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Court of Appeal now acquits man of rape
2007-09-18 09:41:22
By Correspondent Haji Mbaruku
The Court of Appeal of Tanzania in Dar es Salaam has set aside the conviction and life imprisonment handed down to Hamisi Hassan Lulanga by the lower court, following his appeal against the conviction and sentence.
The Court of Appeal has also set aside the order for compensation of 25,000/- to the complainant and further declared illegal the corporal punishment of 12 strokes of the cane meted out on him because it is not provided for under Section 131(3) of the Penal Code.
The ruling was recently handed down by the bench in Mtwara which included Justices January Msoffe, Simon Kaji and Engela Kileo.
The appellant was convicted for defilement contrary to Section 136(1) of the Penal Code by the District Court of Lindi.
He was sentenced to 25 years imprisonment and corporal punishment of 12 strokes of the cane and ordered to pay the complainant a sum of 25,000/- as compensation.
The High Court altered the conviction and convicted the appellant of rape contrary to Sections 130(2) (e) and 131(1) and (3) of the Penal Code as amended by the Sexual Offences Special Provisions Act No.4 of 1988.
The High Court then sentenced him to life imprisonment and corporal punishment of 12 strokes of the cane, leaving undisturbed the order of compensation of 25,000/- made by the District Court. But still dissatisfied, he appealed further to the Court of Appeal.
Handing down the ruling, the Court of Appeal stated that the Judge and trial magistrate erred in incarcerating the appellant because a true examination of a child of tender age, which is an indispensable requirement of the law, was not conducted.
The omission to conduct an examination of a child of tender age within the provisions of the Tanzania Evidence Act, 1967 which became the subject matter of the present appeal, was therefore fatal to the decision reached.
The court said the court record was silent as to whether the trial magistrate satisfied himself that two witnesses, who were children, understood the duty of speaking the truth before receiving their evidence.
The court said the omission on the part of the trial magistrate to conduct the required examination rendered such evidence to be treated as unsworn evidence that required collaboration. But PW2 could not corroborate the evidence of PW1.
Moreover, where collaboration of one witness’ testimony is required, the evidence of another witness which itself required corroboration cannot, as a general rule, effectively corroborate the evidence of the first witness, they observed.
The Justices further said the PF3 evidence had its own shortcomings as it did not indicate whether it was the appellant that raped PW1.
They further contended that the mandatory provisions of Section 240(3) of the Criminal Procedure Act, 1985 that required that an accused person be informed of his right to have the person who made the report summoned for cross-examination was not complied with by the trial magistrate.
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