19740517 TZCA Dar es Salaam

.. ... . 1----P

IN THE HIGH COURT OF TANZANIA ~T DAR ES SALAAM CRIMINAL APPEAL NOo 26 OF 1974 Oritjinal Criminal Case No. 19~1 of 1973 of the District Court of Dar es Salaam District at Dar es Salaam before Longway Mo H,, Co, So (Miss), Resident Magistrate ELIAS s/o KASANZU 000000000000000000000000000000000 APPELLANT versus THE REPUBLIC O O O O O C) 0 O n O O O O O O O O O O O O O O O ·o O O O O O O O O O O O 0 RESlfONDENT CHARGE: Attempt rape c/s 132 of the Penal Codeo

REASONS SAIDI, C.. Jo On 24th April, 1974 I' allowed the appellant I s appeal, quashed his conviction,- set aside the sentence and ordered his immediate releaseo I now give my reasons. The appellant was charged with attempted rape c/s 132 of the Penal Code: the cas~ for the prosecution being that he had on 18th September, 1973 at about 12.40 hours at the Dar es Salaam Railway Station lavatory attempted to rape Idda bt .. Akiaman while she was attending nature call in the lavatory. On 19th September,. 1973 the appellant was taken before the Resident Magistrate of Dar es Salaamo He is reported to have admitted the charge in the words 11 'TRUE"o He however denied the facts stated by the public prosecutor and a plea of Not Guiltywas enteredo When the case was mentioned for the 4th time on 7th November, 1973 before anothe~ Resident MagiRtrate the appellant was found to be confused and unable to answer questions. The charge was read over to him and he is recorded to have admitted the particulars of the offenceo Then the facts stated by the public prosecutor on 19th September, 1973 were read over to himo He is recorded to have accepted these facts as trueo He was convicted and sentenced to 5 yearso He appealed against both his conv~ction and sentence. In his petition he raised the issue of insanity as well as the question of irregularity in taking his plea .. When the appeal came up

for head:ng on 24th April, 1974 the Court was informed that the appellant had just arrived from Dodoma Mental Hospital .. There is however no report onhis mental conditiono 2 H~w and why he was sent to Dodoma it is not knowno Mro Somi who appeared for the Republic rightly stated that he could not support the conviction as no proper plea was taken from the appellant on 7th Novel'l)ber, 1973 and further that the facts of the case were not properly stated by the public prosecutora I agree that the plea recorded ayainst the appellant is not a valid oneo Had the same Resident Magistrate who first took the appellant 1 s plea on 19th September, 1973 continued the case it would be· differenL It is doubtful if mere reading of the facts stated by the public prosecutor on 19th September, 1973 before a different Resident Ma0istrate would have been sufficientc The proper procedure was to take the plea again and have the facts stated afresh by the public prosecutor (see Ro -v- Rajah Ramadhan II ToLoRo 49)Q It was on these grounds that the conviction o:: the appellant was taken to be improper and quashedo Delivered in Court at Dar es Salaam this l'7''ch day of May, 1974. _,.....-,-----..,_. i l \ \ \ ( ,·• ,1 \~f9,_/:-_,;_:·\ , ~--, (~o SAIDI)

CHIEF JUSTICE