Said Seleman Vs Republic (Criminal Appeal 60 of 2020) 2021 TZHC 7055 (11 November 2021)
Said Seleman Vs Republic (Criminal Appeal 60 of 2020) 2021 TZHC 7055 (11 November 2021)
Said Seleman Vs Republic (Criminal Appeal 60 of 2020) 2021 TZHC 7055 (11 November 2021)
JUDICIARY
IN THE HIGH COURT OF TANZANIA
SUMBAWANGA DISTRICT REGISTRY
AT SUMBAWANGA
CRIMINAL APPEAL NO. 60 OF 2020
(Originating from Mpanda District Court Criminal Case No. 184 of 2019)
JUDGMENT
NDUNGURU, J.
This appeal arises from the decision of the District Court of Mpanda
at Mpanda (henceforth the trial court). The appellant Said Seleman was
arraigned in Criminal Case No. 184 of 2019 for the two counts. The first
130 (1) and (2) (e) and 131 (1) of the Penal Code, Cap 16 RE
2019. He was found guilty, convicted and sentenced to serve thirty (30)
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years imprisonment in respect of each count which was to run
consecutively.
court five (5) grounds of petition of appeal. However, after I read them
between lines, I found basically the appellant's complainant is that the case
between 23rd day of November 2019 and 14th day of December 2019 at
Msasani area within Mpanda District in Katavi Region with intent to marry
the appellant did unlawful take away the against her will and had sexual
age.
District Court of Mpanda. After full trial he was found guilty, convicted in
When the appeal was called on for hearing, the appellant appeared in
person, unrepresented whereas the respondent cum republic had the legal
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Arguing in support of his appeal, the appellant prayed for the court to
adopt his grounds of appeal he has lodged and the appeal be allowed.
In reply thereto, Mr. Simon Peres learned state attorney resisted the
appeal. Submitting in respect of the first count Mr. Peres submitted that
the offence was proved, however the sentence was excessive. Mr. Peres
informed this court that the punishment for the offence of abduction is 7
submitted that the evidence pertaining the offence was watertight. He said
the offence was proved based on the evidence of PW1. The victim told the
court the way she was taken by the appellant out of the custody of her
her. The victim told the court various places where she was hidden and
various efforts the appellant took to hide her, including his intention of
evidence of PW2 who told the court on how PW1 disappeared, the effort
PW2 used till the arrest of the appellant who was together with the victim.
Mr Peres concluded that the evidence proved the 1st count of abduction as
the appellant retained the victim for 3 weeks from the custody of the
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parents, and it was against her will because the victim was below 18 years.
Thus, he therefore was of the view that the sentence given was proper.
As regards the second count, Mr. Peres submitted that the offence
was proved beyond reasonable doubt. He stated that PW1 is under age
and the same is proved by PW1 and PW2, the mother of the victim who
tendered birth certificate Exhibit - P2. Mr. Peres said such proof of age
the ingredient of the offence of rape as required by section 130 (4) of the
Penal Code submitted that PW4 the Medical Doctor examined PW1 and
found no hymen and opined that PW1 was penetrated by blunt object.
victim, thus he said her evidence is the best one as per the case of
Seleman Makumba's Case. Mr. Peres stated that PW1 told the trial court
that during all the time she was under the custody of the appellant was
Mr. Peres was satisfied that the appellant's case was proved beyond
reasonable doubt as decided by the trial court, thus he prayed for the
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appeal be dismissed, the conviction and sentence for the 2nd count be
has submitted responded that there was no evidence that he sent the
there was no independent witness from those area. He submitted that PW1
and PW2 are daughter and mother respectively, thus he said it is very easy
for them to conspire. As regards the evidence of PW4, a medical doctor the
appellant argued that he has never told the court that PW1 was raped,
Mr Simon Peres for the respondent cum republic during the hearing of this
appeal. I have as well read between the lines the appellant's grounds of
complaint and the entire proceedings of the trial court. The question to
The appellant herein was charged with two counts, first count is
section 130 (1) (2) (e) and 131, all sections of the Penal Code, R:E
2019.
