posolo wilson mwalyego vs republic 2015 tzhc 2154 18 may 2015

IN THE HIGH COURT OF TANZANIA AT MBEYA DC. CRIM INAL APPEAL NO. 77/201^} (Original Crim inal Case No. 117/2014, from Chunya District Court) POSOLO WILSON @ MWALYEGO .........APPELLANT VERSUS THE REPUBLIC ................................... RESPONDENT JUDGMENT Date o f last Order: 12/ 05/2015 Date o f Judgment: 18/ 05/2015 NGWALA, J. The Appellant, Posolo Wilson was charged before the District Court of Chunya with the offence of Rape Contrary to Section 130 (1) (2) (e) and 131(1) of the Penal Code, CAP 16 R.E. 2002. He was sentenced to the m andatory term of life imprisonment and eight (8) strokes of the cane. No order of compensation to the victim was issued. The appellant is aggrieved with that decision of the District Court. He is now challenging the propriety of the conviction and sentence. The Appellant filed nine (9) paragraphs in his Petition of Appeal. Those paragraphs crystallize on the following two grounds of Appeal only. That is:- 7 The- prosecution side failed to prove the case again s i the Appellant beyond reasonable doubt. i 2. The conviction o f the Appellant was based on the uncorroborated evidence. At the hearing of the appeal, the Appellant was unrepresented. The Republic was represented by Mr. Stambuli, learned State Attorney. The facts of the case that are found in the trial court’s record are that on 20/05/2014 PWi the mother o f the PW 2 , the victim, a child o f four (4) years was left alone in the house. PWi went to the shop to buy rice. Upon return, she found PW 2 , the child missing. Thereafter PWi heard a cry of a child from the bush. She dashed towards that direction, and found the Appellant on top of the child raping her child. PWi tried to attack the Appellant but the appellant pushed her and managed to run away. PWi reported the matter to the Police Station. She was given PF3, she took PW 2 to Chunya Government Hospital for treatment, on the following day the accused person was arrested and charged with the offence of Rape. In his defence, the Appellant denied have to committed have the alleged offence. On appeal, the Appellant urged the Court, to quash the conviction and set aside the sentence on the grounds set forth in the Petition of Appeal. Mr. Stambuli the Learned State Attorney, submitted that, upon perusing the record, they have noted that the provisions of Section 235 (1) of the Criminal Procedure Act, CAP 20 R.E. 2002, was not complied with. There was no conviction that was entered against the accused person as required by the law. Therefore, there is no sentence at all. He went on to submit that, this case should be remitted to the trial court, so that the accused person should be convicted before the sentence is passed. The Learned State Attorney drew his inspiration from the decision of the Court of Appeal of Tanzania, in M ATOLA KAJUNI AND TWO OTHERS VR, CR. APP. NO. 145 OF 2011, 146 OF 2011, and 147 OF 2011, (Mbeya Registry) (Unreported) where the Court, directed that the record should be remitted to the trial court so that the Appellant is properly convicted. In reply to this ground, the Appellant, being layman, was of the view that, if the Magistrate had done such an error, then he should go to that court. With regard to the prayer made by the learned State Attorney, I have noted that, the 11th page of typed judgm ent is not in the record. The original file too does not contain any copy of the judgm ent or hand written judgm ent. In view of the foregoing submissions, I am inclined to agree with the learned State Attorney that, Section 235 (1) of |^ie Criminal Procedure Act, CAP. 20 R.E. 2002 was not complied with. Section 235 (1) of the Criminal Procedure Act, CAP 20 R.E. 2002, provides as follows " The court, having heard both the complainant and the accused person and their witnesses and the evidence, shall convict the accused and pass sentence or make an order against him according to law or shall acquit him or shall dismiss the charge under Section 38 o f the Penal Code”. From the above quoted Section. It is a m andator}7 requirement of the law, that conviction, should be entered before a sentence is passed. It is evident from the record that, the trial Resident Magistrate inadvertently sentenced the appellant without entering a conviction on the alleged offence. Failure to enter conviction is fatal and incurable irregularity. This is in line with what was stated by the Court of Appeal of Tanzania, in AMANI FUNGABIKASI VR, CR. APP. NO. 270 o f 2008 (Unreported), the court held “It was imperative upon the trial District Court to comply with the provisions o f Section 235 (1) o f the Act by convicting the appellant after the Magistrate was satisfied that the evidence on record established the prosecution case against him beyond reasonable doubt”. As already mentioned, the learned trial Resident Magistrate sentenced the accused person without conviction. Since there was no conviction then, the sentence was illegal and incurable, under Section 388 of the Criminal Procedure Act, CAP. 20 R.E. 2002. In so far, as the said sentence, has been found and declared to be unlawful, the same cannot be allowed to stand. In law the judgm ent o f the said court cannot be acted upon unless it complies with the m andatory statutory requirements. For this reason, the record of the trial court should be remitted to the said court, with directions that, the appellant should be convicted before the sentence is passed. Care should be taken to consider the period the accused person has served in prison. In the circumstances, I make no further orders. Order Accordingly. A.F. NGWALA JUDGE 18/05/2015 .Court: Judgm ent delivered in court, Right of Appeal explained // ,/ ” A . H fV */ A.F. NGWALA -/ r -:'4| *1 •! *•* !*1 JUDGE ££&*£*/*? 18/05/2015 c»