CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MUGASHA, J.A.. LEVIRA, J.A. And MAKUNGU. J.A/l CRIMINAL APPEAL NO. 424 OF 2020 MANJO SARRUWATT.................................................................. APPELLANT VERSUS THE REPUBLIC...................................................................... RESPONDENT (Appeal from the decision of the Resident Magistrate's Court of Manyara at Manyara) (R. A. Nqoka, RM. Ext-Jur) dated the 20th day of March, 2020 in Criminal Appeal No. 14 of 2019 JUDGMENT OF THE COURT 1st & 5th July, 2024. LEVIRA. J.A.: This is a second appeal against the decision of the Resident Magistrate's Court of Manyara at Manyara in Criminal Appeal No. 14 of 2019 by the Resident Magistrate with Extended Jurisdiction of 20th March 2020. In the said appeal, the appellant unsuccessfully appealed against his conviction of rape and sentence thereof by the District Court of Karatu at Karatu (the trial court) in Criminal Case No. 119 of 2017. It is on record that, the appellant was arraigned before the trial court facing rape charge, the particulars of it being that: On 3rd June, 2017 at about 18:00 hours, 7th June, 2017 at about 18:00 hours and 9th June, i 2017 at about 18:00 hours at Bashay Njia Panda, the appellant, had canal knowledge of one NB (the name withheld to protect the victim's identity), a girl of 15 years old. Upon a full trial, the appellant was convicted and sentenced to thirty (30) years imprisonment. Aggrieved by both, the conviction and sentence, he unsuccessfully appealed to Resident Magistrate's Court of Manyara (Extended Jurisdiction) as indicated above and hence the present appeal. It is worthy considering the background of this case so as to appreciate what had transpired before the trial court. In order to prove the case against the appellant, the prosecution paraded five witnesses. The victim, whom we shall as well refer as PW1 was the first to be called. In her testimony, she stated that the appellant is her step-father married to her mother, one Regina Gwalehi (PW2) and they lived together in the same house. At home, they used firewood as a source of energy. Therefore, they normally collect firewood from Msitu wa Askofu nearby Ngorongoro for that purpose. She testified further that, she used to go with the appellant to collect firewood. However, on three occasions the appellant took that advantage and in the diverse dates, time and place mentioned in the charge to remove her (PWl's) clothes and inserted his penis in her vagina. According to her, she reported all the incidents to her mother but she did nothing except telling her to report to her grandfather, which she did. Later, the said grandfather reported the ordeal to PWI's teacher. PW2 confirmed PWl's testimony to the extent that, she (PW1) reported to her what befell her in the course of collecting firewood with the appellant but she had nothing to do; and that, she directed her to report to her grandfather. In her evidence, Martha Nade (PW3), a teacher from Njia Panda Primary School in Karatu where PW1 was schooling testified that, the grandfather of the victim informed her that PW1 was raped by the appellant several times. She interrogated PW1 who admitted to have been raped by the appellant on the above stated dates, place and time. Having received that information, PW3 reported to the Head Teacher, Karatu Police Station and then to Social Welfare Officer. At the Police, the victim was issued with PF3 and PW3 sent her to Karatu Health Centre for medical examination where she was attended by Elipendo Ombay, Assistant Medical Officer (PW5), who confirmed to have received PW1 and examined her. In the examination conducted a week after the last incident, PW5 discovered that PW1 was penetrated in her private part as she sustained bruises and had no hymen. He also found that PWI's vagina was reddish in colour and discharging mucous. PW5 filled in the PF3 and gave it to the victim to return it to the Police. The case was investigated by F 656 SSG Vendelinus who testified as PW4. In his testimony, PW4 only narrated the story as he was told by PW1 and made a conclusion that the appellant raped the victim. He did not explain anything concerning how he conducted the investigation and the findings he came up with. After closure of prosecution case, the appellant was given an opportunity to defend himself and he was the sole defence witness. He admitted to have known PW1 as his step daughter and they were living in the same house, but denied to have raped her. In essence, the appellant advanced a defence of alibi that on the material dates and time he was at work, guarding the farm at Kwa Askofu. The trial court weighed the evidence of both sides and upon satisfaction that the prosecution proved its case against the appellant beyond reasonable doubt, it convicted and sentenced him as shown above. His first appeal bore no