20180703 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF MBEYA AT MBEYA CRIMINAL APPEAL NO. 132 OF 2017 (Original Criminal Case No. 271 of 2016 from Mbarali District Court at Rujewa) FURAHA S/O LOTTI MASETA.............................APPELLANT VERSUS THE REPUBI.11C .................................................. RESPONDENT JUDGMENT Date of last order: 1410512018 Date of Judgment: 03/07/2018 Dr. M. C. Levira, J The appellant, Furaha Lotti Mseta was charged with the offence of grave sexual abuse contrary to Section 138 C (2) (b) of the Penal Code, Cap 16 R.E. 2002. He was sentenced to serve twenty (20) years imprisonment and was ordered to compensate the victims Tshs. 500,000/=, each victim. Aggrieved,, the appellant preferred the current appeal. The petition of appeal comprises of seven grounds of appeal as per the records. Page 1 of 8 It was alleged by the prosecution that on the 30th day of October, 2016 about 15:00 hours and 16:00 hours at Lusese village within Mbarali District in Mbeya Region, the appellant did willful and unlawful had sexual abuse to one Nelly Braita @Ndima a pupil of standard two at Rwanyo Primary School, aged 9 years old; and Dorcas Lotti Maseta a pupil of standard one at Rwanyo Primary School, aged 10 years old. The appellant pleaded not guilty to the charge laid against him so the matter had to go for full trial. At the hearing of this appeal the appellant appeared in person, unrepresented while the respondent, Republic was represented by Ms. Axaveria learned State Attorney. In his submission before this court the appellant stated that he was not satisfied with the decision of the trial court because he did not commit the offence charged with. However, he prayed for the court to adopt grounds of appeal as they appear in the petition of appeal. The prayer was granted and thereafter the learned State Attorney got an opportunity to reply. Page 2 of 8 - Ms. Xaveria learned State Attorney stated by supporting the appeal and the main reason being that, the charge sheet has some defects. It was her submission that the appellant was charged under Section 138 C (2) (b) of the Penal Code, Cap 16 R.E. 2002. This provision provides for punishment for a person who committed grave sexual abuse. She further submitted that section 135 of the Criminal Procedure Act, Cap 20 R.E. 2002 provides for things to be contained in the charge sheet. That, charge sheet has to start with the statement of offence as per Section 135 (a) (i). She highlighted that this provision of the law was contravened. According to her, the appellant was supposed to be charged under Section 138 C (1) of the Penal Code; and that, failure to indicate that section was a grave mistake that cannot be cured. She cited the case of Salehe Ramadhani Juma & 4 Others Vs. The Republic, Criminal Appeal No. 205 of 2008, Court of Appeal of Tanzania, Dar es salaam (unreported) where it was stated that failure to observe Section 135 (a) (i) & (ii) of the Criminal Procedure Act was a grave mistake and therefore, the court released the appellant. Page 3 of8 Basing on the above decision, the learned State Attorney prayed for this court to quash the conviction and set aside the sentence. She also prayed for the court to order retrial. In rejoinder the appellant prayed for the court to set him free instead of ordering retrial. I have considered the submissions from both sides and I wish to state at the onset that, the main issues to be considered is whether the court can order retrial on a matter where the conviction and sentence are based on a defective charge sheet. It is a settled law that the charge sheet must contain a statement and the section creating the offence. Section 135(a) (I )and (ii) of the Criminal Procedure Act provides to that effect as follows: "135. The following provisions of this section shall apply to all charges and information and, notwithstanding any rule of law or practice, a charge or information shall, subject to the provisions of this Act, not be open to objection in respect of its form or contents if it is framed in accordance with the provisions of this section:- Page 4 of 8 (i) a count of a charge or information shall commence with a statement of offence charged, called a statement of offence. (ii) the statement of the offence shall describe the offence shortly in ordinary language avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence and if the offence charged is one created by enactment, shall contain a reference to the section of the enactment creating the offence." [Emphasis supplied]. It is clear from the above quoted provision that, reference to the section of the law creating the offence is a mandatory requirement. In the current case the appellant was charged under Section 138 C (2) (b) of the Penal Code (supra), for grave sexual abuse. This section reads as hereunder: "(2) Any person who- Commits a grave sexual abuse on any person under fifteen years of age, is liable on conviction to imprisonment for a term of not less than twenty years and not exceeding thirty years, and shall also be ordered to pay compensation of an amount determined by the court to any person in respect of whom the offence was committed for injuries to that person". Page 5 of 8 It is now clear from the face of record that the section which the appellant was charged with did not create any offence, instead is the punishment provision. Thus the charge sheet was defective as correctly pointed out by Ms. Xaveria learned State Attorney. This court is keenly aware that not every defect in the charge sheet vitiates a trial. Circumstances of each case must be considered in determining whether or not the defect worked to the prejudice of the person accused. In my view citation of Section 138 C (2) (b) of the Penal Code, instead of the section which creates the offence was wrong and fatal because, it is as good as the appellant was not charged at all. Thus it cannot be said that the appellant received a fair trial. In the case of Marekano Ramadhani Vs. The Republic, Criminal Appeal No. 201 of 2003, (unreported) while dealing with almost similar matter the Court of Appeal held that: "The defective charge sheet unduly prejudiced the appellant in his defense..... " Also in the case of Abdallah Ally Vs. The Republic, Criminal Appeal No. 253 of 2013 (unreported) the Court of Appeal observed as follows: "... being found guilty on a defective charge, based on wrong and/or non-existent provisions of the law, it cannot be said Page 6 of 8 that the appellant was fairly tried in the courts below.... In view of the foregoing shortcomings, it is evident that the ) appellant did not receive a fair trial in court. The wrong and /or non-citation of the appropriate provisions of the Penal Code under which the charge was preferred, left the appellant unaware that he was facing a serious charge of rape...... Basing on the discussion above and the cited authorities, I do not find it appropriate to order retrial as prayed by Ms. Xaveria, learned State Attorney. The conviction and sentence cannot be allowed to stand on account of incurably defective charge sheet and therefore, the raised issue is answered in negative. In the upshot, the conviction is quashed and sentence is set aside, I order the appellant to be released from prison custody forthwith unless he is detained for some other lawful cause. Dr. M. C. Levira Judge 03/07/2018 Page 7 of 8 Date: 03/07/2018 Coram: Hon. Dr. M. C. Levira, J Appellant: Present For the Republic: Ms. Sara - State Attorney B/C: Mrs. F. Mponzi Ms. Sara Anesius - State Attorney: Hon. Judge, the matter is coming for judgment, we are ready. Court: Judgment delivered in the presence of Ms. Sara Anesius, State Attorney and the appellant this 3d day of July, 2018. Right of Appeal Explained. Dr. M. C. Levira Judge 03/07/2018 Page 8 of 8