CRIMINAL APPEAL NO

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 249 OF 2023 (Arising from the Resident Magistrate Court of Kinondoni, in the Criminal Case No. 146 of 2022) PAULO AMOSI ……………….......................................................... APPELLANT VERSUS REPUBLIC ................................................................................ RESPONDENT JUDGMENT 25th June & 03rd September, 2024 BWEGOGE, J.: The appellant above named was arraigned in the Resident Magistrate Court of Kinondoni on the charge of unnatural offence contrary to section 154(1)(2) of the Penal Code [Cap. 16 [R.E.2002]. It was alleged that on diverse dates between January and 5th June, 2022, the appellant herein did have carnal knowledge of the victim against the order of nature. Eventually, the appellant was convicted and sentenced to languish in jail for life. The appellant herein, in a bid to defeat the conviction and sentence entered by the trial court against him, has preferred this appeal. 1 Before delving into the merit of this appeal, I find it pertinent to revisit the factual background of this case as follows: The victim herein (PW1), is a child/boy of tender age. He resides at Goba Matosa area, Ubungo District herein Dar es Salaam. In the respective year of 2022, he was 8 years old and in Standard II at Matosa Primary School. The appellant herein was a shopkeeper selling gas cylinders in the same area where the victim resided. The victim was familiar with the appellant. He claimed to know him by face. It is the prosecution case that on different occasions between January and 5th June, 2022, the appellant herein used to find the victim playing with his siblings/friends in the neighbourhood, threatened him with a knife, and led him into unfished building where he stripped him naked and committed sexual intercourse with him against the order of nature. The victim had kept silent about the crime committed against him by the appellant until his mother, one Hellen Samwel Nyota (PW2) found the victim’s clothes with faeces. She found it unusual for her child, 8 years old, to defecate in his clothes. She engaged her neighbours namely, Fatuma Kassim and Jamila Ibrahim (PW3); and the trio inquired explanation from the victim. It was then that the victim disclosed the fact that the appellant used to forcibly insert his penis into his anus and threatened him not to disclose 2 the heinous act committed against him to anyone. Thereafter, PW2 being accompanied by PW3 escorted the victim around the neighbourhood to identify the appellant. The victim pointed to a shopkeeper who was conversing with other young men. Then, PW2 informed the ten-house cell leader who called the policeman namely, Juma Aman Nyakuga (PW5) who eventually arrested the appellant. Consequently, the victim was supplied with Police Form No. 3 and attended at Mwanayamala Hospital where he was examined by the medical practitioner namely, Gaudencia Edward Machimu (PW4). The same found the victim’s anal sphincter loose, indicating that his anus was penetrated. PW4 filled the medical examination report (PF3) which was tendered and admitted in evidence as exhibit P3 by the trial court. In substance, the appellant vehemently denied the commission of the offence. Based on the direct evidence adduced by the victim (PW1), his mother (PW2), the neighbour (PW3) and the medical practitioner (PW4), the trial court found that the charge of rape was proved beyond reasonable doubt, and convicted the appellant forthwith and sentenced him to life imprisonment. The appellant felt his freedom was unreasonably assailed. Hence, this appeal. 3 The appellant preferred six grounds of appeal which boils down to the single ground of appeal as hereunder mentioned: - 1. The prosecution case was not proved beyond reasonable doubt. The appellant appeared before this court in person and fended for himself. The respondent Republic was represented by Mr. Erick Kamala, the learned State Attorney. The appellant was allowed his prayer to argue the appeal by written submission. Likewise, the respondent’s counsel responded by filing a written submission in reply thereto. In substantiating the appeal herein, the appellant submitted that he was convicted based on the evidence of the victim (PW1), a minor whose evidence was taken contrary to the provision of section 127(2) of the Evidence Act [Cap. 6 R.E. 2022]. The appellant alleged that the trial court failed to put proper questions to the victim to test his competence and, or instruct him to promise to tell the truth, not lies. That the victim was required by law to testify under the promise to tell the truth, not lies. Hence, the evidence adduced by the victim (PW1) violated the provision of section 127(2) of the Law of Evidence. Thus, the impugned evidence should be expunged from the record. The appellant cited the case of John Mkorongo James vs. Republic (Criminal Appeal 498 of 2020) (2022) TZCA 111 to bolster the point. 