fruits and hence this second appeal. The appellant has presented before us a memorandum of appeal comprising eight grounds of appeal. However, for reasons to come into light shortly, we shall not belabour to reproduce all of them in this decision. We shall reproduce one ground only at the appropriate time in the course of our deliberations. At the hearing of the appeal, the appellant appeared in person, unrepresented whereas, the respondent had the services of misses Neema Mbwana, Eunice Otto Makala and Mr. Stanslaus Hakwe, all learned State Attorneys. Upon being invited to address the Court in support of the appeal, the appellant adopted his grounds of appeal presented in the memorandum of appeal filed on 16th May 2023 to form part of his oral submission before us. He urged us to consider them, allow the appeal and set him free. At the outset, while replying, Ms. Makala supported the appeal, particularly, the third ground which reads: "That both courts below grossly erred in law and fact in failing to note that, the victim (PW1) evidence was taken in total contravention o f the law." She referred us to page 12 of the record of appeal where it is clearly indicated that the age of the victim (PW1) was 15 years old at the time of testifying before the trial court. That age was as well indicated in the charge sheet found on page 1 of the record of appeal. According to Ms. Makala, since the age of the victim was 15 years, she was supposed to be sworn before giving her evidence in terms of section 198 (1) of the Criminal Procedure Act, Cap 20 (the CPA) and the 5 Court's decision in George Amosi v. Republic, Criminal Appeal No. 401 of 2020 [2023] TZCA 17564 (29 August 2023, TANZLII). On the contrary, she argued, the learned Magistrate improperly indicated that PW1 'promised to tell the truth to the court'on page 12 of the record of appeal. She submitted that, for a child to promise to tell the truth as required by the law under section 127 (2) of the Evidence Act, Cap 6 (the Evidence Act), must be of the age not more than 14 years; this she said, is in terms of section 127 (4) of the Evidence Act. Therefore, she reiterated that, since PW1 was 15 years old at the time of giving her evidence before the trial court, it was not proper for the learned trial Magistrate to indicate that she promised to tell the truth instead of being sworn as per the requirement of the law. According to Ms. Makala, the evidence of PW1 is weightless as it lacks force of law and the effect of it, is for the same to be discarded. Accordingly, she implored us to discard the evidence of PW1 as it was the case in George Amosi (supra). Thereafter, she submitted, the remaining evidence of PW2 to PW5 is hearsay evidence without corroboration and it cannot support the prosecution case. As such, she said, the prosecution did not prove the case beyond reasonable doubt. She urged us to allow the appeal, quash conviction, set aside the appellant's sentence and set him free. 6 For obvious reason, we presuppose, that the appeal was supported by the respondent, the appellant had no rejoinder, except requesting to be set free. We have carefully considered submissions by the parties, grounds of appeal and the entire record of appeal. The main issue for our determination is whether the charge against the appellant was proved beyond reasonable doubt. In answering this issue, we agree with Ms. Makala that the third ground of appeal is capable of disposing of this appeal. This is so because the appellant was charged with rape against PW1, the victim. It is settled principle that the best evidence in sexual offences comes from the victim. This principle is applicable to every victim regardless of age and / or gender. In the third ground of appeal, the appellant complained that the evidence of the victim, PW1 was recorded in total contravention of the law. In responding to this ground of appeal, Ms. Makala supported the appellant's complaint as she argued and we agree, that the evidence of the victim, a 15 years old girl, was recorded without oath in contravention of section 198 (1) of the CPA, which reads: "198.- (1) Every witness in a criminal cause or matter shall, subject to the provisions o f any other written law to the contrary, be examined upon oath or affirmation in accordance with the provisions o f the Oaths and Statutory Declarations Act." [Emphasis added]. It is this a mandatory requirement of the law that every witness must be examined upon oath or affirmation save where it is provided otherwise. In the present case, it is apparent on page 12 of the record of appeal that, the learned trial Magistrate recorded the victim's evidence upon promise to tell the truth instead of making oath or affirmation. For ease of refence, we shall let the relevant part of the record to speak for itself hereunder: " Prosecution's case opens PW1 NB (the name withheld), 15 years, Christian