final PHilimat CHEDIEL HERMAN Tanzilii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MOSHI AT MOSHI CRIMINAL APPEAL NO.19353 /2024 (Appeal from the decision of the District Court of Same at Same dated 22nd March, 2024 in Criminal Case No. 7825 of 2024) PHILIMATI CHEDIEL HELMANI……….………..….…………….APPELLANT VERSUS THE REPUBLIC……………………………………….………...…..RESPONDENT JUDGMENT 18th & 25th March, 2025 A.P. KILIMI, J.: The appellant herein Philimati Chediel Helman, was arraigned at the District Court of Same at Same for the offence of Rape contrary to section 130(1)(2)(e) and 131(1) of the Penal Code [Cap 16 R.E 2022] ‘ the penal code’. The appellant thereat was alleged to have had sexual intercourse with a girl of 14 years old who for the purposes of concealing her privacy she will be referred as TY. The particulars of his charges alleged that on 17th day of March, 2024 at Vumari area within Same District and Kilimanjaro region, the appellant did sexual intercourse with a girl ‘TY’, aged 14 years old. Upon the charge being read over to the appellant, he pleaded guilty. Subsequently, the prosecution read the facts constituting the offence and 1 tendered appellant’s caution statement and a PF3 form which were admitted and marked as PE1 and PE2 respectively. In respects to the facts and exhibits procured the appellant admitted to them to be true and correct. Consequently, the trial court convicted and sentenced the accused basing on his own plea. Thus, he was sentenced to serve thirty years imprisonment and ordered to pay the victim compensation at the tune of Tshs. 500,000/= for injuries she suffered. Bemused by the above decision, the appellant has marshalled two grounds of appeal, which in his prayers beseech this court to quash the conviction and set aside the sentence awarded by trial court. These grounds are as follows; 1. The learned trial magistrate strayed into error of law when she failed to consider the admitted fact as it was expected that the appellant would go further and state “exactly” what he admits, rather than just say he admits all fact of the case to be true and correct. 2. The learned trial Magistrate strayed into error of law when she failed to note that the appellant’s plea in the court was not unequivocal, as he pleaded guilty as a result of mistake. When the appeal was placed before me for hearing, the appellant appeared in person unrepresented while Mr. Kambarage Samson learned State attorney represented the respondent Republic. The appellant did not submit much than praying this court to consider his grounds of appeal. 2 Responding to the grounds of appeal jointly, Mr. Kambarage argued that as per section 228 of the Criminal Procedure Act Cap 20 R.E 2022, the procedures on how a plea has to be taken if the accused confesses to the offence. Mr. Kambarage then said that the appellant failed to show how his plea was an equivocal. He further argued that for unequivocal plea to be considered by the court there are prerequisites such as; first the accused must be arraigned with a proper charge with proper offence. The learned State Attorney further maintained that the trial court records proceedings revealed the offence the appellant was charged with which was Rape contrary to section 130(1) (2)(e) and 131(1) of the Penal Code Cap 16 RE 2022. Therefore, the appellant fully understood the offence he was charged with as it was read in the language known to him and when asked to plea thereto as per the trial court proceedings at page 2, he pleaded guilty. He also told this court that there was a minor error on the dates of the charge sheet as it was mistakenly recorded that it was the year 2023 while the charge was read over on 17.3.2024, but the same were rectified by the prosecution which read over the facts of the case to the accused who admitted to be true. Mr. Kambarage then was of the view 3 that the said facts read over did reveal the offence the appellant was charged with. Adding further the learned state attorney said that in rape cases penetration was a crucial fact to prove, he said the same was proved as per page 4 of the trial court proceedings. Mr Kambarage submitted further that the accused upon being asked on whether he admits the facts read over, he admitted the same to be true and correct. He maintained that the appellant plea at the trial court was unequivocal, he supported his assertion with the decisions of Onesmo Alex Ngimba vs Republic (Criminal Appeal No. 157 of 2019) [2022] TZCA 26 (TANZLII) at page 5 and the decision of Michael Adrian Chaki vs. The Republic, Criminal Appeal No. 399 of 2019 CAT at Dsm. (Unreported) at pages 7,8 and 9. I have considered the grounds of appeal advanced by the appellant in this appeal, the submissions of the learned state attorney and the records of the trial court, in my considered view as rightly argued jointly by Mr. Kambarage I will discuss the two grounds together because they are intertwined, thus the issue for determination is whether the appellant plea at the trial court was unequivocal plea. 4 In terms of section 360(1) of the Criminal Procedure Act Cap 20 R.E 2022 ‘the CPA’ it provides that; “360.