Thomas Emanuel vs Republic [1996] TZHC 12 (4 September 1996)


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:

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

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


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