j one of her cgthes was -taken off her. One of the three person demanded money, but she (the Complainant) had

none. The one who demanded money, searched in tLe brasie of the complainant but he found none. Nevertheless, she was dra'ed along and after tearing her çlotnes, the three male persons had sexual intercourse with her in turns, When the complainant was carried away, Lgnes ran away and returned with one Mama imas, but it was alleged that the men frightened them beore they ran away, and left the complainant alone. Neither the complainant nor Lgnes made any formal complainant or report to the Police on the same night or the subsequent day. However, on the 17th day of March, 1972, the apsilant was arrested by the Police, on the allegation that he was one of the three mae perso1s who took part in the allegc-d incident, The learned trial Magistrate was satisfied,, beyond reasonable doubt, that the appellant was one of three male persons who committed the alleged offence although the appellant pleaded alibi J\s the learned State Jttorncy, so rightly pointed out, in his submission, the case in not free of difficulty, In the first place-, the incident was alleged to have taken place at nigh time. Time was given as 8 p,m It is not clear, from the evidence, •p ..pp p , 21 'I " I •' from whichsido of thepococding wom e n t , the first man pproached them although Lgnes sad that the male persons appeared from behitd them. In those4ircumstancos, it is impossible to say that the way s at least

one of them, approached them, was capable cf giing amle apportunity for the woman to sea and to recognise at least one of them.• In other words, it is difficult to say that i with the aid io:f the light they had, the two women were in .a positIdh to absëro eisaly thd iae of at least one of 'them. Tue incident was not immediately reported. hc complainant said that eric- was too 4fcak to do so. I fflay be inclined to give her benefit of doubt but I do not understand why gnos 41 or iama Lmos did not rapot the incident. It is not c'cn know.' whorl the alleged incident'was rcportdd These matters scorn to cloud tfie credibility of two wi.tncssO who wcre,:any way, close fric-nd s's - Surcly t if they wce certain that one of tiom WCS: the appalJht and who Was know to them at ic-ast by ±aco, one of them woUld have taken up the matter wiL.. the Police authoritis. Th1; 6 delay tends to lend wight to th pssihility that the women did not or could not have- A eny 'of' tnc alleged male, crooks. The comrlainant was not medically c-xamihc', at any time • It was not explained why it was not done. If she had boon axamined, eve-n oh the second or third d.y1 the modical officer would, probably, have been in a position to discover if there- were any injuries to the region of tue private c'rga of 'the- ,cbmplinant. The omission to have the cothplainant medically exaniinod in the cicumstanco of these

Oasc, is suspect. If she was 'done- against her consent what better evidence- than medical retort would have- been 'to upioxt to'the comtlainant"s claim that three mal persons, one after the other, had sexual intarcouse with het against her consent. .ind by the. WCj 'the two woncn Were not inorani pdoplae It was alleged tiat the comp]ainant wsi.b'6 wife of a 6hoo1 teacher and Lnes. was a wife- of F. priest,. If so tue-n eithe-'. the women or their husbands would h&.'e appreciated the importance Of asceriaingt}e facts though medical. examinatiori According to the evidc-nce the tree tee-np or at lcst OC of the-hi, 'began. by damanding i'nohey from the complainant and this would tend to show that the three people, or at least one of'them hd formed Intn't to rob and not to rape the complainant It was only the complainant who said that after they missc-d the money they wanted they began to mishandle her s and raped 'her. Her' evidence is not impossible.' It is not uhcornman for criminalcl to sC't out to óornMi't one typo of offence-and end up by commit!,' another after' a hange of attitude; Therefore Agnc only knw",. that the then were out to, rob the complainant bc-Oause that wcè what she. heard one of iheth Say s but upon her return, at a distance of about 35 paces away she claimed tiiat the men ran away. Jnd lastly thc appellant waS arrcsted on the 17th of March 1972' 'vihen the

incidt tork ,.place. on the 11th of March 1972 Both women claimed t'hpt they knew the- appllant for not less than 2 months althoUgh thc-y did.n . -oi know his name. ind yet the-ic was no mope to arrest him )Cfore that date when he was still in the village- - or pwnhip wher ,ti'-c- incident t ok place. Having regard to all thsc matters, and with due respect to the learned trial. ma8,strate, I cannot say that the ccargc was indeed proved oc rond reas6iab1.e doubt. The conviction cannot, there-fore, the upheld. • The c,aned State- J4ttornc-y neither suppoited hor de1iad to sw-port this conviction. Ord!V The conviction is quahed and the sentenc imposed set aside. The appellant niioUld be releesed forth with unlaBs ohc-rwiso 1awfu4y held.- e11vored 'in Court. on the 31s -t day of M a y 1973;; 319-t MAt 1913. - ZN LK r miA thitttliba1 - foi Raphblib