20120525 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE Jl_JRISDICTION) (DC) CRIMINAL AP-PEAL NO. 134 OF 2011 ( Original Criminal Case No. 86 of 2009 of the District Court of Iramba District at Iramba) ,,. . ' LUHINDA NJEMU ........................ APPELLANT ..J VERSUS -· THE REPUBLIC .......................-. ... RESPONDENT JUDGMENT 16/5/2012 & 25/5/2012. KWARIKO, J: The appellant herein was arraigned .before ~he district court of Iramba district at Kiomboi with the offence of Rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code Cap. 16 - Revised Edition 2002. The particulars of the offence reveal that the appellant had, on the 24 th day of September 2009 at about 20.00 hours at Nyahaa village within Iramba district in Singida 1 • • Region sexual interco.urse with one KASULA D/C) AMOS a girl aged thirteen (13) years. When the 5=harge was read over and explained to the appellant he admitted the same where a . pl.ea of .guilty was accordingly entered. Facts of the case were then prepared and read over to the appellant. The facts of the case revealed that the complainant KASULA D/O AMOS was a school girl at <tJNyahaa . . Primary Schooli That, on 24/9/2009 at 20.00 hours the appellant went to the girl's home for intention of asking for firewood. There he found the ·said girl inside where he decided to abandon his initial mission and emb_arked into sexual intercourse with the girl. .,qll:,~~-t~.;-. 1~. • ~<~.:\J\r ~ ~. ,.,:. . . ' _ While 1n the course of the intercourse one NKWI_MEM\.,,,~ALUM- and the appellant's wife NALEDIE NKUNGU arrived and witnessed the appellant's act with the girl. The appellant was apprehended and sent to Ibaga Police out post. The complainant was given a PF3 for her to go to hospital for medical examination. In his statement before the Police the appellant admitted the allegations. Thus, the PF3 and accused's Caution Statement were admitted in court as exhibits Pl and P2 respectively. 2 When the appeHant was asked whether he was admitting the .· facts of the case he replied that th~ same were correct and that · he felt shame when his wife found him having sexual intercourse · with the girl. The appellant was found guilty of the offence. charged and ac<:=ord·ingly was convicted. He was sentenced to thirty (30) years imprisonment with twelve ( 12) strokes of the cane. Now, befqre _this court the appellant filed this appeal. against both conviction and sentence. In his memorandum of appeal and the· additid'nal grounds of appeal. thereof the appellant raised the_..· ·. following four (4) grounds of appeal. · 1. That; the learned trial Magistrate ,erred in law and j)f-Kf;t9,fts by • ..·.·--:1-:,•.'••,-,,,::·.",-,_ failing to\:aution himself as to whether the appellant knew the meaning of a plea of guilty. 2. That, Jhe prosecution failed to prove that the complainant girl was a school .girl. 3. That, the charge was only framed by the prosecution since the appellant had misunderstandings with the complainant's family. 3 4. That, the plea of guilty was an equi~ocal one since the police had promised to release him if he confessed and pleaded guilty to the charge. During the hearing of the appeal the .appellant at first reserved his submission until he heard what the respond~nt Repu,b!Jc had to say in relation to his appeal. Thus, the respondent/Republic was represented by, Ms. ·Magoma learned ' . State Attorney. Ms. Magoma opposed this appeal where he conter1ded. that the appellant 1 s complaint that he admitted the charge after the police had promised to release him is :,-"'··· completely a new matter which does not feature in the court s 1 original record. Instead, the record shows that • the ..., ·:ctppellant J;._:5-;·~·;·:if·~· .. - ' admitted the charge as well as facts of the case without any ·, qualifications. The appellant went further to regret his actions when he was' admitting the facts of the case. .. '· i Thus, it was Ms. Magoma 1 s contention that the appellant's plea of guilty was an unequivocal one and the appeal against his conviction is illegal. A case of LAURENCE MPINGA VR [1983] T.-L.R 166 was referred in this respect. 4 However, it was Ms. Magoma's further submission· that the trial court erred to receive the exhibits, appellant's PF3 and caution statement without first giving the appellant opportunity to say- anything. Though, Ms Magoma contended, that, oral evidence is . sufficient to prove any facts as provided under section 61 of the Evidence Act. Thus, even though there were ' no any exhibits the evidence available was enough to prove the ·, appellant's guilty. And in the end, that, the appellant admitted ,J all facts of tt;le case which included the said exhibits ..,.rt was prayed by Ms. Magoma that this appeal being incompetent be dismissed. In response to the. foregoing submission the appellant maintained that he was misled by the police to admit the charge on promise of being favoured hence did not admit the ." allegations voluntarily. That, it was his first time to be arrested : . and chafged. Lastly, he thought that the court was not different from the police. Consequent to the foregoing submissions the appellant's grounds of appeal can b.e answered as followed: 5 . . (j Firstly, _the appellant complained_ that the trial court erred-·for its failure to warm itself on whether he (the appellant knew the meaning of a plea of guilty. The learned State Attorney did not address this complaint.. As for this court, it can simply be answered that, the law ,under section 228 of the Criminal Procedure Act, cap. 20 Revised Edition 2002 does not provide anything similar ,to · the appellant's complaint. There is no provision which oblig-es the Magistrate to warn himself/herself as to whether the accused -:-;:-::~ knows the meaning of a· plea of guilty. However, the law requires the court to read and explain the charge to the . """.'-:;=r~:.f"" ·:.. .. . .- . accused person which obligation appears in the court record to have been complied with. After the charge had been read and explained to the appellant (then accused) h_e was asked to plead an~ he is recorded to have said; "it is tr,ue I raped her at her hf>me". It is the opinion of this court that, there is no any other way the trial Magistrate wGuld have known whether the appellant knew what was the meaning of a plea of guilty than from his own reply after the charge had been re.ad over and explained to him as shown above. Thus, this complaint is baseless and it is hereby dismissed. 