20170825 TZHC Mwanza

13 IN THE HIGH COURT OF TANZANIA (Oriqinal Criminal Case Number 22 Of 2017 Of The District Court Of Kwimba District At Ngudu Before I-Ion Madeha Esq, DSRM) RA El EL F1JVTi1IAS . icani... g • • .. l....0 .1APPE[..E..ANr VERSUS FHE JUDGMENT 16.08.2017 & 25.08.2017 Matupa, J. It would appear the appellant has a medical history. She was treated at home with traditional medicine. The victim aunt administered the medicine on her. It would also appear from the factsoffered in the course of mitigation that, on the fatefUL day, the appellant was in one of her worst conditions. She decided to inflict injuries on the aunt in order to make her feel what she was 1 c (/ / feeling ostensibly, she believed that he aunt, in administering the traditional medicine on her, was practicing witchcraft on her. The facts of the case to which the appellant pleaded are that, on 15th February, 2017 at 06.00 the appeUant attacked one Modesta Lufungilo three times, by using a bush knife and caused her to suffer grievous harm. She was arrested on the same day at Kusan'gwa village and she was sent to Ngudu police station where she confessed the offence. Upon the admission of the offence and the plea of the charge, the appellant Was sentenced to 7 years imprisonment, which is the Maximum sentence provided. for the charge. She was aggrieved by the decision of the court. She has therefore appealed to this court on the following grounds:- . 1. That the sentence is manifesUy excessive as it is the maximum for the offence. 2 • .. 7 • '. / That the mitigation was not attested well for the sentence with consideration of the appeHant remorse. That the trial court didn't consider for the sentence that the plea of guilty served time of the court and expenses of cafling witnesses. The act of the crime was ruled by the appellant's silence. . Before me the appellant was not represented by a counseL She therefore appeared in person. The Republic was represented by Mr Lameck Melu:mbe 1 learned State Attorney. The appellant pleaded with the court that she was sick at the time she comrnitted the offence and she was not in control of her mental faculties. On the other hand, Mr Melumbe reminded the court that the appeUant before she was sentenced, she was not formaUy convicted. The sentence was therefore illegal. He impressed on the court to hold that the record should be remitted to the court below for entering the conviction, before the appeal is entered. 3 / I have considered the submissions of the respective counsel very carefully. I agree with Mr Melumbe that the sentence entered on the appellant is flawed in procedure in that it contravened the provisions of section 235 (1) which directs in mandatory terms that an accused person cannot be sentenced, unless he is formally convicted the sentence cannot therefore be spared. There.is another flaw. The trial court did not properly address the facts of the.case. This is because, the appellant showed here in court to be sick. She also deposed in mitigation that she wanted the aunt to suffer the way she was suffering. This would have put the trial magistrate in alarm. In such an eventuality, what should be the proper recourse? Rather than to remand the case file to the .trial court for it to enter the conviction on her, and in the fight of what she has told the court that she was not in control of her hiental faculties, was 4 !\ I 'U ( to deal with her under section 220 (1) of the Criminal Procedure Code which provides as follows:- 220 - (1). Where any act or omission is charged against any person as an offence and it appears to the court during trial of such person for that offence that such person may have been insane so as to be responsible for his action at the time when the act was done or omission made, a court may notwithstanding that no evidence has been adduced or given of such insanity, adjourn the proceedings and order the accused person to be detained in hospital for medical examination. As I have observed, in the present case, the appellant showed all signs of insanity when she claimed that her aunt, who was all along administering her with medicine, was a witch. Much as I agree that the direction in this case would be to remand the records of the case to the trial court, the direction to convict is not bone by the facts. The proper cause would be to direct the trial court to order that before it enters a conviction, it has to be 5 I.' N satisfied that the appellant was in full control of her mental faculties at the time she was committing the offence. From the foregoing, I am inclined to make an order that the record of this case be remitted to the trial court for it to make necessary orders of committal to a mental hospital for medical examination under section 220(1), before entering a conviction or making an appropriate order under section 219 (2), as the medicaF report will dictate It is accordingly hereby so ordered. S. B'M.Matupa, Judge 6 Date: 25.08.2017 Corarn: Hon. Matupa, J AppeUant: present Respondent: M/S Ajuaye Bilishanga Senior State Attorney B/c: Misungwi M/s Ajuaye BUishanga Senor State Attorney: The appeal is set for judgment and we are ready. Court: The judgment of the appeal was delivered in chambers in the presence of the appellant and M/s Ajuaye Bilishanga Senior State Attorney this 25th August, 2017. S.B.M.G. Matupa, Judge 25.08.2017 Right of Appeal fully expla!ned. S. B. 1V.Matupa, Judge 17 7