20171011 TZHC Dodoma

''ORIGINAL'' IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT.DODOMA CRIMINAL APPELLATE JURISDICTION DC CRIMINAL APPEAL NO. 18 OF 2017 (Originating from the District Court of KONDOA Criminal Case No. 308 of 2016) !-IASSAN ABDALLAH @FONGA ......... ................ . APPELLANT VERSUS '· THE REPUBLIC............................................ RESPONDENT· JUDGEMENT Date of Judgment-11 th October 2017: I\iansoor, J ~ .. 'i'his appeal -arfse :out of the judgriJ.~n-tdated 08 June, 2016, - . . ---:-----.---- . - ==-::..-:. - -~-:..:. .::.·. . :,-....-:.: . .:.· -~:: . . ----• ....:....:~ -- .. ..,:. :-·_:_· __ :.. ·. ---==--- = _:_::::--. -. - --:: -· _-_;;__-· :. .·..:.:,=-.:....:.. ------ _=, __ .~.~-~- - _:_.::-_--=-=-~·;_= .. ~---~ - - ~ :.:..:..· ----=-- ____ : -- ~~~~ ~~-~~- --=~-~---- ~-~~ -·---------·-·---·--~- i_ - "ORIGINAL" offence charged of rape cont:ary to Section 130 (l_-) and (2) and Section 131(1) of the Penal Code, Cap 16 R: E 2002. The Appellant \Vas charged of raping a girl child of 2 years old. The child's name was Asinati Shabani. The incident happened on 6 th December 2016 at about 14.00 hrs. at Mnarani Street in Kondoa District, Dodoma Region. In this appeal, the appellant is challenging the conviction and se--E.tences passed against him under Section 130 (1) and 131 of the Penal Code, Cap 16 R: E 2002 by the learned Magistrate of Kondoa District Court, in Criminal Case No. 308 of 2016. The District l\/Iagistrate convicted and sentenced the appellant to life. The Appellant was aggrieved by the conviction and sentence passed against him, he filed an appeal raising three grounds of appeal as follows: I. The facts of tlie case read over to him at tri81 were -- - - - ---- --- ----- - - - - --------- . - ·- ·- essential ingredients of :rape so as to be able to defend 2 "ORIGINAL" himself, and that the Trial Magistrate did not record what he has said; 3. The charge sheet did not cite the specific provision of the law under which he was charged. During the hearing, the Appellant did not submit on his grounds of appeal, but said he was forced to plead guilty by - the--po1ice officers, .and that he was tortured. I went through the records, and found that the charge was read over to the accused person and he pleaded guilty. The M2_gistrate recorded the Appellant's own vvords. He said "it is true that I was raped Asinati Shg:f;Jani a child of~ y_ears of age", In the instant case, apart from the fact that the plea is confusing, as it is not clear, and ambiguous, the mandato1y provisions of Sections 228 of Criminal Procedure Act, Cap 20 R:E 2002 dealing with procedure for plea of guilty has been not {ollc,we_d. Section _228 prov_i_des as f~}.!g~·~-- ____ . __ - ,~,~ ':""---,:-~- .""': - - ---- ·---- - ··-- - -· -·- - ---.-:-::-:::- ..!....:.--'.:=.--'..:.. - - - .- - -- - -- -- -·- - - -·- - . - . - --- - - --- •" -- ·- -----· ----- - - -.~~~=~:~~228.~ ( lJ=-.!fne - ---· - - - · - - - --- - -- _, . substance= of the -\inarge~·~shafl he~sikte~to~-~::-~~: :_ ---~-"-~ - -------- -- .- - - . - -- ~ the accused person by the court, and he shall 3 "ORIGINAL''.:' be asked whether he admits or denies the truth of the charge. (2) If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words he uses and the magistrate shall convict him and -pass sentence upon or mal{e an order against him, unless there appears to be sufficient cause to the contrary. The prov1s1ons are mandatory, it v,as not observed before convicting the accused. Further, as per Section 228 ( 1) and (2) of the Criminal Procedure Act, Cap 20 R:E 2002., the learned Magistrate has to explain to the accused about the details of the accusation in the languag-c known to the acsused .and he --:-must record the plea 0Lthe~acGt1sed as ,nearly 8:,S: possible in -----_~- - _-.- -_· -· --he-,-=-vy-qi_as~\l~~d_- by tli.e accuse2~i_:l{qwever, frj~-TE1e_ iristc.l.J1.i ~cas_~~;~-~-- - -·-- _~--_ .;- ~ ---- - . . - ---- - - - ~ - - - --- -- ---- -- &t:L~a.!_1_¥:'_: _t_he plea has_ ~-9.t__ ~e~n r~~-~rc:led. ~1'~~!~. are no recorc:1_8- _ ____ _ statement regarding the ___ plea. of the accused has also-been I"--/ fyL 4 ''ORIGINAL" recorded in this case. What was recorded by the Leai:ned Magistrate is not what was pleaded by the Appellant, the Appellant could not have said "I have been raped" while the charge against him was that he has raped a girl of 2 years old. The proceedings does not state if the charge was explained to the Appellant in the language understood by him, the proceedings appears to have been recorded in English Language, and the Appellant does not know or understand the English language. This is a case involving the right of the accused which leads to many evil consequences observing of the mandatory provisions of Section 228 of Criminal Procedure Code is very important. The charge so framed has been read over to the Accused person but it was read over in· the language not understood to the Appellant. The Facts of the case also contained errors. The fact~ shows that it was t]1.e victim that . ha~ rap~d_. the - - - - - ----- --- .. --·- - - · - - - - - -- - - - - - - · - - - - - - - - - - - - - _ -·=-------_-_-·_--_-_·_.-_·------==----_:.-=..:. --=----= ::.. ~ -_-_--_-____:_.c__:_____:.:....::::.= - - - - - - ~ ·....:; -=----·--- ,, accuseEl-admits facts or ingredients constituting. the offence. 