massanja so charles vs the republic 2023 tzhc 22383 13 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF TABORA AT TABORA DC. CRIMINAL APPEAL NO. 10 OF 2023 (Originating from Criminal Case No. 109 of 2020 in the District Court of Nzega.) MASSANJA S/O CHARLES..................................... APPELLANT VERSUS THE REPUBLIC....................................................... RESPONDENT JUDGMENT Date of Last Order: 18/09/2023 Date of Delivery: 13/10/2023 MATUMA, J. The appellant, Massanja S/O Charles was charged and convicted in the District Court of Nzega for the offence of attempted rape contrary to section 132(1) of the Penal Code, Cap 16 R.E 2019. It was alleged that on 05th February, 2020 at Kitangiri area within Nzega District the appellant attempted to have unlawful carnal knowledge of one Maliamu D/O Maganga a sixty-two (62) year old woman without her consent by forcefully trying to undress her clothes and strangling her neck with intention of accomplishing his motive. Upon his conviction, the appellant was then sentenced to serve thirty (30) years imprisonment. i Dissatisfied by the said conviction and sentence, the appellant has then appealed to this Court on six grounds which establish the following complaints; 1. That the prosecution case was not proved beyond reasonable doubt. 2. That the charge was defective for failure to specify the category of attempted rape. 3. That the trial Magistrate failed to address the state of mind of the appellant at the time of the commission of the offence as aptly stated in the appellant's defence. At the hearing of this appeal, the appellant was present in person while the respondent was represented by Nurdini Mmary and Orester Kemilembe learned State Attorneys. The appellant preferred the State Attorneys to make their submissions first. Mr. Nurdin Mmary learned state attorney when took the floor submitted only one ground regarding the appellant's state of mind suffices to dispose this appeal. He submitted that the trial Court took suspected the mental faculty of the appellant and thus ordered examination of the appellant's soundness of mind at Isanga Mental Institute. That the Appellant was examined accordingly and the report came back indicating that the appellant was not mentally fit at the time of the commission of the offence but the trial magistrate did not consider that report in his judgment. In that regard the learned state attorney prayed for an order of this court quashing the conviction of the appellant and set aside the sentence meted against him then order that this case be remitted back to the trial court for it to make special findingagainst the appellant on the strength of the mental report which shows that the appellant had mental disorder at the time of the commission of the offence. The appellant on his side had nothing to add other than standing by his grounds of appeal. Having heard the submissions from both sides and going through the records of the trial court, it is my turn now to determine this appeal. As rightly argued by the learned state attorney, it is on record that after the closure of the prosecution case, the Court suo moto suspected the state of mind of the appellant and thus order him to be detained in the mental hospital for medical examination. The appellant was sent to the mental institute and dully examined. The report thereof was sent to the trial court as reflected on record; "COURT: I have received a medical report from Isanga Institute of Mental Health as it was ordered by this Court on 30.08.2021. for the observation by the same, this case is scheduled for defence hearing." The trial court went ahead and heard the defence case and upon completion of the same, it composed the judgment convicting the appellant as he stood charged without considering the mental report. The second page of the report from Isanga bears a conclusion that; "Conclusion: Masanja Charles was suffering from a mental disorder known as Alcohol use disorder but now he is mentally stable, and he can stand for his trials." From this conclusion, it is clear that at the alleged time of the commission of the said offence, the appellant was not mentally stable. "Where on the evidence on record, it appears to the court that the accused did the act or made the Commission charged but was insane so as not to be responsible for his action at the time when the act was done or the omission was made, the court shall make a special finding to the effect that the accused did the act or made the omission charged but by reason of his insanity, is not guilty of the offence." The above citation is clear that if the accused commits an offence but by reason of his insanity cannot be guilty of the offence, the trial court should undergo a special finding instead of conducting the trial in a normal course. In that regard, the proceedings of the trial court in a total disregard to the mental status of the appellant is a nullity and the judgment thereof cannot stand. It is accordingly, quashed and the sentence thereof set aside. That being done, there is nothing on record to determine the guiltiness or otherwise of the appellant for the alleged crime so that a special finding is done. In the circumstance, the appeal is allowed as herein above stated. The prosecution if so wishes may commence afresh the charges against the appellant by adhering to the law governing trials against people of unsound mind so that if the trial court is satisfied that the appellant committed the offence so alleged, it makes a special finding that he committed the offence but by reason of insanity he is not criminally liable. Thereafter, the current mental status of the appellant shall dictate the respective order. In the meantime, by considering that the appellants mental status is okay, it is hereby ordered that he be > released from custody unless otherwise held for some other lawful cause. It is so ordered. MA UDGE 13/10/2023 COURT: Judgment delivered in the presence of Eva Msandi State 5