19870413 TZHC Tabora

'· IN THE HIGE CUJ.rlT OF T,t'Ji.;JNIA AT TA.oORA

APPELLATE JURISDICTION HIGH COUi-1.T CRIMIN.AL i1PPEAL NO• 24 OF 1987 ORIG IN 1l1 CtlIMIN AL CASE NO• 6 OF 198 3 OF THE DISTRICT COUH.T OF KAHAMA DISTRICT AT KAliAMA .Before: Ge KAYAGA Esq. DIST.aICT MAGIS!m.ATE D.1198 P.C. PETErt MHOJ,11VIT:8NGWA •••••••••••••••• APPELLANT versus THE UNITED REPUBLIC., ••• •. ·• ••••• •·•. •,.. • •• • •• • • .RESPOliDENT g]·I.ARGE: let Count.: Rape c/s 130 and 131.of the Penal Code Cap,.16 Voh 1 of the Laws. 2nd Count: Corrupt Transaction with agent c/s 3(1) of the prevention of corruption Act No-.16 of 1971.

JUDGEMENT ,oROSSO, J. The Appellant has filed this appeal against the decision of the lower Court whioh convicted him of the offence of Rape c/s 130 of the Penal Code. The Appellant was acquitted of the offence of Corru.pt· Transaction with Agent c/s 3(1) of the .Prevention of Corruption. Aot ,, No. 16/71. The evidence for the prosecution has been that on 28/9/62 guring the night time the Complainant one Zuhura Mapalala (P.W.l) wa.e arrested during the night time by the Appellant, a policemen and another policemen. Tho Complainant was told that she would be takea to the police station but instead of being taken to the police etation the Appellant took her to the police linGs where he sexually intercoursed her without her consent. The Appellant in his evidence testified that on 27 /8/82 he had met P,W.l on the way and seduq_ed hero Pw.l agreed and the Appellant was told to see hor at Mpya Guest House on 28/8/82. At about lOeOO p,m. the Appellant went to collect her at the Guest House.· rhe Appe.~ lant found P.Wol at the Guest House and then took her to the- poUce li.nes •. On the way as tho Appellant was· walking with Pw,l to the _police_lines, he met a certain policeman who warned him that it _:was .dangerous. to associate with Pw.1 because she was already the girl-friend of his superior ,officer ~n .tho Force. The Appellant e.sked r.w.1 about the allegation but Pw .. l denied.

The Appellant decided to take the woman (Pw.1) back to the Guest House,. The Ap;,ella.nt said· that on·e Kayanda (?1~~2) wan hc1· boy-friend who Wa.Jlte-d to put the Appellant in trouble. The Appellant went on to teeti!_y that she (Pwol) had been taq.ght what to testify by the said Ka.y.a.n~it (Pw~2) • 2 Having gone fairly closely through the record of the lower Court, ·ram satisfied that tho~e was both direct and strong circumstancial evidence which pointed irresistibly to one conclusion, that the .Appellant had committed the of.fence of rapo against the Complainant one Zuhura Mapalala (Pwol). The Appellant testified that the Complainant was her girl-friend. But ciocording to (Pw.1) tho Appellant had uns~ccessfully seduced her _in the evening of .28/9/82 when he met her 0n on her way to Manatu- neant". On tho night of 28/9/82 Pw.4 met Appellant and being asked, the Appellant stated that he was going to arrGst a woman who was suspected to be jobless. Pw.4 escorted the Appellant to the Guest House where they found Pw.1. The Complainant was interrogated by the Appellant and Pw.4. She (Pw.1) replied that she had come to Kahama. Because Pw.1 had decided not to answer the .Appellant when he wornod her, the .Appellant accused her of bei1ng boastful qJid that the Appellant went away~ Again there is the evidence of one No. Bo6209 D/C Embisuns (Pw,4) a fellow policeman who happened to

meet the Appellant. Both Ngasa Makiliba.nya (Pw.3) the watchman of Mpya Guest House and one Ernest Lyimo (Pw.6) testified before the lower Court that they had been present and actually witnessed Pw.l being interrogated by the Appellant and another PfliGeman who must have been Pw.4. It was after such interrogation which included asking Pw.l to produce an identity card that Pw,l was takijn away from the room a.nd led to the police station at about after ~dnight. If it were true that Pw.l was the Appellant's girl-friend, then the Appellant wouldn't have failed to confide such matter to Fw,4 1 Again, if Pw~l would have been the Appellant's girl-friend then there would have been no need for the Appellant to be eegorted by his fellow Policeman (Pw.4) and thsn subject Pw.l to interrogations and then asking her (Pw.J) to produce an identity ~a.rd, The evidence of Pw.1 was supported by Pw.4 that she was re. moved f1pm her room and then led to the police station and that ou Comp):.ainan t · the way the .!p[:Gllant was told she was being taken to another pol1Qe station. She (Pw.1) eventually was taken ·to the Appellant•a house where he ccW.ght her a.rid sexually intercoursed _her twice against her will. The ,1ppellant was warned not to cry or else he Wot.J,ld invite other men to sexually intercourse her. All that time Pwe4 was waiti'ng for the Appellant and Pw.1 to arrive at the

po~ station. Pw.4 decided to _go to Mpya Guest House to inquire if Pw,l. had returned back to th·e Guest House. Having failed to fincl Pw,l at the Guest House Pw .4 resorted to going to look for the •.-,_- . • ~, -1 ·~, _. ; -;- ~~ .... - 3 - Appellant. Pw.4 found the Jppella.n t being .inside and that the Appellant admitted he was with Pw.l inside because she w~s allegedly his girl-friendo This piece of evidence of Pw.4 rebuts the Appellant's testimony that when he was on the way to his house with Pw.l he decided to return her to the Guest House when another Policeman had warned him that Pw.l had been the girl-friend of a senior police officer. In answer to cross-examination Pw.4 testified that the I Appe!lant had taken Pw.l from the Guest-House on that night in orde~ 10 take her to the Police Station where she was to be charged for being rogue and vagabond. The Appellant couldn't tell that lower ~ourt why Pw.4 should have testified the way he did. The learned State Attorney who appeared before me said that he was not supporting the conviction because Pw.l didn't raise an alarm and because she reported the alleged rape to one, Lyimo and not the Police. With 1respect I don't agree. This poor woman was arrested twice on 28/9/82. Two policemen arrested her while in the welfare centre a.nd took her to the police station where she was.remanded for one hour. After that there went to

Mpya Guest House the Appellant and pw,4 who arrested her.. l'Vhen the Jppell :int se:xu:illy intercoursed her i;he was under his custody. She had no will of her own. It could h4ve been a surprise for Pw.l not to have heeded the Appellant's threat at the time of the ·Appellant's perpetration of rape. It would a.gain have been an even greater surprise for ·pw •l to have had the gour~ge to go and report to the police station with the nasty in.giqents she has previously suffered at the hands of the policemen on tw~. different occasions in a matter of few hours. I uphold the convictio;1~ i~s to tho sentence, I find it to have peen extremely lenient in view of the circumstances under which the offenQe was committed I would havo roquifrod th0 Appollant to show oauee why the sentence shouldn't be enhanced btrt have ·decided not to

JUDGE l?i/4/87 •