20131129 TZCA Arusha

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: KIMARO. JA.. MASSATI, 3.A.. And MMILLA, 3JU CRIMINAL APPEAL NO. 205 OF 2013 ALLI RAMADHANI............................................... APPELLANT VERSUS THE REPUBLIC............................ ................ RESPONDENT (Appeal from the judgment of the High Court of Tanzania At Arusha) (Sambo. 3) Dated the 25th day of October, 2012 in Criminal Appeal No. 21 of 2012 JUDGMENT OF THE COURT 28th November & 3rd December, 2013 MMILLAJ.: Alii Ramadhani appeared before the District Court of Kiteto at Kibaya on a charge of rape c/s 130(1) (2) (e) andl31 (1) of the Penal Code Cap. 16 of the Revised Edition, 2002. Upon a verdict of guilty, he was sentenced to thirty (30) years imprisonment. He unsuccessfully appealed to the High Court of Tanzania at Arusha, hence this second appeal. The facts of the case were briefly that, bn 1.3.2011 at 11.00 hrs the complainant one Mary d/o James, then aged 14 years went to their family shamba at Norukunjui area at Kimana village in Kiteto District in Manyara Region. While there, she met the appellant who asked her if she knew one Simon. The complainant told him that she did not know that person. She was also asked if she knew a person by the name of Daudi. Again, the complainant's answer was in the negative. What followed was a surprise to her; the appellant allegedly wrestled her down, pinned her thereat by holding her by the neck and raped her. It was the complainant's narration that after "completing his intention," the appellant ran away into the nearby forest. She added that then, she was eight (8) months' pregnant. On meeting her mother who was sending food to her at the shamba, the complainant who was then crying informed her that she was raped by a person known as Kipara. They proceeded home at which her mother laid information to other villagers. The villagers who included the Moran traced and arrested the appellant in the forest.. Meanwhile, the matter was reported to police who issued the complainant with a PF3 with instructions to go to hospital for medical examination. After his arrest, the appellant was sent to police who eventually charged him in court with the offence of rape as aforesaid. The appellant denied the allegations which were levelled against him. He claimed that the complainant's father invented the crime against him in order to evade paying him his dues following completion of the work of tilling the latter's ten (10) acre size farm for which he was entitled to be paid shs. 200,000/=. Before us, the appellant appeared in person and undefended. He had on 4.9.2013 filed a memorandum of appeal which raised four grounds of appeal which may be summarised as follows; firstly, that the first appellate judge erred in law and in fact in believing and acting on the evidence of PW1 which was received without conducting a voire dire examination while she was a person of tender age; secondly, that the trial magistrate erred in not considering the provisions of section 198 (1) of the Criminal Procedure Act Cap. 20 of the Revised Edition, 2002; thirdly, that the trial magistrate erred in law and in fact in acting on contradictory, inconsistent and implausible evidence of the prosecution side; and fourthly, that the trial magistrate did not conform with the mandatory provisions of section 210 (3) of the Criminal Procedure Act. A week before the hearing of his appeal, he filed one additional ground to the effect that the first appellate judge erred in law and in fact by his failure to hold that the prosecution did not prove the case against him beyond all reasonable doubts. When the appellant was invited to argue his appeal at the commencement of hearing, he said he had nothing substantial to add. He urged the Court to consider the grounds he raised. On the other hand, the respondent/Republic was represented by Ms Sabina Silayo, learned State Attorney. She forthrightly informed the Court that she was supporting the appeal and proposed to submit on the grounds raised generally. She submitted in the first place that she was in agreement with the % appellant that PW1 Mary James having been 14 years of age at the time she appeared before the trial court to testify, she ought to have been subjected to voire dire examination before her evidence was received by the court as envisaged by section 127(2) of the Tanzania Evidence Act Cap. 6 of the Revised Edition, 2002. Since the trial court omitted to do so, she submitted, her evidence was valueless. She urged the Court to expunge that evidence from the record. Ms Sabina Silayo submitted further that if the evidence of PW1 is removed, there remains the evidence of PW2 Ramadhani Dede, PW3 Nairokoki James and PW4 Godson Kato which in her view was incapable of sustaining conviction in the circumstances of this. case. She gave reasons why she held such view. As regard the evidence of PW2, Ms Silayo contended that his evidence had impediment in that though he said he went to the place from where the cries he heard came from and found PW1 lying down who told him that he was raped, that witness ought to have gone a step further by explaining what he observed. That could have included how PW1 looked like at the time he arrived at the, scene. To have not given such details weakened his evidence. Of course, in her views, the evidence of PW3 was not direct evidence. It could not have therefore lent any assistance. However, as regards the evidence of PW4, a person who was the medical officer who had medically examined the prosecutrix after the alleged rape incident, Ms Silayo opined that though he said he saw spermatozoa on the private parts of PW1, that evidence was not capable of standing alone because he did not illustrate where exactly he saw the said stuff; was.it inside the prosecutrix's female organ or on the outside region thereof? In view of those reasons, Ms Silayo invited us to allow the appeal. Upon being probed by the Court on whether or not the trial