20100513 TZCA Mwanza

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I I I IN THE COURT OF APPEAL OF TANZANIA '

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ATMWANZA I ' I I (CORAM: MSOFFE, J.A., MBAROUK, J.A. And BWANA, J.A.) : I I CRIMINAL APPEAL NO. 31 OF 2006 SALU SOSOMA ..........................................•................... APPELLANT VERSUS ' I THE REPUBLIC ................................................................. ~ESPONDENT (Appeal from the Judgment of the High Court of Taflzania at Mwanza) : I I ' I (Mchome. J.) I

I I I dated the 13th day of July, 2005 I I in I I HC Criminal Appeal No. 176 of 2003 I

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JUDGMENT OF THE COURT I

I I I 12 & 14 May, 2010 I BWANA, J.A.: this is a second appeal. Salu Sosoma, the appellant, was charged with and convicted of rape contrary to Sections 130 (1) and I ' (2) (e) and 131 (2) (a) of the Penal Code as amended, by the Sexual I Offences Special Provisions Act No. 4 of 1998 (SOSPA).: The offence is I I alleged to have been committed on the 15th day of o;ctober 1998 at about 11.00 a.m. at !sole Village within Magu District of Mwanza

I I I Region. The victim of the offence, one Migu Marko,: was a child of ! i I tender age. She is said to have been seven (7) years old when the rape took place. i The trial court, the Magu District Court at Magu~ convicted the appellant and sentenced him to life imprisonment, in terms of Section I I 131 (3) of the Penal Code as amended by the SOSPA. \His first appeal I before the High Court was unsuccessful, hence this sec<Dnd appeal. I I At the hearing of this appeal the appellant was unrepresented while the respondent Republic was represented by Mr. Edwin Kakolaki, I I learned Senior State Attorney. The respondent Repµblic supported both the conviction and the sentence imposed. The appellant raised four grounds of appeal in hi:s memorandum of appeal which may be summarized as: non-compliance with the I provisions of Section 240 (3) of the Criminal Procedur~ Act (the CPA); I lack of sufficient evidence supporting proof of rape; rnon-compliance I I with the provisions of Section 127 (2) of the Tanzania Evidence Act (the TEA); and the severity of the sentence imposed. 2 At the start· of the hearing this appeal, we fouQd it important firstly to clarify certain legal issues raised. It was imp~rtant to do so particularly when we took into account the fact that thEr appellant was unrepresented by counsel and the severity of the sent~nce he had to serve - life imprisonment. I I The

first such issue was to establish when ~id the SOSPA become effective. · According to Section 2 of the SOSRA (Act No. 4 of I st 1998), the Act came into force on the 1 of July 1998.: Therefore, the offence with which the appellant was charged with ahd convicted of 1 I was committed when SOSPA was in force already. i The second issue for our consideration was the age of both the i I victim and the appellant. A medical report (PF3) tendered in the trial I court as an exhibit was successfully challenged before us. As ground I I one of the memorandum of appeal indicates, that PF3 1was tendered in I I court without complying with the provisions of Section 240 (3) of the I I CPA. Mr. Kakolaki, learned counsel, conceded to i that deficiency. I Therefore the contents of that PF3 were expunged frorjll our record. 3 I I -

I I I However, the expunge of the PF3 notwithstanding~ the evidence I I of Marko Lutobola, PW2, the father of the victim, vyas cogent to I I ground a conviction. He testified that Migu Marko was between seven I I and eight years old when this incident took place. That evidence was I I not challenged. We are mindful of the fact that a parent is better I positioned to know the age of his child. Being a child ot seven to eight I I years, the provisions of Section 130 (3) of the SOSPA were therefore, I rightly invoked by the trial magistrate when sentencing the appellant.

