1. The appellant in this appeal was tried and convicted for the offence of defilement and aggrieved by the decision of the trial court preferred the instant appeal on the following grounds;-
a) THAT the learned Magistrate erred in law and in fact in finding against the accused person and sentencing him to serve TWENTY YEARS in prison when the accuses believes in his innocence.
b) The learned Magistrate erred in law and in fact in finding the appellant guilty and sentencing the appellant to serve a heavy prison term when it is plainly evident that the complainant misrepresented herself to the appellant.
c) THAT the learned Magistrate erred in law and in fact in failing to consider the facts of the case as presented before the court for consideration, especially the testimony of the appellant in his defence.
d) THAT the learned Magistrate erred in law and in fact in failing to see prejudice in the case as conducted by the trial court against the appellant from the time the proceedings commenced to the end.
e) THAT the learned Magistrate erred in law and in fact in failing to consider the spirit of the law in so far as the facts of the case are concerned.
f) THAT the learned Judge erred in law and in fact in failing to consider the principles of natural justice in so far as the facts of this case are concerned.
PROSECUTION’S CASE
2. The prosecution in this case called a total of 5 witnesses notably the victim of the crime did not testify. PW1 was Dr. Maundu who testified that he examined one Fridah Akinyi who was aged 12 years and who claimed that she had been defiled by a neighbor. The witness testified that upon examination the victim’s hymen was freshly torn and there was no discharge. He produced the P3 Form containing the details of his findings.
3. PW2 a village elder testified that he received information from one John who informed him that there was a school girl who was hold up in her house with the young man and that he visited the house and found the girl in bed with the boy. He arrested the boy and took him to Loresho Police station.
4. PW3 was John Njuguna who worked at Nairobi Women’s Hospital as a nurse and testified that the victim who was bleeding from her vagina was brought to the hospital and she explained that a neighbor had inserted his penis into her vagina. She was examined and was found to have a had a broken hymen .The victim allegedly knew the perpetrator of the act as a neighbor who was a security guard.
5. PW4 Sergeant Joel Punywa testified that the appellant was brought to their station by people from the Kibarage Slums and they claimed that he had defiled a minor. They booked him in the cells and later recorded statements from the witnesses. He further testified that the victim disappeared but specimens were taken from the accused person and taken for analysis. PW4 testified further that the victim told him that she had been defiled by the appellant.
6. He went on to produce the witness statement of the victim and that of her guardian John Ogeto who had gone with her to the police station but also never testified. The witness said that the victim was aged 12 years but he did not get the birth certificate.
7. It is important to not the 4 witnesses testified before honorable H. Onkwany P.M on the 2 nd of November 2020 and the record shows that Honorable B. Ochoi took over the matter and it was him who took the evidence of PW5 Pamella Khamala Okello the government analyst.
8. The government analyst tendered his evidence which showed that semen found on the petticoat and dress of the victim had DNA profile that matched that of the appellant. He produced his report as PEXH 5.
9. The witness further confirmed that he was not supplied with the Birth Certificate of the victim to determine her age.
10. The prosecution closed its case after the 5 th prosecution witness and there was no explanation why the victim could not be called. All that the court was told by PW4 that he simply did not know where the victim was.
DEFENSE CASE
11. The appellant gave an unsworn defense and called one witness . The appellant denied committing the offense and maintained that the morning the victim was found with him she had come to borrow a shoe brush. The appellant in his defense raised the issue of the victim and her guardian not testifying as well as the fact that the age of the victim was not proved.
ANALYSIS AND DETERMINATION.
12. The duty of this court as a first appellate court is well settled in the pronouncement of the Court of Appeal in Okeno vs. Republic [1972] EA 32 where the Court of Appeal set out the duties of a first appellate court as follows: “An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424.”
13. The court on appeal therefore reviews the evidence tendered against the appellant to determine whether the conclusions arrived at by the magistrate were supported by evidence.
14. The trial of any accused person cannot in law be conducted through statements allegedly recorded by witnesses and that those witnesses are not called to testify.
15. The appellant raised a very pertinent question at the defense stage concerning the failure by the victim and her guardian to testify.
16. The trial court apparently did not address its mind to that concern even though the record clearly shows that the appellant drew the court’s attention to it.
