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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO CRIMINAL APPEAL NO. 26445 OF 2024 (Appeal from the decision of the District Court of Kilombero at Ifakara dated 13^^ December 2023 in Criminal Case No. 44 of 2023) SAID ALLY NDUTA APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGMENT 30/10/2024 & 18/11/2024 KINYAKA, J.: In Criminal Case No. 44 of 2023, the appellant was convicted by the District Court of Kilombero at Ifakara hereinafter the "trial court" on all counts that he stood charged, namely. Rape contrary to sections 130(l)(2)(e) and 131(1) of the Penal Code Cap. 16 R.E. 2022 hereinafter the "Penal Code", Abduction of a girl under sixteen years old contrary to sections 134 and 135 of the Penal Code, and Denying a child to pursue formal compulsory education contrary to section 60(l)(j) of the Education Act Cap. 353 R.E. 2002 hereinafter, the "Education Act" as amended by the Written Laws (Miscellaneous Amendments No. 2) Act 2016. It was alleged by the respondent before the trial court in the first count that between 5^^ July 2022 and 9^^ February 2023 at Kiberege Area, Kiberege Ward within Kilombero District in Morogoro Region, the appellant had carnal knowledge of LS a girl of 13 years old. On the second count, the respondent alleged that on or about 5^*^ July 2022 at KisiwanI Area, Mang'ula 'B' Ward within Kilombero District in Morogoro Region, the appellant took LS to Mahenge Area within Ulanga District, knowing that she Is unmarried girl of 13 years old and without the consent of the guardians of the girl. In respect of the third count, the respondent alleged that on or about 5^^ July 2022 at KisiwanI Area, Mang'uia 'B' Ward within Kilombero District In Morogoro Region, the appellant prevented LS from pursuing her studies by taking her to Mahenge Area within Ulanga District, knowing that she is a school girl of 13 years old studying at Mlimani Primary School situated at KisiwanI Area within Mang'ula 'B' Ward. Upon being satisfied that the prosecution had established all the three offences beyond all shades of doubt, the trial court convicted the appellant of all the three counts and sentenced him to serve thirty years imprisonment in jail, two years imprisonment in jail and three years' imprisonment in jail for the first, second and third counts, respectively, which were ordered to run concurrently. cfc* Dissatisfied, the appellant preferred seven grounds of appeal as reproduced herein below: 1.That the learned trial Magistrate erred in law and fact to convict and sentence the appellant basing on evidence of the victim who was of tender age was unprocedurally received in violation of section 127 (2) of the Evidence Act Cap. 6 RE 2022 when relied on evidence of the victim who was a child of tender age without complied with; 2.That the learned trial Magistrate erred In law and fact to convict and sentence the appellant without considering that the charge was at variance with evidence in respect to the age of the victim; 3.That the learned trial Magistrate erred in law and fact to convict and sentence the appellant by believing that the victim was a child of tender age without conducting an inquiry for determination of the victim's age as the victim in her testimony demonstrated matureness when examined by court by stating that she avoided pregnant because she was using calendar method of controlling unwanted pregnancy; 4.That the learned trial magistrate erred in law and fact to believe on evidence of PW4(Victim's grandmother) that the victim was 14 years old without stating when she was born and without tendering birth 3 certificate/ affidavit / clinic card or any school document to prove the same; 5. That the learned trial magistrate erred in law and fact to convict and sentence the appellant based on caution statement(Exh PE2) which was recorded out of prescribed time when the appellant was alleged to be under police arrest since (Kiberege Police Station) 10/02/2023; 6. That the learned trial magistrate erred in law and fact to convict and sentence the appellant without consideration that there was no evidence of crucial witnesses like people or police officers who arrested the appellant in order to prove that he was with the victim on material date; and 7. That the learned trial magistrate erred in law and fact to convict and sentence the appellant when the prosecution case was casted with doubts which should have benefited the appellant. At the hearing of the appeal, the appellant appeared in person and unrepresented. The respondent was duly represented by Ms. Vestina Masalu, learned state attorney. Ms. Masalu conceded to the first ground on the contravention of section 127(2) of the Evidence Act Cap. 6 R.E. 2022 hereinafter the "Evidence Act". She contended that page 18 of the proceedings indicates that the 4 testimony of PW3's, the child of the tender age was taken in contravention of section 127(2) of the Evidence Act. She relied on the case of Godfrey Wilson V. R., Criminal Appeal No. 168 of 2018 on page 13 to buttress on the requirements of taking evidence of the child of tender age. She also relied on the case of Hamisi Issa v. R, Criminal Appeal 274 of 2018 on page 8, where the Court relied on the case of Yusufu Molo v. R., Criminal Appeal No. 343 of 2017 which held that it is a mandatory requirement that the promise of the child of tender age must be reflected in the trial court record failure of which it