5 'GORJGil~AI.J'' The plea of the accused 1nust, therefore, be clear, unambiguous and unqualified and the Court must be satisfied that he has understood the nature of the allegations made against him and admits them. The Court must act with caution and circumspection before accepting and acting on the plea of guilt. Once these requirements are satisfied the law· permits the Magistrate trying the case to record a conviction based on the plea of guilt. In this case the facts read out to the accused were not clear, they were ambiguous and unqualified, and the Magistrate recorded the plea of guilty and accepted it and convicted the accused on his own plea of guilty but the recording was irregular and unprocedural. I am alive to the law that once the appeHarrt-has pleaded guilty to the charge he only has a right to appeal against the ---~S@Hten8,e~as~s~ti-pul-ated under the-provisions of section 350 ( 1) oLthe Criminal Procedure AGt, Cap 20- R.E.~2002, :l..t:J.d also as 6 ....-_.c:~==----· ·"ORI-GIN.Al.1" Appeal of Tanzania (unreported), 1n v1hich the court -------~c_Qn_s.ider..e_d_an_app_eaLon..a.plea of guilty and Gbserved that:- · The appellants' plea being unequivocal, they were correctly convicted on their own· plea of guilty. It would follow that no · appeal would lie on a plea of gui~ In this case, the appellant having been convicted but the plea was not unequivocal plea of guilty. Again, the charge sheet did not show the essential elements of the offence as the sub section ((e) of Section 130 of the Penal Code was not shown in the charge sheet. It is very evident that even under Sections 228 of Criminal Procedure Code, only after reading of the charges containing the necessary elernents or ingredients of the offences in the language kno-wn to the accused and the trial Judge after satisfying himself that '--· -·-- - ~ - -·-~·----~ -- - Jr 7 "ORIGINAL" clear that it is incumbent upon the trial Court to put the charges/allegations to the accused in unambiguous language. This is one of the right of the accused. This is also the matter of principles of natural justice .. Refer to the case of the case of Mussa Mwaikunda vs. R · (2006) TLR page 387, and also the case of Isidori. Patrice vs. R 1 C:-iminal Appeal No. 224 of 2007 Court of Appeal sitting at Arusha, in which this issue was discussed in details in these cases, and at page 11 of the Isidori case, the Justices of the Court of Appeal observed the following: "It is a mandatory statutory requirement that every charge in a subordinate court shall contain not only a statement of the specific offence with which the accused is charged but such partiailars as m.ay be ner.essary for giving rea.son.o.hle rnfoimatiori as· to the nature of the offence charged : See section 182 of the Act. It is noiv trite laiv that the particu.lars of the --;---- __ , - ._.,, .-.~ --- --::- ---,-----·---=---=-- - -_ - -- - - -· -· · ---- - -- - --- - -- ----·-- --- . - -------~-~cha~ge~shalt- disclose. the essentiafelements .. or .ingreafents ~-· ----~~---- crfrninal law and evidence to the effect that the prosectltion has 8 . .:-.•------ '' . ''ORIGINAL'' to prove that the accused committed the actus reus of the offence charged with the necessary mens rea. Accordingly, the · particulars, ·in order-tfYgive the-aecused a fair trial in enabling him to prepare his defense, must allege the essential facts of the offence and any intent specifically required by law. We take it as settled law a.lso that where the definition of the offence charged specifies factual circumstances without which the offence cannot be committed; they must be inclµ,ded in the _porticulars of the offence. In a charge under section 132 (1) and (2), therefore, the factual circumstances which of necessity must be stated in the charge are those specified in paragraphs (a), (b)> (c) and (d) of sub-section (2), in addition to the mentioned specific intention to procure seXLlal intercourse''. In this case it is evidently clear that the particulars of the charge did n0tdisclo_sc the essential elements or_ingred{ents .of the offence in that §ipce the Appellant v.ras charged ~und~r. -~ ====='=~~SeGtion--130={-1-) (e)~thec,,N"ords "iuith or without her__consent wh·_e_1_'1_ _~_ ·- - - - - - - - --- . ---·- - . . - ------ - - - - - --- - - . . .. . --· · · - ~ -- · - - - ~ --· - .. ___ . - - ~ - she rs under eighteen years of age,--unles~s- the woman is his , ·_·_·::: -. 9 "ORIGINAL" wife who is fifteen or more years of age and is not separated from the man.)) . In the present case, it is plainly clear that, the particulars of the charge did not disclose the essential ingredients of the offence and the Appellant did not know the nature of the case facing him as the ingredients of the offence were not adequately disclosed to him on the charge sheet. It is trite law and as stated in the above cited cases that the particulars of the offence must be clear and must contain all the essential ingredients of the offence. The errors and irregularities pointed out on plea taking can therefore be corrected under Section 388 of the Criminal Procedure Act, Cap 20 R: E 2002. Thus this Court orders fresh trial of the case before the District Court, and quashes the conviction and sentence imposed by the Trial Court. It is so ordered. \i~~ L. MANSOOR JUDGE __ . - ...---- - -----: ~ L~OCTGB-BR-20-r~~~- -----'---------:---:- - -·- 10 ''ORIGINAL'' Judgement delivered in Court today in the presence of the Appellant, Sarara, State Attorney for the Respondent Republic and Mr C .A. Chali the Court Clerk. ~ L. MANSOOR JUDGE 11 TH OCTOBER 201 7 • -,- - - > - r - -· - - - ------ - - - - -- - - - -- - - - - - ---- - - - -·-·--- ·-- - .. 11