By FAUSTINE KAPAMA-Judiciary
A lady from Morogoro Region, Shani Suleiman, is to
remain behind bars for remainder of her life for repeatedly indecently
assaulting a boy aged 12 years and permitting him to have carnal knowledge
against the order of her nature.
This follows a decision of the Court of Appeal to
dismiss the appeal under which Shani, the appellant, lodged to oppose decisions
of the High Court and that of the trial court, the Resident Magistrates Court
of Morogoro, regarding the matter.
Justices Stella Mugasha, Rehema Kerefu and Abraham
Mwampashi held that the complaints advanced by the appellant against the
findings of the two courts below were unfounded and, thus proceeded to dismiss
them.
“We find and hold that the case against the appellant
was proved beyond reasonable doubt and the first appellate Judge was justified
to dismiss the appellant's appeal. Consequently, we dismiss this appeal for
being unfounded in its entirety,” they declared.
During hearing of the appeal, the appellant had
complained that the prosecution case was not proved beyond reasonable doubt
against her and the age of the victim boy at the time of giving evidence was
not considered.
The appellant further contended that Section 127 (2)
of the Evidence Act was not complied with before recording the evidence of the
victim and that the evidence of the victim’s mother was nothing but a cooked
story.
When determining the appeal, the justices started
resolved the complaint regarding the age of victim, recalling the settled
position of the law that the age of the victim in a court of law can be proved
by a parent, victim, relative, medical practitioner or by production of Birth
Certificate.
In the present case, they thoroughly went through the
record of appeal and found that the mother of the victim testified that her
child was 12 years old and she went further to mention his date of birth, while
in his testimony, the victim also mentioned he was 12 years age.
“Thus, the age of the victim was not an issue before
the trial court. It was first raised before the first appellate court and we
agree with the findings made by the Judge. It is also our finding that the age
of the victim was proved by the prosecution contrary to the appellant's
complaint,” the justices said.
Regarding the appellant’s complaint that section
127(2) of the Evidence Act was not observed before recording the victim's
evidence, they found the same unfounded with a consequential effect of it being
dismissed having noted that the boy had promised to tell the truth during the
trial.
In the main complaint that the charge against him was
not proved beyond reasonable doubt, the appellant challenged the credibility of
prosecution witnesses, including the victim boy.
The justices noted that the High Court while upholding
the appellant's conviction just like the trial court, found that the victim was
a credible witness whose evidence could be acted upon even without
corroboration, although that was not the case in the matter as his evidence was
supported by others.
According to them, it is settled position that in
sexual offence true evidence comes from the victim and in order to test that
principle, they had an opportunity to closely examine the evidence of the
victim.
“Without any reservation, we agree with the first
appellate Judge that by looking at his testimony, the victim narrates clearly
on how he was sexually assaulted by the accused on different occasions and last
incident it was witnessed by (one of prosecution witnesses)," they said.
With such evidence on record, the justices were
satisfied that the prosecution evidence proved the offence with which the
appellant was charged. “We do not find any merit from the appellant's complaint
that (the victim’s mother) fabricated evidence against her,” the justices said.
The appellant, a lady, was charged before the Resident
Magistrates Court of Morogoro at Morogoro with two counts of indecent assault
of a boy and unnatural offence, contrary to sections 156 (1), (2) and 154(1)
(c) of the Penal Code, respectively.
She was convicted in both counts and sentenced to life
imprisonment in respect of indecent assault and 30 years imprisonment in
respect of the count of unnatural offence. She was aggrieved by the decision of
the trial court and thus unsuccessfully appealed to the High Court.
Between the year 2016 and January 2019, the victim
endured an awful moment of his life as the appellant, on diverse dates,
unlawfully and indecently assaulted him and permitted him to have carnal
knowledge of her against the order of nature.
One day in 2013, the boy told her mother that the
appellant was regularly soliciting him to have sexual intercourse with her.
Having heard that, the mother arranged a trap with a friend so that they catch
the appellant.
They made some arrangements and the friend went to the
house of the victim’s mother house with a smartphone and hide in one of the
rooms. Unknowingly, the appellant appeared and as usual she asked the victim if
he wanted to have sex with her.
Immediately thereafter, the appellant made the
necessary preparation for the act. The friend with the victim’s mother peeped
through the door, saw them in the act and recorded via his mobile phone.
The appellant later saw such friend and she noticed
that she was recording them. Hurriedly, the appellant attacked her and started
fighting. They raised alarm and people responded, the appellant was arrested
and the victim was taken to the police and later to the hospital.
Hakuna maoni:
Chapisha Maoni