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IN THE HIGH COURT OF TANZANIA

AT TABORA

APPELLATE JURISDICTION = = = = = == HIGH COURT CRININI.L APPEAL NO. 258 OF 1976 (Cf. Cr. App. No.259/76) (original Criminal Case No. 88 of 1976 of the District Court of Bariadi at Bariadi — before Z. RWEJtJNA, D.M.) JUMA s/C GULAGA .... . . .. .......... . . . . . . APPELLANT (Original Accused) versus THEREPUBLIC •..Q...fl0000e.0000Øseoe•0000ae000••e RESPONDENT (original Prosecutor) CHARGE: Robbery c/si. 285 and 286 of the Penal Code Cap.16 Vol.1 of the Revised Laws.

J U D G E M E N T SISYA, .J:= The three appellants were convicted in the District -Court Bariadi, "upon their own pleas of guilty" of Robbery contrary to sections 285 and 286 of the Penal Code and they were each sentenced to seven years imprisonment. A fourth person with whom they were jointly charged and who pleaded not guilty had prosecution against him subsequently withdrawn and he was, accordingly, discharged. On grounds of convenience I shall continue to refer to the appellants as they appeared in the lower court. The charge as laid reads as follows:- "Offence — section of law: Robbery c/ss. 285 and 286 of the Penal Code Cap.16 Vo1I of the Revised Laws. Particulars of offence: The persons chrged on the 28th day of March, 1976 at about 10.00 p.m. at Ibulya village withinthe District of Bariadi in Shinyanga Region, did jointly and together steal cash shs.981/i= two crates of soda worth shs.64/= one box of washing soap worth shs.58/" and Gazzele bicycle worth shs.400/=. Total valued at shs.1,502/= the property of one Andrea s/o Limbu and at or immediately before or txnediately after the time of such stealing, did use actual violence to the said Andrea /o Limbu in order to obtainthe said property." ....4/2 When • •• •• • •, • -• When called upon to plead the appellants are recorded to have said and I quote from the record:- '1st accused: 'I agree I.robbed Andrea Limbu of

the said property.' 2nd accused: 'It is true I robbed Andrea Limbu of the said property.' 3rd accused: 'I agree I robbed Andrea Limbu of the said property.' A plea of guilty was then entered in respect of the three accused and thereafter the following facts of the case were narrated by the learned Public Prosecutor:- "On 28/3/76 at about 10.10 p.m. the 1st and 3rd accused and another person who is not here arrived at Andrea Limbu's shop in Ibulya village. They found Andrea Limbu (hereinafter referred to as complainant) having closed that shop. By then he (complainant) iaas therein sleeping. They knocked the door to S it (shop); ordered him to open for th em and said that they were Police Office±s. On opening for them he found the first accused clad in Police uniform. Thereupon they odered him to collect all the money he had an accompahy them to Bariadi Police Station (hereinafter referred to as Station) where they told him he was wanted for murder. He (complainant) took shs.980/= from his shop. Then they ordered him to hand them that money. He handed it to the 1st accused. Thereafter they escorted him towards the station. When they had covered half the distance they allowed him to go back. When they had quitted the shop leaving it secured the 2nd and 4th accuseds plus another persons who is not here reached there; forced open the fron door to that shop; entered therein and

stole therein ,Z two crates of soda worth shs.64/, one box of washing soap valued at shs.581= and one gazelle bicycle worth shs.400/r. They then left with that property. On the way they foined theist and 3rd accuseds to Bariadi town. Having been released by 1st and 3rd accuseds he (complainant) ;,_4- 0 hurried to his shop which he found having been broken and the said property having been stolen therefrom. Thereupon he raised an alarm which caused his negihbour to come to his rescue. A report In respect of that incident was made to the station. What followed the police stafted hunting the duiprits. I pray this court to note that the accuseds had jointly planned that theft. This is revealed by the manner in which they executed theilt common intention. The 1st and 3rd accuseds came first and the remaining accuseds followed later on." ....../2 When - 3 - When askedall the three accused'persons, that is to say first, second and third accused, are recorded to have agreed that the facts as narrated were correct whereupon convictions were entered. In their petitions of appeal the first, second and third accused persons allege that they 'pleaded guilty' because they had been tortured by the Police and therefore they merely wanted to save their lives aad limbs in so doing. This allegation, however, does not appear to be supported by any evidence. On second thought I find if slightly

intriging . io the sense that these three accused, i.e. first'to third inclusive, together with three others, first appeared before the District Court, Batiadi, on 29/3/76 facing a charge of robbery. They all pleaded not guilty whereUpon the case was fixed for mentjon on 12/4/76 and it was ordered that all six accused persons be remanded in custody. The redord of proceedings in Z the lower court, however, shows that on the following day, i.e. 30/3/76, the six accused persons (the first, second and third' accuseds included) were brought before the same magistrate. On the applidation by the learned Public Prosecutor prosecution: against all the six accused persons was withdrawn and an order for the discharge of all the six accused persons under section At (a) of the Criminal Procedura Code was duly mader. However, a fresh dharge for the same offence of robbery was substituted and this time there were only four accused persons including the first s second and third. When the charge was read to them this time they are recorded to have pleaded guilty. Nothing was recorded to show why the first, second and third accused persons had decided to change their pleas from those of not guilty to those of guilty over night. In this respect magistrates are urged to ensure that an accused person is asked to explain'why he is changing his plea from that uf nt guilty to that of guilty and his

reply must clearly be recorded. It is only when this is done will an appellate court be in a position to deal effectively with such allegations as have been raised in this instant appeal. Be it as it may, in arguing. out these appeals before me the learned State Attorney, Mr. Massaba, argued that as the pleas : of the three accused persons are unequivocal and the sentences imposed are the'minimum prescribed by the law itself for such offences, all these appeals are, in terms of section 313 (i) of the Criminal Procedure Code, incompetent. It is trite law that 'in any case in which a conviction is likely to proceed on a plea of guilty (in other words, when an admission by the accused is to be allowed to take the place of the otherwise necessary strict proof of the charge beyond reasonable doubt by the prosecution) .:..'... o /4 it