4 Further, the appellant charged that the trial court relied on the testimony of PW1 whose evidence lacked credence to warrant his conviction. The appellant discredited PW1’s evidence based on the following reasons: One, the victim did not state when the incident occurred which renders the charge defective. Two, PW1’s evidence lacked corroboration even from the children whom he claimed witnessed the appellant escorting him to the crime scene on numerous occasions. Three, PW1 didn’t state reasons why he elected to keep silent about the incident for six months; including failure to disclose the incident to his parents. Four, the victim did not give any description before he identified the appellant. Based on the above grounds, the appellant concluded that PW1’s evidence was insufficient to sustain the appellant’s conviction. The case of Bushiri Amiri vs. Republic [1995] TLR 65 was cited to validate the contentions made by the appellant. Lastly, the appellant concluded that the prosecution failed to prove the case beyond reasonable doubt pursuant to the provision of section 3(2)(a) and 110(1)(2) of the Evidence Act for the following reasons: First, no identification parade was conducted to test the victim’s credibility; secondly, the scene of crime was never visited to prove the existence of the alleged building pointed as the crime scene; and thirdly, no 5 investigator was called to testify in court which implies that the case against him was properly investigated. Based on the above grounds, the appellant prayed this appeal be allowed. In reply, Mr. Kamala submitted that the provision of section 127 (2) of the Evidence Act [Cap. 6 R.E. 2022] was complied with by the trial court before the victim was allowed to give his testimony in court. That the record of the trial court indicates that PW1 established that he was endowed with sufficient intelligence to justify the reception of his evidence. Likewise, the victim demonstrated that he understood the duty of speaking the truth. The attorney opined that, based on the record, the victim in this case promised to tell the truth. That the procedure conducted by the trial magistrate and the questions put to the victim fit squarely into the instruction given by the Apex Court in the case of Godfrey Wilson vs. Republic (Criminal Appeal 168 of 2018) [2019] TZCA 109. Likewise, the counsel referred the mind of this court to the case of John Mkorongo James vs. Republic (Criminal Appeal 498 of 2020) to buttress his argument. Suffice it to say that the attorney maintained his stance that PW1 testified in accordance with the provision of section 127(2) of the Evidence Act. 6 Otherwise, the attorney opined that if this court finds that the provision of section 127(2) of the Evidence Act was not complied with, then the irregularity is cured by the provision of section 127(6) of the Evidence Act. In tandem with the above, the counsel contended that the arguments advanced by the appellant in discrediting the evidence adduced by the key witnesses have not eroded their credibility. That the victim having been threatened with the knife by the appellant, was afraid to disclose the heinous crime committed against him to his mother and other close persons. That failure to call other witnesses to testify against the appellant is not fatal to the prosecution case. Further, the attorney argued that the victim knew the appellant by his face, described the means of his transport (bicycle), and his work (shopkeeper/ selling gas cylinder); and managed to identify the appellant to PW2 and PW3. Therefore, there was no need for identification parade to ascertain his identification. Hence, the attorney opined that PW1 is the credible witness whose evidence suffices to ground conviction based on the best evidence rule. The attorney urged this court to rely on the provision of section 127(6) of the Evidence Act in upholding the conviction and sentence of the trial court. Conclusively, the attorney, asserted that the medical report (exhibit P1) supports the prosecution case in that the victim herein was sexually 7 abused. And PW5 had ascertained that the appellant was orally interrogated and admitted the commission of the offence. Hence, the prosecution case was proved beyond reasonable doubt. In rejoinder, the applicant reiterated his submission in chief and stressed that it is the law that the admission of evidence of a child of tender age under section 127(2) of the Evidence Act is not overridden by section 127(6) of the Evidence Act. The case of Mohamed Ramadhan @ Kalahili vs. Republic (Criminal Appeal 396 of 2021) [2023] TZCA 81 was cited to bring his point home. Having anxiously considered the written submissions of both parties to this case, I am bent on determining whether the prosecution proved its case to warrant the conviction entered by the trial court. Foremost, the appellant urged this court to expunge the evidence of PW1, a child of tender age, on the ground that his evidence was taken contrary to the provision of section 127(2) of the Evidence Act. I am alive with the amendment of the provision of section 127 of the Evidence Act brought by the Legal Sector Laws (Miscellaneous Amendments) Act, 2023 in which section 127 (7) of the Evidence Act. However, the relevant amendment effected on 01/12/2023 doesn’t apply to this case which was concluded prior to the amendment. 