jafari mohamed vs republic 2018 tzhc 2082 30 may 2018

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF ARUSHA AT ARUSHA CRIMINAL APPEAL NO. 41 OF 2017 (Originating from Manyara Resident Magistrate's Court Criminal Case No. 228/2014) JAFARI MOHAMED......................................................... APPELLANT VERSUS THE REPUBLIC............................................................ RESPONDENT JUDGMENT Date of Last Order: 17/04/2018 Date of Judgment: 30/05/2018 BEFORE: S.C. MOSHI, 3. This is uncontested appeal. The appellant was arraigned before Manyara Resident Magistrate's Court for the offence of Attempted Rape contrary to section 132(1), (2)(a) of the Penal Code[Cap. 16 R.E. 2002]. The particulars of the offence are thus: "Ja fa ri S /O M oham ed on th e 21st d a y o f A u g u st, 2014 a t G id am ala !4' v illa g e w ith in B a b a ti D is tric t in M anyara re g io n , d id a tte m p t to h ave se x u a l in te rco u rse o f one A n g e lin a D /O E d w ard a g ir l o f 5 y e a rs o ld ." 1 The court found the accused guilty of the offence; he was sentenced to serve ten years in jail. The appellant was aggrieved by the decision, he preferred the present appeal and he had a total of seven grounds of appeal as follows:- 1. That, the trial Magistrate erred in law and in facts by not finding that the Charge Sheet was defective. 2. That, the trial Court erred in law and in facts by not complying with the Provisions of Section 210(1) (a) of the CPA, Cap 20 R.E. 2002. 3. That, the trial Court erred in law and facts by not complying with the Mandatory Provisions of Section 127 (2) of the Evidence Act, Cap 6 R.E. 2002. 4. The trial Court erred in law and in fact when it failed to evaluate the evidence on records. 5. That, the trial Court erred in law by not complying with Sections 230 and 231 of the CPA, Cap 20 R.E. 2002. 6. That, the trial Magistrate erred in law and in facts by not finding that the purported cautioned statement of the appellant was obtained contrary to the requirements under the law. 7. That, the trial Court erred in law and in fact in holding that the charge against the appellant was proved to the required standards i.e beyond reasonable doubt. At the hearing of the appeal, the appellant appeared in person | whereas the Republic was represented by Miss Alice Mtenga, State Attorney. Miss Alice supported the Appeal while the 'appellant who 2 appeared in person had nothing to say. He just requested the court to let him free. I have considered the submission that was made by the State Attorney, the record as a whole and the relevant law. I agree with the submission that was made by the State Attorney. The appellant was charged with a defective charge. The accused was charged with Attempt Rape c/s 132(1) and 2(a) of the Penal Code, Cap 16 R.E. 2002. The provisions of section 132(1) and (a) reads thus: S .132. A tte m p te d ra p e :- (1 ) A n y p e rso n w ho a tte m p ts to co m m it rap e com m its th e o ffe n ce o f a tte m p te d rap e, a n d e x ce p t fo r th e cases s p e c ifie d in su b se ctio n (3 ) is lia b le upon co n v ictio n to im p riso n m e n t fo r life , a n d in a n y case s h a ll be lia b le to im p riso n m e n t fo r n o t le s s th an th irty ye a rs w ith o r w ith o u t co rp o ra l p u n ish m e n t (2 ) A p e rso n a tte m p ts to co m m it rap e if, w ith th e in te n t to p ro cu re p ro h ib ite d se x u a l in te rco u rse w ith a n y g ir l o r w om an, he m a n ife sts h is in te n tio n b y - (a ) T h reaten in g th e g ir l o r w om an fo r se x u a l p u rp o se s;[ E m p h asis is m ine]. From the wording of the provisions of the cited law, the most important element that has to be proved is the aspect of threat. However, the charge sheet does not show this necessary element. It*onty reads that the appellant attempted to rape the victim but it does not disclose the threat. In this respect, the case of Martine Kaiza V R, Criminal Appeal No. 371 of 2016 the Court of Appeal of Tanzania (unreported) is relevant. In this case the Court quoted with approval the case of Musa Mwaikunda V R (2006) TLR 387. In this case the court held among other things thus:- "The p rin c ip le h a s a lw a ys been th a t an a ccu se d p e rso n m u st kn o w th e n a tu re o f th e case fa cin g him . T h is can be a ch ie ve d if a ch arg e d isclo se s th e e s s e n tia l ele m en ts o f an offence. B e a rin g in m in d th e ch arge in an in sta n ce case o u g h t to have d isclo se d th e a sp e ct o f th re a te n in g w hich is an e s se n tia l e le m e n t u n d er p arag ra p h (a ) above. In th e ab sen ce o f th e d isclo su re it o ccu rs to us th a t th e n a tu re o f th e case fa cin g th e a p p e lla n t w as n o t a d e q u a te ly d isclo se d to h im ". Likewise in the case at hand, the charge sheet does not disclose the essential element. Hence the accused was denied a right to understand the nature of the case that he was facing. Therefore the charge sheet was incurably defective. That said, the first ground of Appeal is answered and it suffices to dispose of the entire appeal as the case was founded on a defective charge. Consequently the conviction is quashed, sentence is set aside and the appellant should be released forthwith unless he is held in prison for other lawful causes. 4 Right of appeal is explained. S.C. MOSHI JUDGE 30/05/2018 5