mashaka mustapha vs the republic 2023 tzhc 20891 11 september 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF TABORA

AT TABORA CRIMINAL APPEAL NO. 39 OF 2023 (Arising from the District Court of Kaiiua in Criminal Case No. 58 of2022) MASHAKA MUSTAPHA.................................................... APPELLANT

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

JUDGMENT Date of Last Order: 11/09/2023 Date ofJudgment: 11/09/2023 MATUMA, J. The appellant was tried and convicted for Rape Contrary to Section 130(l)(2)(e) and 131 (1) of the Penal Code Cap. 16 R.E.

2019. He was alleged to have raped a victim girl aged 11 years old. He was as well charged and convicted of wounding the same victim. For the Rape he was sentenced to suffer 30 years jail term while for the wounding he was sentenced to pay a fine of Tshs. 100,000/= or else in default the appellant to suffer custodial term of six months. Aggrieved with the conviction and sentence, the appellant has preferred this appeal with seven grounds but for the reasons to be stated down here, I see no need to reproduce the grounds.^' At the hearing of this appeal the appellant was present in person while the respondent/republic was represented by Aneth Makunja & Nurdini Mmary learned State Attorneys. Both parties at the outset were in agreement that the original records contains a procedural irregularity when the victim's evidence who is a child of tender age was recorded in contravention of the law section 127 (2) of the Evidence Act. They thus pressed for a trial denovo. Mr. Nurdin Mmary learned State attorney added that the retrial won't be a chance for them to fill in the gaps because the evidence on record suffices only that it was recorded contrary to the law. He cited the case of FatehaH Manji vs The Republic (1966) EA 343. As I have said, the appellant did not object the Republic's submissions. I have gone through the trial court's records and I am satisfied that the

trial magistrate recorded the evidence of the victim child after conducting voire dire test which is no longer in place. The evidence was recorded without oath or affirmation nor the victim child was required to promise telling the truth and undertake not to tell lies. In the circumstances such evidence cannot be relied upon nor the respondent can be punished for the court's fault. I therefore agree with the parties and allow this appeal to the extent that the appellant's conviction and sentence was illegally entered on the evidence unprocedurally recorded. I therefore quash the appellant's conviction in both counts and set aside the sentence of 30 years for the offence of Rape and six months imprisonment term for the count of wounding. InJjetTthereof I direct that the appellant be retried afresh by another magistrate with competent jurisdiction. Court: Judgment delivered in the presence of the appellant in person and in the presence of Aneth Makunja and Nurdini Mmary State Attorneys for the respondents. 3