LEGAL defects, notably, lumping of four different charges into one count have saved an old man, Jacob Simon; alias Babu Suzuki (66), from serving a life sentence for sodomising a child aged eight years.
This follows the decision of the Court of Appeal to allow the appeal in which Babu Suzuki had lodged against the judgment given by the High Court, supporting his conviction and the sentence imposed on him by the lower court.
However, after considering the nature of the evidence on which Babu Suzuki, the appellant, was convicted of, Justices Sauda Mjasiri, Augustine Mwarija and Sivangilwa Mwangesi ordered the records to be remitted back to the trial court for a retrial, as soon as practicable.
The retrial, according to the justices, should commence after the Director of Public Prosecutions has filed an appropriate charge sheet in accordance with the requirements under the law. In the meantime, they ordered the appellant to remain in custody, pending the new trial.
It is evident from the charge sheet that the appellant was being charged with a series of offences of similar nature, namely unnatural offences on diverse unknown dates, on four different occasions. The justices pointed out that in terms of section 135 of the Criminal Procedure Act (CPA), each of such offence ought to have been set out in a separate paragraph of the charge sheet in a different count.
“That was not done. Instead the offences were lumped together in the charge sheet. In view of that we agree with the (prosecution) that the appellant did not really know the charges he was facing as required under section 132 of the CPA,” they said.
Such provision reads that every charge or information shall contain and shall be sufficient if it contains a statement of specific offence or offences which the accused is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.
They pointed out that it is trite principle of fair trial that a person accused of an offence must know the nature of the charge facing him, but by looking at the circumstances of the case against Babu Suzuki it was crystal clear that the charge was incurably defective.
“We are therefore of the firm view that the proceedings and judgment based on it are nullity and cannot be left to stand. We in the exercise of our powers vested in us under section 4 (2) of the (Appellant Jurisdiction) Act, hereby quash (them) and set aside the sentence of life imprisonment,” they declared.
During the trial, the prosecution had told the court that Babu Suzuki committed the offence between unknown dates of September 2010, December 2011, November 2012 and April 24, 2013 at Ubetu Village within Rombo District in Kilimanjaro Region.
When the appeal was set for hearing, the prosecution did not support the conviction of the appellant on reasons that there were for cumulative charges which should have been made under four different counts so that Babu Suzuki would have been able to comprehend the nature of the charges against him.