yohana gregory

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [ARUSHA SUB- REGISTRY] AT ARUSHA CRIMINAL APPEAL NO. 9981 OF 2024 (Original Criminal Case No. 34 o f2020 o f the Resident Magistrates' Court o fArusha at Arusha, before Hon. R.A. Ngoka, SRM.) YOHANA GREGORY MUUNGANO............................................. APPELLANT VERSUS THE REPUBLIC......................................................................... DEFENDANT JUDGMENT Iff* & 27thAugust, 2024 I.e. MUGETA, J. The appellant was convicted of rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code [R.E. 2002]. The victim was, allegedly, a minor. At the time of the offence, according to the charge sheet, she was 14 years of age. Dissatisfied with both the conviction and sentence, the appellant has filed eight (8) grounds of appeal which were argued by way of filing written submissions. The victim, whose name I shall withhold, testified as PW4. Her evidence was taken without oath as the learned trial Magistrate made her to promise to tell the truth under section 127 (2) of the Evidence Act, [Cap. 6 R.E. 2022] after considering her a minor. The complaint in the 3rdground of appeal is that "the trial Magistrate erred in law and fact in not finding that the evidence of PW4 was taken under section 127 (2) while the age of the PW4 was above 14 years" This ground is sufficient to dispose of this appeal. In that regard, I shall not discuss the rest seven grounds of appeal. Before the victim testified. She told the court that at the time of her testimony she was fifteen (15) years old. Then the learned Magistrate recorded: Court: "The witness is a giri beiow 18 years old, this court therefore ask her if she promise to teii nothing but the truth" The witness (PW4) replied: " Yes, I promise to teii the truth before this Court" Then, the learned trial Magistrate concluded: Court: M The witness promises to tel/ the truth before this Court. She therefore testifies without oath as follows" The evidence on record shows that, indeed, the victim testified without oath. In his written submissions, the appellant has argued that, this violated section 198 (1) of the Criminal Procedure Act, [Cap. 20 R.E 2022] which requires every witness to be examined upon oath. The learned State Attorney who filed a reply has conceded to the anomaly adding that the evidence of PW4 has no probative value for want of oath. I agree with the learned State Attorney. The Court has consistently maintained that evidence taken without oath has no probative value, (see for example the unreported cases of Eliko Sikujua and Another vs Republic, (Criminal Appeal No. 367 of 2015) [2017] TZCA 392 (11 October, 2017, TANZLII) and Richard Mlingwa vs Republic, (Criminal Appeal No. 11 of 2016 [2018] TZCA 497 (19 February 2018, TANZLII). Going by the trial Court's record, no doubt the learned trial Magistrate worked under the impression that a child of tender age referred to under section 127 (2) of the Evidence Act includes all minors. In that case, she overlooked the provision of section 127 (4) which defines a child of tender age. Section 127 (4) reads: "For the purpose o fsubsection (2) and (3), the expression "child o f tender age" means a chiid whose apparent age is not more than fourteen years" By the law, not all minors are child of tender age. It follows, therefore, that while at the time of the offence, the victim was a child of tender age, when she testified in court she had graduated from that group. Her 3 evidence ought to have been taken under oath in terms of section 198 (1) of the Criminal Procedure Act. For that reason, I proceed to expunge from record the evidence of PW4. Having expunged from the record the evidence of PW4, as rightly submitted by the learned State Attorney, the remaining evidence of the other prosecution witnesses cannot ground a conviction. They are hearsay regarding rape taking place if considered without the evidence of the victim. I, allow the appeal and order for the immediate release of the appellant from prison unless otherwise lawfully held for another offence. ^--- - Z//U S/ZUZ4 Court: Judgment delivered in chambers in the presence of the appellant and Geofrey Mugo, State Attorney. Sgd: I.C. MUGETA JUDGE 27/ 08/2024