Iddi Abdallah vs Republic (HC Criminal Appeal No. 72 of 1998) [2000] TZHC 520 (18 November 2000)

MASANCHE 1 J. i:, ['·. ~ IN~ ~GH COURT OF TANZANIA t, AT TABORA APPELLATE JURISD!CTION (abora Registry) (HC) CRD'iN'.,APPEAL NO. 72 OF 1998 ORIGINAL crlIMINAL CASE NO,. 130 .. OF 1998 OF THE DIS,ICTCOURT OF TABORA DISTIUCT ~~; r;, <· ;-: A&, TABQ.A • C. t, ABDAr.rlAH.)-,, :}o o• e O O IO ... APPELLANT IDDI 1_ ' {;- . \ 1 ERSUS THE REPUBLIC••••••••••••e•••RESPONDENT JUDGMENT The llant Iddi Abdallah was charged then ee)nvictet:4 ~ l"eq,.8 f a woman e/s 130 of the Penal Code the old law. He wae sentenced to 20 yeara imp:riscnment• Appar-ently, h was chargee a.1-ongeid..e- 1r1it-:h,. aaetbo:r 1 one Awadh Waziri, but.this Awadhi Rajabu Waziri, seems not t9 have appealed• The appeal, therefore concerns only Iddi Abdallah, who was the first accused at the trial. The f<!lcts of the case are quite clear and simple although Mr Kayaga, the learned advocate for the appellant, seems to give bizarre fa9ts. Obviously Mr. Kayaga has not read the record and I am surprised why he should •omo to argue an appeal without reading the record itself. The facts of the case are that the appellant and the complainant Wahida d/e Harnud are neighbours •. They had known each other for quite long. The complainant tad a boyfried called Lagen. Lagen is

.... ; . (:flc) --r-.~~~t, -.PE1L, d.722199811 2 a bicy6le thnici The appllarit was a friend of Lag!n, the .. : .. , .• .. . ·.. . . . l boyfr;i.ed of the complainant The appellant had a kiok ,-ihee he sold chips_ and it i~ fia.id the complainant and her boyftied quite often ... went.to the kiosk.of the appellant to eeit chips~ !n short* the ap,pellant ; . knewt fol' certe.n! that the complainant was the girl friend of his male friend tagen On 27/2/98~ the c!oinp'.j..aint had an opportunity of taking_ sortie drinks with her boyfriend, in a bar called Annex.Kisumu Bar They parted at :6,30 p.m 0 The complainant, it i;lppears, decided to have more drinks, to continue enjoying -herself, as one would put it. She visited these other places, but eventually found herself at a Night Club - The Isungu Social Hall. Now, here, the appellant also appeared. He told the complainant that the boyfriend of the complainant, te person called Lagen was calling the complainant, his girl friend, to join htrn at another bar called Stockholm Bara The complainant agreed to go, but suggested that they take a taxi. The appellant then suggested that there was. no need to take a taxi. He suggested that he would escort her. So, he left with the cornplainant8 Awadh Rajabu Waziri, the 9ne not appealing also accompanied them,, On the way to Stockho:-j.m Bar, the two raped the complainant. If one reads the facts well, the actual raper was the appellant. The other boy pinned down the complainant, covering her with sheets and preventing her from shouting so that the appellant does the sexual intercourse without problems. The girl shouted for help. And, indeed 1 a mru1 called Jafet Malima, PW2 1 came to her assistanceo The boys then flede Jafet, who lived just 20 rnetres,Jiwy_ from the •••••••••• /3. ... .

3 scene, picked the woman aria sent her to his home. He consulted his wife. They gave the complainant some clothes to wear as her clothes had dl;'opped · at the scene of :i;-ape. Indeed, they sent her to the police. There, at the police station, Noo Ca2455 D/CPL Chifika PW3 received tem. Chifika went to the sce1te of crime wher\f'he retreaved a black trouser, black underwear and whitis underskirt. The complainant was asked as to who had ravished her,' and she straight away mentioned the appellant and Awadh Rajab Waziri, the one not appealing. It was not difficult to arrest the two prsori._s. __ They were arrested and charged with rape~~:: Mr. Kayaga, for the appelant, informed the Court .that we l,ave a case of a:single witness testifying on identification. I don't understand that. Here we have case of thre~ witnesses testifying and giving corroborative evidencee In any cas~,the issue of identification here may not be a strang case for Mr. Kayaga because right from the beginning wear~ told that the girl knew the complainant.well. In fact, they themselves, in asking each other questions in Court, seem to suggest that the complainant sometimes ate chips at the kiosk of the appellant and then came to pay for the chips later •. As I pointed out ealier 1 Mr'., Kayaga seems not to have read th~ record.- Mr. Kayaga talks of an oldman coming to the scene to help, but this oldl)lan n9t being called to testify •. The oldman was, indeed, Jafet Malima 1 · PW2t and he came to testify. Hi:s testimony is on page 4 of the typed proceedings, Mr. Mwampoma? the Senior State Atorney who represented the Republic argued that the appeal had no mri t • He prayed that it be dismissed. I agree with him. The story that the evidence in the ......... /4.

4 (HC) CRIMINAL APPEAL.N0.72/1998. trial was all fabrication.cannot be true. Equally, the.story given by the wife cf the appellant, one called Mwajuma Ramadhani, DvJ3, that her husband was with her in their matrimonial home at the time the rape is said to have taken place, is not trueo The case, I see, also rested on credibility of witnesseso The trial Court got impressed with the credibility of the witnesses who testified. I have no quarrel with that one. The story given was so detailed and impressive. The appellant dtd exact+y what the complainant says he dido It was rape in law. It was, indeed, hooliganic act. The present appellant did have.the sexual intercourse and his other friend was strangling her and stuffing a jacket into her mouth to prevent her from shouting for assistance. The appellant was sentenced to 20 yeaxs :hmprisonrnent 0 That was the lawful sentence he could get. The appeal is dismissed in its entirety. 18th November, 2000. Mr-. Kayaga for appellant. I f ) Mr-. Ndunguru SSA for Republic. JUDGE. . I : i , l