REPUBLIC v NJANI HASSAN 1983 TLR 238 (HC)
Court High Court of Tanzania - Dodoma
Judge Lugakingira J
December 15, 1981
CRIMINAL REVISION 4 OF 1981 B
Flynote
Criminal Practice and Procedure - Corporal punishment - Where prevented from being executed- Power to revise sentence - Sections 15(1) and 16 Corporal Punishment Ordinance, Cap. 17.
-Headnote
After sentencing an emaciated juvenile aged thirteen years to a total of 18 strokes in two C different cases, the Primary Court magistrate forwarded the case file to a District Court for confirmation of sentence. The District Court, influenced by a medical report that the accused was of tender age and very weak reduced the sentence to 4 strokes. Before execution of the sentence medical evidence showed that the accused was anaemic, had a swollen spleen and that he was too weak to resist even the omnibus 4 strokes sentence. The District magistrate thinking that he had no power to interfere in the order made by himself forwarded the record to the High Court for appropriate revisional order.
Held: Where a corporal sentence cannot be inflicted under section 15(1) of the Corporal Punishment Ordinance, Cap. 17, under section 16 the court that passed sentence may in its discretion either remit such sentence or sentence the offender to imprisonment.
Case Information
Order accordingly.
No case referred to.
[zJDz]Judgment
Lugakingira, J.: In Criminal Case No. 40/81 before the Primary Court at Paranga the accused, a juvenile, was sentenced to an aggregate of nine (9) strokes in two counts. Before the same court in Criminal Case No. 42/81, the same accused, on the same day, was sentenced to a total of nine (9) strokes in two other counts. It meant that he was to undergo corporal punishment of 18 strokes in the two cases. The trial magistrate was quick to forward the record to the District Court, Kondoa, for confirmation of sentence. The District Magistrate, after examining the first medical report, which stated the accused was between 12 and 13 years and emaciated, and after seeing the accused, I whom he adjudged "really a child of tender age and physically weak", revised the sentence and substituted an omnibus sentence of four (4) strokes for both cases.
Before the new sentence was carried out, however, the accused underwent another check up at Kondoa Government Hospital. The doctor reported and said that the accused was anaemic and had an abnormally large spleen. He certified that he was unfit to undergo even the four strokes except after treatment which could take three to four months. Faced with this report and certificate, the District Magistrate forwarded the record here for the appropriate revisional order as he was of the view that he was precluded from interfering in the order made by himself.
After examining the case and the law respecting this matter, I have reached a view different from that of the learned District Magistrate. I think that ss. 15 and 16 of the Corporal Punishment Ordinance, Cap. 17 are relevant. Section 16 states in part:
15.-(1) No sentence of corporal punishment shall be inflicted until a medical officer ... has, after examination of the offender, certified that he is physically fit to undergo the sentence imposed upon him....
And section 16 states in part:
16. In any case in which under section 15 a sentence of corporal punishment is wholly or partially prevented from being executed, the offender shall be kept in custody until the court which passed the sentence can revise it; and the said court may in its discretion either remit such sentence or sentence the offender ... to imprisonment .... F
In this case, the doctor has certified that the accused is physically unfit to undergo the four strokes. That certificate falls under section 15 and, in effect, wholly prevents the sentence from being carried out. In that case, under section 16, the sentence falls for revision by the court which passed it. The four strokes were ordered by the District Court. It follows that the District Court has power to revise that order. Considering the facts and circumstances of this case, the District Court could remit the sentence and discharge the accused. It is advised to proceed accordingly.
Order accordingly.
1983 TLR p240
A
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