Issa s/o Rajabu vs Republic (HC Criminal Appeal No. 129 of 1990) [1990] TZHC 331 (28 November 1990)

..... . ! •. I IN THE HIGH COUHT OF TfJZANIA AT MOSHI. A;''! ELLATE JURISDICTION HIGH COUHT CRHIJINJLL J;H EAL NO. 129 OF 1990 ORIGINAL CRIMINAL CJ.SE NO. 26 OF 1988 OF THE DISTRICT COURT OF Mosm DISTRICT AT MOSHI BWORE: H.E,S. MAIS:iNGE, EZQ, RESIDllNT MAGISTRATE ·1sSA R.AJ:.BU • • ••• , ••• • ••••••••••••••••••••••••••••••• • • • ,f.J,'fELLANT VERSUS THE REr'UBLIC ••••.••••••••.••••••••••••••••••••••••••• •. RESfONDffiT -· ..,J ..,.U.D ...... <LJ1Jil N . ,! NCHALLAJ... .J.t The appellant Issa s/o Rajabu could not beliee his ears when he . . was ·1,rought before. the District Court at Moshi where he was informed that he stood charged with that unprestigious offence of 'defiling a . ' . girl under the age of fourteen years, inf act the pt-osecutrix turned out to be aged pnly eight (8) years• about half the age in point, whereupon the appellant was copvicted of that offence and was sentenced to eight (8) ., yeq;rs imprisonment, that is, for as a long a period as the age of the prosecutrix, one Sikud.hani d/o Rashid (ri-i.1). The appellant was further ordered to suffer six (6) strokes corporal punishment. The appellant is aggrieved by the decision of the trial District Court and has appee.led to this c<.5urt against conviction and sentence. · The appellant was not present in court at the hearing of his appeal as he informed this court that he did not wish to appear, and had not engaged counsel to represent him on appeal. After hcnring this appeal on 17/11/1990, I dismissed it in it~ . entirety rightaway, as I found ·the s()me lacking merit and sub.stance. I upheld the decision of the trial court and confirmed the.sentences. I declared the right of further appeal to the appellant. I reserved reasons for my decision. I now give those reasonso In his appeal, the appellant raised arguments that the prosecutrix on her . • ~elayc.'Cl to report ttt.e incident of SCJplal assau.l t"until on the following day when she was referred to police and later to the hospital for medical • examination. The appellant argued that, under these circumstances, it . . was not established that the prosecutrix was infact S0XUally assaulted on the mc:,,terial day c!lld that it is the appellant who did so. Appellant ••• /2 i ' .

. . ••• 2 • •• ., Appellant 2.lso ·argued that there were no sperms folmd in rw.its Vagina, examined and compared with his own sperms to prove that they were one and the same. Also the appellant argued that the tF .3 which was issued to the prosecutrix on which th0 doctor who examined her wrote a. report was not tendered in evidence by the doctor in .question. Also the appellant argued that·rw.1, nr.2 and tli.3 who aro closely rclat·od simply cons pi rod and f abrica.ted this charge against the appellant. Tho appclant also q\lCriod why n:.l and n13 did not rcisc an alarm so that pooplc woul?, have come and arrested him. Mr. MtddU1'1da, learned State Attorney, submi tt.ed that the appeal l'.3-°, merit.and substance. He supported the conviction and sentence that wore entered and passed on the appellant by the trial _subo:rxiinato court Mr.· Mwiduncl2. submitted that there is established cv-idencc 011 tho prosecution : . . .. •. ...!- ' that th;J e.ppollant threatened ri.1 to slay her if she divulged this incident. For her age, tho rrosocu.tix believed and fe3rcd that tho appellant would have come back aria slain her or fμrther clcfilcd her in case she revealed this. act to any person. For· this reason rw .l kept quiat and did not tell <..>Ven her_ O'm mother until she t1as threatened to be bcatcn}>Y-hor mother then she disclosed what the appellant ad done to her.. nr-.1 was seen by n.;.2, hor mothor, as -she walked astride due ·to pa.in in her private parts. n1.2 o_bsorvcd th'o blood stainod under- pants of nr.1 and her swollen vagina.· This was on the samo night after-.: the det'ilcmont took place at 5.00 p.m. Moroov(;l', . due to taboo rw .1 was_. very much cmbwrassed and humiliated by this soocu.al assault that she chose to keep it to hors.elf rather than ox.posing it to others for feDr of being jeored or shunned by hor fellow girls. These factors inhibited rw.1 from ree..dily speaking out about this shruneful sexual assault on her person. This accounts for HJ.l's delay in reporting the incident to police and her examination by the doctor. ts to the production of tho tF .3 Mr. Mdunda submitted that it was not nccossc1.ry to call tho doctor to tender tho report on I'F.3 because tho :::aid roport was not diS}"Uted as far as its genuineness. For _that reason the said report was properly tendered and admitted under section 240 of the c.r.A., 85. . , With ••• /3 ., .. . I

