20120626 TZHC Mbeya31

IN THE HIGH COURT OF TANZANIA

I

AT MBEYA DC CRiMINAL APPEAL NUMBER 37 OF 2011 (Originating.from Criminal Case Number 40 of 2010 of the District Court of Mbeya at Mbeya) MSAFIRI MEJA --------------------------------------- APPELLANT

VERSUS THE REPUBLIC -RESPONDENT

JUDGEMNT 15105 & 26/06/2012 S. S. MWANGESI J.: The appellant in this appeal was charged at the District Court of Mbeya with the offence of rape contrary to section 130 (1) and (2) (e) and section 131 (1) of the Penal Code Cap 16 Volume 1 of the Laws Revised Edition of 2002. The particulars of the offence were to the effect that, on or about the 03d day of April 2010 at Ikoho village within Mbeya Rural District in the Region of Mbeya, the accused did rape one Jetsina George aged sixteen (16) of age, being a student at lhoo Secondary School. When the charge was read over to the accused he did plead not guiity. Thereafter, a preliminary hearing was conducted by the trial Court whereby I I matters not disputed were established. Then a hearing date was fixed for the disputed matters. Much as the records of the trial Court can reveal, from then up to when the judgment was delivered, there was no attendance of the appellant in Court as he had absconded and thereby, making the matter proceeded under the provisions of section 226 (1) of the Criminal Procedure Act, Cap 20 of the Laws Revised. At the end of the day, the appellant was convicted and sentenced in absentia on the 27th July 2010. It is further indicated from the records of the trial Court that, the appellant was apprehended at a later time and presented before the Court on the 20th September 2010. At the same, he was required

to advance reasons as to why he should not serve the sentence which he had been sentenced in absentia. A ruling was ultimately made by the learned trial Resident Magistrate and thereafter, the accused started serving his sentence from then. To establish the guilt of Theappellant, the prosecution did summon four witnesses. In his petition of appeal, the appellant has essentially raised about two basic groLinds of appeal. The first ground which covers his grounds two three and four, concern the evidence that was tendered to establish his guilt at the trial Court. It has been the argument of the appellant that, essentially there was no substantial evidence to connect him to the pregnancy which PW 1, the victim inthe case was carrying, bearing in mind the fact that, he was never examined so that the two resufts, that is his result and that of the complainant (PW1) with her pregnancy could be compared. It has further been argued by the appe!ant in respect of this ground that, there was contradiction of evidence between the testimonies of PW1 the victim, and PW3 who happened to be the father of PW1, regarding to what they did tell the CoUrt in relation to the offence of rape which he stood charged with. While PW3 told the Court that, the Doctor who examined her daughter did tell him that she had not been raped her daughter (PW1) did tell the Court that, she had been raped.

Additionally, the appellant has argued, these two witnesses were from the same family and therefore, had a chance of fabricating the case against him for their own interests. 1nthe other, basic -ground of appeal, the appellant has averred that, the 'triäl court didgrosslyerrinrIaw and on fact, when it did not avail him the chance of presenting his defense evidence as well as of cross-examining the prosecution witnesses. It has been his contention in the circumstances, he was denied his right. During the hearing of this appeal, the respondent who happens to be the Republic, was represented by Ms Msoffe learned State Attorney, in response to the grounds of appeal raised by the appellant, it has been her view that, the contention of the appellant that, the evidence tendered by the prosecution witnéssés did fail to establish the charged, offence against him was u:ifounded. According to her opinion, such evidence did sufficiently establish that, he was the one who raped PW1 and caused her to conceive and become pregnant. With regard to the contention by the appellant that, there was contradiction between the testimony of PW1 and that of PW3 as regards the question of the appellant raping the victim of pregnancy that is, PWI, the opinion of the Learned State Attorney has been that, the testimonies of the two could not be compared because, what PW3 did tell the Court was just

hearsay,.liat is, he just narrated in Court whathe had been told by PW 2, the Doctor who had examined PW1. Under the circumstances, the only evidence that was crucial here wa that of PW1, which indeed was the one that constituted the bases for his being convicted to the charged offehce by the trial Court. ---- On the ground that, the evidence of PW1 and that of PW3 was evidence of people from the same family, the opinion of Ms. Msoffe has been that, such ground is untenable and baseless. What was important here was the fct that, 3. ao the witness had witnessed the incident and nothing else. And this position the learned State Attorney has argued, is reflected under the provisions of section 127 (1) of the Law of Evidence Act Cap 6 which stipulates that, any person is a competent witness unless, he has been disqualified by the Court. Since neither of the two witnesses did fall under such situation, then the complaint of the appellan'"in that respect is baseless and has to be disregarded by this Court. The learned State Attorney has however, been at one with the appellant with regard to his ground of appeal to the effect that his defense was never considered by the learned trial Magistrate. It has been the opinion of the learned was required to enter his defense, he was nowhere to been seen after he had absconded. As such his defense evidence was never received by the Court and

indeed, not considered. It has bthfh 4ëWÔf Mt MSbffe thatafterarrest and before starting to serve his jail term; the appellant ought to have been the right of being heard. To that end, she has proposed that the matter be remitted to the trial Court so that the appellant is avafled his right of being heard. Apart from the fact that, the failure by the Court to receive the defense evidence from the appellant was due to his own act of abscondirg.nd thereby, forfeiting his right of defense; this Court is in agreement with the proposal by the learned Sate Attorney that,' the appellant be avalled his right of being heard by thetrial-Courtso that; even if he happens to be found guilty to 4 the charged offence, the sentence to be imposed will be justifiable from the fact that, he has exhausted his constitutional right. That said, it is hereby ordered that, this case file beernittêd to the trial Courtwhere the appellant will be heard his defense. This order however. does not involve the other ground which has beer, raised by the peIlant to the effect that, he was not given the chance of cross exarnin'ng the posecution 'itnsses As such chance was msused by the 4 4 appellant at the appropriate moment due to his act of jumping bail, he has forfeited such right. -Subsequently therefore, the appeal by the appellant partly succeeds to the extent which I have indicate/herein above. Order accordingly.

MANGE

JUDGE —06-2012 5