6 · Secondly, as regards a proof whether the complainantlwas a school girl, the learned State Attqrney also did not respond to that.· . This court is of the opinion that whether or not the cor,nplainant was a school girl is immaterial as far as the ··, ' ?ffence of rape is concerned. What matters here is the age of · the. . Gomplainant. The record shows that the complainant was~ aged thirteeh (13) years at the time the incident occurred. The law says under section 130 (1) (2) (e) of the Penal Code Cap. 16 Revised" Edition 200~ that a girl under the age of eighteen (18) years in incapable · of giving her consent to sexual intercourse and thus whoever engages -into sexual intercourse with. such girl commits the offence of Rap;. ·Aft~r all,,,·:Ihe appellant admitted the charge which showed that the complainant was aged thirteen (13) years at the material time ~ . and he ,.went further to. admit all the facts of the case. ·i Therefore, there was no need to bring • witnesses to prove the charge since that is only done at the trial wh,ere the accused denies the charge. Thus, this complaint is also·· non-meritorious and it is hereby rejected. In the third ground which was also not addressed by the learned State Attorney, the appellant complain.ed that the case 7 ··was framed by the prosecution*due to his mis.un~erstandings with the complainants' family. ·Also, this is an afterthought because if that was the case the appellant wouldn't have admitted the charge. He must have denied the same so that evidence coutd be brought during the trial where he would have presented his reservations in relation to the case. Or else, the appellant must have complained to the trial Magistrate that the case was just a frame-up where the court must have taken '!'ii< , 'I ,«:} that he was not admitting the charge. The case ttien must . . ~ have gone to a full trial. Again this ground is .rejected .. ' . In his last ground of appeal the appellant complains that his plea of guilty was an equivocal one. That, the police had promised to release him if he confessed the allegations and pleaded guilty to the charge. As rightly submitted by the learned {3tate Attorney, this complainant is an afterthought. There is; no proof to the appellant's allegations against the 'I. police and the original record is clear that the appellant's plea was an unequivocal one. -- When the charge was read over and _explained to the . . appellant, he replied that "It is true. I raped her at her - home", where a plea of guilty had been entered. To ensure that the plea of guilty was an - unequivocal one the court 8 . t, ordered, as the relevant law requires, for the :fa'cts of the case · to be adduced before ·the appellant ~as or not convicted. Thirty minutes were accorded to the prosecutor to· prepare the facts of the case. When finally the facts of the case were read over tb the apg~ll~nt and him asked whether he was admitting the same he replied thu-s; "I admit the facts they are correct and I felt shame when my wife came in~ide and found me having sexual intercourse with the girl". By his own words, the appellant's admission of guilty was 1 clear and 1 unambiguous· on_e. He did not only admit his guilty i but he went on to express how he felt when he was found by • his wife having sexual intercourse with the v·1etim. Thus, the · plea of guilty in relation to the appellant was an unequivocal one. The law under section 360 (l) of the Criminal Procedure Act, Cap. 20 Revised Edition 2002 provides thus; 9 h . "No appeal shall be allowed in the ~ase /,f , any accused person who has pleaded guilty and has been convicted on such plea by a subordini:'te court except as to the . . extent or legality of the ~entence". Thus, the appellant's appeal in relation to his conviction is illegal since his plea of guilty is clear and an unequivocal one. [See' LAURENCE MPINGA V.R [1983] T.L.R 166]. As it was decided in th_e cited case nothing is indicated in the appellant's plea of guilty to have warranted the appellant to appeal against his conviction. Further, as correctly submitted by Ms. Magoma learned State Attorney, the PF3 and appellant's Caution Statement ( exhibits Pl and P2 respectively) were admitted in court 'I without first the appellant being given opportunity to say i. anything. I agree with the learned .State Attorney that even without these exhibits still the facts adduced in court could prove the appellant's guilty (section 61 of the Evidence Act, Cap. 6 Revised Edition 2002). However, since at the end the appellant was given opportunity to admi~ or deny the facts of the case and since he admitted all facts of th~ case the exhibits inclusive, it is my considered opinion that the .omission did not cause any injustice to the appellant. The contents of the 10 exhibits do hbt differ with the facts of the case so admitted. After all the appellant did not-complain about these exhibits or any procedural !rregularity · in -that respect. Thus, the appellant's conviction was rightly grounded. Therefore, since the law forbids an appeal against conviction grounded in an unequivocal plea of guilty· the -appellant's ,.. appeal is thus illegal and therefore incompetent. rt is hereby . struck out. As for the appeal against sentence the same is . competent and thus can be considered. -~> -The appellant · ,was sentenced to thirty (30) years imprisonment with twelve (12) strokes of a cane which is a legal minimum punishment given for the offence of Rape 0 interms of section 130 (1) (2) (e) and 131 (1) of the Penal i Code c;ap. , 16 Revised. Edition 2002. Thus, the sentence is neithe? illegal nor excessive and Jt was properly meted out against the appellant. Therefore, the appeal ·against sentence is non-meritorious and it is dismissed. Finally, this appeal is without merits and it is hereby dismissed in its entirety. 11 It is so ordered. JUDGE 25/5/2012 Court: Right of Appeal fully explained . .. . ' JUDGE 25/5/2012 DELIVERED AT DODOMA 25/5/2012. Appellarit: Present . ,,.• For Respondent:. Ms. Shio Senior Stpte Attorney. 12