court convicted the appellant before it proceeded to sentence him, Ms Silayo hastened to say that the trial court did not convict the appellant. She asked the Court to invoke its revisional powers obtaining under section 4 (2) of the Appellate Jurisdiction Act Cap. 141 of the Revised Edition, 2002 for which it could have returned the record to the trial court for purposes of entering a conviction; but hurried to submit that because there was no evidence to support the charge, she was requesting us to release the appellant. On his part, the appellant merely said that he agreed with all what the learned State Attorney had said in this regard. He reiterated his request for this Court to allow his appeal. We desire to begin with the point we raised suo motu concerning omission by the trial District court to enter conviction after the verdict of guilt. There is no controversy, and it is the law that upon a verdict of guilt, a sentence must be prefaced by a conviction. Put it differently, there cannot be a sentence without conviction. This is the essence of section 235 (1) of the Criminal Procedure Act which provides that:- "(1) The court, having heard both the complainant and the accused person and their witnesses and the evidence, shall convict the accused and pass sentence upon or make an order against him according to law or shall acquit him or shall dismiss the charge under section 38 of the Penal Code." In the case of Jonathan Mluguani v. Republic, Criminal Appeal No. 15 of 2011, CAT (unreported), the Court said that:- "Section 235(1) of the Criminal Procedure Act Cap. 20 RE 2002 imposes a duty on the trial court to enter conviction before embarking on the question of sentence. In other words conviction to precede sentence. To put it neater there cannot be a sentence without conviction." See also the cases of Amani Fungamikasi v. Republic, Criminal Appeal No. 270 of 2008, CAT, Shaban Iddi Jololo & others v. Republic, Criminal Appeal No. 200 of 2006 and Ally Rashid @ Masika v. Republic, Criminal Appeal No. 219 of 2006, CAT (all unreported). As was pointed out in Ally Rashid @ Masika v. Republic, a mere finding of guilt is not enough. It must be flowered by a conviction, and without a conviction there cannot be a sentence. In all the cases cited above, the Court concluded that failure to enter a conviction is a fatal and incurable irregularity which will render the judgment a nullity. Since there was no conviction entered by the District Court in the present case, the judgment thereof was a nullity. It follows that the proceedings and judgment of the High Court were also null and void because they resulted from an invalid judgment. In the light of the above irregularity, we could direct the record to be remitted to the District Court so that it enters a conviction, but for reasons we are about to assign, we are not prepared to do so. After going through the proceedings of the case, we found that the evidence of the would be key witness in the case, that is PW1 Mary James who was then 14 years, was received without subjecting her to a voire dire examination test as envisaged by section 127 (2) of the Evidence Act. That section provides that:- "(2) Where in any criminal cause or matter a child of tender age called as a witness does not; in the opinion of the court, understand the nature of an oath, his evidence may be received though not given upon oath or affirmation, if in the opinion of the court, which opinion shall be recorded in the proceedings, he is possessed of sufficient intelligence to justify the reception of his evidence, and understands the duty of speaking the truth." Under sub section (5) of section 127 of the same Act, "child of tender age" means a child whose apparent age is not more than fourteen years. That means the evidence of PW1 was, as correctly submitted by Ms Silayo, received contrary to the dictates of section 127(2) of the Tanzania Evidence Act. In the circumstances, her evidence was incompetent, thus valueless and ought to be expunged from the record as we accordingly do. We also agree with Ms Sabina Silayo that if the evidence of PW1 is purged, there remains the evidence of PW2 Ramadhani Dede, PW3 Nairokoki James and PW4 Godson Kato which was incapable of sustaining conviction in the circumstances of this case. The reasons she gave are appealing.- In the first place, we agree with her that the evidence of PW2 had inhibitions in that though he said he went to the place from where the cries he heard emanated and found PW1 lying down who told him that she was raped, that witness ought to have gone a step further by explaining what he observed. That could have included how PW1 looked like at the time he arrived at the scene. To have not given such details dwarfed his evidence. We similarly agree with her that the evidence of PW3 was not direct evidence. It could not have therefore lent any assistance. Also that though PW4 said he saw spermatozoa on the private parts of PW1, that evidence was not capable of standing alone because he did not illustrate where exactly he saw the said paraphernalia; was it inside the prosecutrix's female organ or on the outside region thereof? For that reason, the evidence of that witness too cannot help. Since the evidence of the prosecution is deficient, we are firm that it will be improper and unjust to remit the record to the District Court for purpose of entering a conviction. Instead, we are attracted to invoke the revisional powers bestowed on us under section 4 (2) of the Appellate Jurisdiction Act on the basis of which we quash and set aside the proceedings and judgments of both the District Court and the High Court. We order the appellant to be released from prison forthwith unless he is continually being held for some other lawful cause. Order accordingly. DATED at ARUSHA this 29th day of November, 2013. N.P. KIMARO JUSTICE OF APPEAL S.A MASSATI JUSTICE OF APPEAL B.M. MMILLA JUSTICE OF APPEAL I Certify that this is a true copy of the original.