machiya shija vs the republic 2023 tzhc 18501 23 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF TABORA

AT TABORA DC CRIMINAL APPEAL NO. 51 OF 2022 (Originating from Igunga District Court in Criminal Case No. 190/2020) MACHIYA SHIJA ................................................... APPELLANT

VERSUS THE REPUBLIC........................................................ RESPONDENT Date: 05/06/2023 & 23/06/2023 BAHATI SALEMA, J.: In the District Court of Igunga, the appellant was charged with the offence of Rape contrary to sections 130(1) (2) (e) and 131(1) of the Penal Code Cap. 16 [R.E 2019] and the offence of discontinuing a school girl from school contrary to section 60A (1) (a) and (2) of the Education Act, Cap. 353 [R.E 2019]. The particulars of the offence as can be discerned from the 1st count on the charge sheet are that on diverse dates of 5th and 12th day of November, 2020 during night hours at Mangungu Village within Igunga District in Tabora region the appellant did have sexual intercourse to one XYZ ( name withheld) a girl aged 16 years and on the second count the particulars states that, on diverse dated of 5th and 12th day of November 2020 during night hours at Mangungu village within Igunga district, the appellant did discontinue one XYZ a form one student at Bukoko Secondary School from pursuing her secondary school education. Further, the record reveals that, when the charge was read to the appellant, he pleaded guilty to all the offences he stood charged. 1 Following the plea of guilty, the facts of the case were read to him and he admitted all the facts to be true and correct then the magistrate entered a plea of guilty in the case file. After the

admission charge and facts, the prosecutor prayed the permission of the Court to read over the content of the accused's Cautioned statement; the same was read by the prosecutor and after reading it he prayed the Court to admit it as a prosecution exhibit. The appellant's Cautioned statement was admitted and marked prosecution exhibit "Pl". Thereafter, the learned magistrate made a finding that the particulars adduced by the prosecution side constitute the offences charged, she went on to convict and sentenced the appellant to 30 years of jail for each offence, the sentence was set to run concurrently. Aggrieved by the decision of the trial Court, the appellant appealed to this Court against both conviction and sentence on the following grounds; 1. That, the case for the prosecution was not proved against the appellant beyond reasonable doubt as required by the law.

2. That, the alleged plea of guilty by the appellant was ambiguous and equivocal 3. That in Heu of the fact that the appellant is illiterate; it is moot that he pleaded guilty by mistake or as a result of apprehension.

4. That, exhibit "Pl", the cautioned statement allegedly made by the appellant was wrongly admitted into evidence occasioned by the trial Court's failure to ask the appellant whether he has any objection to its tendering. He was only asked in relation to its truthfulness or otherwise after the same was read in Court. 2 It is on the above four grounds the appellant prays this Court to allow the appeal, quash the conviction, set aside the sentence meted against him and order for his immediate release from prison custody. On 05/06/2023 when the appeal was called for hearing the appellant appeared in person unrepresented whereas the Republic was represented by learned State Attorneys Mr. Dickson Swai and Ms. Wivina Rwebangira. The Court invited the appellant to make his submission in support of the appeal but he had nothing to add than a prayer for the Court to adopt the grounds of appeal to be his submission. Replying to the appeal the learned State Attorney submitted that all four ingredients of the offence of rape were proved by the prosecution, the Court followed the procedures and the accused's plea was equivocal. Speaking of the claim that the appellant is illiterate, the learned State Attorney submitted that, the charge and facts constituting the offence were read to the appellant and he answered well all the questions put to him. Regarding the allegation that the

appellant's Cautioned statement was wrongly admitted by the Court, the learned State Attorney submitted that the appellant was asked if he had any objection and the answer was no, he stated further that, even if it was wrongly admitted it did not by anyway occasioned injustice. Having traversed through the lower Court record, the petition of appeal and the submissions. The question for determination is either to allow the appeal or dismiss it. It is the principle of law in our jurisdiction that no appeal lies against the conviction on the accused's own plea of guilty save for the legality of the sentence imposed. 3 In the case of Kalos Punda vs Republic, Criminal Appeal No. 153 of2005 the Court enumerated the circumstances where one may appeal against a conviction on own plea of guilty that; "An accused person who has been convicted by any of the offence on his own plea of guilty may in certain circumstances appeal against the conviction to a Higher Court. Such an accused person may challenge the conviction on any of the following grounds (1) That even taking into consideration the admitted facts; his plea was imperfect, ambiguous or unfinished and, for that reason, the lower court erred in law in treating it as a plea ofguilty; (2) That he pleaded guilty as a result of a mistake or misapprehension; (3) That, the charge laid at his door disclosed no offence known to law; and