-(1) An appeal shall not be allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subordinate court except as to the extent or legality of the sentence” From the above provision, it is clear that a person convicted of an offence on his own plea of guilty is barred from appealing against such conviction but he can only appeal against the extent or legality of the sentence imposed. In respect to the charge and facts read to the appellant, I am guided by the principle that; first, the court must satisfy itself without any doubt and must be clear in its mind, that the accused fully comprehends what he is actually faced with; second, the accused must be asked to plead and must actually plead guilty to each and each every ingredient of the offence charged and the same must be properly recorded and must be clear and third, before a conviction on a plea of guilty entered, the court must satisfy itself without any doubt that the facts adduced disclose or establish 5 all the elements of the offence charged. (See Onesmo Alex Ngimba (supra), Michael Adrian Chaki (supra), Laurent Mpinga vs. Republic [1983] TLR 166 and Karlos Punda vs. Republic, Criminal Appeal No. 153 of 2005 (unreported) to mention a few. I have considered the records of the trial court and for reference and clarity purposes, I reproduce some as hereunder; “P ublic P rosecutor: The case is fresh; We pray to read the charge to the accused. Court: charge read over and explained to the accused person in the language he most understands thus Swahili who is asked to plead thereto. Accused plea: Ni kweli nilimwingilia kingono TK tarehe 17/3/2023 huko Vumari (it is true I had sexual intercourse with one TK on 17th March, 2023 at Vumari.) Court: Entered as plea of guilty by the accused to the charge. P ublic P rosecutor: Facts of the case are ready your honour. We may proceed. Accused: I have no objection FACTS OF THE CASE 1.That accused name is Philmati Chedieli Herman,30 years old, pare by tribe, Christian, peasant and resident of Minyara village in Same district and Kilimanjaro region 6 2.That on 17th M arch,2024 at Vum ari village in Sam e district and K ilim anjaro region the accused had sexual intercourse w ith TK (a pseudonym to hide her identity) a girl aged 14 years w ithout her consent. 3.That before committing the crime the accused used to know the victim well as they live the same village. 4.That on 17/ 3/ 2024, upon m eeting the victim , the accused held her hand, forcefully took her to the bushes, undressed her skirt, skin tight and underw ear and he also undressed his trouser and took out his penis, laid dow n the victim (TK ) and inserted his penis in her vagina and had sexual intercourse w ith her. 5.That as the victim didn’t consent, she yelled but the accused used force to execute the sexual intercourse 6.That after ejaculation, the accused rose, dressed his trouser and left and the victim rose and w ent to report her ordeal to M inyala village leaders and finally the matter was reported to Same police station. 7.That PF3 was issued where the victim was taken to Same district hospital for medical examination where it was confirmed that she has been subjected to sexual intercourse as her vagina was found to have bruises and sperms. 9.That on 18/ 3/ 2024 the accused w as interrogated under caution at Sam e police station by W P 11213 D/ Cpl Neem a and his statem ent w as recorded in caution statem ent w here he adm itted having sexual intercourse w ith TK . 