• t. I L-! ..... . -~~ .,• ¼.. .; .. · \ ' I-·:ith I witnesses him, Mr. . . 000 3 o e •rt the regard. :to the appellant •s ar 5 'Uments th2;t most of"prosecution are related and that ·they conspired to __ fabricate th.is case on If1..;idunda si5nri:°'tteci. ·that the said arguent has no wei_ght • '.. . ,, The said pro$e9ution witnesses 9 namely E:. 1, r·,( ,2 and I;: .3 were found to be :redible 11itneses by the trial m2{;istrate~ Under the circu11,1stances, the 'trial magistra_te I S finding 011 C.J'."Ccli bili ty of -Ii tnessce; Ga>mot be ·f al-ted on ap_peal simpl3r becau;e tho relevant 1·Ji tnesses ar·e closely reJ,.ated. • • 'r There is· n·o law which bars ·c.losc relatives from testifyj:n-~ fb:r each other ' in a criminal case. \·,'hat matters is only that those 1'liti.1esses actually . . wi'tncss<:.d tho matter in issue 1 and. that ·chey arc hoi:ost and truthful w1tnes8f::s. The appellant's query wr.1.;y i°'.·~ .lf-c1.i1c1. :-·L3 did. not :caise an ,alarm is of no iieight l:>o_ca&s~ those witnC:Jssos·tiOr8 frightened to the-end of their, ;wits 'both by the · atrocious act and · i;)iroats -that the a:;,pcllant did and ·'-U:ttecd in this. incident,, As a result ther;ie wi tncsses 1,rnre unable to •. r • • raise anjr alerm. At any rde the ple.co where tl:is incident took place ,I I is· a {p.rcs-t at Rau -ryor where no people liveo. .men if these wi tncssos had. raised. e..n: alaa:; it ·was unli.f:ily -t~~ the .sa,110 could have becri heard by any person. The crucial :.issues for dctormina:cion in tlis case arc whether th0 · appellant was properly identified bJ I'F.l and nio3? Also whether tho prosecv.trix (r; .1) iras actually defiled on the material day and time, and whether there is corroboration to tl1c evidence of ;-;-: .1 and nr .3 who ' arc c./ofu.i:y eye witnesses:. in -""'""' . . requirs co.rro1'i•ati0l'+i!. a.pt this co,sc 9 but who are Etl.nors i•hose evidence from tl-..0 other rcquirei;-ient of corroboration to this offence w:iich is a smru11l offence. Fr01i1 the 0vidence on record, I am quite satisfied that tho appoll2.nt was propc:r1y idc;.1tified by rw.1 . . nnd nr .3 i·rho knew him very well rr:i.or fo tho day of this incident o n; .1 mentioned the appellent as her 12.vishc.r~ and also led the police to the house of th0 appellant where st.e pointed him to the police who arrested hira for this offence. T!.10 offence took place i'.i1 broad day light and tho same lasted for a considorr.ble time~ The question of mistak.on idonti ty docs not arise. f1oroover~ it is established that there was no ,;:rudge between tho COii1J:)lain&"1ts and t10 ap1)ellant. So, '6,J no motive has been alleged or provoC:. t1at would have given rise to the complainants conspiring to falsely implicate the arI)cllant in this case. I am qui to satisfiGd t:.-::.2..t sufficient corroboration exists t.o tlw evidence of ~Hol and :;:·1·:.03• For tho.t ••• /4: ',

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