20131202 TZCA Mwanza

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IN THE COURT OF APPEAL OF TANZANIA

ATMWANZA (CORAM: RUTAKANGWA. l.A., KAIJAGE. J.A., And MUSSA, J.A.) CRIMINAL APPEAL NO. 333 OF 2010 ROCK MADUHU @ OSCA .••••••••••••••••••••.•••••••••••••••••••••••••••••••••••• APPELLANT

VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Bukoba) (Kibella. J.) dated the 11th day of October, 2012 in· Criminal Appeal No. 80/2011

JUDGMENT OF THE COURT 27 th Nov. & 3 rd Dec. 2013 RUTAKANGWA, l.A.: The appellant was convicted as charged by the District Court of Karagwe (the trial court) of the offence of Rape. He was sentenced to the statutory minimum sentence of thirty years imprisonment. The evidence leading to the conviction of the appellant had come from PWl Rose Owera, the victim .of the alleged rape, PW2 Sima Nestory and PW3 Ruth Hamdani. Both PWl Rose and PW2 Sima, were children of tender age in terms of S. 127 (2) of the Evidence Act, Cap 6 R~E.

2002. All the same, the only purported eyewitness to the denied rape was the prosecutrix herself. PWl Rose testified that she had known the appellant prior to 2nd August, 2007. On this particular day she found the appellant in a taxi which she had hired to be taken home. The appellant told her that he 1 was a friend of her father and offered to pay the taxi fare for her, as she had no money, which he did. They then proceeded to PWl Rose's home. They did not find PWl Rose's father but they met PW2 Sima. It was around 7:00 p.m. PW 1 Rose requested PW2 Sima to escort her to her father's second wife. The appellant could not let her go until she had refunded the taxi fare he had paid. Then PW2 Sima left to inform PWl Rose's relatives. In the absence of PW2 Sima, the appellant dragged her into house, locked her inside and allegedly had sexual intercourse with her three (3) times. The appellant took to flight when the people who included PW2 Sima , PW3 Handani arrived at the scene. According to PWl Rose, these people found the appellant inside that house together with her and yet he managed to run away while naked and disappeared. The prosecution evidence does not show when, how, why, and who arrested the appellant before being arraigned in the trial court. The appellant denied the charge, claiming that it was a fabrication by PW2 with whom he was in conflict. The trial court

convicted the appellant because the two child witnesses knew him and they could not have fabricated the case against him. The learned first appellate judge agreed, hence this appeal. The main ground of complaint here is that the two courts below erred in law in basing his conviction on uncorroborated evidence. The appellant appeared before us in person and had nothing to tell us in elaboration of his grounds of appeal. The respondent Republic which was represented by Mr. David Kakwaya, learned Senior State Attorney, supported the appeal because the evidence of the two child 2 witnessess was taken on oath without a proper finding on whether or not they understood the natrure of an oath. This offended the mandatory provisions of S. 127 (2) of the Evidence Act. Mr. Kakwaya, therefore, relying on the decisions of this Court in Makoye Reli v. R., Criminal Appeal No. 118 of 2009 and Rajabu Yusufu v R. Criminal Appeal No. 457 of 2005 (both unreported), arged us to expunge their evidence. Without the evidence of PWl Rose, he argued, we are left with the evidence of PW3 Hamdani, which is largely hearsay. We have had the opportunity of studying the record of proceedings in the trial court. We agree with the contention of Mr. Kakwaya that the learned trial District Magistrate did not make any finding on whether or not the two child witnesses understood the natrue of an oath to

justify recieving their evidence on oath. This was essential and omission to do so was fatal. The finding on PWl Rose was as follows:- "Court: Besides the facts that the witness is said to be 13 years but the way she is looking is above 15 years and through asked (sic) she states to start std. 1 when she was 10 years and that she was born on 1991." The finding on PW2 Sima went on follows:- "Court: Witness acquire enough knowledge she be sworn. " In our considered opinion, apart from the learned trial District Magistrate acting on information not borne out by the record, these findings have nothing to do with the mandatory requirements of S. 127 3 (2) of the Evidence Act. We are constrained, therefore, to discount the evidence of PWl Rose and PW Sima. Having discounted the evidence of PWI Rose and PW2 Sima, what remains on record is the evidence of PW3 Hamdani which, as correctly contended by Mr. Kakwaya, is substantially hearsay. Worse still it contradicts the claims of PWl Rose to the effect that: "My relative Lucy (sic) Hamdani came to the scene of the crime together with other persons. I was met inside that building together with the accused." [Emphasis is ours]. The evidence of PW3 Hamdani is to the effect that he never saw the appellant at the alleged scene of the crime, but she only took PWl · Rose to the police station and later to hospital. Under cross- examination she

only claimed to have seen the appellant at her" business place with a knife." She did not even tell the trial court that PWl Rose had told her that she had been raped by the appellant . ~ In the circumstances, it will be accepted without further elaboration that the evidence remaining on record is too weak to sustain the appellant's conviction. We accordingly allow this apppeal. The conviction of the appellant is hereby quashed and set aside as well as the prison sentence. Mr. Kakwaya did not press for a re - trial and rightly so. Given the six (6) years that have now elapsed, it will not be in the interests of justice and of PWl Rose herself to relive the horrors of that nasty incident (see, Alkard Mahai v. R., Criminal Appeal No. 113 of 2013 (unreported)). Futhermore, settled law is to the effect that a retrial is undesireble where its effect would be to enable the prosecution 4 to correct its mistakes and/or fill in gaps in its evidence at the first trial (see, Fatehali Manji v. R [1966] E.A. 344, among others.) We therefore order for the immidate release from prison of the appellant unless he is otherwise lawfully held. DATED at MWANZA the 2nd day of December, 2013. E.M.K. RUTAKANGWA

JUSTICE OF APPEAL S.S. KAIJAGE

JUSTICE OF APPEAL K.M. MUSSA

JUSTICE OF APPEAL I certify that this is a true copy of the original. 5 ,...