8 I find it pertinent to reproduce the relevant provision, prior to the amendment, as under: “Section 27; (2) 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.” In illuminating the above provision, the Apex Court in the case of Godfrey Wilson vs. Republic (Criminal Appeal 168 of 2018) [2019] TZCA 109 opined thus: “To our understanding, the above provision as amended, provides for two conditions. One, it allows the child of tender age to give evidence without oath or affirmation. Two, before giving evidence, such child is mandatorily required to promise to tell the truth to the court and not tell lies.” [Emphasis mine]. Further, the court expounded: “The trial magistrate ought to have required PW1 to promise whether or not she would tell the truth and not lies. We say so because, 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 9 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 professes 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. Thereafter, upon making the promise, such promise must be recorded before the evidence is taken.” In the same vein, in the case of John Mkorongo James vs. Republic, (supra) the superior Court observed: “The import of section 127(2) of the Evidence Act requires process, albeit a simple one, to test the competence of the child witness of tender age and know whether he/she understands the meaning and nature of an oath, to be conducted first, before it is concluded that his/ her evidence can be taken on the promise to the court tell the truth and not to tell lies" Being guided by the aforementioned authorities, I have keenly scrutinized the record of the trial court. It is glaring on record that the trial magistrate having asked the victim her name, age, religion and school he attended, proceeded to record as follows: “Court: Do you know the meaning of an oath? PW1: I don’t know the meaning of oath.” Then the trial magistrate concluded: “Court: PW1 is informed to speak the truth.” 10 It is apparent on the record revisited above that it was the trial magistrate Who informed the witness of tender age to speak the truth. The trial magistrate failed to put appropriate questions to the witness, a child of tender age, leading the same to make promise to tell the truth, not lies; pursuant to the dictates of the provisions of section 127(2) of the Evidence Act. As it was appositely restated in Godfrey Wilson vs. Republic (supra); a promise to tell the truth, not lies is a condition precedent before reception of the evidence of a witness of tender age. As rightly contended by the appellant, the evidence of the victim (PW1) lacks evidential value for contravening the mandatory provision of section 127(2) of the Evidence Act. Thus, I find the appellant’s complaint with substance. Having found the evidence of PW1 without evidential value, the prosecution case remains hanging on the thin thread of evidence adduced by the victim’s mother (PW2), their neighbour (PW3); medical practitioner (PW4) and the arresting policeman (PW5). In substance, as narrated earlier, PW2 deponed that it drew her attention to find the victim's clothes with faeces. Upon inquiry, the victim disclosed the fact that the appellant used to forcibly insert his penis into his anus and threatened him not to tell anyone. Consequently, PW2 in accompany of PW3 escorted the victim into the neighbourhood to identify the offender. The victim pointed to the 11 appellant, a shopkeeper, who was conversing with other young men. Thereafter, PW2 procured the policeman (PW5) to arrest the appellant. Taking into consideration the circumstances upon which the purported identification of the offender was made, wanting testimony of the investigator of this case who would have connected inculpatory facts of this case, Likewise, I find it unsafe to rely on the testimonies of PW2 and PW3 in upholding the conviction and sentence entered by the trial court. Admittedly, PW4 (medical practitioner) found the victim’s anal sphincter loose, indicating that his anus was penetrated. Exhibit P3 speaks volumes of this fact. However, the testimony of PW4 doesn’t ascertain that it was the appellant herein who committed the alleged heinous crime. The learned state attorney persisted this court to rely on the provision of section 127 (6) of the Evidence Act in considering the testimony of the victim