Kabulo s/o Amosi vs Republic (HC Criminal Appeal No. 13 of 2000) [2000] TZHC 380 (22 November 2000)

1 'a IN THE HIGH COURT OF TANZANIA AT TABOPA APPELLATE TORISDICTION (Tabora Registrar) (i-ic) CRIMINAL APPEAL NO. 13 OF 20 ORIGINAL CRIMINAL CASE NO. 3 F 1999 OF TEE DISTRICT COURT OF KIBONDO DISTRICT AT KIT3ONDO KABULD 5/0 AMOSIr00m0,e,..,.,,,,.e.,APPELLANTE vSUS L ....... ........ * •.•.. ..O.RESPONDENT J U D G M E N T The appellant Kabulo Amosi was charged with rape c/s 5 and 6 of the Sexual Off ences Special Provisions Act No, 1 +198. He was oonvicted and sentenced to 30 years imprisonment, He now appeals against conviction and sentence. I have read the brief evidence in the case Q The story is told by two girls of the age of 15 yr s, It was the complainant one NiycntuAlene P41 and another girl, the friend of the complainait, on N'iyosaba Violent PW2 who testified. The facts of the ca.. am afraid,were really :.sketchy. Kabuguzi might it have appreciated this. The facts we get from the evidence are these The complainant was a girl aged 15 years. I aee that she was not a girl of tender years in accordance with S.12? (5) of the

(HC)CPAPP.NO,i0. - 2 - Evidence Act which gives the age of 14 to,be the age a girl will be adjudged one of tender years. On 11.1.99, at 8,00 prn she was invited by the appellant to a drink. A fried of hers, PW2, was also ivited, In all, they were two girls and two boys 4 That is to say, the appellnt had also invitod a male person to the drink. At about 9100 a,m,, whethe' it was arranged or not arranged, the other two, P12 and the other boy, stood up and started going out, That is when the appellant pulled hack the conlainant, closed I? the door and, according to evidence, had carnal knowledgeU of her0 She resisted and screamed. There were eider women in the neighbourhood but these women kept vigil i,e, they chased who had wanted to come to the assistance of PWlJrom what transpired, the conlainant sustained injuries to her vagina and blood caine out. People, horever, later came tn her assistance. She was sent to the hospital. The hospital, in a PF3 which is not stamped, has stated that the conlainant sustained ' bruises on the vaginal The bruises were about 2 - 3 cm, The PF3, however, concludes that ther bruises were caused by a 12 blunt object". The appellants ctoy was also very brief. He did not admit to the raping. He said on that day he had caine from the hospital where he had been admitte-1 for suffering from dysentary 9 He was discharged and came back hoe He arrived home at 3,00 p.m. At about 2,00a 1 m, he was arrested, Now rape is a very serious oflence, No doubt it now has its own elaboratq legislation, Act i/Pi.. But, that notwithstaning, the prosecution, in a charge of rape, mus prove all the in'edier

ot 3 - Act 4/98 has not done away with proving ingredientse The ingrediehts are that: The sexual intercourse is against her will It is withotrt; her consent () With her consent, when her consent has been obtained by the man getting her favours through threats intimidation or hurt, With her consent when the man knows that he is not the husband of the woman, and the consent is given because she is believing that the man with whom she is having sexual intercourse is her husband. Act No* 4/98 adds another ingredient: If she is under 18 years 61d, the question of consent is out, unless she is a wife, but she must, in any case 1 be of the age of 15 years or abov. But, the common denominater to all these ingredients is that there must be proof of penetration of the male organ into the female organ. Nowhere d.o I see, in the evidence of the complainant, where it says that the male organ of the complainant was inserted into the female organ. The learned trial magistrate has assumed that Onyiuke J. in the case of Madege V, R, (1972) H.C,D, No. 98 has stated that: "The complainant must state clearly what the appellant did to her and it will be for the

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• 3 -•• Act 1+/98 has not done away with proving ingredien€s The ingredients are thatt The sexual intercourse is against her will It is witho,xt her consent; (€ t1ih IIé± iheh her consent has been btained by the man getting her fur through threats intimidation or hurt, With her consent when the man knows that he is not the husband of the woman, and the consent is given because she is believing that the man with whom she is having seoal intercourse is her husband. Act No. 4/98 adds another ingredient: If she is under 18 years old, the question of consent is out, unless she is a wife, but she must, in any case, be of the age of 15 years or above. But, the common denominater to all these ingredients is that there must be proof of penetration of the male organ into the female organ. Nowhere d.o I see 1 in the evidence of the colainant, where it says that the male organ of the conlainant was inserted into the female organ The learned trial magistrate has assumed that Onyiuke J. in the case of Madege V. P. (1972) H.C.D, No.98 has stated that: "The conlainant must state clearly what the appellant did to her and it will be for the

!C) CR.APP.NO.1/2000. - k - Court to decide whether this was rape or not Onyluke J. goes further to state that: It In a charge of rape there must be evidence of penetration of the penis into the vagina though actual emission of seed is not necessaryH That evidence cannot be seen in this case at hand. in terms of S. 24 of Act 4/98, all cases of rape would now mandatorily be held in camera 0 The proceedings at hand do not show that the proceedings were held in Camera. Becanse of the forgoing reasons, L with g'eatest respect, differ from the learned State Attorney who advised me to dismiss the appeal. The offence of rape was not proved beyond reasonable doubt. I allow the appeal. The appellant should be set free. unless he has some other lawful cause which is keeping him in jail. J. E. C. MASANCHI, JUD GF* AT T.ABORA 22nd November, 2000 W. Ndunguru SSA for flepublic. Appellant: Absent