DC

©

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA DC. CRIMINAL APPEAL NO. 000008991 OF 2024 FILJPO FANUEL , COMPLAINANT I APPELLANT/ APPLICANT

VERSUS REPUBLIC RESPONDENT/ DEFENDANT

JUDGMENT A. K. RWIZILE, J This appeal arises from the decision of the district Court of Kasulu in criminal appeal No. 232 of 2021. The appellant was arraigned of rape in terms of the charge sheet contrary to sections 130(1 )(2) ( e) and 131 ( 1) of the penal code. It is in the same charge where it was alleged that Filipo Fanuel charged on 8th day of August 2021, day hours at Nyakorongo village within Buhigwe District of Kigoma Region did have canal knowledge of a girl aged 1 0years old (name concealed). Before the trial court, the appellant who was 18 years, denied the charges. This denial prompted the prosecution to call 5 witnesses. After a hearing, the appellant was found guilty, convicted and sentenced mercilessly to 30 year~ imprisonment. However, he was not satisfied with both conviction and sentence, hence this appeal. It is with four grounds to wit; I. That, the trial resident magistrate erred in law and facts in convicting the appellant without considering there was no cogent evidence adduced by the prosecution side which has not proved the charge beyond any reasonable doubt.

2. That, the resident magistrate erred in law and facts in convicting the appellant basing on the defective charge sheet which did not disclose ingredients of the charged offence as by law enjoined.

3. That, the trial magistrate erred in law and fact by admitting exhibit PI which was illegally procured 4. That, the Hon. trial Magistrate erred in law and facts by convicting and sentencing the appellant while the judgment was erroneously reasoned as it did not consider the law. When the same was called for liearing, the appellant who is not represented, asked the prosecutor, Ms Rehema Mpozemenya to submit first on the grounds of appeal because he had nothing to argue. The learned stated attorney upon meditation supported the appeal. She argued that there was no identification properly done by the victim-Pw2 on the appellant and other prosecution witnesses including Pw3. There was no evidence showing, if she knew the appellant before or was a strange person to her. According to her, Pw3 who was also at the crime scene did not show how the same was identified. It was pointed out that, the appellant raped her but did not say how that was done. The learned state attorney, held the view that Pwl and Pw2, had their evidence in conflict on the manner in Page. 1 Hon. AUGUSTINE RWIZILE which the appellant was arrested. Pw2 said the appellant was arrested at the market running while Pw I said, he was arrested in the bush, she added. She further said, the there was no evidence to prove, it is the appellant who was arrested and brought to court. The evidence of Pw 1 and Pw2, in her view

was also in conflict on the manner, the information ofrape was made on the grand parents of the victim. it was stated that she received a call from his husband and informed of rape of her grandchild. Pw3 said, was forced to have sex with Joshua while the appellant did so to Pw2. After rape, he said, he told them, Pw2 is dead, and they went away to report. Pw2 said, she was told to wear her clothes and went to call Joshua and fellow in order to go home. On the way, she said, they met the grandfather and told him about the incident. Based on that evidence, the learned attorney believed this appeal is not supportable. Ultimately, she asked this court to allow this appeal. This was supported by the appellant. I have meditated as well, the submission of the state attorney and agree with her that this appeal is supportable. will show how shortly, First, from the record of appeal, it is shown that the appellant was charged of one count of rape. It is pegged under sections 130(1)(2) (e) and 131(1) of the penal code. While section 130 creates the offence, section 131(1) provides the penalty. I have to start with this first issue of penalty. There is no dispute that appellant when testifying on his defence among other things, briefly said, was 16 years. The trial court did not question him about it This may have been an oversight on part of the trial court. This in my shows, there was an