7 10.That today the accused has been formally arraigned and pleaded guilty to the charge. P ublic prosecutor: We pray to tender the victim’s PF3 and accused caution statement to form part of facts of the case. Accused: I do not have any objection Court: PF 3 for TY and accused caution statement are hereby admitted and marked PE1 and PE2 respectively to form part of facts of the case. P ublic prosecutor: That is all your honor Court: The accused is hereby asked to state facts of the case he admits or deny after they were read over and explained to him in language, he most understands thus Swahili and he replies: - Accused: I adm it all facts your honor, all of them are true and correct. I t is true I had sexual intercourse w ith TY on 17th M arch,2024 at Vum ari village w ithin the district of Sam e Court: I hereby convict the accused person one Philmati Chedieli Herman for the offence of rape contrary to section 130(1)(2)(e) and 131(1) of the penal code Cap 16 R.E.2022 follow ing his unequivocal plea of guilty and adm ission to facts of the case w hich I constitute the offence of rape. The facts narrated show the victim is 14 years old thus below eighteen years and the act of the accused inserting his penis into the victim ’s vagina thus penetration 8 have been revealed. Section 228(2) of the CPA, Cap 20 R.E.2022 complied with. Order accordingly.” [Emphasis supplied] According to the extract above, it is true as said by Mr. Kambarage that the record above shows the charge read over was dated 17th March, 2023 but the facts adduced by the prosecution to appellant shows the commission of the offence charged was on 17th March, 2024. I have considered this variation, since the appellant pleaded guilty on both charge and facts, in my view it shows that he understood the charge read over to him. Nonetheless, since the particulars read to him had exactly date of the incident and admitted on them, it is my settled view the said omission above occasioned no injustice, thus, although the same was not among the ground of appeal, under the above circumstances and facts read to appellant I treat it as inconsequential, hence no any failure of justice caused. The next point to be considered is whether the facts narrated to the appellant disclosed all the ingredients of the offence charged. Ingredients of the offence of rape which the appellant was charged with are found on the provision of the section 130(2)(e) the penal code which provides; 9 “130 (2) A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions: (e) with or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man.” According to the facts narrated to the appellant at the trial court as quoted above, paragraphs 2, 4 and 6 of the facts read over indeed comprises all the ingredients of the offence charged as they depict the date of the incident, age of the victim and penetration of the appellant’s penis into the victim’s vagina. Moreover, as shown above in the extract, the trial magistrate noted that those facts were read in Swahili the language appellant understood. Therefore, from those transpired, I am settled that the facts narrated to the appellant were legal, thus the appellant cannot seek a refuge that he did not apprehend/understand them. The last issue to be considered is whether the reply/plea of the appellant on above facts were not unequivocal or he admitted them to be true and correct as a result of mistake as said on the second ground above. 10 According to the trial court records as quoted above, after the facts constituting the offence charged were read over to appellant, he replied that “I admit all facts your honor, all of them are true and correct. It is true I had sexual intercourse with TY on 17th March,2024 at Vumari village within the district of Same” The above words are from appellant’s mouth recorded by the trial court. It is settled law in this jurisdiction that a court record is always presumed to accurately represent what actually transpired in court. This is what is referred to in legal parlance as the sanctity of the court record. (See Alex Ndendya vs Republic (Criminal Appeal 207 of 2018) [2020] TZCA 202 (TANZLII); and Stanley Murithi Mwaura vs Republic (Criminal Appeal 144 of 2019) [2021] TZCA 688 (TANZLII). I have considered the above words uttered by the appellant, I am satisfied without any doubt that those words suffice to show that the appellant pleaded guilty to each and every ingredient of the offence charged, thus his plea was unequivocal as the trial court held as depicted above. In the circumstances all grounds raised above have no merit and are hereby dismissed forthwith. 11 Having said so, I am satisfied that the Appellant was properly convicted and sentenced. Thus, I find no reason to fault the decision of the trial court. Consequently, this appeal is devoid of merit and is hereby dismissed in its entirety. It is so ordered. DATED at MOSHI this 25th day of March, 2025. X JUDGE Signed by: A. P. KILIMI Court; Judgment delivered this 25th day of March, 2025 in the presence of Mr. Kambarage Samson Learned State Attorney for Respondent, also the Appellant (both appearing virtually via video conference). Sgd; A. P. KILIMI JUDGE 25/03/2025 Court: Right of Appeal duly explained. Sgd; A. P. KILIMI JUDGE 25/03/2025 12