(4) That upon the admitted facts he could not in law have been convicted of the offence charged" Having combined the above-quoted guidance to the appellant's 2nd and 3rd grounds of appeal it is my considered view that the circumstances of the appellant's case qualify to be re-assessed on the issue of plea. Before examining the appellant's plea, I find it paramount to restate the procedures of law that Magistrates and Judges are bound to follow before taking the accused plea. The law requires that the particulars of the offence should be read to the accused person in his own language or in a language that he understands; then the magistrate should explain to the accused person all the essential ingredients of the offence charged before taking his plea. 4 Upon traversing to the proceedings of the trial Court nowhere it is indicated that the trial Magistrate took time to explain to the accused person the elements that form the offences of rape and discontinuing a school girl from school. That part of the proceeding reads; PP: We have a new charge against the accused person. We pray to read the charge against him. COURT: Prayer granted. The charge has been read over to the accused person in the language understand(sic) by him and he is asked to plead thereto. ACCUSED PLEA: 1st Count "It's true I raped her" 2nd Count "It is true I discontinued her from school" The absence of

explanations to the appellant on the ingredients that forms the offences he stood charged with confirms that the appellant's answers were necessitated by the omission hence misapprehension of the questions that were set to him. Regarding the admission of the appellant's cautioned statement; Section 228 (2) of the Criminal Procedure Act, Cap. 20 [R.E 2022] provides that; (2) Where the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words he uses and the magistrate shall 5 convict him and pass sentence upon or make an order against him unless there appears to be sufficient cause to the contrary. The cited section of the law does not make it necessary for the subordinate court to receive exhibits in cases where the accused pleads guilty, the law directs the magistrates to record the plea and convict the accused. In the case at hand, the learned magistrate adopted two unusual procedures that are not known to law; first, the proceedings show that exhibit "Pl" was tendered and read aloud in Court by the prosecutor and second, the same exhibit was admitted to Court after it was read by the prosecutor. This anomaly confirms the allegation raised by the appellant on ground four of the appeal that exhibit "Pl" (the cautioned statement) was wrongly admitted and for that reason, I have no other option than to expunge it from the

record as I hereby do. Regarding the first ground that the prosecution case was not proved beyond reasonable doubt, this ground has taken this court to visit the proceedings of the trial Court to see whether the facts that were read in Court constituted the offences that the appellant stood charged. The facts are found on pages 2 and 3 of the proceedings, at a glance, they seem to be a reproduction of the particulars of the offence as found in the charge sheet, and nothing was added. In this case, it is stated that the appellant had sexual intercourse with XYZ a girl aged 16 years. The word sexual intercourse itself is not proof that the appellant did penetrate the victim, the prosecution ought to have made a statement to establish that the victim was penetrated and 6 it is the appellant who did so, absence of that I don't see if the essential elements of the offence of rape were proved. Again, the facts did not disclose how the appellant discontinued the victim from pursuing her secondary school education on two different dates. The facts state that the victim discontinued schooling on 5th November, 2020 and again on 12th November 2020. My understanding of this statement is that the victim did completely cut off her studies rather she failed to attend school for two days which is the 5th and 12th of November 2020 as the charge sheet and the facts of the case state. For that

reason, I firmly agree with the appellant that the prosecution case was not proved beyond doubt. One last thing that I noted to be worth discussing is the conviction of the appellant. Under section 312(2) of the Criminal Procedure Act, Cap. 20 [R.E 2022] the conviction entered by the Court is required to include the section of which the accused is convicted and the specific provision of the law in which the offence convicted, provides; "In the case of conviction, the judgment shall specify the offence of which, and the section of the Penal Code or other law under which, the accused person is convicted and the punishment to which he is sentenced." In the case of The Director of Public Prosecutions vs Ponda Issa Ponda Crim. Appl. No. 57 of 2015 CAT at Dar es Salaam the court emphasized that; "Finding the accused guilty or not guilty alone is not sufficient as the trial court must go further to either convict or acquit and that failure to convict renders the judgment invalid." 7 It is the requirement of the law that the Court must state the law and particular section on which the accused is convicted upon, a mere mention of the word convicted or citing the wrong section of the law upon which the accused is convicted does not suffice for proper conviction under the law. In the instant case, the appellant's conviction does not state the section of the Penal Code under which the appellant was convicted, that omission makes the conviction and sentence meted against him a nullity. Following such defects, I allow the appeal, quash the conviction and set aside the sentence imposed against the appellant. I further order for an immediate release of the appellant unless held for other lawful reasons. Order accordingly. A. BAHATI SALEMA

JUDGE 23/06/2023 Court: Judgment delivered in presence of both parties. A. BAHATI SALEMA

JUDGE 23/06/2023 Right of Appeal fully explained. A. BAHATI SALEMA

JUDGE 23/06/2023 8