Dakika Namalamba v. Republic, Cr app no 23 of 2005 (Defilement)

IN THE COURT OF APPEAL OF TANZANIA AT TANGA

(CORAM:    MAKAME, J.A., MUNUO, J.A., And KAJI, J.A.)

CRIMINAL APPEAL NO. 23 OF 2005

DAKIKA NAMALAMBA ……………………….……. APPELLANT

VERSUS

THE REPUBLIC …………….……………..……… RESPONDENT

(Appeal from the Decision of the High

Court of Tanzania at Tanga)

(Mkwawa, J.)

dated the 29^th day of April, 2003

in

Criminal Appeal No. 16 of 2000

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JUDGEMENT OF THE COURT

23 June & 6 July 2006

MAKAME, J.A.:

            At the District Court of Muheza the appellant was sentenced to a jail term of twenty years and twenty four strokes of corporal punishment after he was found Guilty of Defilement, contrary to section 136 of the Penal Code.  The trial magistrate also ordered, “He is also to compensate the child, however I hesitate to mention the amount.  The child’s parents are free to institute a civil litigation praying for compensation.”

        On appeal to the High Court, Tanga, the appellant complained that he should not have been so convicted and sentenced, but Mkwawa, J, who heard his appeal, dismissed it entirely, for lack of merit.  The appellant filed a second appeal to this Court and conducted it himself before us.  On behalf of the Republic, in response, was Mrs. Lyimo, learned Principal State Attorney.  The appellant has now thrown in the towel and is protesting against the sentence only.

        The appellant lured the complainant, ten-year old PW1 ELIZABETH KABULA, a school girl and a neighbour, and her younger sister called ROSE, to his sugar cane shamba, with a promise of some cane.  When they got there the appellant shunted off Rose to a hut and walked on with the complainant.  When they got to a thicket    the appellant placed the complainant on the ground, undressed her, placed her legs on his shoulders, and raped her.  In response to the complainant’s cries for help her father, who, as luck would have it, was passing by near there, rushed to the scene, thinking that somebody had been attacked by a snake or a crocodile, as the place was near a river.  At the scene the father, PW2 KABULA DULACHENGA, beheld the appellant still performing on the little girl.  The complainant was taken to the hospital; and during the appellant’s trial evidence was adduced to the effect that, among other things, she was found to have no hymen and that she had been infected with a venereal disease.  PW4 SALIMU EDWARD DENIS, a surgeon, also gave evidence that PW1 was later referred to him.  He found her in a truly sorry condition and, among other things  and he had to do a major operation on her to repair her punctured uterus.  In his opinion, PW1 will never be able to conceive in her life.

        In his appeal before this Court the appellant sought to resurrect the question of his conviction, which he could not properly do because his complaint was against sentence only.  There are a number of other issues he raised, most of which are flimsy, things like lack of proof that the girl was not married, or whether he really was carrying a bush knife and scared away PW1’s father with it.  What called for some attention however, was his questioning of the age of the victim, and his assertion that she could have been more than eighteen years old.

        Mrs. Lyimo, learned Principal State Attorney, addressed us only very briefly, in support of the decisions of the trial court and the High Court.   She pointed out that the age of the complainant was eleven years, which was under fourteen, as the charge sheet said, and that the complainant was only in Primary School.

        The appellant is merely ploughing the sands:  PW1 said in Court she was eleven years old, and the appellant did not cross-examine her on this.  The age on the charge sheet was given as under 14 years old, and that was why the charge brought to the appellant’s door was Defilement.  It cannot do, at this stage, to make a bare assertion that the complainant was an adult at the material time. The appeal against sentence has no merit at all and is accordingly dismissed.

        DATED at TANGA this 6^th day of July, 2006.

L. M. MAKAME

JUSTICE OF APPEAL

E. N. MUNUO

JUSTICE OF APPEAL

S. N. KAJI

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

S. M. RUMANYIKA

DEPUTY REGISTRAR