19850821 TZHC Mwanza

IN THE' HIGH COUnT OF' r11,i~;Z,ilJLI ,'\T l\TH ,-1iJZi-\ ~~~=-~ liKVISIOlLlL J1J 3ISL'IC1I1IOH C.EIIiUliJ.ilL .iINISION H0 1 27 01' J:984 ( Oricinal Criminal Case lJoo 175 of 1984 of the District Court of ~unda Dist::.'ict at ru.nda - :Safoc:c P. Zo Kagali - Esq. 1 Disti•ict 1,Iu_; istr <-1te) THE R'.ii'PU"LI C ••••••••••••••••••••• g ....... C ••• ~ ~ •••••••••• PJOSIG:i'.L'UJ '!ersus CHACI-rn MU:iU1-LU o•••,•••••••••••••••••••• JCCUS.ZD Delifiment af a girl undal' the ~JG of fourtcan ;ire:etrs c/s 136 (I) of the P2nal Code Cap. I6. JU K Ml:f NT ---=----= KATITI 9 J:- This record was sum:noned for revision, u1,on criminal retn::. 1:s , 1 showi11G, that tl-c,2 uccused c13ecl eiGht\';r:.:n ;:/Gcll's, was upon conviction, sentenced to fiv3 yea.rs imprisonment, plus t1velve strokes of cor:io:ca.1- punishmentt that were accrimpaniedpy an 'o:pd,e:.: that thE: accusGc'l "\dJitiona.11~ compensate the victim of the crime, (F'.H), two hec1ds of cattlo. Tl;lG a.ccusec', upon being arraigned, l1a.d the tsmptation to plead gLlil ty, but ended by sa;ying, that the a.lle,::;ations as contc;tinGd ii1- -~;-1'1 charge that wEiS recid to him werG not true!'- The trial th-2rGf01'e toolcofft with the evid 9 nce by PHI, the complainant,, aged twelVt: yGars, t:~,:rt uas to the effect, that, on 7/6/J-984 7 the nccl.ised found her in -th-i ji0,lds where she was, gr cizing cattle, fell her dovm ,.u1d

forcefully takinc; 0ff her underwsl:tr 1 ,:ma he had se,.x ,-rith her. 'l1he ~1Iedical report Kxh T showi:t:\'s how her private. pa.rts had been intarf erred with, and thu',::i: o:t'e necessitating treatment~ was tendered in cou:i:'t and 011 ally con:f:irm,,c: by HJ.2. i\fter th@ closure of the prcsccutio;_1 cc:rne, tho occused dacided and electeJ to c~efend hims@lf unsworn. ::i:t ~::.10 the accused's conccsr,,ion trial Magistr21tG driven by hurry and impc1tience, c()nstrued thr, accnsed' s dcfGnce as a pl··a of guilty, and invitnd the: ·accused to a.ppenda(::e ;.,_in. signiture, a6 ai11st such cleff.ncG in t:1c Coul't filo,while thc_pl''."FJ::cc:'.tion reacted by sa.yinJ the f qpts, were as 2.danced 1:iy PWI and PW2, and :icmce the accused~s-c-'.)nviction, - the Sentence and oN1e11 that tha Qccuz-;e] is now servi11g, or otherwise all the sa.ma encumbering him. With due r2spect, .it c1oes apperu• to we, that, the trial :rc.;gi,:tr:ate cont:c:ivcd a. str :,11:!e u -pr0cec1ure. , tn. '-'· "o·,,.,,1- slv ct -L11"' V "' - cu.se a purport t ea"l JT op. ctC 2 his own plea of 3uilty. I think, the Qccused having 3ivGn cvide;;/iCe, with no defcince 1-.ritnesses to callt ths trial :·1cl8istr~te shonld h<-1vc proceeded to write and deliver:;· ,/ the J\1d 0 ment in which, hG sl:nuld have .pointed out 1 th-:it the girls consent, where she is unc~cr tl1e ,ct:~o of fourteen and the chS'll\~e

is under sect ion 136 of tl1e. Penal C·-•<la; ;ras - immaterial. lior the accused h~=rvir;; pleaded not cuil ty, thE 9r ('SO cc:i ton -was e nc1,1mbered ,~i th the burden; of proving, all the ingrediGnts c:f the offence, t~1.at ti::.c ct ccused ,-,as charJ.E.d with, including - .th:.:lt · e:ssential ingredient, that .tho girl uus under, the, age of fourteen ye~rs. ~·ut for str?.nge reae')nsr- the trial :na..;istrate construed the !=ICCUSEt't nnsw,rn defence, as a pl~a of guilty. ~ut, it docs appear to ma, that s~ch a constrt.:.ction vJ.s.a. misguided one, fol' while; it is true, thc:it -~he accused conceded to hav0 had sexual :intercourse with PWI, :i:12 r,:va:c at any time agrcGd --,-rith the prosecution, -J;:1at the Gi1•l in c1n0stinn 17,:.;s indeed undr:r the age of fourteen years, a v0ry crucial 0lerno1t tu1ucr the charged section. It is trite, that a person charged unc~cr ;Jcch,m I36 nf the Pcina} Code, cannot be sciid to have pleaded guil t3° t0 s,1ch charged offenc;: 7 where he 11cm not accepted the ac:;e elcciment. I :h:ve olJs0rved, that, ::1ay bG b0latedly, the trial i'1c:Gistrc:1te tried tn cv. :e the abmJe substa::.1.tive problem, by invitine the prosecution to c:iCLlace facts. "But all that the prosecution dip, wc:w to aver that thi2 ic1ds were as per evfo:ince by HIT and PW2 alrei.'ld;,r adc;uced;. and ths acc,wc~d was never invited to p:J_ead t.:, "j;h2 same,

and, cts such, it is a. qu::is--cion of speculation 1,:1ether, or not, he woµld have admittsd the trn--ch of the contents.th::::1eof. F-rom ths a1Jove, it does appecir, that th•"l so called plEa of ,:;:,i_il ty, was unfortunstely imposed, and the accus·:.<1 ,ras not the origin of the si.'lme • .All thG scir:1;:, havin3 considered the prosGcution evidencs, anu considering that I the accused did finish his c1,;-de:nce, and had r:.0 witness to ccill, it was clear and_ l112yond doubt, that the accusac.~ did have carnal knowledge of tho girl, it is equally clGar t:hat t>:: :3;:ii~1 girl (PWI) w·as 2..:.;ed twelve yeclrs, and CClllGent, if' she had giVCTll i.lll,Y, being in material, the accused would hE!vc hcsn found 5 uil t;;r c1s ohcJ:i:tGed, if the trictl I1acist:r a.to had not short circuited the procedural. s;:;rstcm. It is my opini on 1 that, the procedur~l •~r•or is the: cir cumsta.ncc;s n:f this case, curable unc~er the p11 ovisions od .Section 346 of tha Crimiik11 Procedure Coc1a C~,p 20 7 - the conviction is thsrefore upheld. I am h0h·ever worried cihout the five yc~rs imprisonment SQ.~1-;;,::1cc that, the a.ccus,::;cl found himself 0arrying on his head. I thinL, tl1c accusod being a f"irst - offender, and c:tlmost a ~vouth a_ced e1g.t1t,,on Y<Htrs. the intert;;sts of society are bo+~--,,_r I u Inc 1.,,c:r,.1e.d. ;:::;,;; , ·f· 1· SUC1h acgu3,3d is considersc.l as c;orc1 material for rebabilitc1tion 1 rc:ithr;r than mrt:cJ,~~-~·.~ • ,£) r \ J ., '• 1 ,. . 'I ,, ' ,} 'f . j