By Faustine Kapama-Judiciary
THE Court of Appeal has substituted the 30 year jail
term imposed on rapist neighbor, Said Bakari, to life imprisonment for having
carnal knowledge of 12- years- old girl against the order of her nature.
Justices Gerald Ndika, Rehema Kerefu and Panterine
Kente reached into such a decision after noting an illegality of the sentence
passed against Bakari, the appellant by the High Court after convicting him of
unnatural offence.
“We invoke our revisional powers bestowed on us
under section 4 (2) of the Appellate Jurisdiction Act, and set aside the
illegal sentence of 30 years imprisonment imposed on the appellant (….). We
instead, substitute it with the mandatory sentence of life imprisonment,” they
declared.
In their judgment delivered recently at Mtwara
Court’s Registry, the justices also dismissed the appeal lodged by the
appellant to fault findings of the High Court, which convicted him of two
counts of rape and unnatural offence, a move which is described as adding more
salt on the wound.
Previously, the appellant had emerged a winner
before the Lindi District Court where he was charged with the two counts and was
acquitted by the trial court for the prosecution’s failure to prove the charges
beyond reasonable doubts.
The prosecution was aggrieved by the trial court’s
decision and took the matter to the High Court. Having revisiting the evidence
tendered by both parties, the High Court reversed the findings. It was at that
point in time when the appellant crossed over to the Court of Appeal to defend
his innocence.
He advanced several grounds of appeal, attacking the
High Court Judge for accepting the evidence of prosecution witnesses, including
the victim, whom he described as unreliable for having marred by
contradictions, hence, the case against him was not proved to the required
standard.
In their judgment, however, the justices of the
appeals court, the highest temple of justice in Tanzania, described most of the
grounds of appeal advances to have lacking merits and could not hesitate to
dismiss the appellant’s appeal in its entirety for devoid of merit.
They specifically revisited the testimonies of three
girls and found that there was no doubt that they clearly explained the
incident, while the victim narrated how the appellant sexually assaulted her
four times in his house when his wife was away.
According to the justices, the victim clearly
demonstrated how the appellant used to commit the offences and that she did not
raise an alarm because the appellant used to cover her mouth and threatened to
slaughter her if she disclosed the ordeal to anyone.
They stated that the two girls explained how when
they were passing nearby the house of the appellant they heard the victim
lamenting. Upon entering inside the house, the two girls testified to have
found the appellant putting on a short trouser while the victim was seated on
the bed.
“As rightly submitted by (the prosecution), in cases
involving sexual offences the best evidence is that of the victim, The sole
evidence of the victim can be safely relied upon by the court to sustain a
conviction,” the justices said.
They were also mindful that under those grounds, the
other appellant's complaint was to the effect that the prosecution witnesses’ four
crucial prosecution witnesses were not credible as their evidence was tainted
with contradictions and inconsistencies.
However, having revisited the testimonies of such
witnesses and considered the contradictions and discrepancies complained of,
the justices could not, with respect, consider them to be material to the
extent of affecting their credibility and reliability.
Moreover, it was their considered view that the
appellant's assertion that the case was framed up against him due to the
existing dispute between him and the victim's mother was highly improbable in
the circumstances of the case.
The justices noted from the record that during the
trial the appellant did not cross examine victim and other prosecution
witnesses on that aspect.
“It is trite law that, a party who fails to cross
examine a witness on a certain matter is deemed to have accepted it and will be
estopped from asking the court to disbelieve what the witness said, as the
silence is tantamount to accepting its truth,” they said.
The justices concluded that they could not see any
reason to differ with the finding of the first appellate court and in totality
were satisfied that the High Court adequately evaluated the evidence on record
and arrived at a fair and sound decision.
In the District Court of Lindi at Lindi, the
appellant, Said Bakari, was charged with two counts of unnatural offence and
rape.
It was
alleged that on diverse dates and months of 2014 and December 8, 2014 at
Mikumbi area within the Municipality and Lindi Region, the appellant raped a
girl child aged twelve (12) years and had carnal knowledge against the order of
her nature.
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