I I I Concerning the appellant's age, he admitted :to have been I sixteen years old at the time of this incident.·. However, he insisted . I I I before the trial court that he be medically examined to establish his

I I I true age. That request was granted. A medical repqrt subsequently tendered in court indicated. that the appellant's ag~ was between I I eighteen and nineteen years and that he was capabl~ of performing I I sexual intercourse. Be that as it may, it is our f~rther view that whether the appellant was sixteen or eighteen years :old, still, as per that m·edical report, he was capable of sexual intercou~se. 4 I • I ~ I The third issue was whether a voire dire was co~ducted by the i trial court in terms of Section 127 (2) of the TEA. We a~e satisfied that i the record shows that the trial court addressed itself properly on the I I issue and came to the conclusion that . the victim II was neither I possessed of sufficient intelligence to justify a re eption of her , . 1 I evidence, nor understood the duty of speaking the truth. It is on I record that the said child cum victim was described bt the trial court . II as one "who seems to be younger, who does not know I I anyth'ing to say, she is just playing when she is asked I questions ..... " I I I We are therefore of the considered view that the foregoing I discourse on the three points, disposes of the appellant's I grounds of I appeal on aspects of Section 240 (3) of the CPA and S~ction 127 (2) of I I the TEA. I I I The next point is whether the appellant was rightly convicted of ' ! I the offence of rape. The facts of this case as establi~hed by the trial I court and accepted by the first appellate court leave ~s with no doubt

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I I I ~ i I that he was so rightly convicted. We recapitulate the evidence of the I I three key prosecution witnesses. I I Kabula Lutobola, PW4, a primary school student, w~s on her way home from school. At one area, she saw a stranger puliing Migu, the I I victim, towards a cassava plantation. Upon arriving/ home, PW4

I I I reported the matter to Migu's father, Marco Lutobola, PW2. I Together

I I I with Masanja Sambayi, PW3, they rushed to the scene.: At first they did not see where Migu and the appellant were. Ho~ever, after a while they saw them, the appellant in ''f/agrante delicto'~ having sexual . I I I intercourse with the victim. Upon realizing that there were people

I I I around, the appellant ran away, leaving behind his red i trouser. PW2 chased him while calling for help. Eventually the !appellant was

I I I apprehended and taken to a village executive office. Back I to his child,

I I I the victim, PW2 examined her. He saw blood oozing from her vagina, I which had been ruptured. With that overwhelming evi~ence, the trial I court convicted the appellant. The first appellate court upheld the i I I conviction. We see no reason to fault those findings. 'i

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I I I I 6 I The appellant tried to convince us that there was ,no sufficient

I I I evidence to prove rape. Having expunged the PF3, h'e may have I ' I thought he could escape criminal responsibility. H,owever, the

I I I evidence of both PW2 and PW3 was sufficiently cogent: to ground a I ' I conviction. It is settled law that penetration, however :slight, of the

I I I vagina of the victim by the penis of the rapist is sufficient to constitute

I I I rape. (See for example: Daniel Nguru and Others v Republic - ' ' I Criminal Appeal No. 178 of 2004 (unreported); Omari Kijuu v i ' I Republic - Criminal Appeal No. 39 of 2005 (unrepprted); Musa Mohamed v Republic Criminal Appeal No. 216 of 200~ (unreported). I I Likewise, it has been held by this Court that lack of medical evidence ' i does not necessarily in every case have to mean that rape is not I I established where all other evidence point to the fact that it was I ' committed (See: Prosper Mnjoera Kisa v Repu~lic - Criminal I ' Appeal No. 73 of 2003 (unreported). In the instant case, even if we I I ' were to leave out the said medical evidence, still, as we have already i observed, the evidence of PW2 and PW3 was sufficient to prove I I I beyond reasonable doubt, that the appellant committed the offence. I i' 7 About the sentence of life imprisonment, it is said to be harsh and or excessive. However, it is the mandatory sentence: for offences I I I of this kind, as provided for under Section 131 (3) of the Penal Code I

I I I as amended by the SOSPA, Act No. 4 of 1998. Therefore we cannot I I I disturb it. I

I I I In conclusion, this appeal fails in its entirety. The ~ppellant is to

I I I continue serving the sentence of life imprisonment as i~posed by the trial court and upheld by the first appellate court. I I DATED at MWANZA this 13th day of May, 2010. I

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I I I J. H. MSOFFE JUSTICE OF A1PPEAL I I M.S.MBAROUK I

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JUSTICE OF APPEAL I I I S. J. BWANA I

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JUSTICE OF APPEAL I his is a true copy of the original. c: ' (J. S. MG A) '-~ ,,---- <J ·~. --•

DEPUTY REGISTRAR ,' Jr 8

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