Robert Simbeye vs Republic (Criminal Appeal No. 108 OF 1996) [1998] TZHC 2484 (24 November 1998)

IN THE HIGH COURT OF TANZANIA A'r MBEYA CRIMINAL APPEAL NO. 108 OF 1996 (Original Criminal Case No.422 of 1996 of the District Court of Mbeya District at Mbeya Before~ D.B.G. Safari - Resident Magistrate) HOBER'.r SU"i.BEYE APPELLANT Versus 'l'HE REPUBLIC ' RESPONDENT JUDGEMENT T'he appeal against a conviction of indecent assault c/s 135 of the P.C, has been brought by Robert s/o Simbeyea It has been supported by the learned Mr. Nangela (State Attorney) on reasons that there were major contradiction.c: in the prosecution's case between the Complainant PW2 Hawa d/o Yangson and PW3 Nasson Mwalusanya. Whereas PW2 Hawa d/o Yangson testified that the appellant only succeded in throwing her down and trying to remove her clothe.s for the purposes of raping heraPW3 Nasson Mwalusanya testified to have found the appellant having sexual intercourse who:was pulled by PW3 by force from the victim of rape while she was still crying for help through out while her daughter stood 30 metres away doing nothing to help her mother. It is understable why PW2 did not reveal the truth that she was actuall~ raped beyond~ being merely being indecently assaulted by being carressed without her consent in the neck buttocks 1 wrist and back. She was a ma.r.:r." - -' woman who would have faced further wrath from her husband. Even PW3 who witnessed the actual rape and pulled the ppellant from the sexual coitus whi first the appellant drunkardly asked to be left alone to reach orgasm . . · before being stopped from committing his crime did not disclose this fact to the husband of PW2 in order to protect her from being beaten by her husband. Bu+ PW3 was attracted to the scene of crime by the cries for help from the victim (PW2) of the rape. The daughter of PW1 who is about 18 ,years did not give help to her mo+' ••••••••• /2

PW2 understably for cultural reasons of getting close to her own mother to see her being so much sexualy abused and possibly seeing her p:riva.te parts which would attack ev,er love graver-curses to orally h.ersli than far failure in de.feuding her from the rapeo 'rhe learned Mro Nang.ela State Attorney woundered why she was not call.ed as . witness Customa;inly as a daughter who might be a -Ofi'l'lpetant wit~6': but not a com.pellabJ..-e iatnass to testify about.:

. "/, ·('( tl:+-eexnal .rape which irl/as .committed upon her mother in her presence. It was ,-1,;, • ' .• .• ·. • quite rt!C!\rally lawful to shield the daughter fr'om testityipg. even if iti .. '~ c,,,f her mgt.h.er DSp&cially since there was another eye 1'1itnea~ .•o. the rape. 'fhe faqt that llw·was not charged with rape was. went to shield the decency and .;i, mo,val mtegnity of the rape victim and not hide a non•coaunitte<l of.fee. If rape ll.'&3-·pr<Wed then indecent assault. was .actually .committed in ~ :¢Qc.A$..c:>f raping. 'rhe appeal is useless and without meriL It is dismissed · .. :.hoth in re.spEl-f~.,._of the Bonviction and sentence f 2 years which was in the lenien ·:.. He r.eserv-ed a h.eavi~ pena.J.ty ~ that 1-.ad the IlfE p..ag~. th~ inadequate sentence. ,,.., (Sgd.) EoLoKo t4WIPOPQ.. Date: 25/11/98 Coram: Hon. Mwipopo, Judge .i, Appellant.;, Does not wish to be present. For Republic: Mr~ Nar.:.gela - Present. C/C: Mrs Mponzi. JUDGEo __ . .,.:,,.c, • .,...., ... .,,. ... "• Court: .,Judgement delivered in the absence of the appellanto DR to info•m him • •i: 1 CER'rIFY 'l'HAT THIS IS A TRUE COPY OF THE ORIGIN.AL. (Sgd.) EoLolC.~. MWIPOPO . JUDGE. -,,,__,,,..,...:a