THE REPUBLIC v JUMANNE MOHAMED 1986 TLR 232 (HC)

THE REPUBLIC v JUMANNE MOHAMED 1986 TLR 232 (HC)

Court High Court of Tanzania - Dodoma

Judge Samatta J

21st March, 1988. F

CRIMINAL REVISION 1 of 1986

Flynote

Criminal Practice and Procedure - Charges - Substitution of - Charge of unlawful

wounding withdrawn and fresh G charge of causing grievous harm substituted -

Charge substituted after prosecution witnesses had given evidence - Provisions of

s.234 of Criminal Procedure Act, 1985 not complied. H

-Headnote

The accused was charged with unlawful wounding. After the prosecution witnesses

had testified the public prosecutor substituted a fresh charge of causing grievous

harm. Without complying with the provisions of s.234 I of the Criminal Procedure

Act, 1984 the magistrate convicted the accused as charged and sentenced him to three

years' imprisonment. When the matter reached the High Court

1986 TLR p232

SAMATTA J

the learned judge considered the effect of failure to comply with the provisions of s.

234 of the Criminal A Procedure Act, 1984.

Held: Failure to comply with the provisions of s. 234(2)(a) of the Criminal Procedure

Act was in the instant case, a serious error capable in law of vitiating the decision

arrived at by the trial magistrate. B

Case Information

Order accordingly.

No case referred to. C

Mr. Rutagwelera for the Republic

[zJDz]Judgment

Samatta, J.: On September, 24, 1984, the accused in this case, Jumanne s/o Mohamed,

was charged before D the District Court of Kondoa District with unlawful

wounding, contrary to s. 228 of the Penal Code, it being alleged in the particulars of

offence that "on 20th day of September 1985, at about 21.00 hrs at Mouroroma E

Village, within the District of Kondoa, Dodoma Region, [he] unlawfully [wounded]

one Mwanaidi d/o Omary and caused him (sic) to suffer several wounds to wit he cut

him (sic) with a knife on his (sic) left arm". To this charge the accused pleaded as

follows:

"It is true I cut her on her arm with a knife" F

The plea was entered as a plea of guilty to the charge, but the prosecutor applied for

postponement of the outlining of the facts of the case until the complainant, who was

said to be seriously sick in a hospital, felt better. G The case came up for mention on

several dates. On February 26, 1986, when the accused was reminded of the charge,

his response was:

"It is true but I was under the influence of drunkenness." H

The learned magistrate entered this reply as a plea of not guilty, and a trial

commenced immediately thereafter. On 13th March, 1986, after the third witness for

the prosecution had left the witness stand the following, if the record of the case is a

faithful reproduction of what took place at the trial, transpired in the court room: I

1986 TLR p233

SAMATTA J

"PP: I close prosecution case with PW 3 while I substitute herewith

new charge sheet. A

Court: New charge [of causing grievous harm, contrary to s. 225 of the Penal

Code] substituted, read over and explained to accused who pleads thus: B

Accused: It is true I cut complainant with a knife around her left upper

arm and I was mistaken.

Entered as a plea of guilty to the charge for accused.

PP: I close prosecution case with PW3.

RULING C

Accused has still a case to answer in spite of his admission at this stage.

Court: Accused is addressed in terms of section 231 (a) of the Criminal

Procedure Act. D

Accused: I elect to give defence evidence on oath.

THE CASE FOR THE DEFENCE

DW 1: Accused Jumanne Mohamed, Zaramo, Islam, age 30 years, peasant

farmer of Kondoa, sworn and states: E

On that day, I did not know what I committed. I was confused due to

drunkenness. I took much pombe on that day. I have no more to say. F

XXD PP: Insp. Mhando I once ran mental (sic) in 1979, but I was treated

locally.

Section 210(3) of the Criminal Procedure Act complied with.

Accused:I have no witness to call. I close my defence". G

On March 14, 1986, the learned trial magistrate delivered his judgment. He convicted

the accused as charged and sentenced him to three years' imprisonment. The

sentence is subject to confirmation by this Court. H

I decline to confirm the sentence because, in my considered opinion, the peg - the

conviction - on which it hangs cannot be sustained in law. The conviction is unsound

in law because, firstly, the learned trial magistrate did not fully comply with the

provisions of s. 234(2) of the criminal Procedure Act, hereinafter referred to as "the

Act", I as read with subsection (1) of the said section. In so far as is relevant to this

case, section 234 reads as follows:

1986 TLR p234

SAMATTA J

234-(1) Where at any stage of a trial, it appears to the court that the charge is

defective, either in substance or form, the A court may make such order for

alteration of the charge either by way of amendment of the charge or by substitution

or addition of a new charge as the court thinks necessary to meet circumstances of the

case unless, having regard to the B merits of the case, the required amendments

cannot be made without injustice, and all amendments under the provisions of this

sub-section shall be made upon such terms as the court shall deem just.

(2) Subject to sub-section (1), where a charge is altered as aforesaid: C

(a) the court shall thereupon call the accused person to plead to the

altered charge; and

(b) the accused may demand witnesses or any of them be recalled

and give evidence afresh or be further D cross-examined by the accused or his

advocate and in such last mentioned event, the prosecution shall have the right to

examine such witness on matters arising out of such further cross-examination. E

The accused in the instant case was given no opportunity to exercise his rights under

subsection 2(b) of the above section. In my opinion it is not an answer to say that the

accused did not demand to exercise those rights. How can one demand to exercise a

right the existence of which one is not aware of? Where the accused before a F

court of law is a layman or a lawyer who is not likely to know (sufficiently) the

provisions of section 234(2)(b) of the Act, the court is under duty, in the interest of

justice, to inform the accused of his rights under the subsection and find out from him

which right, if any, he proposes to exercise. The accused's reply should be reflected

on G the record of the case. The failure on the part of the learned trial magistrate to

comply with s.234(2) (b) of the Act in the instant case was, in my settled opinion, a

serious error, capable in law of vitiating the decision he arrived at the end of the trial.

Secondly, the learned trial magistrate does not appear to have appreciated that the

accused was raising the H distinct defences - the defence of drunkenness and that of

insanity. In his judgment the learned magistrate dealt with only the former. He was

as silent as the grave on the defence of insanity. Bearing in mind that apparent

absence of motive for the attack on the complainant and taking into I

1986 TLR p235

consideration the unchallenged assertion by the accused that in 1979 he suffered a

mental disease, the defence of A insanity raised by the accused deserved serious

consideration by the learned trial magistrate. Every defence an accused person puts

before a court of law ought to be considered by the court.

For the reasons I have given, I have reached the conclusion that the accused's

conviction cannot be left to stand. B It is quashed and the sentence imposed thereon

is set aside. Since the accused must have finished serving that sentence, the quashing

of the conviction will be of no immediate practical value to him, but it is important

that the conviction be expunged from the record. C

Order accordingly.

1986 TLR p235