Matendele Nchanga @ Awilo vs Republic (Criminal Appeal No. 108 of 2010) [2014] TZCA 2217 (28 February 2014)

~l I IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MSOFFE, J.A., KIMARO, J.A., And MJASIRl,J.A.) CRIMINAL APPEAL NO. 108 OF 2010 MATENDELE NCHANGA@ AWILO ................................... APPELLANT VERSUS THE REPUBLIC ................................. 1, •••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the Judgment of th;e High Court of Tanzania at Tabora) (Mujulizi, J.) dated s th day of February, 2010 in (DC} Criminal Appeal No. 80 of 2009 JUDGMENT OF THE COURT 2ih February & 3 rd March, 2014 MSOFFE, J.A. This appeal arises from the concurient findings of fact by the courts below that on 7/3/2003 at about 16:00 hours at Bulyanshimba Village, ' Meatu, Shinyanga, the appellant raped PWl Mbalu Lila. Briefly, the prosecution case was that on the said date and time PWl was herding her father's head of cattle when the appellant came in and

;) raped her. As to how the sexual intercourse took place, this is what PWl told the trial District Court of Meatu:- ... The accused person kicked my leg and I fell down and the accused person seized my neck and removed my underwear and started intercoursing me . He spent half an hour doing that Job ... PWl screamed in the course of the sexual act. She also raised an alarm. PW2 Martin Majaba, who happened to be at a nearby shamba at the time, responded. On arrival at the scene he saw PWl on the ground and the appellant on top of her having sexual intercourse. In other words, PW2 actually saw the appellant in f/agrante delicto having sexual intercourse with PWl. It was essentially on the basis of the above evidence that the appellant was convicted and sentenced to thirty years imprisonment with corporal punishment of eight strokes of the cane. An order was also made against him for compensating PWl a sum of Shs. 50,000/= in line with the requirement under section 131 (1) of the Penal Code. 2

.) The appellant has preferred a seven point memorandum of appeal in which the main complaint is that the conviction was against the weight of the evidence. Mr. Juma Masanja, learned State Attorney for the respondent • Republic, held a different view arguing in effect that the evidence against the appellant was watertight, or rathe_r. overwhelming. With respect, we agree with him. In the justice of this case it is imperative to establish whether or not there was rape within the dictates of section 130 (2) (a) and 4(a) of the Penal Code (CAP 16 R. E. 2002). That· is, whether or not PWl consented. Also whether or not there was penetration. In answer to the first requirement, the evidence is clear that PWl did not consent to the s2xual intercourse. The fact that this was a sudden and an unexpected encounter and that she was screaming and raising an alarm at the same time in the course of the sexual intercourse is clear testimony to the fact that there was no consent. As for penetration, again the evidence above shows clearly that the appellant's penis penetrated PWl's vagina. This is borne out by two 3

,) aspects of the evidence. One, PWl'::; testimony above is clear proof of this fact. Two, PWl was supported by PW2 who, as stated above, on arrival at the scene actually saw the appellant having sexual intercourse with PWl. In our considered opinion, the above reasons are enough to determine the appeal. However, in the interests of justice we will proceed further and address other aspects of the appeal, albeit briefly, raised by the appellant in the memorandum of appeal. If we understood the appellant coi-rectly, and we think we did, the complaint in the first and third grounds of appeal is that exhibits Pl and P2 (the PF3 and a letter issued to PWl by the Village Chairman, respectively) had no probative value in grounding the conviction against him. With respect, this complaint has no leg to stand on. A careful look at the judgments of the lower courts will show that none of these exhibits was used in convicting and in upholding the appellant's conviction, respectively. As it is, this complaint is baseless. In the fourth ground of appeal the appellant is seeking to fault the courts below allegedly for relying on the weakness of the defence case in 4

i grounding the conviction. Yet again, this complaint has no basis. The record bears us out that pursuant to being addressed in terms of section 231(1) of the Criminal Procedure Act (CAP 20 R. E. 2002) the appellant exercised his right emanating therefrom by electing to remain silent. If so, the question of relying on the weakness of the defence case did, and does, not arise because he did not offer a defence, so to speak. In fact, in the premise, under sub-section (3) thereto the trial court could have easily drawn an adverse inference against him and thereby permit itself and the prosecution to comment on the failure by the appellant to give evidence. Under ground six of the appeal the appellant is asserting that the evidence of PWl ought to have been corroborated. Yet again, this complaint has no basis in law. Under ~-ec.tions 127 (7) and 143 of the Evidence Act (CAP 6 R.E. 2002) the evidence of PWl was enough to sustain the conviction. Nevertheless, assuming that corroboration was a necessary requirement then the same was to be found in the testimony of PW2. When all is said and done, this appeal has no merit. We hereby dismiss it. 5

DATED at TABORA this 28 th day of February, 2014. J. H. MSOFFE JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the original.

• . . BAMPIKYA . SENIOR DEPUTY REGISTRAR COURT OF APPEAL 6