19870918 TZHC Arusha2

. . . . . . . aq; 'iyrtn eT sv 'pcoi oa p -rp eti q3notT4V 'tnet; jo to .no £z.zo p-çp eq pameas ;i ma& xapu94 Jo ue.xpq ezeM $88UM eet e.x8 &t e1pnI eq °JB4c 9 puv g pe53e 9 TOGcI.X G.!i! 9Md pu q.uepçout atil ;o eux et. j.eqq. treeui pno zaiV OT Pu gi GaGIA ttq, S9373 e çO Iex .rçøt 1. 'pOS. puv g IA*cl qotLpi IUT.1t1P 961 '.xeqoqMo UT aveTd 3fo0q. tX U$WA pu 'ge6r9T tto pe;wwoo tz'eq et o pei oouft eq 19•j iVq CIE1AT9 swt P;DV.CaOGP OT4q. 7I tq.ep et{. t{qTh 3U?1JOdd8 ett' Gt tttt:)TtA eXZtA9 iUO Gtz, 0Pe 3U.1S UCL 1UtAt Q. Qtp pu ooqs jo pep pt xode.x iow'.Gd st. u000y • pp Gq. uo 9 MOT4 ti; 'T rPeG1T o8e0ep eqq. çq U08c118 'peeoep aqq, pop eA8q O- pq29Tjv sem 1.U8ttd Ot - uot1.otAuoo qons nio.zJ uTdde c-c px 8 Jo .xepun oq. Jo PapTAU00 SV AI ;u - ed Gt / ... . Jo . -.----%,-,-, m-- O6t g * OX 9 9 vo GUOTeGaS 1'!"T 13 Ut 11 9-261 xequIeo JO iV8p peqp (r snj) (!tsruV 38 uTwezuel JO .flO3 tiTH et!. Jo UOTZAuoo er IUOJJ iodd) JM2crI0dSa • iian&ni MU SflS3IA • I()tl.VK N0i1TS o/cr YL5tM01NV L061 90 c-i OM IVddV iIao VRffV 11V VIW21li JO '1Vdc1V JO .11MOO aNi MI .. -2-- queetions put and the answers given by the child witness es.In each case he stated that he was satisfid, after exainàt4on of the witnsses, that they did not know the nature of an oath, but that they were possessed of sufficient intelligence and understood the d.uty of speaking the truth. He received the evidetice bf these two witnesses of tender years, presumably In terms of SectIon 127 (2) of the Evidence Act. Aceerding to PSWO5 the deceased was seen by her entering the house of the appellant on the material day, and later P.W. 5 alleged she heard cries issuing from the said house. She did not see the deceased emerging from that house, but saw the appellant coming but, with her face bovored j+ jfl : scratches. She next saw the dead body of the deoeased a short distance away from the house of the appellant the following morning. ?,L6 also alleged that she had seen the deceased entering the appellant's house and of hearing o'ies of pain issuing therefrom siibeczent1y. P,W.6 also alleged that the deceased was not seLen coming Out of the house, but that thee appellant did come out and sat outside. PJ,6 however stated that P.W.5 was not there when the deceased entered the appellant's house, nor was P.L5 there when cries issued from the app llant' a house. The trial judge did consider the q3ieztion whether P.W. 5 and P.W,6 could be believed. He realised that they were children of tender ars. He however was of the view that young chi1th'entnded. to tell the truth and testify to what they actually did see and hear 0 The trial judge then concluded that he found both p,W5 and P.W.6 tzuthfu1 and he believed their testimoniy4. The trial judge did not warn himself of the danger of acting on evidence given by children of tender years in terms of section 127 (3) f the Bvidence Act. Section 127 (3) states in part: Court may, after warning itself of the danger of doing so, act on that evidence (i.e. evidence given in terms of section 127(2) to convict the accused...," -3..- The trial judge only satisfied himself that a child.,witnas&..wouJ4 orinallr tell the truth and he was satisfied that the tw withessos P,W.5 and P.L6 were truthful and he relied on their testi..mony to convict the appellant of the offence charged We think the triol ju5.ge has erred. He could. .. without warning himself in terms of sect . ...on 127 (3) of the v- ..nene Act have acted on the idereofPV' and P.M. Hs failui:c to warm himself in the circumstances was fatal to th con Again the trial judge relied on an allegation that the appellant had. given the deceased sh•s. 2OO/ .. the dece.d to travel to Rombo as corroboration of the evidence given by PW5 P.M. We fail to see how the alleged payment of shs. 200/= cu6 be such corroboration4 The trial judge did not even refer to the ino.oiieneies that existed between the evidence given by P.W 5 and P.W6 as to wheth' P.W. 5 was there when the deceased allegedly entered the appel1a1t* s house 0 In his judgment he judgc briefly summarised t.idence of the prosecution and that of the apeUant in her defe;xo,, H then stated.:- "This is the evidere in this case Which I have to consider and sc.rutini.se carefully so as to d.ecide which evidence is eiievable and consequently what facts have been proved ..... .. The judge has erred here. He was not to decide whether he had to believe the version given by the appella,ntc. The prosecution had 1:0 prove ita case bj-ond reasonable doubt; the defence had only to create a - / -4..' '1 . rszabJe dnUbt:, in the evidence adduced by the prosecutina Mr. ivflewa for the Republic does not support the convictiori We are satisfied that in all the circumstances the cdnviction, 61il the 'vikace addced, cannot be sustained. We..aUovr-th appeal,. ia he conviction, set aside the pnoe of death imposed, a, crder that the appellant be re.lea-zed frthw1th unless otherwise lawfully detained. AT) at ARUSHk this 13th day of September, 1987. A. MUSTkFA A. M. A. OMAR JUSTICE_OF APPEAL L. M. MFALILA gSICiOFPPEAL. I sej'tj.t,y thatthis. is .a true copy of the original, (j.. H. MSOFFE) DEPUTY REC-ISTRAR.