IN THE COURT OF APPEAL OF TANZANIA

AT IRINGA

( CORAM: RUTAKANGWA, J.A., KIMARO. 3.A. And MANDIA, 3.A.)

CRIMINAL APPEAL NO. 10 OF 2008

GODI KASENEGALA.................................................................... APPELLANT

VERSUS
THE REPUBLIC........................................................................ RESPONDENT

(Appeal from the decision of the High Court of Tanzania

at Iringa)

(Mchome, J.)

dated the 23rd day of October, 2007

in
DC. Criminal Appeal No. 9 of 2007

JUDGMENT OF THE COURT

RUTAKANGWA, 3.A:

The Appellant was arraigned with the offence of Rape contrary to

sections 130 and 131 (1) of the Penal Code. He was tried by the District

Court of Iringa District. On being found guilty as charged, he was

convicted and sentenced to life imprisonment. He was also ordered to pay

the alleged prosecutrix, Tshs. 200,000/= as compensation. Aggrieved by

the conviction and sentences, he unsuccessfully appealed to the High Court

at Iringa. Still protesting his innocence, he has lodged this appeal.

 2

The memorandum of appeal before the Court, lists seven grounds of

complaint against the High Court judgment. Having closely examined

them, we are of the settled mind that these can be conveniently reduced to

three substantive grounds of appeal. These are that the learned first

appellate judge erred in law in: One, totally misapprehending the nature

and quality of the prosecution evidence against him which did not prove

the charge beyond reasonable doubt. Two, acting on the uncorroborated

unsworn evidence of the prosecutrix and inconclusive close relative

evidence. Three, imposing on him a sentence of imprisonment when he

was below 18 years of age.

Before looking at the circumstances which led to the arraignment

and subsequent conviction of the appellant, we have found it highly

instructive to, first, make these very pertinent observations. Being charged

with the offence of rape the appellant was tried under the provisions of the

Criminal Procedure Act, Cap 20, Vol. 1 R.E. 2002 (hereinafter the Act). See

section 4 of the Act. Section 177 of the Act vests "every court" with

"authority to cause to be brought before it any person who is within the

local limits of its jurisdiction and is charged with an offence committed

within Tanzania..." and deal with him, that is try him, according to its

jurisdiction.

In order to conduct fair trials and do justice according to law,

when trying accused persons, courts have been given certain powers. One

such power, is the power to summon witnesses under section 142 (1) and

195 of the Act.

For the proper determination of this appeal we have found section

198 (1) of the Act to be compellingly relevant. It reads thus:­

" Every witness in a criminal cause or matter shall,

subject to the provisions o f any other written

law to the contrary, be examined upon oath

or affirmation in accordance with the provisions o f

the Oaths and Statutory Declarations Act."

(Emphasis is ours).

We have learnt that section 127 of the Evidence Act, Cap 6, Vol. 1

R.E 2002,(henceforth the Evidence Act) contains such explicit ''contrary

provisions." The Evidence Act applies to all "judicial proceedings in all

 4

courts, other than primary courts, in which evidence is or may be given

see section 2.

Section 127 of the Evidence Act runs thus in subsections (1) and

(2):­

" (1) All persons shall be competent to testify unless

the court considers that they are prevented from

understanding the questions put to them, or from

giving rational answers to those questions, by

reason o f tender years, extreme old age, disease

(whether o f body or mind) or any other similar

cause.

(2) Where in any criminal cause or matter any child

o f tender years called as a witness does not, in

the opinion o f the court, understand the

nature o f an oath, his evidence may be

received, though not given upon oath or

affirmation, if in the opinion o f the court, to

be recorded in the proceedings, he is

 possessed o f sufficient intelligence to justify

the reception of his evidence, and

understands the duty o f speaking the truth. "

[Emphasis is ours].

It is also provided in subsection (5) that for the purposes of

subsection (2), the expression "Child of tender years" means a child whose

apparent age is not more than fourteen years. So, subject to the

mandatory provisions of subsection (2) above, a child of tender years can

be a competent and compellable witness in criminal proceedings. The bar

from testifying to a child of tender years who does not understand the

nature of an oath and is not in possession of sufficient intelligence, which

would enable him to discern the difference between right and wrong, is

justified on the same basis as the statutory defense of immaturity under

section 15 (1) and (2) of the Penal Code for children of almost similar age.

