PETER SAMEL LAZARO

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY

AT DODOMA DC. CRIMINAL APPEAL NO. 21133 OF 20204 (Originating from DC. Criminal Appeal No. 16662 of 2024 of Dodoma District Court) PETER SAMWEL LAZARO..............................................................APPELLANT

VERSUS REPUBLIC................................................................................... RESPONDENT

JUDGMENT 10th December, 2024 HASSAN, J.: Peter Samwel, the appellant herein, was convicted and sentenced to serve life imprisonment upon his own plea of guilty on a charge of Unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code [Cap. 16 R.E. 2022], by the District Court Dodoma at Dodoma. The particulars of the offence in respect of which the appellant was charged, was that, on 22nd May, 2024, at Iyumbu area within the District of Dodoma in Dodoma Region, l did have carnal knowledge against the order of nature with one XZY (victim name concealed), a child of 11 years old. As if, the appellant was in the deep sleep when he entered his own plea of guilty to the charge, it appears in a short while, after he tested a prisoner's life, the appellant emerged with the instant appeal pained by the decision of the District Court. In the petition of appeal, he paraded five (5) grounds of appeal to be determined by the court. For precision, I will paraphrase them all hereunder: 1. That, the trial Magistrate erred in law and in facts when convicted the appellant basing on the agreed facts, without showing the agreed facts, and those which were not. Due to that omission the preliminary hearing was partially conducted against the law.

2. That, the trial Magistrate erred in law and in facts in proceeding with the case without first, considering the age of the said victim since the whole court proceedings does not indicate the age of the victim or in other word, the age of victim was not known which is against the law.

3. That, the trial Magistrate erred in law and in facts when he believed that the appellant unequivocally pleaded to the narrated facts.

4. That the appellant was convicted basing on an equivocal plea.

5. That, considering the narrated facts, the appellant guilty of imperfect, ambiguous, or unfinished. So, the lower court erred in law to treat it as a plea of guilty. The brief account of the facts leading to the offence the stands charged I that, on 22/05/2022 around 2000 hours at Iyumbu in Dodoma. At that time, the appellant, and the victim (XYZ) were sleeping in the same mat. The appellant slept behind the victim. Both, the appellant and victim were veiled by the same sheet of the victim. Then the appellant asked the victim to remove her pant, and instantly, the appellant took out his penis and inserted into the victim's anus, and had a carnal knowledge unnaturally. While on the act, another kid by the name of Neema who slept on the same mat woke up and remove the bedsheet to uncover them. Seeing that, the appellant ran behind the house. The information about the offence was unveiled by Neema to the house owner, and after inquiry the victim admitted that the appellant had a carnal knowledge with her. The incident was reported to the police where PF3 was issued. The medico legal examination revealed that the victim was unnaturally abused. The appellant was arrested, interrogated by police and 3 confessed to the blame. The appellant further pleaded guilty to the charge before the trial district court. During hearing, the appellant appeared in person unrepresented by the

counsel. Whereas, for the respondent republic, Mis. Kurwa, learned State Attorney entered presence. Hearing conducted orally. Submitting on his appeal, the appellant adopted his grounds of appeal to form part of his submission. He added that after he was arrested, police have beaten him, and then, they sent him to the court and ordered him to plead guilty to the charge. Thereafter, he further contended that, they informed him that his relatives will come to secure his bail. He added that after he entered a plead of guilty, the court went on to convict him, and sentenced him to serve life imprisonment. The appellant argued that he was cunvictef for planted case, that is why, they asked him to plead guilty to the charge, and even the facts were not read over to him. On the the other side, Ms. Kurwa, learned State Attorney generally opposed the appeal, and further submitted that, initially the appellant has pleaded guilty to the charge on 19/06/2024 under section 359 (1) of the CPA. Going forward, learned state attorney submitted that they prayed the 4 conviction and sentence imposed by the trial court be upheld for the following reasons: To start with, she opted to answer the 1st, 3rd, 4th and 5th grounds of appeal together, and end up with the the 2nd ground appeal separately. Therefore, she started by answering the 1st, 3rd, 4th and 5th grounds of appeal that the appellant

