saidi abdallah mangochi vs republic 2023 tzhc 19820 30 june 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF'TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA CRIMINAL APPEAL NO 75 OF 2022 (Originating from the District Court of Lin di at Lindi in Criminal Case No. 18 of 2022) SAIDI JUMA ABDALLAH@MANGOCHI------------ -....APPELLANT VERSUS THE REPUBLIC............. ........................ .........RESPONDENT JUDGMENT and 3&h June 2023 LALTAIKA, J. The appellant herein SAIDI JUMA ABDALLAH@MANGOCHI was arraigned in the District Court of Lindi at Lindi (the trial court) charged with defilement of idiots or imbeciles c/s 137 of the Penal Code Cap 16 RE 2019. When the charge was read out and explained to the appellant (then accused) he pleaded not guilty. The trial court conducted a full trial whereupon the prosecution paraded 5 witnesses. The accused was found Page 1 of 7 with a case to answer. Upon being convinced that the offence was proved beyond doubt, the accused was sentenced to 14 years in jail. Dissatisfied, the appellant has appealed to this court on nine (9) grounds as reproduced hereunder. 1. That the trial Magistrate erred in law and in fact when he convicted and sentencing appellant while pleaded not guilty to charge when read to him. 2. That the trial court erred in law and fact in convicting and sentencing the appellant relied on evidence adduced by SM2 without consider that, she was hearsay evidence from SM 4 and SM 5 hence cause the result was bring doughty and without take caution that their injustice to deal with hearsay evidence. Hence the trial court was wrongly convicted and sentencing the appellant to the offence charged. 3, That the trial court erred in law and in fact convicting and sentencing the appellant without consider that the case was planted to appellant from victim. 4. That the trial court erred in law and in fact convicting and sentencing the appellant without consider that the evidence of SM4 and SM5 had contradicted each other. 5. That the trial court erred in law and in fact convicting and sentenced the appellant for failing to properly analyze the evidence given by the appellant and the prosecution and shifted the burden of proof to the appellant. 6, That the trial court erred in law and in fact convicting and sentenced the appellant while the prosecution side failed to tender any document before the trial court in order to support that SM3 was mental health and not incapable to give evidence, 7. That the trial court erred in law and in fact convicting and sentenced the appellant in holding that SM4 and SM5 was seen the appellant raped SM3 without ask question itself why these witnesses they have not rise any alarms to indicate something wrong happen in order to get support from neighbors. So, the trial court was wrongly (sic!) to convict and sentencing the appellant for these offence. 8. That the trial court erred in law and in fact convicted and sentenced the appellant while the SM5 failed to identified the clothes wear the appellant on that day of the incident because in testimony she said saw the victim and appellant steepen floor both contacted each other and both wear the clothes. So these evidence was brought doubt why she failed to identified the kind of clothes items of color wear on that day at the scene of crime? Page 2 of 7 9. That the trial court erred in law and fact in convicting and sentencing the appellant white the prosecution side failed to prove the case beyond reasonable doubt as Required by law of evidence. When the appeal was called on for hearing the appellant appeared in person unrepresented. The respondent Republic, on the other hand, appeared though Mr. Meichior Hurubano, learned State Attorney. The appellant, not being learned in law, had not any substantive addition to make to his expounded grounds of appeal. This paved the way for Mr. Hurubano. The appellant, however, reserved his right to a rejoinder upon being informed of his right to do so. Mr. Hurubano unwaveringly stated that he was not in support of the appeal. He insisted that the respondent supported both conviction and the sentence handed over by the trial court. The learned State Attorney thereafter proceeded to counter the grounds of appeal as summarized in the following paragraphs. The learned State Attorney mentioned that the appellant had fronted a total of 9 grounds, which would be addressed in two groups. The first group included all grounds except the 5th, which were based on the alleged inability to prove the case beyond a reasonable doubt. Mr. Hurubano explained that the argument was based on section 137 of the Pena! Code Cap 16 RE 2019. To prove the offense in question, the prosecution needed to establish three elements: (i) the victim being an imbecile person, (ii) unlawful sexual intercourse with such an imbecile person, and (iii) the accused person's knowledge