SHINYANGA: A RESIDENT of Kahama District in Shinyanga Region, Richard Malimi will remain behind bars for 30 years for the offence of attempted to rape a 63 years old lady contrary to section 132(1) and (2) (a) of the Penal Code Cap. 16 R.E 2002.
Judge Emanuel Kawishe dismissed for lacking merits the appeal under which the appellant (Malimi), had lodged to challenge the judgment issued from criminal case No. 12 of 2017 at Kahama District court.
“I find that this appeal is devoid of substance and I accordingly, dismiss it in its entirety. The conviction and sentence of the trial court are upheld. It is so ordered,” he declared in his judgment delivered recently at the High Court in Shinyanga registry.
During hearing of the appeal, the appellant had complained on five grounds: First, that the conviction of attempt rape was not properly found by the trial Resident Magistrate; second, that the offence was not proved beyond reasonable doubt on what transpired to the extent that her pant was down as stated by the prosecution witnesses.
Third, that the trial Magistrate erred by accepting unreliable evidence from the prosecution witness: Fourth, that the whole evidence of the prosecution side was a cooked evidence and fifth, that the sentence, thirty years imprisonment is severe and excessive contrary to the law.
In his decision, the Justice pointed out that, among other facts, the act of wrestling down the victim and undressing her and himself proves an intent to have forceful sexual intercourse with a woman.
Again, the act of gaging her mouth with a piece of cloth and threatening her is tantamount to unacceptable act and deserves punishment.
“The conclusion of threatening is drawn from the testimony of the victim who stated that to save her soul, was to respond and give the appellant what he wanted. There was no consent at all, and consent is not a question in this appeal,” he noted.
According to prosecution, the District Court of Kahama convicted and sentenced the (accused) appellant to a sentence of 30 years imprisonment for the offence of attempted rape.
It was alleged that on December 26th, 2016 at about 20:00hrs at Mulungu Village within Kahama District, the appellant did attempt to rape the victim.
Upon conviction he was sentenced to serve 30 years imprisonment and being aggrieved by the sentence he appealed.
During the hearing of the appeal, the appellant appeared in person and unrepresented while, Ms Salome Mbughuni, Ms Rose Kimaro and Mr Luis Mbwambo State Attorneys represented the respondent (Republic).
On the material day, it is alleged that, the victim was on her way back home when she met Malimi, who suddenly wrestled her down and managed to undress her.
The victim further testified that the attacker’s male organ was ready for action on her thigh, and pressed forcefully into her while commanding her to open her thigh wide.
This evidence was corroborated by the second witness who was the first person to arrive at the scene of the crime and found Malimi lying on her, as she struggled to break the bond.