will occasion a big blow to the prosecution case and turns section 127(2) of the Evidence Act meaningless. She submitted that the effect led the evidence of PW3 with no value at all. She was of the position that if the evidence of PW3 is of no vaiue, the remaining evidence of the prosecution witnesses was from the evidence of PW3 as there was no any other witness apart from PW3 who witnessed the abduction of PW3. She said, the testimonies of the remaining four witnesses were hearsay which according to law, it is not admissible. She argued that due to the lack of weight of the evidence of the four witnesses, the conviction and sentence against the appellant was Improper. When he was called to address the Court, the appellant had nothing much to submit. He prayed to be set free. While composing the judgement, I noted that there was no consent of the Director of Public Prosecution in the trial court file for prosecution of the appellant on the third count. Section 60(2) of the Education Act Cap. 353 R.E. 2019 hereinafter the "Education Act" require ail offences chargeable under section 60(1) of the Education Act to be prosecuted upon obtaining a consent from the Director of Public Prosecutions. I also noted that while section 60(1) of the Education Act prescribes a punishment of fine upon conviction of the accused charged with offences under the provision, the trial Magistrate sentenced the appellant to serve three years imprisonment. I summoned parties on 11^^ November 2024 to address me on the propriety of the proceedings of the trial court in respect of the third count, the sentence and propriety of duplication of the three counts in the charge sheet. Being unknowiedgeabie of the law, the appellant had nothing to say. He prayed to be set free. On her part, Ms. Masalu admitted that section 60(2) of the Education Act was contravened as the proceedings in respect of the third count were taken without the prior consent of the Director of Public Prosecutions. She prayed for nullification of the trial court's conviction and sentence for the third count. She also admitted that the sentence of three years imposed on the appellant for the third count was inappropriate and contrary to the dictates of section 60(l)(j) of the Education Act. Ms. Masalu conceded that the three counts were duplicate. She urged the Court to make decision on the first and second counts of Rape and Abduction of a Girl under sixteen years old upon nullification of the third count. She argued that the counts of Rape and Abduction of a Girl below sixteen years old cannot fall under duplicity of charges as held in the case Kasmir Joseph Aridai v. R., Criminal Appeal No. 5 of 1979(1980)TZCA 19 (1 July 1980) on page 3 where the court of Appeal held that charging offences in alternatives or charging separate offences in a single count amount to duplicity of a charge. She prayed for the Court to uphold the decision of the trial court in respect of the offences of Rape and Abduction of a Girl below sixteen years old. The appellant had nothing to add apart from praying for the Court to make a decision. Before determining the grounds of appeal advanced by the appellant, it is crucial to determine whether the proceedings in Criminal Case No. 44 of 2023 taken at the trial court were appropriate. It is clear from the charge sheet that that the appellant was charged with three counts in one charge sheet. The third count was Abduction of a Girl under sixteen years old contrary to section 60(1)(j) of the Education Act. The proceedings were taken as one as the counts emanated from same state of affairs where the appellant was accused of abducting and having sexual intercourse with the victim (PW3), the girl aged thirteen years old who was in standard six at Miimanl Primary School. It is the requirement of the law under section 60(2) of the Education Act that consent of the Director of Public Prosecutions must be obtained prior to prosecuting the offences under section 60(1) of the Education Act. The provision states: 60(2) No proceedings shall be taken against any person In respect of any of the offences specified In subsection (1) without the prior consent of the Director of Public Prosecutions. My reading of the record of the trial court reveal that no consent was filed or endorsed by the trial court. This was also admitted by Ms. Masalu, learned state counsel. As a way forward, Ms. Masalu urged me to nullify the conviction and sentence against the appellant in respect of the third count that required the appellant's prosecution of the same be effected after obtaining 8 consent of Director of Public Prosecutions. She argued that the entire proceedings are safe to uphold the conviction and sentence of the trial court in respect of the first and second counts. I hesitate to agree with Ms. Masaiu on her proposition. This is for a reason that, when the proceedings are tainted with procedural illegality, like in the matter before the trial court, the same cannot be salvaged. All the same, if the appellant was prosecuted with third count without the consent of the Director of Public Prosecutions, it goes that the trial court lacked jurisdiction to hear and determine the criminal case against the third count. More so, I have observed above that the proceedings were taken as one, emanating from same state of affairs where the testimonies of the witnesses and the documentary evidence were admitted in respect of the three counts. Needless to say, it