republic vs consolata william masawe 2006 tzhc 251 8 february 2006

IN THE HIGH COURT OF TANZANIA AT MOSHI (ORIGINAL JURISDICTION) CRIMINAL SESSION CASE NO. 5 OF 2005 REPUBLIC VERSUS CONSOLATA WILLIAM MASAWE Date:- 8/2/2006 Coram:- F.A.R. Jundu, J. i For Republic: Mr. Hashim Ngole, State Attorney. i For Accused: Mr. Sandi, Advocate Accused: present in person and is under custody. C/C: Matiku Information of Infanticide c/s 199 of the Penal Code is read over and explained to the accused person in his own language and she is required to plead thereto:- Accused’s plea: It is true. Court:- Entered as a plea of guilty. F.A.R. JUNDU, * ' JUDGE, 8/2/2006 Mr. Ngole: My Lord, the following are the facts of this case. The Accused person Consolata d/o William Masawe stands charged with the offence of Infanticide Contrary to Section 199 of the Penal Code, Cap. 16 of the Revised Edition 2002. The Accused person is a peasant and a resident of Majengo Sanya Juu Village within Hai District in Kilimanjaro Region. it On or about the 17 day of January, 2002 at or about 22.00 hours the accused person did kill her own baby girl aged one day by wrapping it in a blanket, thereafter putting it in plastic bag and dumped it under a tree in a farm owned by K.K.K.T Dioceses of Sanya Juu. Two farmers who were digging the said farm discovered the same. Having discovered it they decided to bury it though later they exhumed it and notified the Police Officers. Unfortunately Post Mortem Examination was not conducted as the baby was in a decomposing state. The accused person was arrested and after a thorough investigation she confessed to have committed the offence. She even took the Police Officers at the scene of crime. Furthermore, the doctor examined the Accused person and it was established that she had delivered a baby prior to the examination. On her part the Accused person admitted that she cpmmitted the offence as she was incapable of maintaining the same. This is found in the Accused’s’ cautioned statement. My Lord, I pray to tender the Medical Report on the deceased infant as well as the Accused’s Cautioned statement if the defence side has no objection. Mr. Sandi:- My Lord, we have no objection for both documents to be tendered. Court:- The Post Mortem Examination Report and the Accused Caution Statement are hereby admitted as Exhibits “P .l” and “P2” separately. F.A.R. JUNDU, JUDGE, 8/2/2006 Mr. Ngole:- My Lord, we also pray to tender “PF3” of the Accused and Sketch Plan of the scene of crime, if the defence side will have no objection. Mr. Sandi:- My Lord, the defence side has no objection for the two mentioned documents to be tendered and admitted as exhibits by this court. Court:- The PF 3 of the Accused person and the Sketch Plan of the scene of the crime are hereby admitted as Exhibits “P3” and “P4” separately. F.A.R. JUNDU, JUDGE, 8/2/2006 Mr. Ngole:- My Lord, then the Accused was arrested and charged with the present offence. That is all. F.A.R. JUNDU, JUDGE, 8/2/2006 Court;- Are the facts as read by the Accused person correct. Accused:- My Lord, the facts as read by the Republic are correct and I hereby admit them to be correct. My Lord, I admit that on 17/1/2002 at about 22.00 hours at Sanya Juu Minor settlement within Hai District in Kilimanjaro Region I unlawfully caused the death of my child it being a child under the age of twelve months, by my willful act or omission, but at that time of the said Act, I had not fully recovered from the effect of giving birth and by the reason thereof the balance of my mind was disturbed. Court:- Having heard the facts read by the Republic, the Accused person has without any qualification admitted them to be correct and in my considered view has fully admitted the commission of the offence with which she has been charged with this Infanticide c/s 199 of the Penal Code, Cap. 16, Vol. I of the laws. I I hereby found her guilty of the offence of Infanticide c/s 199 of the Penal Code as charged as I hereby convict her of the said offence on her own plea of guilty and upon her admission of the facts of the case that they are correct without any qualification. F.A.R. JUNDU, JUDGE, 8/2/2006 Mr. Ngole:- My Lord, the Republic has no record of previous convictions on the Accused persons. However, since the Accused has admitted to commit the offence, the Republic prays that this court should impose a punishment as it may deem fit in accordance with the circumstances which made the Accused person to commit the offence. That is all. F.A.R. JUNDU, JUDGE, 8/2/2006 Mitigation:- My Lord, I wish to call upon this court to take into account and consider the following * . mitigation factors so as to impose lenient punishment on the accused person. First, the Accused person is a first offender. This conviction is the first one. This shows that she is a good citizen and that it was accidental. Secondly, the Accused has been in remand for 4 years. Thirdly, the Accused has at once pleaded guilty when the charge was read to her. Further, after her arrest she admitted to have committed the offence. Therefore, she has saved \ invonviences that would have occurred if the case would have been tried. She has saved the court’s time and that of the lawyers if the case would have gone on trial. She has also saved expenses that would have been incurred to witnesses, assessors, etc. My Lord, looking at the circumstances of how the offence occurred, it is my view that she is not responsible for the omission due to the effect of giving birth. The offence was t committed within a day after she had given the said birth. Therefore, she did not know what she did. My Lord, based on the said mitigation factors, I pray that this court should impose a very lenient sentence on the Accused person. That is all. F.A.R. JUNDU, JUDGE, 8/2/2006 SENTENCE: Having convicted the Accused person on her own plea of guilty and upon admission of the facts of this case, I proceed now to consider and impose appropriate sentence on her. The Republic stated that the Accused has no record of previous convictions. This means that she is a first offender as stated by Mr. Sandi. The court always should be lenient to first offenders. They should be given chance to reform. I have taken into account and considered the raised mitigations factors submitted to this court by Mr. Sandi, that is the Accused has been in remand for long time, that she pleaded guilty to the charge once the same was read to her, that the circumstances of the commission of the offence shows that she was disturbed in her mind due to the effect of birth. Mr. Ngoie did not call for this court to inflict a harsh or severe punishment on the Accused person while Mr. Sandi based on the mitigation factors he submitted before this court he prayed for a very lenient sentence to be imposed on the Accused person. Having considering and taken into account all the above matters, I am of the firm view that the Accused person deserves a conditional discharge under Section 38 (1) of the Penal Code, Cap. 16, Vol. I of the laws which I hereby grant on condition that the Accused shall not commit any offence during twelve (12) months from today. Let it be clear to the Accused person that should she commit another offence during the said period of this conditional discharge, she will be liable to be sentenced for the original offence as this court will deem it fit. It is so ordered. F.A.R. JUNDU, JUDGE, 8/2/2006