promised to tell the truth to the court u/s 26 o f T. E A. Cap 6 RE 2002 as amended by Act No.2 o f 2016. PW1XD BY PP: I live in Njiapanda Doffa.... " [Emphasis added]. The excerpt above tells it all. As it can be observed, the learned trial Magistrate adopted her own style of indicating the promise of PW1, 8 which in essence, was unnecessary in the circumstances of this case. It is worth noting that the requirement of promise to tell the truth and not lies to the court, is relevant for children of tender age in terms of section 127 (2) and (4) of the Evidence Act. Since PW1 was above the age of 14 years, she was not a child of tender age to be entitled to the exception under section 198 (1) of the CPA which embraces the application of the provisions of any other written law which allows the evidence of a witness to be taken without oath; like the Law of Evidence when it comes to the evidence of a child of tender age, as alluded to above. Therefore, her evidence ought to have been taken on oath or affirmation. Failure to record the evidence of PW1 upon oath or affirmation rendered it evidentially weightless with consequential effect of being discarded, as we accordingly do, just as we did in George Amosi (supra) cited to us by Ms. Makala. See also: Nestory Simchimba v. Republic, Criminal Appeal No. 454 of 2017 [2020] TZCA 155 (1 April 2020, TANZLII); Jafari Ramadhani v. Republic, Criminal Appeal No. 311 of 2017 [2019] TZCA 388 (8 November 2019, TANZLII) and Amos Seleman v. Republic, Criminal Appeal No. 267 of 2015 [2016] TZCA 311 (27 April 2016, TANZLII). 9 Having discarded the evidence of PW1, the question that follows is whether the remaining evidence on record is sufficient to sustain the appellant's conviction. Apart from PW1, other witnesses included PW2 who was the mother of the victim. In her evidence, she only testified that she was told by PW1 that the appellant had sexual intercourse with her but took no initiative to confirm by checking her or inquiring further. Instead, she required PW1 to report to her grandfather. However, the said grandfather was not called to testify. Instead, PW3 who was a teacher of PW1 was called as a witness to testify that she was told by the said grandfather that the victim was raped by her step-father. According to PW3, she interrogated PW1 and was told that she was raped by her step-father. Thereafter, PW3 reported what she was told by PW1 to the Head Teacher, Karatu Police Station and Social Welfare Officer. PW1 was issued with PF3 and sent to Karatu Health Centre for examination. There is nothing on the record suggesting that PW3 saw the appellant while raping PW1. Just like PW3, the evidence of PW4 was as well hearsay that he was told by the victim that she was raped by her step-father, the appellant. As an investigator, he had nothing substantial from his investigation to establish that the appellant raped PW1 on the material dates and time. 10 The last prosecution witness was PW5, Assistant Medical Officer from Karatu Health Centre who examined PW1. In his evidence he said, although he examined her after lapse of one week, he saw the signs of penetration. His evidence was limited to the extent of proving penetration, but basically could not establish the perpetrator. We are mindful of our several decisions, including Leonard Joseph @ Nyanda v. Republic, Criminal Appeal No. 186 of 2017 [2020] TZCA 51 (12 March 2020, TANZLII); Siaba s/o Mswaki v. Republic, Criminal Appeal No. 401 of 2019 [2021] TZCA 562 (4 October 2021, TANZLII) and Amos s/o Zacharia v. Republic, Criminal Appeal No. 74 of 2021 [2023] TZCA 17709 (4 October 2023, TANZLII) where we sustained convictions of the appellants even without considering the evidence of the victims. However, we are unable to do the same in the present case because circumstances are different. In those cases we have cited, there was direct evidence which proved that, indeed, the appellants were seen raping the victims, unlike in the present case where none of the remaining prosecution witnesses saw the appellant while committing the alleged offence, as we have demonstrated above. In the circumstances, we remain with no option other than agreeing with Ms. Makala that, having discarded the evidence of PW1, ii the remaining evidence on record is insufficient to sustain the appellant's conviction. It follows therefore that, the case against the appellant was not proved beyond reasonable doubt. Consequently, we allow the appeal, quash conviction and set aside the appellant's sentence. We order immediate release of the appellant from prison unless held therein for a lawful cause. DATED at ARUSHA this 4th day of July, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Judgment delivered this 5th day of July, 2024 in the presence the Appellant in person and Ms. Helena Patson Sanga, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. 12