will be improper for this Court to retain the proceedings undertaken for all the three counts in which in one of the counts, the appellant was prosecuted without the consent of the Director of Public Prosecutions. In my view, doing so will be engaging in the exercise of pick and choose in the proceedings and evidence relating to the first and second counts vis a W5the third count. It is therefore my considered position that as the proceedings were taken as one in respect of both three counts, the entire proceedings cannot be salvaged as they are tainted with procedural illegality for being undertaken without prior consent of the DPP to prosecute the appellant with the third count charged with the other two counts in one charge sheet. As such, I nullify the proceedings and quash the conviction and sentence against the appellant In all three counts. Upon the said nullification, I do not find the essence of determining the error committed by the trial court in sentencing the appellant on the third count and duplicity of the charges. My subsequent role is to determine whether the present matter is a fit case to order retrial. It was held in the case of Fatehali Manji v. R. (1966) E.A. 343 that retrial will be ordered in cases where the prosecution evidence before the trial court was sufficient to find the accused guilty of the offences charged but it cannot be ordered in case of insufficient evidence or for purposes of enabling the prosecution to fill in gaps in its evidence before the trial court. In my assessment, I will consider the complaints raised by the appellant against the conviction and sentence of the trial court. 10 My reading of the entire proceedings reveal that the victim was 14 years and eight months old at the time of giving her testimony at the trial court as PW3. On page 18 of the proceedings, PW3 testified under oath. The trial court did not record questions and answers to establish whether PW3 understood the nature of oath or affirmation or a promise to speak the truth and not lies. However, in the last paragraph of page 18 of proceedings, PW3 testified that she was born on 1^ January 2009 making her 14 years, 8 months and 19 days old on the date of giving her testimony on 20'^ September 2023. Section 127(2) and (4) of the Evidence Act provides: "127(2) A child of tender age may give evidence without taking an oath or making an affirmation but shaii, before giving evidence, promise to teii the truth to the court and not to teii any iies. (4) For the purposes of subsections (2) and (3), the expression "chiid of tender age" means a chiid whose apparent age is not more than fourteen years." My interpretation of the phrase "not more than fourteen years" is that a child of tender age is the one whose age does not exceed 14 years or should be fourteen years and below. It means that the requirement under section 127(2) of the Evidence Act for the trial court to record the promise of a child of a tender age to tell the truth and not lies if her evidence is fe ll taken without oath or affirmation, did not apply to the victim (PW3)in the proceedings before the trial court. I hold so based on my considered position that the victim was more than 14 years old at the time of giving her testimony at the trial court. I hold that it was proper for the trial court was to take PW3's evidence under oath as the provision of section 127(2) of the Evidence did not apply on PW3. The first ground of appeal is dismissed for lack of merit. Again, in all three counts, the age of the victim is indicated to be 13 years old. Although the charge sheet is dated 23'^'' February 2023 and filed before the trial court on 1^ March 2023, but the account of events constituting the criminal charges in the three counts, are stated to have happened between July 2022 to February 2023, and on or about 5"" July 2022. However, the testimonies of both PW3 and PW4 on page 23 and 24 of the proceedings, respectively were given on 20'^'^ September 2023 when the victim turned 14 years. As such, I find no variance between the charge and the evidence of the prosecution in relation to the age of the victim as at the time of the commission of the offence in 2022, the victim was 13 years old. However, at the time of giving evidence in September 2024, she was 14 years old, 8 months and 19 days old. 12 Nonetheless, I find that the age of the victim was sufficiently proved. The evidence reveals that at the time of the trial in the year 2023, the victim was 14 years old as testified by PW3 the victim and PW4, the victim's grandmother and guardian. It means that the victim was under the age of 18 years at the time of commission of the offence. PW2 the then head Teacher of Mlimani Primary school testified on page 15 of the proceedings that the victim was a student of standard six at Mlimani Primary School in 2022 when she absconded from school. It is the position of the law that the age of the victim can be proven by the victim, parent, guardian, teacher, or medic or birth certificate, if any. [See the decision of the Court of Appeal in the case of Abel Changwe v. Republic, Criminal Appeal No. 546 of 2019 on page 6 of the decision]. In the circumstance, it is my firm conclusion that the prosecution sufficiently proved that the victim was a student and was below eighteen years at the time of the appellant's commission of the offences. It means that the offence was established regardless of the conducts, consent, expertise or understanding of the victim of the sexual conducts or consent to abscond or discontinue her studies.