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9ii Cot, 6----i IN THE HIGH COURT OF TZAi\1 IA AT ARUSHA APPELLATE JURISDICTION HIGH: COURT CRIMINJL APPEAL NO. 349 OF 1974 ORIGINAL CRIMINAL CASE NO. 50 OF 1974 OF THE DISTRICT COURT OF ROMEO DSTRICT AT MKUIL BEFORE- N. MAKERO, Esq., Distridt Magistrate EMANUELMATANGUIIA .. ........ APPELLANT - (Original Accused) versus TIiE'REPUflItC ........................ RESPONDENT (Original Prosecutor) I JUDGMENT JONATHAN, J. The appellant, EMANUEL MATANGUiIL, and a.-ac.cused were charged joint1y with entering a dwelling house- with intent, c/s. 295 of the Penal Code. The co-accsed was acquitted, but not the appellant who was copviced and sentenced to 18 months' imprisonment. There was no dispute that a wire-les ° set of the cornplainant was stolen from his house while he was away and that, shortly afterwards it was traced to the possession of the. co-accused, whose explanation was that he had received it from an agent of the appellant, apparently for repairs. The Prosecution case against the appellant rests entirely • /the on the evidence ofyoun gdaughter •of the complainant who is described as a child and that of another child (P.W.2) aged 12 years. According to the former, the appellant and one BONAVENTURA, presumably P.W.2, had told her that her mother had sent themor a radio. The appellant, she added, then entered the house but, to use her words, she "did not know how they took it (r'adio)": BONAVENTURA in her account said she was sent by the co-accused to get something from the appellant. She went and the appellant after entering the omplainant's house handed the wireless set to her with a request she should hand it over to the appellant, which she did. The appellant in his evidence said he had had nothing to do with the radio. He was, in effect, dispuing the accounts of the two children and the evidence that was later given by the co-accused to the effect that he had received the wireless set from the appellant for repairs. Both PW.2 and P.W,3 were children of tender years. The learned district magistrate put both on oath. However, he does not appear to have first made any inquiry whether they understood the nature of an oath. Only if they did could they properly have been put on oath. In the absence of such inquiry, this court cannot say that they were •orrectly made to swear and that their accouts should be given the weight to accord to sworn testimony. Had an inquiry been held they might have been found to be possessed of sufficient intelligence to justify the reception of their accounts without being put on oath, although I öannot be certain even about this asrega.rds P.W.3, •a reading of whose evidence gives the impression that he had only a vagie idea of what he was saying.. a . ....... . . I The learned magi strato shold always: make an in qui.r and make . finding under the Provisions of Section 127(2) of the Evidence Act where it appears. to him tht a child sought to give eridence is of tender te'a.rd. Pie may give evidence on .oathf he understands, t.h,e nature of an oath. If not, the magistrate should then proceed to consider whether he is of siikfficIent intelligence. If he is, then an unsworn account should be received from him Should he be wanting i,ii'th,i.s a1:so, the:court is bouii to diense with his evidence. It is olwais helpful tO this 'Court if notes of such an inquir1 and thO finding theren. are made in the record. In this case, assumingthat the children were.possessed of sufficient evidence to justify th'recetion of their unsworn accounts, such account's could not be the basiC of a conviction unless they wer.corroerated.by other evidence. TheacCount of the one could -nOt be sufficient corroboratiOn of the 'ev±dence of the othex,. and as there was really no other independent evidence to corroborate their accounts,' the evidence of the co—accused being tht of an accomplice, also requ.irng öorr.oboratidn, there was not sufficient evidence, on which to base ' cnviction. The appelant' should have been acquitted. Accordingly, the convictionand sentence are quashed, and it is ordered the appellant be released forthwith. (P.. M.. JONATRN) .' /MTPM. ' . . .. , JUDGE. . .. "