Zengo Shija Shuli

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO CRIMINAL APPEAL NO. 20168 OF 2024 (originating from criminal case no.31 OF 2023 MOROGORO RESIDENT MAGISRTATE COURT) ZENGO SHIJA SHULI APPELLANT VERSUS THE REPUBLIC RESPONDENT Date of Last Order; 18.11.2024 Dateof Judgement: 25.11.2024 JUDGEMENT MAGOIGA,J. The appellant, ZENGO SHIJA SHULI was arraigned in Morogoro Resident Magistrate Court (the trial court) with two counts of rape contrary to sections 130(1)(2)(e) and 131(1) of the Penal Code [Cap 16 R.E.2022] and abduction contrary to section 134 and 135 of the Penal Code,[Cap 16 R.E.2022]. It was alleged in the information that on 30^^ day of May, 2023 at Ngerengere area within Morogoro district in Morogoro region, the appellant unlawfully took one FUFA (pseudo name) being a girl aged 14 years old out of custody and protection of her parents and against the will of her parents and consequently on day of June, 2023 at Shelui area within Singida district in Singida region had carnal knowledge of the said FUFA, a girl aged 14 years old. The appellant denied involvement to the two counts and the prosecution in proof of the case called three witnesses and tendered three exhibits. At the end of the trial, the trial court found the accused guilty of the two offences charged and consequently convicted him as charged to serve 30 years imprisonment for rape and 5 years for abduction in absentia. The trial court record is silent as to when the appellant was arrested and convicted and sentenced him to serve the said custodial sentence. Aggrieved with both conviction and sentence, the appeliant preferred the instant appeal armed with four grounds of appeal but for reasons soon to be apparent in this judgement, I find it an academic exercise to reproduce them here. When this appeal was called on for hearing, the appeliant appeared in person and unrepresented. On the other hand, the respondent. Republic was represented by Ms. Jacline Nyoka, learned State Attorney. Both parties were ready for hearing. However, this court in the course of reading the record of appeal noted that, the appellant during his trial before trial court jumped bail and his conviction and sentence was entered in his absentia. This court further noted that the trial record is silent as to when was he arrested and brought before trial court for conviction and sentence as required under section 226(2) of the Criminal Procedure Act, [Cap 20 R.E.2022]. In the circumstances, this being a point of law, I invited the learned State Attorney to address this court the effect of failure to observe-the mandatory procedure under the provisions section 226(2) of the CPA and the way forward. Ms. Nyoka readily conceded that the trial court record is loud and clear that in the course of trial, the appellant jumped bail and his conviction and sentence of the offences charged were imposed in his absentia. The learned State Attorney candidly pointed put that, the record of the trial court is also silent as to when the appellant was arrested and brought before the trial court to be addressed in terms of the provisions of section 226 (2) of the CPA. According to the learned Attorney, this was against the provision of section 226(2) of the CPA and cited the case of Magoiga Magutu @Mwansima Vs. Republic,Criminal Appeal No.65 of 2Q15 inTanzlii in which it was held by the Court of Appeal that failure to observe the provision of section 226(2) of the CPA by bringing the accused person before the trial court and give him his right to explain where he was and if his explanation is found sound, his conviction and sentence may be set aside. The learned State Attorney pointed out that this was not done in this appeal and as such vitiate the proceedings from when he was not around and the judgement. Further on the point, the learned Attorney cited another case of Ramadhani Mohamed Vs, Republic, Criminal Appeal No.456 of 2015(unreported and atTanzlii, in which it was held that failure to enter conviction to an accused person in his presence is fatal and incurable irregularity which render judgement a nuiiity and the available remedy is to quash the conviction and sentence passed against the accused person and order remission of the record to the trial court to comply with the requirement under section 226(2) of the CPA. When the learned Attorney attention was drawn by this court to the recent case of Pusindawa Losilo Vs. Republic, Criminal Appeal No. 313 of 2024 at Tanziii as to whether the only way forward is remission of the record to trial court to comply with the requirement of section 226(2) of the CPA, the learned State Attorney conceded that that is not the only remedy but was quick to point out that each case must be treated on its own facts and remained adamant that, in this appeal, in her view, there is ample evidence on record to prove the offences charged. With that stance, the learned State Attorney urged this court to quash the judgement of the trial court and proceedings from when the appellant jumped bail and consequently order for remission of the trial court record to comply with the mandatory requirement of section 226(2) of the CPA. The appellant being a lawman had