20190415 TZHC Mbeya

14" 44

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY OF MBEYA

ATMBEYA CRIMINAL APPEAL NO.52 OF 2018 (From Rungwe District Court at Tukuyu, Criminal Case No. 55 of 2015) N EBO s/o ElIMANUEL ...... ........... . . .. ......................... APPELLANT

VERSUS THE REPUBLIC................................... ............... ... RESPONDENT lb

JUDGMENT - - / 08th & 15 " ApnI, 2019 NDUNGURU,J The appellant, one Nbo Ernnanüel was convicted on his own plea of guilty in Run?ve District Courf, Criminal Case No 55 of 2015 It was alleged theprbecutônthat on 2n d day of June, 2015 at about 12.00 hours,at Mpandpanda Village within Rungwe District in Mbeya Region the appellantthd:havê carnal knowledge to one Labia d/o Kabosa a girl aged r 11 years old contrary to Section 130 (2) and 131 (1) of the Penal Code, Cap 16 Revised Edition 2002. ~~ 0 When the appellant appeared in the trial court on 18th June, 2015, the charge was read over to him and he pleaded: "It is true" The trial Magistrate entered a plea of guilty to the charge. The prosecution proceeded adducing facts, the appellant abEpted the facts to be correct The original record shows that the triMagatthen'i!ound the appellant guilty and accordingly To discern whether the pleaorguily was TheqUivocal, I need to look at what transpired in court I 'BRIEF FA IC) That the a of the accused is as per That äccusedis a at Soweto - Kiwira, 3 That On 2 June at about 12:00 hours accused was at That 5thêbove mentioned date, p/ace and time accused took La,b,a d/o Kabosa a girl of 11 years to his house and had c&rnaf kiowledqe with her. That when making love with the victim, accused threaten to kill 920 her in case she yowls. That soon after the act of rape the victim went back

home where she was living with her grandmother. Z That on 13 June, 2015 the victim visited her mother who lives at Mbeya and that due to the pain she suffered in her private part, she disclosed to her mother about the inddence of rape. geeH3 That the victim's mother reported to Ilomba Police Stat/on where she was directed to forward her complaints at Kiw/ra Police Stat/on. That the victim's mother went to report to Kiwira Police Station about the incidence where by accused was arrested and sent there and later on transferred to Tukuyu Police Stat/on. While the accused was at Police Station he admitted to commit the alleged offence and caution statement was taken to that effect Later on charge was prepared and accüd was arraigned before this court today. - - A Facts admitted: - 1, 2, 3, 4, 9, 10. Factsdenied:-5, 6, 7,8. Sgd Al'. Ta Accused's brief Ymissibn of the charge: Your hoi 1 carnal knowledge with the child Lab/áTd/o Kbosa after sfie agreed to have sex with me A/so want to giake c/ear to this court that, since we thê 1chlldto have carnal know/edge, I did not use of forcing her nor threatenings. That is why I ~ t concerning the issue that threaten to kill the she yowls. The time I was doing the act (having sex with the victim) my wife came and found us making love. She was veiy shocked and she told me that she is going to report to Police Station. After the child heard that

she run away. I left there in the room with my wife and started to p/ease her. Later on she WAS forgave me and told me to go to Rabia's relatives to ask forgiveness as well as to my parents. From there my wife left the place and I went back to my working place. I did not manage to execute her conditions of seeking forgiveness as my parents are at L/sangu and I was waiting them to come in order to do that Later on I was arrcctti