17. The victim’s evidence in a sexual offence matter is so crucial considering the ingredients of the offense that have to be proved. It is for instance inconceivable how the trial court arrived at a finding that the person named in the charge sheet as the victim had been defiled without hearing the victim.
18. To establish the element of penetration the prosecution would have to lead evidence through the victim that the offender inserted his genital organs into the victim’s organ as per the definition of the term “penetration’’ under section 2 of the Sexual Offences Act.
19. The evidence of penetration cannot simply be led through documents without the oral testimony of the victim. The prosecution in this case simply relied on a statement allegedly recorded by the victim who was not called to testify.
20. T he admissibility of previous consistent statement of a victim may only be admitted if the victim testifies at the trial. In R v Kgaladi , 1943 AD 255 261 it was held that " from all these authorities it is, therefore, clear that, when the evidence of the complainant is not before the court, neither the particulars of the complaint made by her in the absence of the accused, nor the bare fact that the complaint was made, can be given in evidence". The complainant must therefore testify before their previous consistent statement can be received in evince in support of the complaint. See also Mthobeli Mathikinca vs The state Case No. A551 /14 where the High Court of South Africa sitting in the Western Cape, Cape Town held that where the complainant does not give evidence, a previous statement is in admissible.
21. The state in relying on the statement of the victim did not lay a basis for their failure to call the victim. The witness who introduced the statement did not even attempt to explain to the court what was the difficulty in getting the victim to testify. It must be emphasized that the complainant’s evidence has no substitute in a case of this nature and the previous consistent statement of the witness would only aid in further collaboration of the victim’s testimony but cannot under whatever circumstance suffice as primary evidence.
22. Hawkins J in The Queen v Lillyman 1896 2QB 167 170 held that "[t]he complaint can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness-box, and as being inconsistent with her consent to that of which she complains." The point here being that the victim must at first testify before the court can resort to her previous statement as proof of consistency of the victim.
23. The Evidence Act under Section 124 permits the conviction of a person in a case involving a sexual offense provided that the trial court for reasons to be recorded in the proceedings the court is satisfied that the victim is telling the truth.
24. The import of Section 124 of the Evidence Act is that the victim in a sexual offense case must give evidence and the testimony of the victim would be sufficient for a court to convict. It is the view of this court that the law does not contemplate a situation whereby an accused person is tried solely on the basis of previously recorded statement of a victim.
25. The accused person has an inalienable right to a fair trial under Article 50 of the Constitution. The right extends to the having the accused person afforded an opportunity to confront his accuser and test the evidence through cross-examination.
26. If a court conducts a trial on the basis of the recorded statement of a victim alone, the accused person is denied the right to test the evidence thus a conviction ensuing from such a trial would be grossly unfair and prejudicial to the accused.
27. The court must be mindful of the fact that documents can be made by persons bent on mischief and on the face of such documents a compelling case may be made by mischief makers and lead the court to convicting an innocent man and consign him to prison for a very long time thus the need to have the victim testify.
28. In Krishan Kumar Malik vs. State of Haryana (2011) 7 SCC 130 the Supreme Court of India held as follows;
“31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient
provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae,
which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences.
32. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor
on the ground that she has been won over by the appellant.”
29. The Supreme Court basically emphasized that the testimony of the victim in a sexual offense could be relied on exclusively to convict an accused person. The courts of this country have held similarly that the court may convict on the sole evidence of the victim. See Kamau vs Republic (Criminal Appeal E003 of 2024 ) KEHC 42 (kLR).
30. The trial court in this matter therefore erred in law by convicting the appellant on the basis of the victim’s statement and the medical documents without the evidence of the complainant. The conviction of the appellant cannot therefore stand.
31. The prosecution was under duty to establish all the ingredients of the offence against the appellant and it was not enough to present documents without calling the victim to testify.
32. In 1997, the Supreme Court of Canada in R VS LIFCHUS {1997} 3 SCR_320 gave the following explanation: -
"The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. .......the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt’’.
33. The failure by the prosecution to call the two crucial witnesses namely the victim and the guardian left a gap in their evidence thus the benefit of doubt ought to have been extended to the accused.
