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© THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA (CORAM: HON. AUGUSTINE RWIZILE) DC. CRIMINAL APPEAL NO. 47 OF 2023 EMANUEL CHARLES COMPLAINANT/ APPELLANT / APPLICANT I PLAINTIFF VERSUS REPUBLIC RESPONDENT/ DEFENDANT JUDGMENT Fly Notes Facts Ratio Decidendi 2nd of August 2024 Hon. RWIZILE.: The appellant was charged before the district court of Kasulu on two counts. On the 1st count, he was charged of rape contrary to section 130(1)(2)(e) and 131(1) Penal Code (Cap 16 RE. 2022]. It was the allegation of the prosecution that on 25th December 2022 at Shunguliba village within Kasulu District, the appellant had carnal knowledge of a girl of 14 years. The 2nd count is causing grievous harm contrary to section 225 of the Penal Code, where it was alleged that on the same date, time and place, the appellant beat the victim Pwl ondifferent parties of her body using a stick causing grievous harm. After a full trial, the appellant was found guilty as charged, convicted and sentenced to serve 30 years imprisonment on the lst count, ordered to pay TZS 300,000.00 as a compensation to the victim and was acquitted on the 2nd count. The appellant, however, was not satisfied, hence this appeal on the following grounds: - 1. That, the learned trial magistrate erred in both law and fact in convicting and sentencing the appellant while the prosecution failed to prove the offence of rape beyond the reasonable doubt. 2. That, the trial court erred in both law and fact in convicting and sentencing the appellant while the requirements for a child of tender age to testify were not complied. Page. 1 Hon. AUGUSTINE RWIZILE 3. That, the trial court erred in both law andfact in recording the evidence of the witnesses without informing them of their rights that they are entitled to have their evidence read over to them. 4. That, the trial court erred in both law andfact in holding that the prosecution side proved the case beyond reasonable doubts while the failure by the prosecution to call a material witness one Manyenge Lubongeja who is alleged to have been present in the crime scene weakened the prosecution case. At the hearing, the appellant was unrepresented while the respondent was under the services of Ms Rehema Mpozemenya learned state attorney. The appellant had nothing to argue, he asked this court to consider grounds of appeal and find favour in the appellant's case. On the other hand, for the respondent, Ms Mpozemenya submitted on the 1st ground that the offence was proved beyond reasonable doubt. She argued, elements of an offence of statutory rape which includes age was proved. It was the evidence of the victim, she said, she was aged I 4 years. The other element of the offence is penetration, according to her, was proved by the victim and Pw3 who tendered the PF3 - exhibit Pl. Going by the 2nd ground, it was submitted, the mode of taking evidence of the child of tender age was complied with as under section 127 of The Evidence Act. She added, the victim gave evidence under oath, as held in the case oflssa Salum Nambaluka vs The Republic, Criminal Appeal No. 272 of 2018. The learned counsel argued the 4th ground that the evidence was brought by Pwl and Pw2. According to her, there was no need to call other witnesses, it was so proved by them. It is the law that the best evidence of rape comes from the victim, she added. It was her argument further that, the evidence of Pw I narrated how the offence was committed. According to her, the evidence of the victim alone can prove the charge as held in the case of Selemani Makumba v R. Further, she said, Pw2 and Pw3 corroborated the case of Pwl. She further argued that the evidence from the two witnesses, the case was proved. She asked this court to dismiss this appeal. Having heard submissions for the parties and gone through the records of the trial court, it is clear to me that grounds of appeal may be grouped in two. The 1st and 4th grounds that are on whether the prosecution proved its case beyond reasonable. The 2nd and 3rd grounds are an attack on how the evidence was recorded. To start with, I have to determine first, the 2nd and 3rd grounds of appeal. The appellant has complained that the trial cowt did not record the evidence of the victim in accordance with the law. It is plain that the victim of this case is the girl of 14 years. Her evidence is recorded in the manner section 127(2) oftbe Evidence Act, provides. The most crucial import of this section is that the child of tender age, in terms subsection 4 of the section, must before giving evidence under oath or otherwise, promise to tell the truth and not lies. As submitted, the manner in which this may be done was sufficiently stated in the case oflssa Salum Nambaluka vs The Republic, ((supra) on page 11, where the Court held that; "... we stated that, where a witness is a child of tender age, a trial court should at the foremost, ask few pertinent questions so as to determine whether or not the child witness understands the nature of oath. If he replies in the affirmative, then he or she can proceed to give evidence on oath or affirmation depending on the religion professed by such child witness... " Page. 2 Hon. AUGUSTINE RWIZILE On the record, the trial court before recording the evidence of the victim, examined her and was satisfied that she understood the meaning of oath and affirmation and proceeded to affirm and give evidence. What the trial court did in affirming the legal position on the manner in which such evidence may be taken, complied with the directive in the case of Geoffrey Wilson v. Republic, Criminal Appeal No. 168 of 2018, where it was held by the Court; " We think, the trial magistrate or judge can ask the witness of a tender age such simplified questions/ which may not be exhaustive depending on the circumstances of the case as follows: 1. The age of the child. 2. The religion which the child professes and whether he/she understands the nature of oath. 3. Whether or not the child promises to tell the truth and not to tell lies. The trial court, I have no doubt followed the procedure and recorded her evidence m terms that suited the circumstances of the case. On the second part of his complaint, that the same did not record evidence in compliance with section 210(3) of the Criminal Procedure Act. To be precise, the section provides that, the magistrate shall inform each witness that he is entitled to have his evidence read over to him and if a witness asks that his evidence be read over to him, the magistrate shall record any comments which the witness may make concerning his evidence. My perusal on the record shows, at end of the evidence of each witness, the trial court recorded, compliance of the section. I think, it is clear that the trial court properly recorded the evidence. Therefore, the two grounds have no merits. I dismiss them. Next, is the 1st and 4th grounds of appeal, it was the evidence of the prosecution that, Pwl the victim, was beaten and raped. It was on 25th December 2022, when she went to collect firewood in the bush. It was done by the appellant who she materially knows as herdsman of the same village. Pw2 was informed by Manyenge who saw the appellant do the same and then ran away. It is unfortunate that Manyenge was not called to testify. It is with no doubt that the trial court believed her evidence even if it was not corroborated. In the case of John Mgema @ Sabago v. Republic, (CAT), Criminal appeal No. 601 of 2017 on page 9, it was held that the - "We are further abreast with the settled principle that the best evidence in sexual offences is the one which comes from the victim". But section 127(7) of the Evidence Act, provides that, where in criminal proceedings involving sexual offence the only independent evidence is that of a child of tender age or of a victim of the sexual offence, the court shall receive the evidence, and may, after assessing the credibility of the evidence of the child of tender years of as the case may be the victim of sexual offence on its own merits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceedings, the court is satisfied that the child of tender age or the victim of the sexual offence is telling nothing but the truth. Page. 3 Hon. AUGUSTINE RWIZILE The trial court that heard the evidence of Pw 1, believed she was telling nothing but the truth. She did not require corroboration of her evidence even though, it was said, there was another person who witnessed the event and was not called to testify. I find no reason to fault the trial court. In the end I found no reason to doubt the evidence of Pw 1, the victim. She mentioned the appellant to have raped her. The incident happened during daytime. In fact, she used to see the victim as they are living in the same village. At the end, I find the grounds of appeal with no merit. The appeal is dismissed in its entirety. Dated at KIGOMA ZONE this 2nd of August 2024. AUGUSTINE RWIZILE JUDGE OF THE HIGH COURT Page.4 Hon. AUGUSTINE RWIZILE