20000526 TZHC Mwanza

,.. . IN THE filGH COURT OF ThNZANIA .l AT M'1/ANZA • APPELLATE JURISDICTION . HIGH COURT CRIMINAL APPBAL NO. 193 OF 1999 (Original . ·. Criminal Case No.175 of 1993 of the District Court of Geite. District at Geita.. Before: E.M.Sabu~a;, !!:sq~ DM~). ABDUL RAMIS ,.o~.~.~ ............ APPELLANT (Original Accused) Versus THE REPUBLIC •••••••••••••••••• ·RESPONDENT (Origi~al PI'9Se~utor) JUD G. ME N,T. !-ffiOS O, J. · . .On or about the 26th November, 1993, a yeurtg giri of ~.bout seven years of age was de filed by a male persdn who the pre-.e8ution sa,id . was the appellant. The a:ppellant was arreeted and prosecuted for defil~ment, contrary to section 136('1) or the Penal ·code. At: the trial the young girl _.:. Agnes Maximj.llian--ga.ve unsworn evidence saying it .. was the a.ti;pellant ·who defiled her. Her mothe:f.:.t,1-arga·ret" SembuJ i "". and two othe:r witness·es who· included a Nursing Auxilliary,. one Mukura d/e J(tseph and a medical assist~.nt" - one" Vedastus Mutagwaba _gave evtdence \,]hich left . the· trial · court · in- :no doubt at aJ 1 tha.t the· young girl wei, indeed v~bletecl. In his defence the appellant did not dispute that he had been a lover of Agnes I mother, Margare.th 8embuli. By implication· he agreed· . th.at the girl Agne\S would know him. Even so, he denied that he defiled the young girl and raised an· ~libi. He sai~11 I was not there on the

~ate but I w.:;,.s at Milor;o, Kahama11 The trial court rejected the nlibi because it WM rai~ed fer the first during defence evidence, contrary to the provisions 111,f sectio"n ·194( 4) of the Criminal Procedure Act,. 1985 \vhi~h requires that an aecused person·who relies on a defence of alibi should give to eourt and to the prosecution notice of it before the hearing of the case. So, the tricl .. not only found as a fact thlte -1:M girl had. been defiled. but also 2 that it was the appellant who did it~ He . convicted ·· .. ' him and sentenced .. : , .. ·.; ,· him to 15 years imprisonment. Agf;rieve.d by the com.riction and sentence, ~··· -. ....... ~: • the appellant has come tothis'court. His petitio!l of .tPPE.;al coht;,_i.ns six grounds' against the trial court judgment. Hecomplain~·-chat the trial Court d:id·not address itself sufficiently -fo the.provisions of section 1.27 ·of the Law of Evidence I ~. ~ '.,_ ·.• • ; . ., •. • • •· , • - . . ,' ·: • Act, 1967. Unfortunately1 he opted not to_ appear. a.t the hearing of .. the appeal and, as a result, that ground _of appeal was. not explained. Section 127 of the Law of Evidence Act, 1967 provides for persons who may testi,{Y ).n court.,. Among other· thinr:s it provides that a child of tender years may,in certain ci~cumstances,give unsworn evidenc~-at a· criminal· trial and that · such evidence. may be acted upon, even

if· tincorrobornted ... >Tlie il~ourt may,, e.fter warning itself, of the danger ' of doing so, act on the uncorroborated evidence to convict the accused .. ,_.,_, .... '!'·•·"" if it is fully satisfied that t}le·child is'telling nothi~g but the trutht'• The trial court, however·, thought that the girl 1 s evidence .that ·-the person. who defiled her was. the accused bei::nuse .riin the circumstanc.es of th~- case ii. the girl qt old- nothing but the truth: 1 • The court.did not clearly say'what those ci:r-cumstances were .whi9h >either ~or·roborated I',. .., • gave assurance her· claim that it was the appellant who defiled. her orf-thnt she was telling nothing but the truth. It seems to me that the trial· court . - ....., . was of the view that once it wns proved that the girl ha:dbeen·defiled :r it would follow that it was the appellant who did it' because he had been a lover of the moth~r o_f the gir..l; that the girl· knew him·· well _and that the defilement had taken- place dµring day time. With due re'spect·, those c·ould riot have been co.rroborating circumstances -that it was the appellant who defiled her • .. . . ·• There was ,credible evidence that . although the appellM.t ' . had been ,,· a lover ofthe-mother of the young girl and used to freq\lent her ho!De, he and the mother h~d already fallen ap~rt (for undisclosed.reasons) and such a· circumstance could ~:--: as

well ..have . . .provided . . reason for falsely : " .. •;. ... 3 ... falsely, • -- implicating him/ if it is assumed that the young gi;r:-1 might n<>t it~·reelly . known. ,,the person who defiled .her•.: . ~ There was a circ1,l!Tistance indeed which could have corrobo're.ted the girl's claim that. it_ was th; ~ppellnnt who· defiled her. The nursing ·,. aux:llliary had claimed in her eviden;e that th~ girl waE f?iiving out puss from her genital organs,whi~h, -5Uggested that she had been infected with a vener:ial dise.:ise._ If she were to be properly diognised ,J'"' ~ . .. : ' and proved to have contracted .~n identifieable venerial disease and the- . •:'.,. appellant medically .checked and found to have a similar venerial disease, thctt could have provided ·,~serul and credible eorroborating evidence • . ... - ; ~ \1.. ·~·\. ' Unfortunately, the investigation of the case was done clumsily· so -that '._sueh • I • \ ' useful evidence was lost. I would agree with the appella.~t, therefore, ; -. • ... ! 1... ' I • l,I that none of the evidence of the prosec,\l,tic>n witnesses _.... p1,12, PW3 or PW5 - . . · • : . ; • •-.. •<i • : provided corroborating evidence that it was the appellant who defiled the girl. Was the evidence of the girl so compelling that the eourt eould have properly convicted the appellant of the offence charged notwithstn.nding that there was no

corroborF.1.ting evidence because she WDJ3 telling nothing but the truth? The learned Senior State Attorney who appeared for the respondent Republic was unable to show circumstances which would have made the unsworn evidence of the young girl so compelling tho.t the trial court or even this court could, with justification, s~y that she was telling nothing but the truth. For one thing she did not fJpeak of the defilement until three days later when her mother noticed thl\t she was not walking properly. On being pressed by her mother it was then she claimed that it was the appellant who had defiled her. When she f,ave evidence (unsworn) the appellant was not told of his right to cross-examine her, so her claim that the appellant defiled her remained untested in ~ny wey. I think it is risky to base a conviction of the appellant on the bare word of the young girl, more so, considering th~t her mother and the appellant had fallen with each other before the girl WaE filed, , ,.--~- ~. ~ 4 Vindictiveness may hnve been the motive ,for falsely implicating the • appellant. The Republic did not support the conviction, and rightly sn. For the reasons given the appeal is allowed. · The conviction is quashed, the sentence set aside and the appellcmt is set free forthwith unless he is held for some othr;r lawful cpuse. l J. Ao MROSO

JUDGE 26/5/2000. .. , Mr. Rirf-;3.buhanga, S.A. for Respande!!ti .... ,.