Court name
High Court of Tanzania

Republic vs Jumanne Mohamed () [1988] TZHC 6 (01 March 1988);

Law report citations
1986 TLR 232 (TZHC)
Media neutral citation
[1988] TZHC 6

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

   "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:

   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

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