20141124 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 114 OF 2014 (Appealfrom conviction and sentence of the District Court of Morogoro at Morogoro (A. Ringo, RM) in Criminal Case No. 223 of 2011dated 9th May, 2013) BAITHON S/0 JULIUS FONDA ........................................ APPELLANT VERSUS REPUBLIC ......................................................•..........•... RESPONDENT Date of last order: 03//11/2014 ~ ~ Date ofjudgment: 24/11/2014 JUDGMEN~ F. Twaib, l: At the District Court of Morogoro District at Morogoro, the appellant was charged with robbery with violence, contrary to sections· 285 and 286; rape, contrary to section 130 (1) (2) (a) and 131; and unnatural offence, contrary to section 154 (1) (a), all of the Penal Code, Cap 16 (R.E. 2002). , It was alleged by the prosecution that at about 22:00 Hrs on 19 th April 2011, the accused, using actual violence, stole one mobile phone make Nokia, valued at Tshs. 88,000/= the property of one Mwajuma d/o Ba.kari; that at about the same time, the accused had unlawful carnal ·. knowledge of the said Mwajuma Bakari (aged 20 years) and also had unlawful carnal knowledge of her against the order of nature. Upon pleading not guilty .to all the charges, the prosecution called four Page 1 of 4 I witnesses, while the appellant had two, himself and one other. At the end of the trial, the appellant was found guilty and was convicted of all three counts. He was sentenced to serve terms of imprisonmerit rl.. ranging from two years to thirty years. t At this point, it is pertinent to take a look at a crucial point of the trial proceedings. Wher:i the matter was first called on for hearing on 27 th October 2011, the trial court's records show the following: Date: 27/10/2011 Coram - Ringo - RM P.ros - Insp CIC - Pondo Aced - Present PP: The matter for hearing I have one witness. PROSECUTION CASE OPENS: . I know the accused person at the dock ... The learned trial Magistrate then proceeded to record what appears to be a testimony of someone who sounds like the. alleged . victim of ..the ~ incident. He/she is then cross-examined and re-examined. Three more witnesses also gave evidence, but, as we shall see, their testimonies could only carry significant weight when considered together with that of the purported PWL In her judgment, the learned trial magistrate relied heavily on th~ evidence of that witness. As is clear from the record as reproduced above, the evidence of this witness was given without taking his/her name, age and other details. He/sh~ was also not sworn. Page 2 of4 f ,I Hqving relied so heavily on the evidence of this witness, who was , apparently the victim of the alleged crim~s and thus the complainant, . the court fell into an obvious error of law: it based the appellant's conviction on an unsworn statement of an unidentified witness. These ·: two omissions were critical. .:- The appellant's first ground of appeal is that: ' ... the learned trial magistrate erred in law and fact and misdirected himself when he overlooked the statutory provisions of the law by r~lying on the unsworn evidence of PWl as one of . l the basis for conviction . · It is. trite law that the unsworn testimony of an adult person can be · .acted upon only where it is corroborated by other evidence. This is . more so where it is evidence for the prosecution, which is required to . ,. prove its case beyond reasonable · doubt. In this case, such corroboration (ould .perhaps be sought from the other prosecution ; witnesses. However, considering the circumstances in which the alleged offences were committed, and since the purported PW was the -· complainant and the only person (other than the culprits) who was . present, her evidence· was critical. . Hence, the omission to record the name and other particulars of the • person who apparently testified as PWl was fatal to the prosecution , case, as the evidence of all the other witnesses could not stand by themselves and found a conviction, without that of the complainant. . The evidence of the purported PWl in this case cannot be relied upon at law. '.~: Consequently, I nullify all the proceedings of the trial court of 27 th j October 2011 and subsequent thereto, including the judgment Of 9th JMay 2013 and orders pursuant. The appellant's convjction and } sentencing are set aside . .\ ... Page 3 of 4 ,•. .,..' .{ .f ,· Pursuant to the foregoing, and considering the facts as a whole and th~ seriousness of the alleged offences, I order that the original case file be returned to the trial court for a trial de novo, if the Director of Publ\c Prosecutions so . desires, before another magistrate of competent jurisdiction. DATED and DELIVERED at DAR ES SALAAM this 27th October 2014. F. Twaib JUDGE Page 4 of 4