A RESIDENT of Moshi in Kilimanjaro Region, Joachim Sebastian, is to remain behind bars for the remainder of his life for raping a 4-year girl after luring her with biscuits.
Justices Shaban Lila, Gerald Ndika and Jacobs Mwambegele reached into a decision after dismissing the appeal in which, Sebastian, the appellant, had attempted to fault the decision of the High Court over his conviction of rape.
“We find this appeal lacking substance and, for that reason, we are constrained to dismiss it, as we hereby do,” they declared.
During hearing of the appeal, the appellant had complained, among others, that the charge preferred against him was defective. The justices agreed with both the appellant and the prosecution that indeed the charge was defective.
They pointed out that the fact that it made reference to the provisions under which the appellant was charged as simply sections 130 and 131 of the Penal Code without any reference to the relevant subsections thereof was, without mincing words, an irregularity.
The justices were, however, quick to point out that particulars of the offence had details which would have been covered by the omitted subsections, they settled in their mind that the ailment was not fatal and was curable under section 388 (1) of the Criminal Procedure Act (CPA).
“We find and hold that the failure to cite in the charge the relevant subsections of sections 130 and 131 of the Penal Code for which the appellant was arraigned, was an irregularity but was curable under section 388 (1) of the CPA,” they said.
With regard to the ground that the appellant was convicted on weak evidence which did not prove the case beyond reasonable doubt, the justices also held that the prosecution evidence on which the trial court found his conviction was not weak, but rather strong enough to mount the conviction.
The appellant had also complained that his defence was not considered. However, upon reading the record of the trial court and its judgment, the justices noted that the appellant did not put up any serious defence worth consideration.
Facts show that the victim, a girl aged four years and four months, was on February 3, 1999 at about 15:30 hours, together with her two friends of almost the same age, coming from a shop where they had been sent to buy cigarettes.
While on their way, they met the appellant who lured the victim to go with him to the shop where he would buy her biscuits. The victim fell into the trap; she agreed. The appellant carried her on his shoulders and disappeared with her amidst protests from her two friends.
However, the appellant did not take her to the shop as promised. Instead, he took her deep into a banana field and started raping her. The victim cried for help to no avail.
One person and her friend heard frantic cries from the victim. They went there only to find the appellant performing on the victim but he could not allow them closer by hurling mud balls at them.
The two girls retreated to seek help elsewhere. The appellant was immediately arrested, prosecuted and sentenced. In his defence, the appellant simply stated that he was arrested on February 03, 1999 and taken to the police station where the charge the subject of this appeal was preferred against him.