IN THE HIGH COURT OF TANZANIA

MWANZA DISTRICT REGISTRY

ATMWANZA

HC. CRIMINAL APPEAL NO. 175 OF 2019 (Original Criminal Case No. 132 of 2018 of the District Court of Bukombe District at Bukombe)

MASUNGA JACOB .. I ••• ■ •• ■■ •••••••••••• ■■ 11 •••••••••••••••••••••• ■■■■ ••• APPELLANT VERSUS

THE REPULIC RESPONDENT

JUDGMENT 4.3 & 16.3.2020 U. E. Madeha, J

The appellant, Masunga Jacob was charged and convicted for the

offence of rape contrary to section 130 (1) (2) (e) and 131 of the Penal.

Code Cap 16 (R. E. 2002). The trial Court, Bukombe District Court

Sentenced him to serve life imprisonment. The sentence and conviction did

not amuse him. He lodged this first appeal. In view of the grounds of

appeal raised the issues here is whether to conduct voire dire test was

appropriate at the material time.

The complainant that I call her JJ is not her real name. She was a

victim of rape. Who said that; the accused laid her on a bench in the

milling machine and raped the girl. It was revealed after her mother looked

at her and found out that she had been raped for a long time. They took

this matter to the police and then JJ went to show the house where the

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accused lived, and then the accused was arrested. The only evidence

available was the victim's testimony and the testimony of the doctor who

examined JJ. Who indicated that the child had been raped long time ago

PF3 was tendered and admitted in evidence as exhibit PE1.

Concerning the issue of whether to conduct voire dire test was

appropriate at the material time. Respondent Republic was represented by

Ms. Sophia Mgasa, State Attorney, who submitted as follow. PF3 had direct

connection with the case. The evidence of rape exists because the victim

told her mother that she was raped. The evidence was consistent with the

doctor's evidence. The trial Court conducted voire dire test section 127

(2) complied with. The evidence is enough to ground the appellant's

conviction.

I have passed through the case record, the case was filed in 2018,

already the Law of Evidence Act was already amended by Act No.4 of

2016. The law requires the child to show whether he can tell the truth not

lies. And not to perform voire dire test. The procedure of taking evidence

of a child of tender age was not adhered to as section 127 (2) of the

Evidence act, as amended by Act No. 4 of 2016. After going through

all the grounds of appeal, I come to find how the victim (PW2) gave her

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evidence, if she knew how to speak the truth, because the appellant did

not put it as a ground of appeal, the prosecution case shows that, victim of

rape is of six years age, but in her evidence she does not show whether

she has the ability to speak the truth. In the case of Godfrey Wilson

Versus Republic, Criminal Appeal No. 168 of 2018 Court of Appeal of

Tanzania held at Bukoba it was stated that: Section 127 (2) of the

Evidence Act as amended by Act No 4 of 2016

"Any child of tender age may give evidence without taking oath or

affirmation, but before giving evidence, promises to tell the truth to

the Court and not to tell lies."

In the above cited provision, it provides two conditions, one it allows

the child of tender age to give evidence without an oath or affirmation,

second before giving evidence such child is mandatorily required to

promise to tell the truth to the Court not to tell lies. In Emphasizing this

position, the Court of appeal Cited the case of Msiba Leonard Mchere

Kumwaga Versus Republic, Criminal Appeal No 550 of 2015

(Unreported) observed as follows:

".... Before dealing with the matter before us, we have deemed it

crucial to point out that in 2016 section 127 was amended vide

Written Laws Miscellaneous Amendment Act No 4 of 2016

{Amendment Act) Currently, a child of tender age may give evidence

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without taking oath or affirmation provided he promises to tell the

truth and not lies."

In the hereabove cited case of Godfrey it was stated that the Trial

Magistrate or ... can ask the witness of tender age, such simplified question,

which may not be exhaustive depending on the circumstances of this case

as follows:

1. The age of the victim. 2. The religion which the child professes and whether he/she

understand the nature of an oath. 3. Whether or not the child promises to tell the truth and not to tell

lies.

Thereafter, making the promise and such promise must be recorded

before the evidence is taken. Returning to this appeal at hand, PW2 did not

show all the details described in the case I quoted above, the victim did

not express herself if she knew how to speak the truth.

As the Senior State Attorney prayed for the retrial. As PW2 is child of

tender age a victim of rape Section 127 (2) of the Evidence Act not

complied with. In the case of Simon Kitalika Versus the Republic

Criminal Appeal No. 468 of 2016 Court of Appeal of Tanzania held at Iringa

they cited the case of the Fetehali Manji Versus Republic (Supra) the

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question before the Court was whether to order for the retrial by the High

Court was justified or not, and it was held that:

"In general a retrial will be ordered only when the original trial was

illegal or defective; It will not be ordered where the conviction is set

aside because of insufficiency of evidence or for the purpose of

insufficiency of evidence or for the purpose of enabling the

prosecution to fill up gaps in its evidence at the first trial; Even

where a conviction is vitiated by a mistake of the trial Court for

which the prosecution is not blame, it does not necessarily follow

that a retrial should be ordered: Each depends on its own fads and

the circumstances and an order for the retrial should be made where

the interest of Justice require it."

In the case of Kimbute Otieno Versus The Republic, where the

full bench inter alia, observed:

"..... Where there is the complete omission by the trial Court to

correctly and properly address itself on section 127 (1) and 127 (2)

governing the competency of a child of tender years the resulting

testimony is to be discounted."

However, after receiving the voire dire evidence. I found that the

procedure of conducting the voire dire test was not adhered to. I have

gone through how PW2 testified, all she said is that, ''She remembers one

day the appellant laid her on a milling machine on the bench and stuffed

his dude down." I have looked and found that the evidence was

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inadequate for being able to bind the appellant for rape offence. I disagree

with the Senior State Attorney who thought that the evidence is sufficient

to ground the appellant's conviction. I found that the evidence is

inadequate because the prosecution required to prove its case without

uncertainty. First of all, the evidence itself is doubtful.

In the upshot and for the above reasons, I allow the appeal and, in

the result, I quash the conviction and set aside the sentence imposed on

appellant. I, accordingly, order that he be set at liberty forthwith unless he

is held for some other lawful cause. Order accordingly.

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