dominic vicent vs the republic 2023 tzhc 21617 6 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF BUKOBA)

AT BUKOBA CRIMINAL APPEAL NO,52 OF 2023 (Arising from Original Criminal Case No. 67/2021 before the District Court of Bukoba at Bukoba Dated 31/08/2023} DOMINIC VICENT............... .............................. . APPELLANT

VERSUS THE REPUBLIC........................................... ................RESPONDENT

JUDGMENT 5^ October & October, 2023 A.Y. MWENDA, J. The Appellant is appealing before this Court to challenge the conviction meted by the trial Court. Before the trial Court the prosecution preferred a charge for Rape contrary to Section 130(l)(2)(e) and 131(3) of the Penal Code [CAP 16 R.E 2019]. Before the trial Court, the prosecution alleged that on 4th day of May 2021, at Nshambya area within Bukoba Municipality in Kagera Region had carnal knowledge with one LEAH D/O JOHANNES, a girl aged three (3) years old. When the charge was read, the Appellant entered a plea of not guilty. The trial commenced and at the end, the Hon. trial Magistrate convicted him and pronounced a sentence of thirty (30) years jail imprisonment. Aggrieved by the conviction and sentence, the Appellant appealed before this court. He filed a petition of appeal with fourteen (14) grounds. For reasons to be discussed hereunder, I found no reasons to reproduce them. i At the hearing of this Appeal, the Appellant appeared in person while the respondent was represented by Mr, Noah Mwakisisile, assisted by Ms. Assey and Ms. Mutungi, learned State Attorneys. On his part, the Appellant had nothing to submit, he rather prayed the court to adopt the grounds of appeal as part to his oral submission. For the Respondent, the Republic, Mr. Mwakisisile did not oppose this appeal. His stance based on illegality of the

proceedings before the trial Court. According to him the victim's evidence was collected contrary to the dictates of Section 127(2) of the Evidence Act [Cap 6 R.E 2019], The learned State Attorney said that, before tendering her evidence the victim was required to promise to tell the truth and not lies before tendering her evidence.: He further added that from the record, the trial Court reminded the victim to tell the truth and not lies but her response is nowhere to be seen. On that basis he observed that the victim's evidence has no evidential value. To support this point, the learned Counsel cited the case of MOHAMED RAMADHAN ©KOLAHILI VS. REPUBLIC, CRIMINAL APPEAL NO. 396 OF 2021, CAT(Un re ported). He concluded his submission beseeching the court to allow this appeal and order the release of the appellant from prison. At this point, having marked the end submission by the learned State Attorney, the issue for consideration is whether the Victim's evidence (PW4's) was properly collected and relied on by the trial court in convicting the appellant. In the legal perspective, a child of tender year cannot give evidence without oath or affirmation unless she or he promises to tell the truth. This position is covered z under Section 127(2) of the Evidence Act, [CAP 6 R.E 2019] which read as follows, that: "A child of tender age may give evidence without taking oath or making an

affirmation. But shall, before giving evidence, promise to tell the truth to the Court and not to tell lies." From the record, the victim (PW4) was, at the time she was called on to testify, a child of 4 years old. The record also reveals that before she testified in Court, she did not give oath or affirmation, let alone failure to promise to tell the truth and not lies. As it was correctly observed by the learned State Attorney, the records only show that the trial court reminded her to speak the truth. However, her reply is not on record. That by itself cannot be considered as actual promise as it is not clearly recorded in the proceedings. This position was emphasized in the case of MOHAMED RAMADHAN @KOU\HILI VS. REPUBLIC, CAT (supra) where the Court, having cited the case of YUSUPH MOLO VS. REPUBLIC, CRIMINAL APPEAL NO. 343 OF 2017 (Unreported) held inter alia that: "What is paramount in the new amendment is for the child before giving evidence to promise to tell the truth to the Court and not lies. That is what is required. It is mandatory that such promise must be reflected in the record of the trial. If such promise is not reflected in the record, it is a big blow in the prosecution case." 3 Based on the above authority, since the PW 4 did not promise to tell the truth and not lies before giving testimony her evidence, then her testimony has no evidential value at all. On that account, since PW 4 was the key witness, then the remaining evidence is insufficient to support the charge of rape against the appellant. That said, this appeal therefore succeeds. I accordingly quash the conviction and set aside the sentence meted against the appellant. I also order his immediate release from prison unless he is held on other lawful cause. It is so ordered. /H A.Y. M^N'

NDA

JUDGE 06.10.2023 Judgment delivered in chamber under the seal of this court in the presence of the Appellant Mr. Dominic Vicent and in the presence of Ms. Matilda Assey Learned State Attorney for the republic (respondent).

JUDGE 06.10.2023 4