Having made these observations, we find ourselves in a good

position to give a brief account of that which led to the appellant's

 6

conviction, and thereafter proceed to conclusively determine the legal

issues raised by the appellant.

The appellant together with Stella d/o Luganini, Nelia d/o Chukio,

Remija d/o Msungu and Stumai d/o Kasenegala are residents of Igunga

Village in Kilolo District. While the appellant testified as DW1 at his trial,

his villagemates testified as PW1, PW2, PW3 and PW4 respectively. PW1

Stella is the mother of PW2 Nelia, and PW3 Remija is her sister in law.

On 20th July, 2004 at about 12.00 hours, PW2 Stella came across

PW3 Remija along the way. Remija asked Stella of the whereabouts of

Nelia. She told her (PW3) that Nelia was playing with her playmates.

Remija told her that she had seen the appellant leading Nelia into a maize

farm. Stella entered the maize farm wherein she said she found the

appellant having sexual intercourse with Nelia. According to Stella both

Nelia and the appellant were naked. Stella forthwith got hold of the

appellant, raised an alarm to which many people responded. Among these

people were PW4 Stumai and one Roza Lulenge. The appellant was sent

to Andoseki s/o Kivumba, one of the Village government leaders.

 7

On being examined Nelia was found with a swollen vagina and

"whitish fluid on her thighs". After obtaining a PF3 from Hula Police Post

Nelia was taken to Iringa government Hospital for further examination. At

the hospital Nelia was attended by PW5 Margreth Gringoyi, a medical

doctor. PW5 found Nelia with no hymen and her vagina had bruises and

was "reddish." PW5 Magreth tendered the PF3 in evidence as exhibit PI.

The appellant was thereafter accordingly charged.

In his sworn evidence, the appellant denied having had any sexual

intercourse with PW2 Nelia as alleged. He was arrested by PW1 Stella and

PW3 Remija who thereafter sent him to the village office where it was

alleged that he had raped PW2 Nelia, he said. All the same, he told the

trial court that he had no quarrels with PW1 Stella.

In the determination of the case, the learned trial Resident Magistrate,

rightly in our view, found herself facing two issues, one of fact and another

of law. These were:

(a) Whether or not PW2 Nelia was raped, and

 (b) If PW2 Nelia was raped whether it was the appellant who had

raped her.

The first issue was affirmatively answered. This answer was premised

on the evidence of PW1 Stella and PW5 Margreth. Their evidence,

according to her, was that they found PW2 Nelia "with swollen vagina and

bruises on it" as well as "with whitish fluid (semen) all over her thighs

on the material day." From these facts she opined that:-

"...the girl who was only four years old could not

have done anything else with her vagina but being

raped."

The second issue was also answered in the affirmative. This answer

was predicated upon the evidence of PW1, PW2 and PW3. She reasoned

that PW3 Stumai had seen the appellant "leading the girl to the farm and

informed her mother about that suspicious movement." Thereafter, PW1

had gone into the maize farm where she had "found the accused lying on

top of the girl, having sexual intercourse with her."

 9

As already indicated herein the appeal of the appellant to the High

Court was dismissed. In a one paragraph judgment no attempt was made

to subject the evidence to any scrutiny. We shall be forgiven to comment

that the said decision, with all respects, had all the hallmarks of a summary

rejection order. The evidence of PW2 Nelia was never considered at all

either to ascertain if it proved the offence of rape in law or if it was

properly received. The learned first appellate judge was satisfied that rape

was committed because:-

"The appellant was caught by the victim's mother.

The mother caught him and they fought. "

That, in our view, was a very unsatisfactory way of deciding a first

appeal which had not been summarily rejected under section 364 (1) of

the Act. It behoves us now to intervene and do what the first appellate

court failed to do.