SIGNATURES Signature of accused: Nebo Emmanuel Signed: Patrick - Prosecutor - Sgd.A. V. 18/06/ Ik Court: Having read the brièflicts to admitted four facts among out by the Prosecutor. The agfè?d facts al1eas fOilthtvs: 1 That the name and, personal pa'rticuiàrs of the accused is as per the charg sheet 2 That accused is work as a barber at Soweto - Kiwira area 3 That on 210612015 at about 12 00 noon while at Soweto Kabosa a child of 11 years old to his 4. That thëacciised had carnal knowledge with the victim (Labia of accused upon the agreed facts: Signed: Nebo Emmanuel - Accused Signed: Patrick - Prosecutor Sgd. A. V. Tarimo 1810612015 Prosecutor: I pray to produce the exhibit of PF3 in this case which suggests that the child was raped. ) Accused: I have no objection to the Accused's signature: Nebo Emmanuel Sgd, A. V. Tarimo 1810612015 Court: The PF3 is hereby admitted by court and marked as exhibit (P1). Court The PF3 read loudly in court by prosecutor. Sgd A V Tarimo / 1810612015 1. / - COURT: il; t6t/5èini read to ourt went further e brief facts to six of them out of tted facts, it was othing establishes ie accused denied after the rape of br the accused to 20 On the other hand the substantial issue which he denied among the facts is that of threatening the victim to k//I her in case she would scream. Accused disputed that fact and even when given chance to narrate his

stoly about the admission he stated that the child consented the sex. To me, I am on the settled decision that, accused admitted the offence despite the few facts which he disputed as those disputed facts does not add any credit to constitute the offence of rape. The issue of consent as point by the accused, that, the child did consent the rape; to this juncture it has no p/ace to stand because Section 130 (1) (e) of the Penal Code Revised Edition 2002 is very c/ear that when a man have a carnal know/edge with a girl under the age of 48 with or without her consent commits the offence of rape - 7- For that case there is no doubt that, acusedrqpedthe Jo child in any circumstance regardless the child gav he cosent or not because there is no dispute that the victim xWas a child of 11 years and even the a&used adthitted tht fact when - read to him In a nutshell the /PF3 which was produced by prosecution side wasi also admitted by this court as accused did not object it The PF a/sd suggests that the child was rapecT -- -I- 7=-- Having cons,dered all the above explaination and ingañaccused's own plea of guilt I hereby convict the 20 accuseq person as he was charged ) Sgd A. V Tanmo 18/06/2015 PREVIOUS CONVICTION: I have no criminal record concerning the accused but I pray for heavy punishment to accused as this crime is very common to Rungwe District and essentially at Kiwira

area. 9,9 MITIGA TION: I pray for lenient sentence because I admitted without being forced with any person. Also I have a family which depends X and me." I have quoted the proceedings of the trial court to illustrate that the appellant pleaded guilty to the charge, accepted the prosecution facts and in the mitigation the appellant admitted to have admitted the charge without being forced by any person. In this appeal, the appellant filed five grounds of appeal as follows: 1. That the trial magistrate 'erred in law and fact when convicted the appellant by believing that the appellant pleaded guilty to the said offence, without insuring whether he understood all the facts read over to him. 2 The trial magistrate erred in law when convicted the appellant believing that he confessed the said offence without • considering his illiteracy in court procedures. That the trial was unfair on the part of the appellant. That it was not his consent to confess the said offence but was due to severe torture at the police station which made him to admit the same when sent to the court on the same day he 2r" was still under threats. 30 5. That the trial court erred in law by not letting the appellant and the victim undergo medical examination to know whether the said victim was raped. The appellant thus prayed the appeal be allowed conviction be quashed and sentence be set aside. When the appeal

was called up for hearing, theáppellant appeared unrepresented The respondent/Republic enjoyed 'ihe ser\icepf. Mr'kihaka learned State Attorney. When required to s615rnit ir supoit f his appeal, the appellant prayed the court to adop .grourds bf appeal wholly as stated in his memorandum of appeal - - -- p / Resisting the appeal, Mr Kihäka, learned State Attorney contended that, the charge being read tthëäppellant, he pleaded guilty. Following the plea of guty, fads of th 1e case were adduced the appellant admitted the reveled on page 2 of the proceedings. ?e further ubmitted that, after the arrest, at the police station when the appellant was interrogated, the appellant confessed to have committed the offence. He went a mail far submitting that, the appellant when given an opportunity to dispute the facts, the appellant stated to have done 21 sexual intercourse with the victim by her consent, he denied to have used force. The ground that, the appellant confession on the commission of the offence was due to illiteracy, Mr. Kihaka submitted that, that is immaterial because the court explained to him the ingredients of the charge and the \\ ' facts I he admitted them. The learned State Attorney subñiitted that the sentence passed against the appellant was proper and statutory therefore he cannot appeal against it The learned State Attorney fortified his argument by citing the case