[See the decision of the Court of Appeal in the case of George Claud Kasanda v. R., Criminal Appeal No. 376 of 2017 (unreported)]. 13 In my further scrutiny of the available records, I have found that indeed, the caution statement was taken outside the prescribed four hours after the arrest of the appellant. The evidence on record through the testimony of PWl on page 11 through to 12 of the proceedings reveal that the appellant was arrested on 10^^ February 2023 and was taken to Kiberege police station. PWl testified the he went to Kiberege police station on 11^^ February 2023 and took the appellant to Mang'ula police station for interrogation where the appellant admitted to have committed the offence. PW3 did not state the time when the appellant was arrested on 10^^ February 2023, the time he took him from Kiberege police station, and the time he started to interrogate him on 11^^ February 2023. It is clear that from 10^^ February 2023 when the appellant was arrested, to IT^ February 2023 when he was interrogated, the four hours prescribed under section 50(l)(a) of the Criminal Procedure Act Cap. 20 R.E. 2022 hereinafter the "CPA", had lapsed. I understand that section 50(2)(a) of the CPA provides an exception in such a way that time is excluded in the circumstance where the accused person is conveyed to a police station or other place for any purpose connected with the investigation. 14 Although PWl testified that the appellant was taken from Kiberege police station to Mang'ula police station, he did not state the reasons for such transfer. It Is on record that the appellant committed the first count in Kiberege, and the second and third counts in Mang'ula. It was necessary for PWl to state the reasons for the police officers' disinclination to interrogate the appellant at Kiberege police station and its decision to transfer him and interrogate him at Mang'ula police station to warrant the applicability of the exceptions under section 50(2) of the CPA. Under the circumstance of this case in which even the extension for such an interrogation and the recording of the caution statement was not sought and obtained, it is clear that the caution statement cannot stand. In the case of Manoja Masalu and Another v. Republic, Criminal Appeal No. 143 of 2020 [2024] TZCA 409 (6 June 2024), the Apex court articulated as follows on page 19: "With this evidence on record, it is obvious that, exhibit P3 was recorded after aimost a day from the time of the first appeiiant's arrest. Considering that the prosecution did not lead any evidence to show that time was extended, it is our view that, the document was recorded in violation ofsection 50(1) of the CPA. Since the irregularity is fatal and renders the statement inadmissible, we proceed to expunge it from the record for being iilegally obtained. 15 As the record is silent on the reasons for failure to interrogate the appellant within the four hours prescribed by the law and that there is no proof that the time was extended, I hold that the appellant's caution statement (Exhibit PEl) was taken in contravention of the law and ought to be expunged from the record. On that account, I hereby expunge Exhibit PEl from the trial court's records. Be it as it may, in establishing the offence against the appellant, the victim (PW3) narrated how she was abducted by the appellant who went to live with her in various places while engaging in sexual relationship with her, and how she absconded her studies from standard six at Mlimani Primary School after she ran away with the appellant. The testimony was sufficient to prove the offences the appellant was charged with. The evidence of PW3 was corroborated by the evidence of PW4 and PWl. PW4 informed the trial court that the victim went missing since 5^^ July 2022. She testified on page 24 of the proceedings that from 5^^ July 2022, it was until January 2023 when the victim informed her via telephone that she was alone at Mahenge after the man who took her left her alone. PW4 testified on page 25 that she and her husband were informed of the arrest of the victim and her husband who were at Kiberege police station via telephone. 16 PW4 added that they found the victim at Kiberege police station and was shown the appellant though she did not remember him and his name. On page 23, PW4 testified that the victim was no longer studying as she stopped school after she went to live with a man. PWl testified that while the appellant remained at Kiberege prison after being arrested with the victim, and subsequently, the victim was taken to her grandmother in Mang'ula. Despite the expunction of Exhibit PEl, the above evidence established the offences the appellant was charged with. It follows that I do not find any gaps in the prosecution's case that would enable the prosecution to fill if an order for retrial is made. I find the present appeal to be a fit case to order retrial. Consequently, I direct an expedited retrial of the appellant by the trial court before a different magistrate with competent jurisdiction upon the prosecution's compliance with section 60(2) of the Education Act if she intends to prosecute the said offence under the third count. The Appellant shall remain in custody awaiting his trial. It is so ordered. Right of appeal to the Court of Appeal fully explained. 