20180618 TZHC Mbeya

¶1 IN THE HIGH COURT OF TANZANIA AT MBEYA CRIMINAL APPEAL NO.127 OF 2017 (Original Criminal Case No.1 78 of 2017 from Chunya District Court at Chunya) QWARUs I 0 G-URtJ'l'U............................................... APPELLANT VERSUS THE REPUBLIC .................................................... RESPONDENT JUDGMENT Date of last Order: 0910512018 Date of Judgment: 1810612018 NGWALA, J: The appellant Qwaru s/o Gurutu was convicted of Rape Contrary to Section 130(1)(2)(e)and 131(1) of the Penal Code, [Cap. 16.R.E.2002]. He was sentenced to life imprisonment. Aggrieved by both Conviction and Sentence, he has preferred this appeal. In the Petition of Appeal that contains six grounds, he is saying that the trial Magistrate convicted him without ensuring that he understood all the elements of the charge. Secondly, that his plea was equivocal. Thirdly that the Court convicted him without exhibits and documentary evidence of the doctor who examined the victim to prove rape. Fourthly, the trial Court erred to sentence 1 him to serve a life imprisonment without proof that the victim had ten years of age. Fifthly, The Magistrate convicted him without ) citing Section.235(1) of the Criminal Procedure Act, [Cap.20.R.E.2002] and Lastly, that the charge against the appellant was not proved beyond all reasonable doubt. During the hearing Miss Xaveria Makombe, learned State Attorney who represented the Respondent, Republic did not support the Appeal. She averred that the trial Magistrate adhered to the mandatory provisions of Section 228(1) and 228(2) of the Criminal Procedure Act, [Cap.20.R.E.2002]. On the second ground, she submitted that the plea was unequivocal and had adhered to the elements enshrined in the case of Khalid Athuman v. Republic [2006] TLR 79 - 85. In respect of the third ground of appeal, Miss Makombe submitted that there was no need to tender the exhibits or calling the doctor because the appellant had pleaded guilty to the charge. Regarding the age of the victim, she submitted that the ground is baseless as the age is stated in the charge sheet. The learned State Attorney contended that if the appellant had any query on the age of the victim, he ought to have raised the doubt during the hearing. On non citation of Section 235(1) of the Criminal Act, Miss Makombe submitted that the Section applies where the case is on trial. She argued further that non citation of the Section is not fatal, because the Section was complied with. On the last ground, she averred that under Section 360(1) of the Criminal Procedure Act, the appellant should not have appealed except to the extent of the sentence. She called upon this Court to dismiss the appeal and uphold the conviction entered by the trial Court. The appellant being unrepresented contended that the alleged victim is a girl of 17 years old. The basis of his argument is that he grew up with the victim at their homestead. Upon reading the trial Court's record, I noted that when the charge was read over to the appellant, he pleaded to the charge as follows I quote: - "It is true I raped the girl known as Ms. Sabina d/o Ibrahim, I raped her while in the bush nearby my house". With that reply to the charge, the trial Magistrate in his proceedings wrote that:- "Accused person with his freshmind entered a plea of guilty". 3 Then the Magistrate proceeded to require the prosecution side to give the facts of the offence. At the conclusion of the narration of ) the facts, the accused person responded as follows:- "Your honour, I have heard the facts narrated by Public Prosecutor. It is true that on 0710912017 around 19:30 hours I went to the victims parents, I requested the victim to accompany me at the river, before we could reach the river I told her to go to the bush, while at the bush I told her that I wish to sex her, she agreed, she undressed her under wear, I also undressed my underwear and started to sex her". The Court went on to record that:- "Court: Accused person with his freshmind admitted the whole facts constituting the offence in which he stand charged". In responding to the facts, the appellant stated that the victim agreed and "she undressed her underwear". This statement has ambiguity in connection with unequivocal plea as concluded by the trial Magistrate. It is in my considered view that even if the appellant pleaded guilty to the charge, yet there are uncertainities to his plea to the facts that need certainty from the appellant. I hold so because before convicting an accused person for his own 4 plea of guilty, the Court has to satisfy itself that the said plea is without of any ambiguity. It is clear from the facts established by ) the Public Prosecutor that the appellant denied these fact that:- "When they arrived at the river the accused person told the victim that was in need of do Sexual Intercourse with the victim, the victim did not agree, but accused forced her:, undressed the victim, undressed the victim's underwear while at the bush near the river and subsequently accused person undressed his cloth and started to sex the victim". The quoted narration by the Public Prosecutor does not cannote or reveal that it was unequivocal plea. The words are not complete because from the accused words he had changed his plea by saying that he did not force the victim to have sex. According to the accused the victim had agreed and consented to have sex. The narrated facts do not with certainty show that the appellant had pleaded guilty to the offence of Rape. Katiti, J: in Ismail sb Bushaija v. Republic (1986) TLR 1 held interalia that:- "Before an appellate Court upholds a purported plea of guilty has to satisfy itself that:- (a)The charge drawn and signed by the trial Magistrate is an offence known to law. (b)It is an offence over which the Court has jurisdiction. 5 (c) The offence charged is sufficiently identified from the facts as lodged by the complainant. (d)The plea was unequivocal. (e) Where applicable, the assessors prayed their statutory role; the appellant did not plea guilty to an offence properly and accurately identifiable from the facts presented". The underlined words is my emphasis. In view of the above cited authority and the facts of the case read over to the appellant, it is in my considered view that the contended plea was incomplete, hence equivocal. The trial Court therefore ought to have considered it before convicting and sentencing the appellant. In the trial Court's proceedings, I have also noted that the appellant was sentenced without being convicted. The conviction and Sentence by the trial Court is not a conviction within the meaning of Section 235(1) and 312(2) of the Criminal Procedure Act, [Cap.20.R.E.2002]. There are series of authorities on this aspects. To mention a few of them, See Michael Mponzi v. Republic, Criminal Appeal No.607 of 2015, Court of Appeal of Tanzania, and Eliasi Mwangoka @ Kingloli v. Republic, Criminal Appeal No.25 of 2015, Court of Appeal of Tanzania at Mbeya (both unreported). In both cases the Court ordered the trial Court to accomplish its statutory duty of convicting the accused before passing the sentence. In the instant appeal I subscribe to that position. ) Having observed that the Magistrate wrongly entered a plea of guilty. The conviction and Sentence are accordingly quashed. It is ordered that the appellant be retried by a Court of competent jurisdiction before another Magistrate. OrdrAc*ording1y. z0URT 7/ N\\ ( t4J A.F. Ngwala ' Judge \\' // 18/06/2018 7 Date: 18/06/2018 Coram: A.F. Ngwala, J. Appellant: Present For Republic: Miss Xaveria Makombe B/C: Miss Sarah Mungure Court: Judgment delivered in Court. Court: Right of Appeal to Court of Appeal of Tanzania explained. 40 A J 50 4 A.F. Ngwala Judge 18/06/2018 q.