We shall begin our discussion with the fourth ground of appeal as

listed in the memorandum of appeal. In this ground of appeal the

complaint is that the learned appellate judge erred in law in acting on the

evidence of close relatives "without warning himself of the danger of

 10

adhering to such evidence." As we have already alluded to herein, PW1

Stella, PW2 Nelia and PW5 Stumai are close relatives. But as correctly

argued, by Mr. Vicent Tangoh, Learned Senior State Attorney, for the

respondent /Republic, there is no law in this country barring such

witnesses from testifying for the prosecution where one of them is a victim

of an offence alleged to have been committed. We accordingly dismiss this

ground of appeal, although we should not be taken as holding that these

were all out witnesses of truth.

The complaint which is the subject of the sixth ground of appeal is

that it was wrong for the learned first appellate judge to uphold his

conviction in the absence of expert evidence to the effect that PW2 Nelia

had been raped.

Indeed, at the trial of the appellant, one Dr. Magreth of Iringa

government Hospital testified for the prosecution. Her evidence was that

she examined PW2 Nelia on 20th July, 2004. She guardedly said that she

found out that PW2 Nelia "vagina had been tampered with" as her hymen

was broken. Being an expert that was the best she could tell. It was not
within her province to conclusively tell the court that PW2 Nelia had been

raped and if so when. That finding falls within the exclusive preserve of

the court after considering all the established facts in the case. If this

issue were free of authority may be we would have had to indulge in

hairsplitting. But it is not. It is now settled law that the proof of rape

comes from the prosecutrix herself. Other witnesses if they never actually

witnessed the incident, such as doctors, may give corroborative evidence.

See, for instance, Selemani Makumba V Republic, Criminal Appeal No.

94 of 1994, Alfeo Valentino V Republic, Criminal Appeal No. 92 of 2006

and Shimirimana Isaya and Another V Republic, Criminal Appeal No.

459 and 494 of 2002 (all unreported). Since experts only give opinions,

courts are not bound to accept them if they have good reasons for doing

so. See C.D. de Souza V B. R. Sharma (1953) EACA 41. We dismiss

this ground of appeal.

Ground seven of appeal raises a very crucial point of law. This is that

the learned High Court judge erred in law in relying on the unsworn

evidence of PW2 Nelia. To him, her evidence needed to be corroborated.

Such corroboration could not be obtained from the doubtful and therefore
unreliable evidence of PW1 Stella, PW3 Remija and PW4 Stumai who gave

contradictory and seemingly implausible evidence, he argues.

As we have already indicated in this judgment, the learned first

appellate judge in dismissing the appellant's appeal never considered the

evidence of either PW2 Nelia or PW5 Dr. Margreth. He only settled for the

evidence of PW1 Stella. But did that evidence prove the offence of rape?

The learned first appellate judge, unfortunately, did not direct his mind to

this crucial legal issue. But what is rape?

Under our Penal Code rape can be committed by a male person to a

female in one of these ways. One, having sexual intercourse with a woman

above the age of eighteen years without her consent. Two, having sexual

intercourse with a girl of the age of eighteen years and below with or

without her consent (statutory rape). In either case, one essential

ingredient of the offence must be proved beyond reasonable doubt. This is

the element of Penetration i.e. the penetration, even to the slightest

degree, of the penis into the vagina: see, Masomi Kibusi V Republic,

Criminal Appeal No. 75 of 2005 (unreported).

 We have scanned the entire evidence of PW1 Stella. We have failed

to glean therefrom an iota of evidence going to prove penetration. The

same applies to the evidence of PW3 Remija and PW4 Stumai. Equally, it

cannot be stated with any degree of certitude that the opinion evidence of

PW5 Margreth proved the essential element of penetration. We are,

therefore, left with the evidence of PW2 Nelia, the alleged prosecutrix. Did

her evidence prove the offence of rape beyond reasonable doubt? Before

attempting to provide an answer to this crucial question, we have found

ourselves constrained to reiterate this Court's stance on what we regard as

the best evidence in rape cases.

It was stated with sufficient lucidity by this Court in the case of

Selemani Makumba V Republic, Criminal Appeal No. 94 of 1999

(unreported) that:-

"True evidence o f rape has to come from the victim,

if an adult\ that there was penetration and no

consent; and in case o f any other women

 14

where consent is irrelevant that there was

penetration." [Emphasis is ours].