of the victim's imbecility. Page 3 of 7 Mr. Hurubano stated that all the above elements were proven in the impugned decision. He provided reasons supporting each element, such as the mother of the victim confirming her daughter's unsound mind and the testimony of a medical doctor regarding the victim’s condition. He also mentioned witnesses who corroborated the occurrence of sexual intercourse with the victim. Regarding the appellant's knowledge of the victim's imbecility, he referred to a statement made by the victim’s mother: "Said! Mangochi alikeja nyumbani kwangu akitaka nimuozeshe bihti yangu nikamkaiaiia. Nikamwambia haya mwanangu hana akili na hawezi kudhibiti ndoa." The learned State Attorney emphasized that the witnesses who proved the offense were credible and entitled to credence. He cited the case of MATTHIAS BUND ALA V. R. Crim App 22 of 2004 that every witness should be believed unless there are valid reasons not to do so. He further argued that the grounds challenging the case lacked merit and should be dismissed. Regarding the 5th ground, in which the appellant claimed that the trial court shifted the burden of proof to the appellant, Mr. Hurubano countered that the ground had no merit. He stated that the District Court had sufficiently analyzed the evidence of both parties and that, even if there were any shortcomings, the first appellate court had the power to reevaluate the evidence. Page 4 of 7 In conclusion, Mr. Hurubano prayed for the entire appeal to be dismissed. He invoked Article 13(1) of THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA OF 1977, emphasizing the right to protection by law, particularly for individuals like the imbecile victim. In rejoinder, the appellant then responded, expressing his opposition to the judgment. He denied awareness or involvement in the alleged offense and claimed that it was fabricated due to strained relations between the families. He mentioned previous legal proceedings where the court ruled in his favor. The appellant provided personal information about his age, family, and possessions. Having carefully attended to the rival submissions and equally carefully examined the trial court's records, my analysis and subsequent verdict will be guided by the OWEP shorthand namely the offence, witnesses, evidence, and principle. I must say that prosecution, conviction and ultimate sentencing of perpetrators of the offence at hand namely defilement of idiots or imbeciles, c/s 137 of the Penal Code Cap 16 RE 2019 is rare in our country. There are about three possible explanations; one: it takes some really inhuman sentiments for a normal person to sexually abuse an idiot or an imbecile. Some high level of cruelty and moral corruption is needed to implement the act. Two: victims do not have the ability to stand on their own and point a finger at the perpetrator. Like other sexual offences the act takes place in secrecy. Three: the imbeciles are more often than not the poorest of the poor. They have no one to speak for them. Page 5 of 7 It is in the above contextual backdrop on the offence that I carefully examined the kind of witnesses that the prosecution brought to prove this rare offence. I am especially interested with the mother of the victim. She was consistent in her testimony that makes one sympathetic on how strongly she stood to take care of the victim for twenty years. The evidence is mostly circumstantial. However, such circumstantial evidence strongly points to the appellant as the perpetrator. The mother of the victim had narrated that the appellant had all along eyed the victim to the extent of proposing to marry her. This is inline with the saying "Tamaa ikichukua mmba huzaa dhambn " I am convinced that the appellant entertained his lust to the extent of raping the helpless imbecile. In the case of SIMON MUSOKE V. REPUBLIC [1958] 1 EA 715, the defunct Court of Appeal for East Africa, held: 'In a case depending exclusively upon circumstantial evidence, the court must, before deciding upon a conviction, find that the inculpatory facts are incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that ofgullt." See also the case of LEZJOR TEPER V. REGXNAM [1952] A.C 480 where the Privy Council developed a principle that inference of the accused's guilt can only be drawn where there are no other co-existing circumstances which would weaken or destroy the inference. In the matter at hand, the evidence points strongly to the appellant. Page .6 of 7 In the upshot, I dismiss the appeal for lack of merit. It is so ordered 30.06.2023 This Judgement is delivered under my hand and the seal of this court this 30th day of June 2023 in the presence of Mr. Melchior Hurubano, learned State Attorney and the appellant who has appeared in person, The right to appeal to the court of appeal of Tanzania fully explained. E LTAIKA JUDGE 30.06.2023 Page 7 of 7