20170906 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA t);~ ., (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM. CRIMINAL APPEAL NO. 62 OF 2017 OMARY SAID ............................................................. APPELLANT VERSUS REPUBLIC ................................................................ RESPONDENT 17/8/2017 & 6/9/2017 JUDGMENT I.P.KITUSI, J. Omary Said, here in after the appellant appeals against the judgment of Kisarawe District Court convicting him with incest by male under section 158 (1) (a) of the Penal Code and the resultant sentence of 30 years imprisonment. It was alleged at the trial that the appellant had carnal knowledge of one Fatuma · Omary aged 13 years, his own daughter, at Mtamba village, Kisarawe District on unknown dates in March 2016. In proof of the charge the prosecution led the evidence of Zuhura Musa (Pw2) who is appellant's mother and victim's grandmother. The essence of the alleged incest is the divorce of the victim's parents. Salma Waziri (Pw.4) is the appellant's former wife and mother of Fatuma Omary (Pw3) the victim. Pw3 went to live with Pw2 when she reached puberty to observe traditions commonly known as (Kuwekwa ndani) during which girls are given training or orientation in adulthood. 1 After this period the appellant requested from P2 that Pw3 be allowed to go back to him because he was living alone, and she did. Thereafter when Pw3 went to Pw2, and when the appellant repeated the request for her to go back with him Pw3 refused. She could not tell her grandmother the reason for her refusal, but when Pw4 visited Pw2 in order to meet Pw3, the letter told her mother that the appellant had been ravishing her. During the trial Pw3 testified that her father had sexual intercourse with her in March 2015 around 22.00 hours when the two were the only people in the house. The fact that Pw3 had had sex was confirmed by Dr. Mwanahamisi Omary (Pwl) who examined her and made a finding that the girl was not a virgin. The appellant's defence was a denial of the allegation and he stated that the case was borne out of bad blood between him on the one hand and Pw2 and Pw4 on the other. The trial court found the prosecution's case cogent and disbelieved the defence on the ground that Pw4 leads a happier life in her new marriage such that she would have no reason to hold grudge with the appellant. The appellant raised six grounds in this appeal but since the decision turns on a different point I will not refer to them. During the hearing of this appeal, the appellant appeared in person without representation while the respondent Republic was represented by 2 Ms Joshi, learned State Attorney. The learned State Attorney submitted support of the appeal that the evidence of Pw3 was taken without a voi dire test. She submitted further that when the evidence of Pw3 is expunged, the prosecution case will have no legs to stand on. I entirely agree with the learned State Attorney, as in sexual offences the best witness is the victim. [See Anselimo Kipeta Vs The Republic, Criminal Appeal No. 365 of 2015 Court of Appeal at Mbeya (Unreported) ] There is no dispute that Pw3 is below the age of 14 years whose evidence was to be recorded in terms of S. 127(7) of the Evidence Act. Since this Provision was violated, the evidence of Pw3 was received irregularly and must be expunged. Without the evidence of Pw3 all that remains on the prosecution's case is hearsay, which cannot be acted upon. The Prosecution's case was therefore not proved to the required standard. The appeal is therefore allowed the conviction quashed and the sentence set aside. The appellant should be released forth with if not otherwise lawfully held. JUDGE 6/9/2017 3