19700731 TZHC Dar es salaam4

IN THE HIGH COURT OF TANZANIA At Dar os Salaain. Criminal Appeal No. 483 of 1970 (Origini Criminal Case No. 64 of 1970 of the District Court of Iringa District at Iringa. Beore: M.J.iwakibete, Esq., Resident Magistrate DANXEL LOT}J versus THE iPUBEIC ...... . . . ... . .RESPONDENT Cli rge:- Robbery with violence c/s 285 and 286 of the Penal Code. JU DGME1 T mmary Rej e otion - The appellant was convicted of roxy with violence and he was sentenced to imprisonment for two years and to the tatutory 24 strokes of oorporal puriiahmeit. He is now appetiing, 40 videne was given by the complainant, a young boy of about 7 years of age, who incidentally was unsworn, to the effect that one night a about 8 oclock when he went out with his younger sister to buy some flour carrying a hurricane lamp, he was set upon bythree men, one of them the appellant, who seized his hurricane lamp. He cried out and both his mother and a neIghbour rn to the scene. The neighbour actually arrived first and he test.fiod that he saw the appellant seize the hurricane lamp from the child and run off with it. He gave chase and caught thet ppeiiant. The appeliants companions rejoined him and seized ,,he lamp which the appellant had dropped and made off with itt. It has not been reeered.. The neighbour in question, asertod that he not onlysaw the appellant seize the lamp from the child, but in pursuing him be never lost sight of him. Th complainant althouh young child,, said he recognised nd identified the appellant by the light of a street 1amp. A1thou11 the comp1ainants evidence requires corroboration in law, it Is, as demonstrated,., fully corroborated by independent evidence implicating the appellant. The conviction is thus fuiy supported and justified by the evidence. With egard to the sentence, it is the minimum prescribed by law, as laid down in the Minimum Sentences Act, 1963- I am 6etizfied and so certify, that this appeal has been lodged wit$ut any sufficierit ground of complaint. It is accordi ng1 summarily rejected. The Ci tention of the magistrate is drawn to section 127(2) of the Evi ence Act 1967, which reads:- fl(2) Where in any criminal cause or matter any child of tender years called as a. wilness does not, in the opInion of the court, understand the nature of an oath, his evidence may be received, though not given upon oath or affirmation s if in the opinion of the court, to be recorded in the proceedins, he is possessed of sufficient intelligence to j,ustify the reception of his evidence, and unuerstands the duty of speaking the truth: 0412. 2 - Provided that *here evidence received by virtue of this sub section is given on behalf of the prosecution, the accused shall not be liable to be convicted unless such evidence is corroborated by some other material evidence in sppo.rt thereof implicating the accused" In order to ascertain whether a child witness is of sufficient intelligence to justify the reception of his or her evidence and understands the nature of an oath, a co.tt should couduot a voir dire examination. This examination should be recorde&, so as to enable an appellate or reviewing tribunal to assess the credibility of the witness. Dar es Salsam. (PHILIP iIRON) 31st July, 1970. JUDCE.