34. . The element of age being a critical element would similarly have required the testimony of the victim and the birth certificate to prove. The fact that a birth certificate was presented without the victim’s evidence could not suffice because the court must also observe the victim and objectively assess the apparent age of the victim as against the birth certificate in order to properly exercise its mind on the sentence to mete because the age of the victim play a critical role.
35. In the case of HILARY NYONGESA VS REPUBLIC HIGH COURT CR APPEAL NO. 123 OF 2009 , ELDORET Mwilu J (as she then was) stated that:-
"Age is such a critical aspect in Sexual Offences that it has to be conclusively proved...And this becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim."
36. Further, in the case of ABDI SARAN ABDI VS REPUBLIC CRIMINAL APPEAL NO. 82 OF 2008 it was held;
"The failure to adduce age assessment evidence in respect of an alleged defilement victim amounted to inadequate evidence necessary to sustain a conviction."
37. The trial court could not rely on the Section 33 of the Evidence Act Cap 8 to enter a conviction against the appellant since there was no evidence that the victim fell under categories provided for under the section.
38. The relevant part of the Evidence Act reads;-
PART IV – STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES
39. The statement of a victim of a sexual offence does not fall within any of the categories set out above and such a statement would only be admissible as proof of consistency of the victim in her testimony before court. The only other conceivable circumstance under which a statement related to a Sexual offence would be admissible, would be in a case where such a statement falls under the category of a dying declaration if the victim dies as a consequence of the act and the accused person is put on trial in relation to the death.
40. The prosecution did not lay a basis for the failure to call the victim of the offence. The reliance on the statement without allowing the accused an opportunity to test it was in breach of Article 50 of the Constitution on a fair trial. The appellant was prejudiced and the defect in the proceedings is not curable under Section 382 of the Criminal Procedure Code.
41. The upshot of the above is that the conviction and sentence of the appellant in his case had no evidential basis and the omission to call the victim of the offence dealt a fatal blow to the prosecution’s case. Consequently, this court finds that the appeal has merit, the conviction is hereby quashed and the sentence is set aside.
42. The appellant shall be immediately released from prison custody unless he is otherwise lawfully held.
43. It is so ordered.
a) THAT the learned Magistrate erred in law and in fact in finding against the accused person and sentencing him to serve TWENTY YEARS in prison when the accuses believes in his innocence.
b) The learned Magistrate erred in law and in fact in finding the appellant guilty and sentencing the appellant to serve a heavy prison term when it is plainly evident that the complainant misrepresented herself to the appellant.
c) THAT the learned Magistrate erred in law and in fact in failing to consider the facts of the case as presented before the court for consideration, especially the testimony of the appellant in his defence.
d) THAT the learned Magistrate erred in law and in fact in failing to see prejudice in the case as conducted by the trial court against the appellant from the time the proceedings commenced to the end.
e) THAT the learned Magistrate erred in law and in fact in failing to consider the spirit of the law in so far as the facts of the case are concerned.
f) THAT the learned Judge erred in law and in fact in failing to consider the principles of natural justice in so far as the facts of this case are concerned.
PROSECUTION’S CASE
2. The prosecution in this case called a total of 5 witnesses notably the victim of the crime did not testify. PW1 was Dr. Maundu who testified that he examined one Fridah Akinyi who was aged 12 years and who claimed that she had been defiled by a neighbor. The witness testified that upon examination the victim’s hymen was freshly torn and there was no discharge. He produced the P3 Form containing the details of his findings.
3. PW2 a village elder testified that he received information from one John who informed him that there was a school girl who was hold up in her house with the young man and that he visited the house and found the girl in bed with the boy. He arrested the boy and took him to Loresho Police station.
4. PW3 was John Njuguna who worked at Nairobi Women’s Hospital as a nurse and testified that the victim who was bleeding from her vagina was brought to the hospital and she explained that a neighbor had inserted his penis into her vagina. She was examined and was found to have a had a broken hymen .The victim allegedly knew the perpetrator of the act as a neighbor who was a security guard.