17 DATED at MOROGORO this 18^^ day of November 2024. H. A. KINyI^KA JUDGE 18/11/2024 18 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO CRIMINAL APPEAL NO. 26445 OF 2024 (Appeal from the decision of the District Court of Kilombero at Ifakara dated 13^^ December 2023 in Criminal Case No. 44 of 2023) SAID ALLY NDUTA APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGMENT 30/10/2024 & 18/11/2024 KINYAKA, J.: In Criminal Case No. 44 of 2023, the appellant was convicted by the District Court of Kilombero at Ifakara hereinafter the "trial court" on all counts that he stood charged, namely. Rape contrary to sections 130(l)(2)(e) and 131(1) of the Penal Code Cap. 16 R.E. 2022 hereinafter the "Penal Code", Abduction of a girl under sixteen years old contrary to sections 134 and 135 of the Penal Code, and Denying a child to pursue formal compulsory education contrary to section 60(1)0) of the Education Act Cap. 353 R.E. 2002 hereinafter, the "Education Act" as amended by the Written Laws (Miscellaneous Amendments No. 2) Act 2016. It was alleged by the respondent before the trial court in the first count that between 5*^^ July 2022 and 9^^ February 2023 at Klberege Area, KIberege Ward within Kilombero District In Morogoro Region, the appellant had carnal knowledge of LS a girl of 13 years old. On the second count, the respondent alleged that on or about 5^^ July 2022 at Kislwani Area, Mang'ula 'B' Ward within Kilombero District in Morogoro Region, the appellant took LS to Mahenge Area within Ulanga District, knowing that she is unmarried girl of 13 years old and without the consent of the guardians of the girl. In respect of the third count, the respondent alleged that on or about 5^^ July 2022 at Kislwani Area, Mang'ula 'B' Ward within Kilombero District In Morogoro Region, the appellant prevented LS from pursuing her studies by taking her to Mahenge Area within Ulanga District, knowing that she Is a school girl of 13 years old studying at MlimanI Primary School situated at Kislwani Area within Mang'ula 'B' Ward. Upon being satisfied that the prosecution had established all the three offences beyond all shades of doubt, the trial court convicted the appellant of all the three counts and sentenced him to serve thirty years imprisonment in jail, two years imprisonment In jail and three years' Imprisonment In jail for the first, second and third counts, respectively, which were ordered to run concurrently. Dissatisfied, the appeilant preferred seven grounds of appeal as reproduced herein beiow: 1.That the iearned triai Magistrate erred in law and fact to convict and sentence the appeiiant basing on evidence of the victim who was of tender age was unprocedurally received in violation of section 127 (2) of the Evidence Act Cap. 6 RE 2022 when relied on evidence of the victim who was a child of tender age without complied with; 2.That the iearned trial Magistrate erred In law and fact to convict and sentence the appeilant without considering that the charge was at variance with evidence in respect to the age of the victim; 3.That the iearned triai Magistrate erred in law and fact to convict and sentence the appeiiant by believing that the victim was a child of tender age without conducting an inquiry for determination of the victim's age as the victim in her testimony demonstrated matureness when examined by court by stating that she avoided pregnant because she was using calendar method of controlling unwanted pregnancy; 4.That the iearned trial magistrate erred in law and fact to believe on evidence of PW4 (Victim's grandmother) that the victim was 14 years old without stating when she was born and without tendering birth 3 certificate/ affidavit / clinic card or any school document to prove the same; 5. That the learned trial magistrate erred in law and fact to convict and sentence the appellant based on caution statement(Exh PE2) which was recorded out of prescribed time when the appellant was alleged to be under police arrest since (Kiberege Police Station) 10/02/2023; 6. That the learned trial magistrate erred in law and fact to convict and sentence the appellant without consideration that there was no evidence of crucial witnesses like people or police officers who arrested the appellant in order to prove that he was with the victim on material date; and 7. That the learned trial magistrate erred In law and fact to convict and sentence the appellant when the prosecution case was casted with doubts which should have benefited the appellant. At the hearing of the appeal, the appellant appeared in person and unrepresented. The respondent was duly represented by Ms. Vestina Masalu, learned state attorney. Ms. Masalu conceded to the first ground on the contravention of section 127(2) of the Evidence Act Cap. 6 R.E. 2022 hereinafter the "Evidence Act". She contended that page 18 of the proceedings indicates that the 4 testimony of PW3's, the child of the tender age was taken in contravention of section 127(2) of the Evidence Act. She relied on the case of Godfrey Wilson V. R., Criminal Appeal No. 168 of 2018 on page 13 to buttress on the requirements of taking evidence of the child of tender age. She also relied on the case of Hamisi Issa v. R, Criminal Appeal 274 of 2018 on page 8, where the Court relied on the case of Yusufu Molo v. R., Criminal Appeal No. 343 of 2017 which held that it is a mandatory requirement that the promise of the child of tender age must be reflected in the trial court record failure of which it will occasion a big blow to the