Ahamad Salum Hassan @ Chinga vs Republic (Criminal Appeal No. 386 of 2021) [2023] TZCA 44 (22 February 2023)

Case summary

The case is a criminal appeal from Tanzania, where the appellant, Ahamad Salum Hassan, was charged with and convicted of rape under section 130(1) (2) (e) and 131 (1) of the Penal Code. The victim was a 14-year-old girl, making her a minor. The crime occurred between September and November 2017. The appellant was sentenced to 30 years imprisonment by the Resident Magistrate Court of Morogoro, a decision upheld by the Resident Magistrate's Court of Morogoro with Extended Jurisdiction.

The appellant appealed on three main grounds. Firstly, he argued that his conviction was based on the evidence of the victim, which was received in violation of section 127(2) of the Tanzania Evidence Act. Secondly, he contended that exhibit PI was improperly received into evidence. Lastly, he claimed that the case against him was not proved beyond reasonable doubt.

The Court of Appeal agreed with the appellant on all grounds. It found that the victim's evidence was improperly admitted as she testified on affirmation without the trial court satisfying itself of her competence to testify as such, in violation of section 127(2) of the Evidence Act. The court also agreed that exhibit PI was improperly admitted as it was not read out and explained to the appellant when it was cleared for admission, referencing the case of Robinson Mwanjisi and Others v. R [2003] T.L.R. 218. Lastly, the court found that without the victim's evidence, the remaining evidence was insufficient to prove the case beyond reasonable doubt.

The appeal was allowed, the conviction quashed, and the sentence set aside. The appellant was ordered to be released from custody unless held for another lawful purpose.

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