protested about his plea that it was equivocal plea of guilty. And he also disputed procedures used to conduct the acquire facts. In her response, she directed the court on section 228 of the Criminal Procedure Act (CPA), that provides for the method to be taken when person is charged with criminal offence. Therefore, she argued that looking in the record of proceedings, starting from the 1st page, the appellant was properly arraigned by reading the charge, and then, by his own words, entered a plea of guilty to the charged offence. Thus, its obvious that the appellant has pleaded guilty for the offence which he understand, and therefore, his plea of guilty was correctly entered. Mis. Kurwa refferred section 192 (1) (2) of the CPA that requires that, after the accused has entered a plea of guilty to the charge, the facts have to be read over. And also, such facts ought to explain the element of the 5 offence. This was the ingress in the case of Halidi H. Athumani v. republic (2006) TLR. 79 where the court provides for such demand. Learned counsel proceeded, that based on such requirement, now, looking at page 2 and 3 of the proceedings, the facts were read over before the court and the same has defined the offence, and the elements of the offence which the appellant stood charged. More so, at page 3 and 4, the accused has admitted the facts, and signed on the facts that the

facts were correct. She further stressed that, the appellant has admitted having committed the offence, and even he has not objected the exhibits which were submitted to form part of the facts including the PF3. Mis. Kurwa therefore urgued that, basing on the record of proceedings, the appellant's own plea of guilty was properly entered. It was apparent that facts were read over to him, and he signed the same. In the circumstance, she pressed, what the appellant is trying to raise now is more than just a lie. To insist of the procedural compliance by the trial court, learned State Attorney drew an attention of the court in the case of Mathias Barua v. Republic, Criminal Appeal No. 105 of 2015 CAT (unreported) at page 3 of the judgment, where such procedural footprint were well cemented. 6 In the end, she once again opposed the appellant's grounds of appeal for the reason that, they are valueless, and have to be disregarded. She also, referred the court section 360 (1) of the CPA which provides for illegibility to appeal for the appellant who entered a plea of his own guilty for further references. With regard to the submission that, the appellant was beaten in order to pled guilty. Mis. Kurwa, learned State Attorney vehemently opposed the allegation. She argued that the appellant's version is nothing but an afterthought. She went on arguing that, in the normal course of

business, if the accused is brought before the court, he become free to speak his truth. Also, the appellant has been given chance to advance his mitigation, but he has only prayed for lenient sentence, and he did not mention that he was beaten in order to secure his guilty plea. Furthermore, his claim was even not part of the grounds of appeal of which, he framed while he was free from threat in the jail. Coming to the 2nd ground of appeal that the victim's age was not mentioned in the proceedings. On this ground, we pray for the same to be disregarded because the victim's age is shown in the charge sheet which was red over and explained to him. Also, in the offence of unnatural offence, 7 the age of the victim is not an element of the offence, but rather, the issue of age normally comes in, when the court consider a sentence between life imprisonment or 30 years' imprisonment based on the age of the victim. To cement her argument, she referred the case of Juma Shija v. Republic, Criminal Appeal No. 24 of 2020 CAT (unreported) at page 5 where it refers the case of Peter Bugumba @ Cherehani vs Republic (Criminal Appeal 251 of 2019) [2023] TZCA 221 (4 May 2023). In reference to the above contention, she cemented that, basing on the case at hand, the victim age was mentioned in the charge sheet which the appellant pleaded guilty. Evantually, she prayed this appeal to be rejected,

conviction and sentence imposed by the trial court be upheld. In his short rejoinder, the appellant enjoined by insisting that, it was true that after he has entered a plea of his own guilty, he was given a paper to sign, but the fact was not read over to him, and he denied to have admitted the facts. Taking into consideration the submissions advanced by the parties, the issue in dispute is whether the appellant was properly convicted basing on his own unequivocal plea of guilty to the charge. 8 Therefore, to begin with, it is useful to cite out principles which are connected to the matter in issue. Starting with section 228 (1), (2) of the CPC that provides on the mode of calling the accused person to plead. It states that: "228- (1) The substance o f the charge shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth o f the charge. (2) Where the accused person admits the truth o f the charge, his admission shall be recorded as nearly as possible in the words he uses and the magistrate shall convict him and pass sentence upon or make an order against him, unless there appears to be sufficient cause to the contrary. " Moving ahead with section 360 (1) of the CPA which set a scope of of appeling, it also provides: "No appeal shall be allowed in the case o f any accused person who has pleaded guilty and has been convicted