prosecution case and turns section 127(2) of the Evidence Act meaningless. She submitted that the effect led the evidence of PW3 with no value at all. She was of the position that if the evidence of PW3 is of no value, the remaining evidence of the prosecution witnesses was from the evidence of PW3 as there was no any other witness apart from PW3 who witnessed the abduction of PW3. She said, the testimonies of the remaining four witnesses were hearsay which according to law, it is not admissible. She argued that due to the lack of weight of the evidence of the four witnesses, the conviction and sentence against the appellant was improper. When he was called to address the Court, the appellant had nothing much to submit. He prayed to be set free. While composing the judgement, I noted that there was no consent of the Director of Public Prosecution in the trial court file for prosecution of the appellant on the third count. Section 60(2) of the Education Act Cap. 353 R.E. 2019 hereinafter the "Education Act" require all offences chargeable under section 60(1) of the Education Act to be prosecuted upon obtaining a consent from the Director of Public Prosecutions. I also noted that while section 60(1) of the Education Act prescribes a punishment of fine upon conviction of the accused charged with offences under the provision, the trial Magistrate sentenced the appellant to serve three years imprisonment. I summoned parties on 11''^ November 2024 to address me on the propriety of the proceedings of the trial court in respect of the third count, the sentence and propriety of duplication of the three counts in the charge sheet. Being unknowledgeable of the law, the appellant had nothing to say. He prayed to be set free. On her part, Ms. Masalu admitted that section 60(2) of the Education Act was contravened as the proceedings in respect of the third count were taken without the prior consent of the Director of Public Prosecutions. She prayed for nullification of the trial court's conviction and sentence for the third count. She also admitted that the sentence of three years imposed on the appellant for the third count was inappropriate and contrary to the dictates of section 60(l)(j) of the Education Act. Ms. Masalu conceded that the three counts were duplicate. She urged the Court to make decision on the first and second counts of Rape and Abduction of a Girl under sixteen years old upon nullification of the third count. She argued that the counts of Rape and Abduction of a Girl below sixteen years old cannot fall under duplicity of charges as held in the case Kasmir Joseph Aridai v. R., Criminal Appeal No. 5 of 1979(1980)TZCA 19 (1 July 1980) on page 3 where the court of Appeal held that charging offences in alternatives or charging separate offences in a single count amount to duplicity of a charge. She prayed for the Court to uphold the decision of the trial court in respect of the offences of Rape and Abduction of a Girl below sixteen years old. The appellant had nothing to add apart from praying for the Court to make a decision. Before determining the grounds of appeal advanced by the appellant, it is crucial to determine whether the proceedings in Criminal Case No. 44 of 2023 taken at the trial court were appropriate. It is clear from the charge sheet that that the appellant was charged with three counts in one charge sheet. The third count was Abduction of a Girl under sixteen years old contrary to section 60(l)(j) of the Education Act. The proceedings were taken as one as the counts emanated from same state of affairs where the appellant was accused of abducting and having sexual intercourse with the victim (PW3), the girl aged thirteen years old who was in standard six at Mlimani Primary School. It is the requirement of the law under section 60(2) of the Education Act that consent of the Director of Public Prosecutions must be obtained prior to prosecuting the offences under section 60(1) of the Education Act. The provision states: 60(2) No proceedings shall be taken against any person in respect of any of the offences specified in subsection (1) without the prior consent of the Director of Public Prosecutions. My reading of the record of the trial court reveal that no consent was filed or endorsed by the trial court. This was also admitted by Ms. Masalu, learned state counsel. As a way forward, Ms. Masalu urged me to nullify the conviction and sentence against the appellant In respect of the third count that required the appellant's prosecution of the same be effected after obtaining 8 consent of Director of Public Prosecutions. She argued that the entire proceedings are safe to uphold the conviction and sentence of the trial court in respect of the first and second counts. I hesitate to agree with Ms. Masalu on her proposition. This is for a reason that, when the proceedings are tainted with procedural illegality, like in the matter before the trial court, the same cannot be salvaged. All the same, if the appellant was prosecuted with third count without the consent of the Director of Public Prosecutions, it goes that the trial court lacked jurisdiction to hear and determine the criminal case against the third count. More so, I have observed above that the proceedings were taken as one, emanating from same state of affairs where the testimonies of the witnesses and the documentary evidence were admitted in respect of the three counts. Needless to say, it will be improper for this Court