THOMAS EMANUEL v REPUBLIC 1996 TLR 373 (HC)

 THOMAS EMANUEL v REPUBLIC 1996 TLR 373 (HC)

Court High Court of Tanzania - Mwanza

Judge Sekule J

G

CRIMINAL APPEAL NO 154 OF 1994

4 September 1996

Flynote

Criminal law - Defilement - Elements of offence - Requirement of penetration H

Criminal law - Attempted defilement - Sentence - Appellant having committed a

beastly act in attempting to defile a two year old girl

-Headnote

The appellant had been convicted of defilement and sentenced to 15 years' I

imprisonment and 12 strokes of the cane. In an appeal against the conviction and

sentence it was contended that the evidence had not

1996 TLR p374

proven that the girl defiled, who was two years of age, had been penetrated. A

Held:

(i) The evidence adduced did not show that there had been penetration: if

there had been penetration, the complainant, being a very young girl, would have

shown some injury. B

(ii) The evidence did however prove the offence of attempted defilement

and the conviction had to be changed accordingly.

(iii) In the light of the changed conviction and an incorrect sentence having

been imposed (the minimum sentence now being 20 years' imprisonment by virtue of

Act 19 of 1992) the sentence had to be imposed afresh. An appropriate C sentence

would be 10 years' imprisonment and 12 strokes.

Case Information

Ordered accordingly.

Mbago for the respondent D

[zJDz]Judgment

Sekule, J:

The appellant was charged with, and convicted of the offence of defilement, contrary

to s 136(1) of the Penal Code.

The particulars of the offence were that on or about 8 April 1994 at about 11.00 hrs at

E Nyakato area within the township and District of Musoma, Mara Region did

carnally know one Buya d/o Sylivester a girl under the age of fourteen years.

Upon conviction the appellant was sentenced to fifteen years imprisonment. He was

F also ordered to suffer twelve strokes of the cane.

The appellant has now appealed to this court against conviction and sentence.

The case for the prosecution at the trial was briefly that PW1, Farida Mohamed was a

G tenant in a house where the appellant also lived. She had a two-year old daughter,

Buya Sylivester. On the material day, at about 11.30 hrs she was in her room. She

then heard her daughter Buya crying sharply in the appellant's room. She rushed

there and found the appellant lying on top of the child. He was naked. She raised an

alarm and PW2, H Masunga was the first person to arrive at the scene. Semen

looking stuff was seen on the vagina parts of the child and on her buttocks. The

appellant was arrested and taken to a ten cell leader, one Ramadhani M Muyenjwa

and he was subsequently charged. I

The child, Buya was examined. It was observed on the PF3 which was produced at

the trial thus:

1996 TLR p375

SEKULE J

A `Hakuna jeraha lolote la kimwili au la sehemu za uzazi lilionekana. Uchafu

ulikutwa sehemu za kike umeonyesha mbegu nyingi za kiume.'

The appellant denied to have been involved in the commission of the offence

charged. The appellant was present at the hearing of the appeal and complained that

he was not B taken to hospital.

Mr Mbago, learned State Attorney appeared for the respondent Republic.

It was his submission that the appellant was caught red-handed lying naked on the

top of C the child and that sperms was found on the child's vagina.

Mr Mbago, however, observed that going by the contents of the PF3, there was no

penetration. It was therefore his submission that the offence of defilement was not

proved beyond reasonable doubt. And that the evidence adduced disclosed the

offence D of attempted defilement contrary to s 136(2) of the Penal Code. And that

this is the offence which the appellant ought to have been convicted. He contended

the appellant should now be convicted of that offence and sentenced accordingly. Mr

Mbago also submitted that the appellant was not a young person in terms of the

provisions of Cap 13. E

I have examined and considered the evidence on record as well as the appellant's

grounds of appeal and I am satisfied that the evidence on record clearly established

that the appellant was found red-handed lying naked on top of the child. See the

evidence of PW1 which was amply supported in this regard by the evidence of PW2,

and to some F extent by the evidence of PW3.

Sperm was also seen on the vaginal parts of the child, see the testimony of PW1, PW2

and PW3 and again this was also confirmed by the doctor who examined the child as

the PF3 shows. G

The appellant contended at the hearing of the appeal that the girl in question was

about fourteen years of age. This certainly is not true in the light of the clear evidence

from PW1, PW2 that the girl was two years of age. And the appellant did not

controvert this evidence at the trial. H

From this evidence, like the trial court, I am satisfied that the appellant sexually

assaulted the child, Buya Sylivester.

The next issue for consideration is whether the full offence of defilement was

established. The Trial Court found it to be have been established. I

I have also on my part considered this issue, and I tend to agree with Mr Mbago,

learned State Attorney that from the evidence

1996 TLR p376

SEKULE J

adduced the full offence of defilement was not established. The PF3 shows that there

A was no penetration for the doctor observed that there was no injury on or in the

vagina of the child, except that a lot of sperm was seen on the vaginal parts. The

victim as the evidence shows was a child of about two years of age. I am therefore

inclined to the B view that if there was penetration, she should certainly have

sustained some injury in her private parts. That she did not sustain any injury in her

private parts, it is as already said a clear indication that there was no penetration. And

in the circumstances, therefore, the full offence of defilement was not committed. C

It is, however, my considered opinion that the evidence adduced did disclose and

establish beyond doubt the offence of attempted defilement, contrary to s 136(2) of

the Penal Code.

I would and do hereby therefore quash the appellant's conviction for the offence of

defilement and substituted therefore a conviction for the offence of attempted

defilement. D

The appellant, though, did not commit the full offence of defilement on the child; in

the sense that there was no penetration. This was but a question of luck not lack of

resolve on his part to commit that ghastly act on the child. He behaved and acted

beastly. The full offence of defilement under s 136(1) of the Penal Code attracts a

maximum E sentence of life imprisonment with or without corporal punishment.

And by virtue of Act 19 of 1992 it now attracts a minimum sentence of twenty years'

imprisonment. It was therefore with respect wrong for the trial magistrate to impose

a sentence of fifteen years for the full offence of defilement. F

The offence of attempted defilement contrary to s 136(2) of the Penal Code, the

offence for which the appellant has now been convicted attracts a maximum sentence

of fourteen years' imprisonment, with or without corporal punishment. I would

therefore set G aside the sentence of fifteen years which was imposed for the full

offence of defilement. But as observed though the appellant has now been convicted

for the offence of attempted defilement; there is no doubt he acted beastly and acts of

this kind must also be firmly discouraged. A deterrent sentence was therefore called

for, I would H and do hereby sentence the appellant to a sentence of ten years'

imprisonment. The corporal punishment sentence imposed by the trial court is

retained. This appeal partly succeeds and partly fails in the manner indicated above.

In essence the appeal is dismissed as specified above. I

1996 TLR p377

A