Festo Winston

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA t (MOROGORO SUB REGISTRY)

AT MOROGORO CRIMINAL APPEAL N0.14765 OF 2024 (arising from KILOSA district court in criminal case NO.l OF 2021)

FESTO WINSTON APPELLANT

VERSUS

THE REPUBLIC RESPONDENT Date of Last Order: 08/07/2024 Date of Judgement; 19/07/2024

JUDGEMENT MAGOIGA,J. The appellant, FESTO WINSTON was arraigned before Kilosa district court(the trial court) for one count of rape contrary to section 130(1)(2) (e) and 131 (1) of the Penai Code,[Cap 16 R.E.2019]. After full trial, the trial court found the appellant guilty as charged, convicted and consequently sentenced the appellant to custodial sentence of 30 years. Aggrieved with both conviction and sentence, the appeilant preferred the instant appeal armed with 6 grounds of appeal couched in the following language, namely: - 1. That the learned trial Magistrate erred in law and fact in convicting the appellant based on the evidence of PW2 (victim) whose testimony was received in contravention of section 127(2) of the Evidence Acf[Cap 6 R, E 2019].

2. That the learned trial Magistrate erred In law and fact In convicting ^ the appellant based on evidence ofPWl,PW2and PW3 when there was no prior report to any local leaders or police station In respect ofthe alleged ofPW2(victim) to prove the fact In issue; 3. That the learned trial Magistrate erred in law and fact in convicting the appellant when the preliminary hearing was Illegally and/or unprocedural conducted in non-compHance of section 192(2) and (3)of the Criminal Procedure Act,[Cap 20 R.E.2019]the omission which denied the appellant the right to fair hearing; 4. that the learned trial Magistrate erred In law and fact In convicting the appellant when the same wrongly did not sufficiently evaluate, analyze, assess, determine and consider the defence evidence produced by the appellant the omission which resulted to serious error amounting a miscarriage ofjustice and constituted s mistrial; 5. That the learned trial Magistrate erred In law and fact In convicting the appellant based on the evidence of PW2 (victim) whose testimony was barely Improbable, Incredible, untruthful and unreliable to warrant the appellants conviction as she doubtfully failed to name the appellant the omission which cast doubts In the prosecution; 6. That the learned trial Magistrate erred In law and fact In convicting t the appellant when the prosecution did not prove Its case against the

appellant beyond reasonable doubts as required by law. On the strength of the above grounds, the appellant prayed this court to find merits in his appeal, and as such quash conviction and set aside sentence meted out against him and allow this appeal by setting him free. The facts as gathered from the trial court were simple and straightforward that on the unknown date in December, 2020 at Matogolo village within Kilosa district in Morogoro region, the appellant did have sexual intercourse with one, PYS (pseudo name) a girl aged 12 years. Against the above backdrop, this is the judgement in this appeal for the appellant contesting his innocence. When the appeal was called on for hearing, the appellant appeared in person under custody and unrepresented, whereas the respondent. Republic, was represented by Mr. John Mkonyi, learned State Attorney. When the appellant was invited to expound the grounds of appeal, opted that the learned State Attorney to start and he will reply after hearing him. I granted the prayer. Mr. Mkonyi readily told the court that he supports this appeal because one of the grounds of appeal is challenging the evidence of PW2, whose evidence was taken in contravention of section 127(2) of Tanzania Evidence Act, [Cap 6 R.E.2019]. According to the learned Attorney, the ^ trial Magistrate did not conduct brief of examination of PW2 and record his findings and

that PW2 did not promise to tell the court to tell the truth and not lies. In support of the above stance, the learned Attorney cited the case of Juma Makongoro James Vs. Republic, criminal Appeal No.498 of 2020 CAT at DSM in Tanzalii in which it was held that the position is already settled that the omission to conduct a brief examination of the child of tender age who is a witness to test his competency and whether he/she understand the meaning and nature of oath before his/her evidence is taken on promise to tell the truth and not lies is fatal and renders the evidence valueless. Mr. Mkonyi pointed out that, much as this was not done, it rendered the evidence of PW2 valueless and that once the evidence of PW2 is expunged or rendered valueless, we cannot prove rape in this case. On that note, the learned Attorney, prayed this court to allow the appeal on this ground but was quick to ask and prayed that since the omission was occasioned by the trial court, then, this court be pleased to order a retrial because no filling of the gaps and that there is ample evidence on record this being statutory rape as the victim was 12 years. The appellant being a layman had nothing useful to reply but insisted that this court consider and find the weaknesses of the prosecution case through his grounds of appeal including the one the learned Attorney t conceded and set him free. This marked

the end of hearing of this appeal. The task of this court now is to determine the merits or otherwise of this appeal. Indeed, as correctly submitted by the learned State Attorney, the taking of evidence of PW2 (the victim) by triai court was completely in contravention of section 127(2) of the Tanzania Evidence Act, [Cap 6 R.E.2019]. For easy of reference, the said section 127 (2) as amended provides as follows: - ''Section 127(2)- A child of tender age may give evidence without taking an oath or making an affirmation but shall before giving evidence, promise to tell the truth to the court and not lies/' The above cited provision has on numerous occasions been interpreted by the Court of Appeal and the case of John Makonoro James Vs. Republic(supra) is among them and it cemented that failure to conduct brief examination to a chiid of tender age and estabiish whether he/she understand the nature of oath and then promise to tell the court truth and not lies is fatal and rendered the said evidence valueless and once expunged no suit can lie against the accused person. In the instant appeal, obviously such guidance by the Court of Appeal was ^ not complied with and the rest of the evidence are but hearsay which cannot by themselves mount conviction. For easy of reference, this what the trial Magistrate recorded: ^XOURT: Upon interrogating PW2 who is a child she was promised to tell

truth to court/' The above quoted part of the trial court record is suffering from the following: a. Nowhere the court recorded what was interrogated by the court to the child, b. The same is not in direct speech but in reported speech; c. The child did not promise the court not to tell lies. The cumulative effects of all the above noted deficiencies go to the roots of the testimony of PW2 and as rightly submitted by the learned Attorney the evidence of PWl is found valueless and is expunged from the court record. The unprocedural recording of a child's evidence renders it unreliable and brings its validity into question. A similar circumstance concerning the expungement of a child's unprocedurally recorded evidence can be observed on page 15 of the case Zuberi Mohamed @ M Kapa v. Republic, Criminal Appeal No. 563 of 2020, Court of Appeal at Dodoma in Tanzlii. t This ground suffices to dispose this appeal; however, the learned Attorney invited and urged this court to allow the appeal on this ground but order a retrial because the abnormally, was not occasioned by the prosecution but the trial Magistrate. This request will not take me much. In the absence of the evidence by PW2, the other witnesses had no valuable evidence to mount conviction because the evidence of PWl, PW3, PW4 and PW5 cannot positively establish that sexual intercourse was done by the appellant and not anyone

else in this case. Also, it shows that the appellant was caught up after trap was arranged, this leaves a lot to be desired. On the foregoing reasons, there is no remaining evidence in this appeal to warrant such course proposed by the learned Attorney. Also, if I take the above course, this will amount to fill in gaps because a trial Magistrate cannot be blamed alone but the prosecutor had a role to play when the procedure is put into play and has dual role to remind the Magistrate, if noted anything in court. That said and done, I allow this appeal and consequently quash and set aside the conviction and sentence meted out against the appellant on this appeal. The appellant is to be set free unless held for another lawful cause. -C - , . .y It is so ordered. I Dated at Mor0p"^b-lfii§/$9^ dav of y* 2024. S.M. MAGDIGA

JUDGE 19/07/2024