on 9 such plea by a subordinate court except as to the extent or legality o f the sentence." Now, reflecting on what has transpired where the appellant appeared in the trial court on the 19th June, 2024, the charge was read over to him and he pleaded: "It is true". I inserted my penis in the victim's anus, one XYZ. It follows, the trial Senior Resident Magistrate entered a plea of guilty to the charge. The appellant, furthermore admitted the facts. The original record shows that the trial magistrate then found the appellant guilty and accordingly convicted him of unnatural offence as charged. For clarity the appellant admission of the facts in verbatim reveals as hereunder: "Agreed facts: I admit my personalparticulars as in my name, age, tribe, place o f residence and religion. I admit that on 22/05/2024 around 2000 hours at Iyumbu in Dodoma, while we were sleeping in a mat. I told the victim XYZ to remove her pant, when we covered ourselves with a bedsheet and I inserted my penis to the victim. I admit 10 that while on the act one Neema who was sleeping with us in the mat woke up and remove the bedsheet and I went behind the house. I admit that I was arrested and taken to Dodoma police station. I admit that I was interrogated and admitted to have had unnatural carnal knowledge with victim. I admit that, today the 19/06/2024 after being arraigned before this court, and after

that charge was read over and explained to me. I admitted to committing the offence. Then signed by the accused, and the Magistrate." To discern whether the plea of guilty was unequivocal, I need to look at the facts the appellant has admitted. From the original record, the proceedings state, and I quote: Facts of the case That, on 22/05/2024 around 2000 hours at Iyumbu in Dodoma. The victim who is XYZ, they were sleeping in a mat with the accused. And the accused asked the victim to remove her pant when they covered themselves with victim's bedsheet. While they were sleeping and the accused was behind li the victim, he took his penis and inserted in the anus of the victim, and had an unnatural carnal knowledge. And, while they were on the act, there was another child by the name of Neema, she was also sleeping. She woke up and remove the bedsheet that the victim and the accused had covered themselves. And after that, the accused ran behind the house. The information of the offence was reported by Neema to the mother of the house that they were living. The victim was asked and she admitted that the accused unnaturally had carnal knowledge with her. Report was then filed at Dodoma police station and the victim was issued PF3. The victim was treated at Dodoma Regional Hospital where the doctor confirmed the abuse. Then, the accused was arrested, interrogated and admitted to

have committed the offence of having carnal knowledge of the victim XYZ unnatural. That, today the 19/06/2024 after being arraigned in this court, and the charge read over before the accused, he admitted to have committed the offence. Further after admission of the facts, the appellant also admitted the content of the PF3, which later, he did not object its admission to form part of the facts. Additionally, the appellant prayed for lenience in mitigation by submitting thus "I know I have done wrong, and I regret my act” 12 Basically, I have quoted the proceedings of the trial court to illustrate that the appellant pleaded guilty to the charge, admitted the prosecution's facts, and in the mitigation, the appellant pleaded that "he knows he has done wrong, and he regret his a c t" Going through the appeal at hands, as I have mentioned before, the appellant filed five grounds of appeal. He had indicated on the 1st ground of appeal that the preliminary hearing was wrongly conducted for identifying facts not agreed. In the similar footings, in the 3rd, 4th and 5th paragraphs, he basically protests about his own plead of guilty that it was equivocal, and the court proceeded to consider that same. As short as it is, that was he contended through his petition of appeal. However, in response, learned State Attorney resisted the claim, and pressed that looking in the record of

