Amour Hamis Madulu vs Republic (Criminal Appeal 322 of 2021) [2023] TZCA 229 (5 May 2023)

This is a criminal appeal in the Court of Appeal of Tanzania at Dodoma. The appellant, Amour Hamis Madulu, was convicted of rape under sections 130(1), (2) (e) and 131 (1) of the Penal Code, Chapter 16 of the Revised Laws. The victim was a minor, aged 13 years at the time of the incident. The appellant was sentenced to thirty years imprisonment by the Singida Resident Magistrate's Court. His appeal to the High Court was unsuccessful, leading to the present appeal.

The main issue in the appeal was the admissibility of the evidence given by the victim, referred to as PW2, who was a child of tender age. The appellant argued that her evidence was wrongly received contrary to section 127(2) of the Evidence Act Chapter 6 of the Revised Laws. This section requires a child of tender age to promise to tell the truth to the court and not to tell lies before giving evidence. The court found that this mandatory requirement was not observed in the trial court, leading to the evidence of PW2 being received in violation of the law.

The court agreed with the appellant on this issue, stating that the omission had the effect of vitiating the validity of the evidence of PW2. As a result, the court expunged her evidence from the record. Given that her evidence was the only one directly connecting the appellant with the commission of the offence, the court found it unnecessary to consider the other grounds of appeal.

An order for retrial was refused by the Court of Appeal due to the settled principle that an order should assist the prosecution in filling the gaps in their case.

The court allowed the appeal, quashed the conviction, and set aside the sentence of thirty years imprisonment. The appellant was ordered to be set free forthwith if he was not otherwise lawfully detained.