to retain the proceedings undertaken for all the three counts in which in one of the counts, the appellant was prosecuted without the consent of the Director of Public Prosecutions. In my view, doing so will be engaging In the exercise of pick and choose in the proceedings and evidence relating to the first and second counts visa visthe third count. It is therefore my considered position that as the proceedings were taken as one in respect of both three counts, the entire proceedings cannot be salvaged as they are tainted with procedural illegality for being undertaken without prior consent of the DPP to prosecute the appellant with the third count charged with the other two counts in one charge sheet. As such, I nullify the proceedings and quash the conviction and sentence against the appellant in all three counts. Upon the said nullification, I do not find the essence of determining the error committed by the trial court in sentencing the appellant on the third count and duplicity of the charges. My subsequent role is to determine whether the present matter is a fit case to order retrial. It was held in the case of Fatehali Manji v. R. (1966) E.A. 343 that retrial will be ordered in cases where the prosecution evidence before the trial court was sufficient to find the accused guilty of the offences charged but it cannot be ordered in case of insufficient evidence or for purposes of enabling the prosecution to fill in gaps in its evidence before the trial court. In my assessment, I will consider the complaints raised by the appellant against the conviction and sentence of the trial court. 10 My reading of the entire proceedings reveal that the victim was 14 years and eight months old at the time of giving her testimony at the trial court as PW3. On page 18 of the proceedings, PW3 testified under oath. The trial court did not record questions and answers to establish whether PW3 understood the nature of oath or affirmation or a promise to speak the truth and not lies. However, In the last paragraph of page 18 of proceedings, PW3 testified that she was born on 1^ January 2009 making her 14 years, 8 months and 19 days old on the date of giving her testimony on 20'^ September 2023. Section 127(2) and (4) of the Evidence Act provides: "127(2) A child of tender age may give evidence without taking an oath or making an affirmation but shaii, before giving evidence, promise to teii the truth to the court and not to teii any iies. (4) For the purposes of subsections (2) and (3), the expression "chiid of tender age" means a chiid whose apparent age is not more than fourteen years." My Interpretation of the phrase "not more than fourteen years" Is that a child of tender age Is the one whose age does not exceed 14 years or should be fourteen years and below. It means that the requirement under section 127(2) of the Evidence Act for the trial court to record the promise of a child of a tender age to tell the truth and not lies If her evidence Is 11 taken without oath or affirmation, did not apply to the victim (PW3)in the proceedings before the trial court. I hold so based on my considered position that the victim was more than 14 years old at the time of giving her testimony at the trial court. I hold that it was proper for the trial court was to take PW3's evidence under oath as the provision of section 127(2) of the Evidence did not apply on PW3. The first ground of appeal Is dismissed for lack of merit. Again, in all three counts, the age of the victim is indicated to be 13 years old. Although the charge sheet is dated 23''' February 2023 and filed before the trial court on 1=* March 2023, but the account of events constituting the criminal charges in the three counts, are stated to have happened between July 2022 to February 2023, and on or about 5"" July 2022. However, the testimonies of both PW3 and PW4 on page 23 and 24 of the proceedings, respectively were given on 20"^ September 2023 when the victim turned 14 years. As such, I find no variance between the charge and the evidence of the prosecution in relation to the age of the victim as at the time of the commission of the offence in 2022, the victim was 13 years old. However, at the time of giving evidence in September 2024, she was 14 years old, 8 months and 19 days old. 12 Nonetheless, I find that the age of the victim was sufficiently proved. The evidence reveals that at the time of the trial in the year 2023, the victim was 14 years old as testified by PW3 the victim and PW4, the victim's grandmother and guardian. It means that the victim was under the age of 18 years at the time of commission of the offence. PW2 the then head Teacher of Mlimani Primary school testified on page 15 of the proceedings that the victim was a student of standard six at Mlimani Primary School in 2022 when she absconded from school. It is the position of the law that the age of the victim can be proven by the victim, parent, guardian, teacher, or medic or birth certificate, if any. [See the decision of the Court of Appeal In the case of Abel Changwe v. Republic, Criminal Appeal No. 546 of 2019 on page 6 of the decision]. In the circumstance, it is my firm conclusion that the prosecution sufficiently proved that the victim was a student and was below eighteen years at the time of the appellant's commission of the offences. It means that the offence was established regardless of the conducts, consent, expertise or understanding of the victim of the sexual conducts or consent to abscond or discontinue her studies.