proceedings, starting from the 1st page, the appellant was properly arraigned by reading the charge, and he, by his own words of mouth, pleaded to have committed the charged offence. Thus, the appellant has pleaded guilty for the offence which he understood, and therefore his plea of guilty was correctly taken. To cement her argument, she referred the court provision of section 228 (1) of the CPA. Additionally, 13 she also referred the case of Halidi H. Athumani v. republic (supra) to indicate that facts were read over and admitted by the appellant. In my endeavor, going through the proceedings as I have enumerated earlier on, I see no fault in the proceedings benefiting the appellant. As it has been correctly submitted by learned State Attorney, all steps required when under section 228 (1) (2) of the CPA, and as enumerated in the case o f .......... In this case, apart from guilty plea, facts of which the appellant has admitted were well documented. And before conviction pronounced, it has been recorded by the court thus: "Court: the accused ha pleaded guilty to the charge, and admitted the facts, and content o f exhibit when read over to him before this court. " In my judgment, the extract denote that the appellant was well informed of the charge sheet, and facts including the content of an exhibit PF3. Therefore, at this juncture, I am holding the same view with the

trial court that all ingredients of the offence charged were covered in the facts and on the strength of the accused's plea of guilty, this case was glowingly handled. That is to say, there is no glimpse of hints leading to the equivocal 14 plea of guilty in line with the decision of Laurent Mpinga v. Republic [1983] TLR 166, where this court had these to say: "An accused person who has been convicted o f an offence on his own plea o f gutit may appeal against the con viction to a higher court on any o f the following grounds: A. That, even taking into consideration the so called admitted facts, his plea was imperfect, ambiguous or unfinished and for that reason, the lower court erred in law in treating it as a piea o f guilt. B. That he pleaded guilty as a result o f mistake or misapprehension. C. That the charge laid at his door disclosed no offence known to law. D. That upon the admitted facts he could not in law have been convicted o f the offence charged. ” Therefore, in my opinion none of the complaints of the appellant raised in this court, are based on the "C" criterion, or rather on the "A", "B", and "D" criteria according to Laurent's case (supra). The appellant had clearly 15 pleaded to the charge, and precisely admitted that facts read over to him. That means, his plead was far from imperfect, ambiguous or unfinished and for that reason, the lower court was accurate

in treating it as a plea of guilt. Another complaint raised by the appellant in his 2nd ground is that an age of the victim was not unveiled anywhere in the fact. In response to this ground, prosecution responded that this ground should be disregarded because the victim's age is shown in the charge sheet which was red over and explained to him. Also, in the offence of unnatural offence, the age of the victim is not an element of the offence, but rather, the issue of age normally comes in, when the court consider imposing a sentence between life imprisonment or 30 years' imprisonment based on the age of the victim. She therefore referred the case of Juma Shija v. Republic, Criminal Appeal No. 24 of 2020 CAT (unreported) at page 5 where it refers the case of Peter Bugumba @ Cherehani v. Republic. Mis. Kurwa therefore argued that in the case at hand, the victim age was mentioned in the charge sheet which the appellant has pleaded guilty. To that end, she prayed this appeal be rejected, conviction and sentence imposed by the trial court be upheld. 16 In my view, by observing this contentious issue, I am of the same position as submitted by learned State Attorney. It is a trite law in our jurisdiction that, unlike in cases of rape where age may be relevant in determining one's guilt, that is not the case with unnatural offence except for sentencing. Sodomy is an offence regardless

of the victim's age because consent is immaterial. See for instance Issaya Renatus v. Republic, Criminal Appeal No. 542 of 2015 (unreported); Juma Shija v. Republic; and Peter Bugumba @ Cherehani v. Republic (supra). Therefore, this ground of appeal tumble without merit. In his oral submission, the appellant also complained that plea of guilty secured after he was beaten at Dodoma police station. Also, that this case has been planted. And more so that, the facts were not read over to him by the court. However, as rightly succumbed by Mis. Kurwa, all these are an afterthought. The appellant had not rised these grievances in the petition of appeal. Thus, as I have described above, that as per the records, his plead of guilty as well as admission of facts were smoothly manifested by the trial court. And, if at all, the appellant was beaten at police station, then he was free before the trial court to reject the charge or mention that when he was admitting the facts or advanced his mitigation. Thus, to raise these issues 17 now, is like crying with sinking boat. Therefore, these moans stands meritless. In the end, the sentence imposed on the appellant is statutory so the Court cannot reduce it. In fine, the entire appeal has no merit, and it is hereby dismissed. It is so ordered. DATED at DODOMA this 10th day of December, 2024. This judgment delivered this 10th day of December, 2024 in presence of the parties.

JUDGE 10/ 12/2024 18