Magina Kubilu @ John vs Republic (Criminal Appeal No. 564 of 2016) [2020] TZCA 1963 (25 August 2020)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: MWARIJA, J.A., MWAMBEGELE, J.A., And KEREFU, J.A.) CRIMINAL APPEAL NO. 564 OF 2016 MAGINA KUBILU @ JOHN ••••••••••••••••••••••.•••••••••••••••••••••••••••••••••••• APPELLANT VERSUS THE REPUBLIC ••••••••••••••• .- ••••••••••••••.••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, at Shinyanga) (Makani, J.) 17 th & 26 th August, 2020 dated the 18 th day of November, 2016 in DC Criminal Appeal No. 123 of 2015 JUDGMENT OF THE COURT MWAMBEGELE, J.A.: Before the District Court of Maswa, the appellant Magina Kubilu @ John was arraigned for rape contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code, Cap. 16 of the Revised Edition, 2002 (the Penal Code). The accusation against him, as gleaned from the particulars of the offence part of the charge, was that on 30.03.2014 at about 1800 hours at Kapilima Street within Maswa District in Simiyu Region, he raped a girl 1

We therefore find and hold that penetration in the present case was proved even without the expunged PF3. The fifth and sixth grounds of appeal are therefore without merit. The seventh ground of appeal will not detain us. It is a complaint that the appellant was not taken to court timely contrary to the provisions of section 32 o~ the CPA. As rightly put by Ms. Tuka the record shows that the appellant was arrested on 04.04.2014 and taken to court on 14.04.2014. That was contrary to section 32 of the CPA which requires that an accused person should be taken to court within twenty-four hours after being taken into custody. However, we agree with Ms. Tuka that this had no bearing on the trial. We therefore disregard this ground of appeal. Last for ~onsideration is ground eight which is a general complaint that the prosecution's case was not proved beyond reasonable doubt against the appellant. We agree with Ms. Tuka that the prosecution's case was proved beyond reasonable doubt through the testimony of the victim supported by PW2, PW3 and PW4. For the avoidance of doubt, we are not prepared to buy the appellant's episode that the victim said she was raped by a certain John who worked with Ndegesera Company. The record of 18

appeal does not back the appellant's contention. This assertion if found in the testimony appellant himself. In the upshot, we find and hold that this appeal is wanting in merit. It is consequently dismissed entirely. DATED at SHINYANGA this 25 th day of August, 2020. A. G. MWARIJA JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL R.J. KEREFU JUSTICE OF APPEAL The judgment delivered this 26 th day of August 2020, in the presence of the Appellant in person via video link and Ms. Edith Tuka, Messrs Nestory Mwenda and Mafuru Moses, The learned State Attorneys for the Respondent, is .hereby certified as a true copy of the original. 8~~ t~- }/!J)) E.~ ', -: ; · ·· -~ :1 DEPUTY REGISTRAR -~~-~ COURT OF APPEAL 19