of Kalos Mapunda Vs Republic, Criminal Appeal No. 153 of 2005. 10 On the 4th ground of apeal M1: Kihaka submitted that, the charge was not read to the police station but to the court before the magistrate therefore the ap'pellant was free to offer his plea without any threat or influence whatsoever. He further contended that when PF3 was tendered - - the appellant Was given time to object or otherwise, the appellant had no objection he cannot raise complaint at this stage. The point of determination here is whether the appeal is meritorious. The record of the trial court reveals that the appellant's conviction and Pagr13 3c sentence was resulted from his own plea of guilty to the charge laid at his door. It is a trite law that no appeal is allowed upon plea of guilty unless it intends to challenge the legality of the sentence. Section 360 (1) of the Criminal Procedure Act, Cap 20 R.E 2002 states inter alja * 360 (1) No appeal shall be allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subo?d,nate court except as to the extent of legality of'the sentence Faced with such a situation the Court of Appeal of Tanzania in the •F c JO case of )ohn Samwel@ Kabaka and Another Vs. Republic, Criminal Appeal No 58 of 2005 the Court observed that: "The appellants' plea being unequivocal, they were correctly convIcted on their ow, plea of

guilty. It would follow that no appeal would lie on a plea of guilty In this 'case, the appellants having been convicted on their unequivocal plea of guilty cannot now be heard to complain abbUt the conviction......... From the above position, the only test for conviction on a plea of guilty to stand unchallenged is whether the plea is unequivocal or not. At 20 33 the instant appeal, the question now is whether the appellant's plea of guilty offered is unequivocal or not. As reflected in the trial court's record reproduced above, the appellant pleaded guilty to the charge and did not dispute the prosecution facts in support of the offence of rape. I am, indeed, satisfied that in the present case, the prosecution facts constituted the offence of rape , I am also satisfied that the appellant pleaded guilty unequivocally because he accepted the prosecution facts as true. He furthermQre offered detailed /- explanation on the way he committed offence, that he did not force her, she had consented to have sexual intercourse with him and that his wife )C found them sexing and decided to go back to her parents With such detailed statement of the appellant I am satisfied that the appellant , understood the charge and it is from the light of his mind he pleaded guilty to the charge 7 . In this respect, the appellant assertions that the victim consent to have sexual intercourse with him is

immaterial, because the law is very clear that at the age the victim had by then (11 years old) consent is immaterial, the thus appellant cannot avoid liability pretending that he had sought consent from the victim. ~z ~ Furthermore I am of the settled mind that plea offered by the appellant was perfect, unambiguous and complete. There was no mistake or misapprehension on the part of the appellant. See the case of Laurent Mpinga Vs. Republic, [1983] T. L. R 166. Being said and done, I accordinglydismiss the app ai n i its entirety for it is de fffinerit Conviction and sentence üpfteld xt = - - - 1-7 It i sd ordered - i!! \ / \ \ / LD B. Ndungurt - bGE \15/04/2019 plained. of13 - ss- I Date: 15/04/2019 Coram: Present The Republic: Mr. Kihaka - State Attorney B/C: Zena Mr. Kuhaka - State Attorney The matter is comiQg for judgment today, we are ready. 1 Appellant I am ready for j:dgmentci - Court. Judgment has been delivered todã'1n the presence of Mr. Kihaka learped State Att5rneyforrthe respondent/Republic and the appeait\ ------- '? - tJ B. D. Ndunguru - JUDGE 15/04/ 2019 W ~ W