Mohamed Ramadhani @ Kolahili vs Republic (Criminal Appeal No. 396 of 2021) [2023] TZCA 81 (2 March 2023)

Mohamed Ramadhani, also known as Kolahili, was charged and convicted of rape under sections 130 (1) (2) (e) and 131 (1) of the Penal Code [CAP 16 RE.2002] in the District Court of Ulanga. The crime was committed against a seven-year-old girl, making her a minor. The incident occurred on 10th May, 2019 at Togo village within Ulanga District in Morogoro Region. Ramadhani was sentenced to life imprisonment.

However, Ramadhani appealed the conviction and sentence. The appeal was based on five grounds, including the admissibility of the evidence of the victim and her friend (both minors), the admissibility of the medical report (exhibit PI), the recording of the appellant's evidence, the identification of the appellant, and the proof of the case beyond reasonable doubt.

The Court of Appeal found that the evidence of the victim and her friend was wrongly received and relied upon without complying with the requirements under section 127(2) of the Evidence Act. This section requires a child of tender years to promise to tell the truth and not lies before giving their testimony. The court held that the promise by the child witness must be actual and clearly recorded in the proceedings, which was not the case here.

The court also found that the medical report (exhibit PI) was improperly admitted into evidence as it was produced by the public prosecutor, not a witness, contrary to the law. This denied the accused the right to cross-examine on the document.

Given these errors in law, the court concluded that the prosecution case was not proved beyond reasonable doubt. Therefore, the court allowed the appeal, quashed the conviction, and set aside the sentence. Ramadhani was ordered to be released from prison unless his continued incarceration is related to other lawful cause.