nothing useful to add on this point of law but insisted this court to allow his appeal and set him free. Having heard the submissions by the learned State Attorney, the prayer by the appellant and having gone through the record of appeal, I noted that there are some facts which are not in dispute as per record of the trial court. These are: one, no dispute that the appellant jumped bail in the course of his trial and the trial magistrate as such convicted and sentenced his him in absentia. Two, no dispute that the trial record is silent as to who arrested and when was the appellant arrested. Three, no dispute that after his arrest, the appellant was not given an opportunity to show cause why he never attended the proceedings and addressed in terms of section 226(2) of the CPA. The provision of section 226(2) for easy of reference provides as follows: ""Section 226(2) Where the court convicts the accused person in his absence, it may set aside such conviction, upon being satisfied that his absence was from causes over which he had no control and that he had probable defence on merits." Four, no dispute that the appellant while has been serving his meted conviction and sentence but no conviction and sentence has ever been dope before him, hence, denied his right to be heard before sentence and conviction as envisaged under section 226(2). With that in mind, it is obvious that the only contention now is narrowed to the way forward. The learned State Attorney strongly urged this court to find non-compliance of section 226(2) of the CPA vitiated the proceedings from when the appellant jumped bail and quash his conviction and set aside the judgement of the trial court which is a nullity for being founded in contravention of the said section and seriously denied right to be heard. In her view, the just way forward is to order retrial of the accused person, and in her view, there is ample evidence on record. I have had an opportunity to re-read the trial court proceedings but with due respect to the learned Attorney, while I agree with her that this court should declare the proceedings from when the appellant jumped bail as nullity, set aside conviction and quash the judgement of the trial court for denying the appellant an opportunity to be heard of his absence during trial; however, I part ways with her on the way forward. I will explain. One, the evidence on both offences charged is wanting in the circumstances of this appeal. No rape was proved against the accused person because the evidence of PW2 (the victim) did not prove rape committed on day of June, 2023. PW2 never mentioned the exact date when the two had sex apart from the general assertion that we had sex three times. If I were to believe the evidence of PW2, she testified that, the two slept at Guest House 30/05/2023 and she said we did not have sex because she was on menstrual period. PW2 did not tell the court when exactly she stopped bleeding and when exactly had sex with the appellant. Which means at all material time of the journey to and stay In Singida, PW2 was on menstrual period and that is why even after her arrest, PWl found her still on menstrual period. Two, as to the second count of abduction, the police who arrested the appellant being material witness to this case but for no reason disclosed to this court was not called to testify. This allows this court, eyen without citing case law, to draw an adverse inference to the prosecution case and this court is entitled to make an observation that this is one example of poorly investigated case and as such poorly prosecuted case to $|jstain any conviction. Three,the findings of the PWl in exhibit PEl concluded that the PW2 has ever done any sex of recent for want of bruises or laceration as observed in exhibit PEl. Four,the evidence of PWl did not prove rape because his conclusion was that lack virginity can be due to blunt object, penis penetration and sharp object which he did not conclusively establish the lack of virginity in PW2 was due to what among the three. Five, as noted above, the record of appeal lacked the evidence on who arrested the accused person and when was he arrested. 7 With the above noted reasons, with due respect to the iearned Attorney, I decline to take the course suggested by the learned State Attorney and guided by the holding in Pusindawa Losilo Vs. Republic, Criminal Appeal 313 of 2024 CAT, I find this a fit case to take the course taken in that case otherwise the other way around will allow prosecution to fill in gaps at the detriment of the appellant. That said and done, I hereby allow the appeal and consequently quash conviction and set aside the judgement imposed to the accused person with an order that the appellant immediately be released from prison unless held for another lawful caused. It is so ordered. Dated at Morogoro this 25^^ day of Npvember, 2024. C5 T :r > S. M. MAGOIGA JUDGE 25/11/2023 COURT: Judgement delivered in chambers at Morogoro in the presence of the appellant and Ms. Jackline Nyoka, learned State Attorney today 70 day of November, 2024. c •2: LU X S. M. MAGOIGA JUDGE 25/11/2023 COURT: Right of appeal fully explained rx o c e? X V S MAGOIGA U-1 JUDGE 25/11/2023