5. PW4 Sergeant Joel Punywa testified that the appellant was brought to their station by people from the Kibarage Slums and they claimed that he had defiled a minor. They booked him in the cells and later recorded statements from the witnesses. He further testified that the victim disappeared but specimens were taken from the accused person and taken for analysis. PW4 testified further that the victim told him that she had been defiled by the appellant.
6. He went on to produce the witness statement of the victim and that of her guardian John Ogeto who had gone with her to the police station but also never testified. The witness said that the victim was aged 12 years but he did not get the birth certificate.
7. It is important to not the 4 witnesses testified before honorable H. Onkwany P.M on the 2 nd of November 2020 and the record shows that Honorable B. Ochoi took over the matter and it was him who took the evidence of PW5 Pamella Khamala Okello the government analyst.
8. The government analyst tendered his evidence which showed that semen found on the petticoat and dress of the victim had DNA profile that matched that of the appellant. He produced his report as PEXH 5.
9. The witness further confirmed that he was not supplied with the Birth Certificate of the victim to determine her age.
10. The prosecution closed its case after the 5 th prosecution witness and there was no explanation why the victim could not be called. All that the court was told by PW4 that he simply did not know where the victim was.
DEFENSE CASE
11. The appellant gave an unsworn defense and called one witness . The appellant denied committing the offense and maintained that the morning the victim was found with him she had come to borrow a shoe brush. The appellant in his defense raised the issue of the victim and her guardian not testifying as well as the fact that the age of the victim was not proved.
ANALYSIS AND DETERMINATION.
12. The duty of this court as a first appellate court is well settled in the pronouncement of the Court of Appeal in Okeno vs. Republic [1972] EA 32 where the Court of Appeal set out the duties of a first appellate court as follows: “An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424.”
13. The court on appeal therefore reviews the evidence tendered against the appellant to determine whether the conclusions arrived at by the magistrate were supported by evidence.
14. The trial of any accused person cannot in law be conducted through statements allegedly recorded by witnesses and that those witnesses are not called to testify.
15. The appellant raised a very pertinent question at the defense stage concerning the failure by the victim and her guardian to testify.
16. The trial court apparently did not address its mind to that concern even though the record clearly shows that the appellant drew the court’s attention to it.
17. The victim’s evidence in a sexual offence matter is so crucial considering the ingredients of the offense that have to be proved. It is for instance inconceivable how the trial court arrived at a finding that the person named in the charge sheet as the victim had been defiled without hearing the victim.
18. To establish the element of penetration the prosecution would have to lead evidence through the victim that the offender inserted his genital organs into the victim’s organ as per the definition of the term “penetration’’ under section 2 of the Sexual Offences Act.
19. The evidence of penetration cannot simply be led through documents without the oral testimony of the victim. The prosecution in this case simply relied on a statement allegedly recorded by the victim who was not called to testify.
20. T he admissibility of previous consistent statement of a victim may only be admitted if the victim testifies at the trial. In R v Kgaladi , 1943 AD 255 261 it was held that " from all these authorities it is, therefore, clear that, when the evidence of the complainant is not before the court, neither the particulars of the complaint made by her in the absence of the accused, nor the bare fact that the complaint was made, can be given in evidence". The complainant must therefore testify before their previous consistent statement can be received in evince in support of the complaint. See also Mthobeli Mathikinca vs The state Case No. A551 /14 where the High Court of South Africa sitting in the Western Cape, Cape Town held that where the complainant does not give evidence, a previous statement is in admissible.
21. The state in relying on the statement of the victim did not lay a basis for their failure to call the victim. The witness who introduced the statement did not even attempt to explain to the court what was the difficulty in getting the victim to testify. It must be emphasized that the complainant’s evidence has no substitute in a case of this nature and the previous consistent statement of the witness would only aid in further collaboration of the victim’s testimony but cannot under whatever circumstance suffice as primary evidence.
22. Hawkins J in The Queen v Lillyman 1896 2QB 167 170 held that "[t]he complaint can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness-box, and as being inconsistent with her consent to that of which she complains." The point here being that the victim must at first testify before the court can resort to her previous statement as proof of consistency of the victim.
23. The Evidence Act under Section 124 permits the conviction of a person in a case involving a sexual offense provided that the trial court for reasons to be recorded in the proceedings the court is satisfied that the victim is telling the truth.