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However, for the offence of rape, it is now a trite law that in sexual
reflected under section 127 (7) of the Tanzania Evidence Act, Cap 6 RE
and the case law, all insists that for the offence of rape, the best evidence
Again, for the purpose of proving the offence of rape, section 130
Msasani area within Mpanda District in Katavi by the appellant. The key
evidence by the prosecution was that led by the victim herself (PW1) who
when was testifying in this case, she had this to tell the trial court:
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"J study at St Mary's Secondary School in form IVB. I
recall 1st September 2019 we were at school where the
money and chips. I used to move with the said bag even
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Looking at the quoted testimony of the victim above, am doubtful, if
the prosecution did prove the ingredient of the offence of rape; that is
penetration. PW1 testified well how she became friend with the appellant
while she was still at school, her decision to cheat parents and how she
was taken by the appellant who was bodaboda and their movement from
they slept together doing sexual acts until when they were caught and
arrested by the police. It is the question of this first appellate court that,
organ into the female organ as hinted above. Was there any evidence of
penetration? PW1, the victim of rape, merely gave a bare statement that
she was doing sexual act with the appellant. In her evidence in chief, she
narrated: -
2019............"
PW2 and PW3 in their testimonies did not witness any incident of
raping committed between the victim (PW1) and the appellant. PW4 who is
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clinical officer also testified that on 5th of December 2019 at about 9:30 hrs
examined the victim and found that her hymen was perforated, but neither
bruises nor mucus he found and he therefore opined that the victim was
almost 23 hours has elapsed. With such duration of time, the result of the
No. 183 2004, unreported the Court also underscored the importance of
the need to lead evidence of penetration of a male organ into the female
organ.
In the above cited case, the victim of the alleged rape like of this
case at hand merely stated the appellant forced her to lay on the ground,
In order to prove the charge against the appellant in this case, the
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In the latter case at page 7 the Court had this to say:
appellant inserting his penis into the vaginal of G.G. (the victim). It was the
victim herself who was in a bitter position to prove the court that there was
supra). In the present case, the victim when testifying was 17 years old.
To that age I am convinced that the victim was able to tell the court clearly
With the above position of the law, it goes without doubt that, in the
instant case the victim and her witnesses did not state that the appellant's
male organ penetrated into the vagina of the victim PW1. The testimonies
available as per the trial court records shows only bare assertion that
victim PW1 had sexual act with the appellant. The evidence of PW1 above
and her witnesses and in terms of section 130 (4) of the Penal Code
prosecution did not prove the offence of rape, that is a penetration of the
appellant penis into the victim vagina. In the case of Seleman Makumba
With this short fall on the part of the prosecution case, it can be said
that the offence of rape against the appellants was not proved to the
stated that: -
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remain there while he was processing for getting
Makanyagio......."
PW1 went to school, she had a school bag too. It was during end of term
examinations. She left home at 6:30 going to school and at 9:00am hei
school teacher MAX called me and told me that Tumsime was not in the
examination room. He tried to trace her but could not find her. On
3/12/2019 he got information that her daughter has been found to the
room of the accused person and that victim and the accused were arrested
and sent to the police station. The other corroborating evidence is that oi
PW3 who testified that on 4th December 2019 he was assigned to search
the house of the accused person who was arrested previous night with the
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With the above evidence, there is no gainsaying that the appellant
abducted the victim as per the provision of section 133 of the Penal
Code, [supra]. Hence the offence was proved beyond reasonable doubt.
For the foregoing reasons, I quash the conviction and set aside
sentence in respect of the second count of rape as it was not proved to the
serve 7 years in jail. The sentence runs from the day he was convicted by
It is so ordered.
D. B. NDUNGURU
JUDGE
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