[See the decision of the Court of Appeal in the case of George Claud Kasanda v. R., Criminal Appeal No. 376 of 2017(unreported)]. 13 In my further scrutiny of the available records, I have found that indeed, the caution statement was taken outside the prescribed four hours after the arrest of the appellant. The evidence on record through the testimony of PWl on page 11 through to 12 of the proceedings reveal that the appellant was arrested on 10^^ February 2023 and was taken to Klberege police station. PWl testified the he went to Kiberege police station on 11^^ February 2023 and took the appellant to Mang'ula police station for interrogation where the appellant admitted to have committed the offence. PW3 did not state the time when the appellant was arrested on 10^^ February 2023, the time he took him from Kiberege police station, and the time he started to interrogate him on 11^ February 2023. It is clear that from 10^^ February 2023 when the appellant was arrested, to 11^^ February 2023 when he was interrogated, the four hours prescribed under section 50(l)(a) of the Criminal Procedure Act Cap. 20 R.E. 2022 hereinafter the "CPA", had lapsed. I understand that section 50(2)(a) of the CPA provides an exception in such a way that time is excluded in the circumstance where the accused person is conveyed to a police station or other place for any purpose connected with the investigation. 14 Although PWl testified that the appellant was taken from Kiberege police station to Mang'ula police station, he did not state the reasons for such transfer. It is on record that the appellant committed the first count in Kiberege, and the second and third counts in Mang'ula. It was necessary for PWl to state the reasons for the police officers' disinclination to interrogate the appellant at Kiberege police station and its decision to transfer him and interrogate him at Mang'ula police station to warrant the applicability of the exceptions under section 50(2) of the CPA. Under the circumstance of this case in which even the extension for such an interrogation and the recording of the caution statement was not sought and obtained, it is clear that the caution statement cannot stand. In the case of Manoja Masalu and Another v. Republic, Criminal Appeal No. 143 of 2020 [2024] TZCA 409 (6 June 2024), the Apex court articulated as follows on page 19: "With this evidence on record, it is obvious that, exhibit P3 was recorded after almost a day from the time of the first appeilant's arrest Considering that the prosecution did not iead any evidence to show that time was extended, it is our view that, the document was recorded in violation ofsection 50(1) of the CPA. Since the irregularity is fatal and renders the statement inadmissible, we proceed to expunge it from the record for being iiiegaiiy obtained. 15 As the record is silent on the reasons for failure to interrogate the appellant within the four hours prescribed by the law and that there is no proof that the time was extended, I hold that the appellant's caution statement (Exhibit PEl) was taken in contravention of the law and ought to be expunged from the record. On that account, I hereby expunge Exhibit PEl from the trial court's records. Be it as it may, in establishing the offence against the appellant, the victim (PW3) narrated how she was abducted by the appellant who went to live with her in various places while engaging in sexual relationship with her, and how she absconded her studies from standard six at Mlimani Primary School after she ran away with the appellant. The testimony was sufficient to prove the offences the appellant was charged with. The evidence of PW3 was corroborated by the evidence of PW4 and PWl. PW4 informed the trial court that the victim went missing since S''" July 2022. She testified on page 24 of the proceedings that from S''" July 2022, it was until January 2023 when the victim informed her via telephone that she was alone at Mahenge after the man who took her left her alone. PW4 testified on page 25 that she and her husband were informed of the arrest of the victim and her husband who were at Kiberege police station via telephone. "t<s 16 PW4 added that they found the victim at Kiberege police station and was shown the appellant though she did not remember him and his name. On page 23, PW4 testified that the victim was no longer studying as she stopped school after she went to live with a man. PWl testified that while the appellant remained at Kiberege prison after being arrested with the victim, and subsequently, the victim was taken to her grandmother in Mang'ula. Despite the expunction of Exhibit PEl, the above evidence established the offences the appellant was charged with. It follows that I do not find any gaps in the prosecution's case that would enable the prosecution to fill if an order for retrial is made. I find the present appeal to be a fit case to order retrial. Consequently, I direct an expedited retrial of the appellant by the trial court before a different magistrate with competent jurisdiction upon the prosecution's compliance with section 60(2) of the Education Act if she intends to prosecute the said offence under the third count. The Appellant shall remain in custody awaiting his trial. It is so ordered. Right of appeal to the Court of Appeal fully explained. 17 DATED at MOROGORO this 18"^ day of November 2024. H. A. KINY^KA JUDGE 18/11/2024 I / 18