issue, the trial court had to determine on question of age of the victim and that of the accused. Both are key to the determination of the penalty to be imposed one side and the manner and procedure to followed when trying a case. But at the preliminary hearing, the appellant did not dispute his age and therefore, the trial court was perhaps comfortable that a matter admitted at the preliminary hearing is proved. But I think, if that was the case, the trial magistrate was wrong. In my view, rape is a serious offence. It is not because it carries a heavy sentence, but also it is an attacker on a dignity of a woman. Worse still, it was committed to a child of tender age. According to the charge sheet, she is 1 0years. It was therefore the duty of the trial court to not only take a role of an umpire but also a role of a guardian of justice for both sides given the fact that the appellant, was not represented and there was no social welfare officer to guide the victim as well. In the circumstances, therefore, the trial court had a duty to take note of the whole of section 131 even though the prosecution had not bothered to implead subsection 2 of section 131 of the Penal code. In terms of the subsection, notwithstanding the provisions of any law, where the offence is committed by a boy who is of the age of eighteen years or less, he shall- if a first offender, be sentenced to

corporal punishment only; if a second time offender, be sentence to imprisonment for a term of twelve months with corporal punishment; if a third time and recidivist offender, he shall be sentenced to five years with corporal punishment. Given the fact that the appellant was undoubtedly 18 years, it was illegal to sentence him to 30-year imprisonment as the trial court did. Second, Pw2 and Pw3 were IO and 9 years respectively at the time the offence was committed and when their evidence was recorded. Under the law, the two are key witnesses and are of tender age in terms of section 127(4) of the Evidence Act. Therefore, the manner in which their evidence is recorded is governed by section 127(2) of the Act, which explicitly provide that a child of tender age may give evidence without taking an oath or making an Page.2 Hon. AUGUSTINE RWIZILE affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell any lies. In order to obtain such a promise, courts are guided by the leading decision of the Court of appeal in the case of Godfrey Wilson v R, Criminal Appeal No.168 of2018 which held; section 127(2) as amended imperatively requires a child of a tender age to give a promise of telling the truth and not telling lies before he/ she testifies in court. This is a condition precedent before reception of the evidence of a child of a tender age. The question, however, would be on how to reach at that stage. 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 pro.fesses 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. It is from the directive of the court that the trial court ought to record the promise to tell the truth. The promise comes from the witness and not the view of trial court. It is as clear as crystal that a promise to tell the truth is a solemn declaration by a witness ~o tell the truth to the court. The record presents it that the trial court recorded that a witness has made a promise to tell the truth. In actual fact, there is no word or promise given by the two witnesses, it was just a report from the trial magistrate which is reflected in the following words on pages 10 and 12 of the proceedings; "... Court: Witness knows the nature of telling the truth but not an oath, she is not sworn but has promise to tell the truth and undertaken no to tell lies, section 12 7 (2) of TEA Cap 6 R.E 2019" complied with ... " In the case of Jafeth Manyasi@ Manyonyi vs The Republic, (CAT), Criminal Appeal No. 302 of2020 on page 10, the Court of Appeal held; "The position of this Court, however, is that the judicial officer recording the evidence of a child of tender age, has to record the actual child's promise to tell the truth and not lies, and not to report what he heard the child promising to tell". It is from this finding this court finds the evidence of the two key witness was not properly recorded and

therefore is hereby expunged from the record. Now having expunged the same, it is opportune to venture into whether the remaining evidence proves the case. As rightly submitted by the learned state attorney, apart from the evidence of the two witnesses, still, there are material contradictions on the evidence of the remaining witnesses. This hinged on the manner, the appellant was identified and arrested. In all, there is no sufficient evidence to prove that the appellant committed the said offence. It is for that reason; I hold this court agrees with Rehema Mpozemenya, that this appeal has merit. It is therefore allowed. The decision of the trial court is quashed, and orders set aside. The appellant be released forthwith unless held for other lawful cause. Page. 3 Hon. AUGUSTINE RWIZILE Dated at KIGOMA ZONE this 25th of September 2024. A. K. RWIZILE, J

JUDGE OF THE HIGH COURT Page. 4 Hon. AUGUSTINE RWIZILE