This holding has been consistently followed by the Court

in many of its subsequent decisions on the issue. See, for

instance:-

(i) Alfeo Valentino V Republic, Criminal Appeal

No. 92 of 2006;

(ii) Kayoka Charles V Republic, Criminal Appeal

No. 325 of 2007; and

(iii) Shimirimana Isaya & Sabimana Fokas V

Republic, Criminal Appeal No. 459 & 494 of

2002 (all unreported).

As we alluded to above, it is also a specific requirement of the law

that for there to be rape there must be penetration. We cannot express it

more lucidly than the Court did in the case of Mathayo Ngalya

@Shabani V Republic, Criminal Appeal No. 170 of 2006 (unreported). It

said

"The essence o f the offence o f rape is penetration

o f the male organ into the vagina. Sub-section (a)

 o f section 130 (4) o f the Penal Code ... provides; -

'for the purpose o f proving the offence o f rape,

penetration, however slight is sufficient to

constitute the sexual intercourse necessary to the

offence.' For the offence o f rape it is o f utmost

importance to lead evidence o f penetration

and not simply to give a general statement

alleging that rape was committed without

elaborating what actually took place. It is

the duty o f the prosecution and the court to

ensure that the witness gives the relevant

evidence which proves the offence".

[Emphasis is ours].

This long established position of the law has remained unchanged to

date, and was recently reiterated by this Court in the case of Kayoka

Charles (supra).
 16

We have already mentioned in passing that the evidence of PW1,

PW3, PW4 and PW5 does not offer proof of penetration. PW3 did not go

to the place where the rape allegedly took place. As she put it herself:­

"... Later on Stella (PW1) informed me that she

found the accused with PW2 in a bush. Then

was sent to the village authority ..." [Emphasis is

ours],

PW4Stumai allegedly found PW1 Stella in "a maize farm...fighting

with one God" (the appellant). She had to call one Roza to separate them.

She went on to say:­

"... There were Stella's two kids Nelia and Meshack.

The kids were few steps away. Stella told me that

she had found the accused with the girl that is why

they were fighting. She did not teii me what

they were doing... Nelia had her gown on ..."

[Emphasis is ours].

From this undiscredited evidence of PW4 Stumai flows these

inevitable questions. If PW1 Stella had found the appellant either having

sexual intercourse with PW2 Nelia or on "top o f " her as she belatedly told
 17

the trial court, why did she not tell PW4 Stumai so ? The only reasonable

inference to be drawn in the circumstances is that she never found the

appellant doing any ignominious act. What was Meshack doing there?

How and when did he reach the alleged scene of the rape? Why did PW1

Stella and PW2 Nelia, found it convenient to omit placing Meshack at the

alleged scene of the crime or mentioning him at all? They were hiding

something? PW1 Stella had allegedly found both PW2 Nelia and the

appellant stark naked. At what point in time did they get dressed as PW4

Stumai never found them naked? If the alleged rape took place in a

maize farm, why did PW1 Stella tell PW3 Remija that she had found the

appellant and PW2 Nelia in "the bush"? These unanswered pertinent

nagging questions, go to discredit PW1 Stella. In our settled view, had the

learned first appellate judge evaluated the evidence and addressed himself

to these unsatisfactory features in the evidence of PW1 Stella, he would

not have readily taken her as a witness of truth.

That PW1 Stella might have been an untruthful witness is further

demonstrated by the undoubted evidence of PW5 Margreth. PW1 Stella

 IS

had testified that when PW2 Nelia "was inspected" in the maize farm, she

was "found swollen in her vagina and also had whitish fluid on her things".

If PW1 Stella wanted the court to believe that PW2 Nelia was found

with semen or whitish fluid on her body, in her bid to prove the rape, then

she was belied by PW5 Dr. Margreth. PW5 Margreth who examined PW2

Nelia apparently on the a same day, found her with no semen or whitish

fluid on any part of her body. Also according to the PF3, exh.Pl, PW2 Nelia

had no "swollen vagina". She only had no hymen and the vagina had a

"redish margin". The evidence of PW5 Margreth is starkly silent on when

the hymen was broken/ruptured and/or what could have caused the

"redish margin". But if the 4 year old PW2 Nelia's hymen had been

ruptured on that day as a result of the rape, wouldn't PW1 Stella and PW5

Margreth have seen traces of blood on or in her vagina? Wouldn't PW1

Stella who allegedly found the appellant naked and "on top of" Nelia, have

seen blood on his male organs and/or any other part of his body? Mr.

