gumbo adam vs the republic 2009 tzhc 94 9 october 2009

IN THE HIGH COURT OF TANZANIA AT TANGA CRIMINAL APPEAL NO.15 OF 2009 (Originating from Han deni District Court, Cr.C.57/2008) GUMBO AD AM .........................................APPELLANT VERSUS THE REPUBLIC...........................‘...I............ RESPONDENT Date o f last order: 13/7/2009 n 3 f^ 5 r t r Tf . '/ / . 'r r r t f l n f ' £3 / f / i / “ / / / i u JUDGMENT 1 . This matter admits to quite an extra-ordinary setting. As it turns out, in the District Court of Handeni, the appellant was arraigned for an unnatural offence, contrary to section I54(l)(a) of the penal code, chapter 16 of the laws. It were alleged that February 27th 2008, at Kwenjugo village, Handeni District, the appellant was up to no good; sodomising a six year old, namely, Reuben Komoi. When the charge was read over and explained, the appellant was privy to this:- It is true I sodomised the child. t; The prosecutor then rose to adduce the facts, wherein, it was alleged, around 5.00pm fateful day, the appellant came by the residence where the kid, Reuben, was ordinarily domiciled. The infant's parents were not home then, whereupon, the appellant executed the heinous crime there and then. Coming back home much later, Reuben's mother was bewildered at the sight of her son; as his body was smeared with his own stool, all over. And; that was when Reuben got into explaining how the appellant penetrated his sexual organ unto his privates, that is, the unnatural way. A PF.3 was added into the statement of acts (exhibit PE.l); from whose contents Reuben had sustained a deep circumscribed abraisionai wound on the anal canal. The medicafofficer would categorise the injury as a dangerous harm ir.fiictec by a blunt object. In response to this, rather, damning statement of facts, again, the appellant was, apparently, as composed as he was submissive with this:- 7 dc admit the •fects as adduced bv• the *prosecutor. . :• _ „ it Thus, against the foregoing backdrop, a conviction was had; in response no which the appellant was at it again; having nothing to say in mitigation. Tne appellant war- then sentanced to a term of ir.irty years imprisonment but; the way it appears, the requirements of section 154(2) had not crossed the attention of the learned convictingMagistrate. 11 is imperatively required therein that where the unnatural offence is committed to a child under the age of ten years; the offender shall be sentenced to life imprisonment The appellant is now aggrieved upon a petition comprised of four grounds, unto which, he seeks to impugn both the conviction and sentence. In the petition, the appellant painstakingly seeks to disown the plea of guilty as a misapprehension. The one remarkable feature to do with the conduct of the appellapt; outstanding throughout the brief proceedings; is that he appeared, rather withdrawn and unconcerned, that is, despite the prosecutions' damning telling. Even when he was, in the end, convicted; the appellant did not deem it worth a murmur to mitigate whatever was in store for him. Perplexed at the appellants' non-involvement attitude; I i i doubt whether he was fully versed of the ingredients of the offence alongside the accompanying punishment. Putting it differently, to me, it is doubtful that the plea was unequivocal. It seems to me that the Magistrate did not venture upon the needful. Given the uncommonness of the entire setting, I should think, It was needful for the trial court to apply practical wisdom in seeing to it, first thing, that the appellants' mental faculties were enquired into. Where, as here, an indictment admits to most unusual setting and suggestive cf the accused being insane at the commission; the most sensible course of action for the trial court to take, :s :c re'-'e'i to the ^revisions of section 220 of the CPA and order such accused person to be- detained in a mental hospital for medical examination. That was not done in the situation at hand and; it seems to me, the omy course open is to nullify the proceedings and; accordingly, order tne appeiiants' detention in ter~s cf section 220(1). Upon resumption, the trial court should determine the matter de novo in accordance with the law. — W it K.M. MU5SA, 3. 5/02/2010 8/ 2/2010 Coram - Mussa, J. Appellant - present Republic - Mr. Samwel Judgment delivered in the presence of the parties. "v \ K.M. MySSA, J. 8/ 02/2010