24. The import of Section 124 of the Evidence Act is that the victim in a sexual offense case must give evidence and the testimony of the victim would be sufficient for a court to convict. It is the view of this court that the law does not contemplate a situation whereby an accused person is tried solely on the basis of previously recorded statement of a victim.
25. The accused person has an inalienable right to a fair trial under Article 50 of the Constitution. The right extends to the having the accused person afforded an opportunity to confront his accuser and test the evidence through cross-examination.
26. If a court conducts a trial on the basis of the recorded statement of a victim alone, the accused person is denied the right to test the evidence thus a conviction ensuing from such a trial would be grossly unfair and prejudicial to the accused.
27. The court must be mindful of the fact that documents can be made by persons bent on mischief and on the face of such documents a compelling case may be made by mischief makers and lead the court to convicting an innocent man and consign him to prison for a very long time thus the need to have the victim testify.
28. In Krishan Kumar Malik vs. State of Haryana (2011) 7 SCC 130 the Supreme Court of India held as follows;
“31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient
provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae,
which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences.
32. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor
on the ground that she has been won over by the appellant.”
29. The Supreme Court basically emphasized that the testimony of the victim in a sexual offense could be relied on exclusively to convict an accused person. The courts of this country have held similarly that the court may convict on the sole evidence of the victim. See Kamau vs Republic (Criminal Appeal E003 of 2024 ) KEHC 42 (kLR).
30. The trial court in this matter therefore erred in law by convicting the appellant on the basis of the victim’s statement and the medical documents without the evidence of the complainant. The conviction of the appellant cannot therefore stand.
31. The prosecution was under duty to establish all the ingredients of the offence against the appellant and it was not enough to present documents without calling the victim to testify.
32. In 1997, the Supreme Court of Canada in R VS LIFCHUS {1997} 3 SCR_320 gave the following explanation: -
"The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. .......the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt’’.
33. The failure by the prosecution to call the two crucial witnesses namely the victim and the guardian left a gap in their evidence thus the benefit of doubt ought to have been extended to the accused.
34. . The element of age being a critical element would similarly have required the testimony of the victim and the birth certificate to prove. The fact that a birth certificate was presented without the victim’s evidence could not suffice because the court must also observe the victim and objectively assess the apparent age of the victim as against the birth certificate in order to properly exercise its mind on the sentence to mete because the age of the victim play a critical role.
35. In the case of HILARY NYONGESA VS REPUBLIC HIGH COURT CR APPEAL NO. 123 OF 2009 , ELDORET Mwilu J (as she then was) stated that:-
"Age is such a critical aspect in Sexual Offences that it has to be conclusively proved...And this becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim."
36. Further, in the case of ABDI SARAN ABDI VS REPUBLIC CRIMINAL APPEAL NO. 82 OF 2008 it was held;
"The failure to adduce age assessment evidence in respect of an alleged defilement victim amounted to inadequate evidence necessary to sustain a conviction."
37. The trial court could not rely on the Section 33 of the Evidence Act Cap 8 to enter a conviction against the appellant since there was no evidence that the victim fell under categories provided for under the section.
38. The relevant part of the Evidence Act reads;-
PART IV – STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES
39. The statement of a victim of a sexual offence does not fall within any of the categories set out above and such a statement would only be admissible as proof of consistency of the victim in her testimony before court. The only other conceivable circumstance under which a statement related to a Sexual offence would be admissible, would be in a case where such a statement falls under the category of a dying declaration if the victim dies as a consequence of the act and the accused person is put on trial in relation to the death.
40. The prosecution did not lay a basis for the failure to call the victim of the offence. The reliance on the statement without allowing the accused an opportunity to test it was in breach of Article 50 of the Constitution on a fair trial. The appellant was prejudiced and the defect in the proceedings is not curable under Section 382 of the Criminal Procedure Code.
41. The upshot of the above is that the conviction and sentence of the appellant in his case had no evidential basis and the omission to call the victim of the offence dealt a fatal blow to the prosecution’s case. Consequently, this court finds that the appeal has merit, the conviction is hereby quashed and the sentence is set aside.
42. The appellant shall be immediately released from prison custody unless he is otherwise lawfully held.
43. It is so ordered.