Tangoh was at a loss when these implausibilities were pointed out to him.

Nevertheless, he maintained his stanie of supporting the appellant's

conviction.
 19

From the above analysis of the evidence of the four prosecution

witnesses, we have found ourselves constrained to conclude that the

evidence does not render any assurance to the claim that PW2 Nelia was

raped on 20th July, 2004. We are then left with the evidence of PW2 Nelia.

The evidence of PW2 Nelia is not free of difficulties. As is already

obvious, PW2 Nelia was a child of tender age. All the same, as earlier said,

she was competent to testify in the case provided certain conditions were

met.

We have already shown that under Section 198 (2) of the Act, every

witness in a criminal case shall, subject to the provisions of any other

written law to the contrary, be examined upon oath or affirmation. This

means that in a criminal case no witness is permitted to give evidence

without being sworn or affirmed unless there is another written law

directing otherwise. We have shown already that one such law is the

Evidence Act which contains contrary provisions in section 127 (2). This

section has been the subject of discussion in many decisions of the Court,
 20

the former Court of Appeal of East Africa and fortunately the Kenya Court

of Appeal.

The prevailing view, which is in accord with the provisions of section

198 (2) of the Act and, therefore, harmonizes the mandatory provisions of

these two pieces of legislation, was well summed up in the following cases,

to choose but a few.

In Augustino Lyanga V Republic, Criminal Appeal No. 105 of

1995, the Court emphatically said:­

" I f we are to paraphrase the provisions o f

section 127 (2) a court may only receive

evidence o f a child o f tender years who does

not understand the nature o f an oath if in the

opinion o f the Court the child is possessed o f

sufficient intelligence and understands the

duty of speaking the truth. These

requirements must be recorded in the

proceedings... It is our considered view

 that the two requirements are

conditions precedent to receipt of

evidence from a child o f tender years

whose evidence has not been received

on oath or affirmation." [Emphasis is

ours].

Although the Court made no reference to Section 198 (2) of the Act,

and we are not aware of any decision in the past which has attempted to

do so while discussing section 127 (2), this construction captures the true

intent of the legislature while passing the two provisions.

For this strong reason, the Court stressed the need of strictly

complying with this provision (section 127 (2) ) in the case of Justine

Sawaki V Republic, Criminal Appeal No. 103 of 2004 (unreported). It

unequivocally said:­

"... The Court o f Appeal for Eastern Africa, sa id ...

that there was need for strict compliance with the

provisions of that section and that non

compliance might result in the quashing o f a

conviction unless there was other sufficient

evidence to sustain the conviction. We share

the view.

In the case before us, the trialjudge said she

had found that the witness knew the duty o f

speaking the truth and then proceeded to have her

sworn. But she had not found that the witness

understood the nature o f an oath which is a

condition precedent for taking her evidence on

oath. In the circumstances there was no basis for

taking Coletha's evidence. There was also no

sufficient justification for even treating her

evidence as unsworn because one o f the

prerequisites had not been met, that is to say

there was no specific finding that she was

possessed o f sufficient intelligence to justify

the reception o f her evidence ..." [Emphasis is

ours].
 Under similar circumstances, the Court had, after discounting evidence

received without strict compliance with section 127 (2), quashed the

convictions of the appellants in many instances. See, for example:-

(i) Hassan Hatibu V Republic, Criminal Appeal No.

253 of 2006, delivered on 2nd December, 2008;

(ii) Jackson Mlonga V Republic, Criminal Appeal No.

200 of 2007, delivered on 5th December, 2008;

(iii) Wilbard Kimangano V Republic, Criminal Appeal

No. 235 of 2007, delivered on 26th February, 2020;

and

(iv) Omary Kurwa V Republic, Criminal Appeal No.

89 of 2007, delivered on 21st July, 2010 (all

un reported).

It will be instructive to note that the position taken by the Court on this

issue is the same as that of the Court of Appeal of Kenya, a Partner State

in the East African Community.