which may otherwise be considered defective. Fortunately, there is guidance provided forth in this respect in the case of Mohamed Ramadhan @ Kalohili vs Republic (supra) wherein the Apex Court expounded: “In our opinion, therefore, the evidence of both PW1 and PW2 was received un-procedurally without compliance with the mandatory conditions of section 127 (2) of the Evidence Act. The question which follows, therefore, is whether the said evidence can be relied upon under section 127 (6) of the Evidence Act notwithstanding the non-compliance 12 in question. The learned State Attorney has urged us to answer the question in the affirmative. She has placed heavy reliance on our authority in Wambura Kiginga v. R, (supra). We wish to state right away that; the provision of sub-section (2) of section 127 as it appears today which allows a child of tender years to testify without oath or affirmation conditional upon promising to tell the truth and not lies, was brought by Act No. 4 of 2016. Before that, a child of tender years could only testify without oath or affirmation if, upon inquiry, three conditions were established. First, he or she did not know the nature of oath. Two, he or she possessed sufficient intelligence to understand the questions put to him. Three, he or she knew the meaning of speaking the truth. Prior to 1998, it is necessary to observe, there was a proviso to the respective provision to the effect that unless corroborated by some other material evidence, the evidence of a child of tender age could not be used to sustain conviction. Conversely, the provision of section 127(7) which is now subsection (6), was introduced in the Evidence Act by Act No. 4 of 1998. It thus was in existence several years before the current provision of subsection (2) of the same section had come into being. Therefore, if the respective provision intended to introduce an alternative or additional procedure for admissibility of evidence of a child of tender years as suggested by the learned State Attorney in her submissions, why was subsection (2) amended in 2016 to remove the competence test in unsworn evidence of a child of tender years and substitute it with the requirement of promising to tell the truth and not lies? In our view, the rationale behind the introduction of the provision of section 127 (7) which is currently subsection (6) was, as we held in Nguza Vikings @ Babu Seya & 4 Others v. R, Criminal Appeal No. 56 of 2005 (unreported), to create avenue wherein credible evidence of a child of tender years or victim of rape, could, subject to the conditions therein, be used to sustain conviction in sexual offences without corroboration. In particular, we stated as follows: 13 "But at this juncture, we entirely agree with Mr. Marando that the provisions of section 127(7) do not override the provisions of section 127(2). All that the section does is to allow the court, in sexual offences, to assess the credibility of a child witness who is the only independent witness or a victim of a crime, and convict without corroboration, if the court is satisfied that the child witness told nothing but the truth.” Finally, the Court concluded by opining thus: “In view of the foregoing, therefore, we hold, as we did in Nguza case (supra) and in our recent decision in Emmanuel Masanja v. R, Criminal Appeal No. 394 of 2020 (unreported) that; the conditions for admissibility of the evidence of a child of tender years in subsection (2) of section 127 of the Evidence Act have not been overridden by the provision of subsection (6) of the same Act. It follows, therefore that, since PW1 and PW2 did not promise to tell the truth and not lies before giving their testimony, their evidence, in so far as it was given without due compliance with the preconditions under section 127(2) of the Evidence Act, has no evidential value at all.” [Emphasis added]. The above excerpts speak it all. Needless to restate that the provision of section 127 (6) of the Evidence Act which the learned state attorney relied to persuade this court to validate the testimony of PW1 taken unprocedurally, cannot rescue the situation. I would reiterate that the testimony of PW1 is rendered invalid for non-compliance with the preconditions under section 127(2) of the Act; hence, cannot be acted upon notwithstanding the dictates of the provision of section 127 (6) of 14 the Act. Given the foregoing, I am constrained to align with the appellant in that the prosecution case in the trial court was too weak to ground conviction in criminal proceedings of like nature. In sum, I find the appeal herein meritorious. I would allow the appeal, quash the conviction and set aside the sentence entered by the trial court. The appellant to be released from prison unless his freedom is otherwise lawfully assailed. So ordered. DATED at DAR ES SALAAM this 03rd September, 2024. . O.F. BWEGOGE JUDGE 15