Republic vs Stephen Katamba (Criminal Revision No. 1 of 1997) [1998] TZHC 2507 (10 September 1998)

l Jfill'g_PO h J ':. IN 'llIE HIGH COURT OF TANZANIA AT MBEYA. CRIMINAL Rl!.."VISION NO. 1 OF 1997 I FROM RUNGWE DISTRICT COURT AT TUKUYU . ' CRIMINAL *iIBE NO. 153 OF 1996 'l'HE REPUBLIC• • , •••• • • ~ •••• •· ••• APPELLANT ·., . : STEPHEN KA'L-1.MBA • ••••• • •• • • • • • IUJ:SPONDENT- RULING ______ ,. Th:ts revision _was called by•this court as- a result of inspecting monthly court re:'co_rd ·of. Rungi.-,e .District in which I detected that a person. convicted of defilement was sentenced to 5 years imprisonment only. I ·'called the actual file for i:q.spection and evision for the defilement two girls:_. aged 5 years ' . and 10 · ye.xrs by . one person. The accus.ed was also served to sho.w cause why· he.should not have the sentence enhanced. ,Yt the hearing of this revision horrible crime have ben·revealed. The accused was charged with 6 coun"ts of defilement c/s 1~ ef .P.C., unnatural offence of sodomy c/s 154 ( 1) of P .. c. and sprear:i.ng_, the infections disease of syphylis c/s 179 and 35 of P.c. . . . The accused_ did not appeal against the conviction and. sentne for the obvious reasons that he was satisfied with the sond' judgeent of' the District court and that e did not want to expose himself to ·-this cour·} which would have detected the anornarity in his entence, I have·taken trouble to look into the evidence whether it was strong . . enough warrant his conviction, The evidence of the 2 children whn gave · unsworn test:i,.rnonies was overwhelmingly corroborated ~~ the eye witnes PW5 Mtuli d/o 1.dam into whose house the accused who was known to her by name and face as they live in te same area of Makandana - Tu,kuyu Ti,-.,m;· · This • • • If, . witness saw· the accused with the two children inside her husba:ri.d_wile pushing up hs trouser after he had just defiling the ~wo girls whom she knew even by their names as hey were alas;> children of neighbouring mothers. The children were crying :nd PW5 realized that the accused had been dcfing · the girls for ·they were still tied with a khanga cloth in then hands and. she ' . . ,• questioned.him if she was insare r confused, He had gone int• that house invited.and by breing into the house for purposes of committing criminal off enc es of defilement for whicl1, crime he ought to have been charged under • s. 294 (1) of the P.C, convicted and s;ntenced accordingly. The acused too

• 2 indirectly by implication confesed to this witness PW5 to hav~ been defiling them . . ' for asked why he was with the children in that beligerent state with the children crying he replied that he ··had. a problem ·with th0m and went on .' . . . threatening her not to revel what she had seen .to anybody els·e. Also later . •\ . . on he returned to her to plead for mercy and secrecy for the acts he did to , the children in these words: i'Shemeji- sa,m~~~i kwa kitendo Iiilichofanya kwa watoto, naomba iwe siri yako, usiseme kwa mtu yeyet~.n PW4 Juliane Bro~,n •who i~ l··bit· older .. at 11 'years than the other victim of the crime PW3 Lucy Mwasikili John aged 4 years gave graphic details of how te accused gratified himself with his organ to both the two children whicrl he inserted by force and threats to slaughter them in both their tiny vaginas and anuses one after another the accused was:af.ter cruel destruction·of.thee-two children orifices and sphliologically rather than sxu·a1 gratification for why do so te?them ·at the same tinie four times·· in a rush the way he d1de There_ is - the furtl)er circumstancial evidence of PW8 Dr. J. _·octum Mwanyavale who examined all the two victim girls and the accused and:all of them were found to be infected with the syphlis veneral diseMe which the accused must have passeq o the two children through the sexual intercouse for crossexamined ' . ' by the accused thus Doct/r testified that syphylis can be _transmitted only through_sexual intercouse in the vagina, anus or mouth then first two of varieties of sexual intercourse of defilm'ents and unnatm-ai offences of which the ,c\ccused committed against the two cl\ildren. The defence of the ' ' '. accused of alibi that he was attending to a funeral of his child in Nsongola Buyila village:from 24/9/96 to 4/10/96 as supported by his own wife :Meda d/o Martini has been destroyed by his own witness DW3 Laurance Mwangungulu his land· lord who confirmed that indeed he went to the funeral but returned home 3 days i'iiter. Since the accused went to 'the funeral c-n 24/9/96 it m?JlS ·he returrie9- : to Tukuyu to\lm. around 27th or 28th September, 96 therefore was at ' :, • ' • o • • • • I. • ' • the.scene of crime on the next!day· of 29/9/9"6 when the offence was committed. His wife :f:emained behind in Nsongola Bujela· .thereby giving_ oppo:;:-J.;;i;;:.::.:i.-:J '.:-::i a • ' ,: • • • the -ccusd' t• commit this offence. Moreover,· since he was bereared by his ' . ewn cild _and while at the funeral he could not have access to his wife for 'f '~ +. • . his sexual gratification. Possibly that.is why he ended up defiling these two . . children in this very cruel and old manner. Since DW2 testified that it was then own child who h:1d died, one .never ow and exclude the possibility that · possibl this child di_ed from syphlios infection from her Wi'lmb too due to the .accused own infcqt~on with this dis.1se which he must have transmitted to his wife and the foetus which was possibly•born syphylis infe•ted and uttimately died of it.

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The evidence and circumstanc&e of this ease preved the ease beyond reasonable doubt. The accused was properly convicted by the learned Mr •. Matogoro :cM·, Rungwe· District Court, The error comes to the sentence. _For the offence of defilement c/e 1,6 of P.c. while it was still unrejected by sexual offences Special Prov: ions Act No, 4/1998 which came into operation on 1/7/98 under which the ma:dmum penalty was still life imprisonment with a miaimwn sentence (now the Minimum sentence under s. 131 (3) of the Penal Code as Amended by the law Act is life imprisonment, the court should not have passed an mere meagre sentence of 5 years imprisonment, I •l1l1.ance this sentence to 25 years imprisonment with 12 strokes for each the 2nd count and the 5th count. For the offences of unnatural offences the sentence .is also enhanced to 10 years imprisonment (Maximum was 14 years now it is a minimum of 30 years .. · imprisonn1ent and a minimum life imprisonment for defilement by_way of sodomy of a child under 10 years.) This is in the 1st count and 4th count of the charge sheet. For the conviction on the offence of spreading infectioM disease of syphylis in the 3rd count and 6th accused the accuseds sentence is enhanced to the maximum period of 2 years imprisonment. ill the sentences shall run concurrentry so he shall serve a maximum of . 25 yea:rs imprisonment. He shall als• serve a total of -:24 .strokes • . ' ~ ... E.L.K• MWIPOPO JUOOE 10/9/98 the true and correct copy of the· origir.··· MBEYA.