By FAUSTINE KAPAMA-Judiciary
THE Court of Appeal has confirmed the life
imprisonment sentence imposed on two watchmen, Erick Maswi and Charles Masike, for
gang raping a 15-year-old girl.
In a judgment delivered at Musoma recently, Justices
Gerald Ndika, Winfrida Korosso and Othman Makungu ruled against Maswi and Masikel,
the appellants, after holding that “the appeal is devoid of merit. It is
accordingly dismissed in its entirety.”
During hearing of the appeal, the appellants faulted
the High Court for, among others, upholding their convictions disregarding the
fact that the charge was defective and for not nullifying the proceedings of
the trial court for failure to comply with section 210 (3) of the Criminal
Procedure Act.
They complained that the first appellate court (High
Court) erred for relying on the evidence of victim without providing reasons, faulted
the two courts below in not drawing adverse inference to prosecution for
failure to summon crucial and material witnesses and for overlooking their
defence.
When determining the appeal, the justices of the
appeals court rejected one ground of appeal after another after evaluating the
evidence tendered during the trial. On defectiveness of the charge, they noted
a failure by the prosecution to cite relevant provision which established the
offence charged.
They were, however, quick to point out that such
error was dealt with by the High Court which, upon considering its legal
implication and obtaining circumstances, found that it was curable under
section 388 of the CPA and, thus, such an infraction was not fatal and could
not prejudice the appellants’ rights.
According to the justices, the particulars of the
offence informed the appellants of the nature of the offence, the evidence
adduced in court especially that of the victim alleged that all the appellants
raped her, which amounted to gang rape and they set up their defence against
the charge they faced.
On the trial court's failure to comply with section
210(3) of the CPA, they agreed with the prosecution that “failure by the
appellants to establish how they were prejudiced for noncompliance of section
210(3) of CPA, renders the infraction curable under section 388(1) of the CPA.”
Regarding the trial court's reliance on victim’s evidence
without providing reasons for believing her, the justices of the Court of
Appeal, currently the highest temple of justice in Tanzania, noted that both
the trial and first appellate court did provide reasons for finding credence in
the victim's evidence.
“We thus find the complaint to be misconceived since
the trial and first appellate court gave reasons for finding (the victim) credible
having analyzed her evidence. We find nothing to lead us to find that (the
victim) was not credible in her evidence on the identification of the
appellants,” they said.
On the complaint regarding failure by the
prosecution to call material witnesses without plausible explanation, the
justices cited section 143 of the Evidence Act, which declares that there is no
number of witnesses required to prove any fact.
In the circumstances, they said, it was for the
prosecution to determine the witnesses they wanted requisite to prove their
case against the appellant beyond a reasonable doubt.
“Accordingly, we cannot fault the trial or first
appellate court for not drawing adverse inference on the prosecution side for
not calling witnesses who did not testify, since the evidence they adduced was
sufficient to prove the case against the appellants to the standard required,”
the justices said.
With respect to the ground of appeal that the
defence of the appellants was not considered, they revisited the record of
appeal and agree with the prosecution that the trial court summarized and
analyzed the defence and so did the first appellate court and found to be
wanting, hence being rejected.
On the ground alleging that the first appellate
court failed to reassess circumstances under which the identifying witnesses
recognized the appellants, the justices could not fault the reasoning and
findings of the first appellate court on the matter.
“(The victim) properly identified the appellants as
the culprits together with the circumstantial evidence related to the
conditions she was in after being abandoned and found at a football pitch in a
semi-conscious state,” they said.
It was alleged during the trial that on December 26,
2018 at Mara Secondary School area within the District and Municipality of
Musoma in Mara Region the appellants together with another person, who was
acquitted by the trial court, had carnal knowledge of a girl aged 15 years.
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