The Court (Kenya ) had occasion to elaborate on section 19 (1) of

the Kenya Oaths and Statutory Declarations Act (Cap 15) which is almost

identical with our section 127 (2) in the case of Yusufu Sabwani Opicho
 24

V Republic [2009] eKLR. In that case the trial magistrate had recorded

that she had "examined the child and found him intelligent" and thereafter

received the child's evidence. On an appeal by the accused to the High

Court of Kenya, the appellate judge held that there was sufficient

compliance with the procedure.

Disagreeing with the High Court judge the Court of Appeal (Kenya)

said:­

"... There is nothing novel in what we are about to

say as this Court has pronounced itself on the

matter many times before. The starting point is

section 19 o f... (cap 15) Laws o f Kenya..."

... The construction o f that section is now well

grounded in many previous decisions and it is

surprising that trial courts still get it wrong. We

need only refer to four o f them..." [ after referring

to the case o f Nysani s/o Gichana V Republic

[1958] EA 190 and Kibangeny Arap Kolil V

Republic[1959] EA. 92]

 The procedure for investigation, or preliminary

examination o f witness ... 'Voir dire' is taken in two

steps as summarized in Kinyua V Republic [2002]

I KLR 256:­

" (a) The court should first ascertain

whether the child understands the

nature o f an oath. An investigation to

this effect must be done by the court

immediately the child witness appears in

court. ...

(b) I f the child does not understand

the nature o f the oathf he or she is

not necessarily disqualified from

giving evidence. The court may

still receive the evidence if it is

satisfied, upon investigation, that

the young person is possessed o f

sufficient intelligence and

understands the duty o f speaking

 26

the truth. This investigation must

he done and when done, it must

appear on record. Where the court

is so satisfied then the court will

proceed to record unsworn

evidence from the child witness.

Further in John Muiruri V Republic

[1983] KLR 445 this Court re­

emphasized, inter aHa that:-

(2) It is important to set out the

questions and answers when deciding

whether a child of tender years

understands the nature o f an oath so

that the appellate court is able to decide

whether this important matter was

rightly decided.

(9) .. The correct procedure for the

court to follow is to record the

examination o f the child witness as to

 27

the sufficiency o f her intelligence to

satisfy the reception o f evidence and

understanding the duty to tell the

truth." [Emphasis is ours].

After the Court had found that the procedure prescribed above had

not been followed, it thus concluded

" Clearly that was flagrant breach o f the

requirements o f section 19 o f the Oaths and

Statutory Declarations A ct... The child was a vital

witness in the trial and the failure by the

court to comply with the procedure in the

reception of his evidence vitiates the

evidence..."

[Emphasis is ours].

This Court has so held and acted in all the cases cited above.
 28

What happened at the trial of the appellant where Nelia was the

second prosecution witness? The record of proceedings in the trial court

provides us with the answer.

When PW2 Nelia was about to testify, the trial Resident Magistrate

first examined her thus to ascertain whether she understood the nature of

an oath:-

"Court: What is your father's name?

Child: I don t know.

Court: Where do you pray?

Child: I don't pray.

Court: Do you school?

Child: No.

Court: Do you you know what is an Oath?

Child: No.

Court: After Voir idre examination the court is

satisfied that the child does not know what is meant

by an oath. She will testify without oath."

 29

Admittedly there was a flagrant breach of the provisions of section 127 (2)

of the Evidence Act as well as section 198 (2) of the Act. Under these

provisions, the unsworn evidence of Nelia ought not to have been

received at all unless and until the trial court was satisfied that she was

possessed of sufficient intelligence to justify the reception of her evidence

and further that she understood the duty of speaking the truth.

We wish to re-emphasize here that these two conditions in the

second stage must be satisfied conjunctively before the unsworn or

unaffirmed evidence of a child witness is received. If, upon a proper

examination of the child, either both attributes or any one of them are

found wanting, then his or her evidence must be dispensed with, in

conformity with the mandatory requirements of both the Evidence Act and

the Act. In the light of these clear statutory provisions, unsworn evidence

of a child witness received outside the ambit of the provisions of section

127 (2) is as good as no evidence at all in a criminal trial. It should always

be discarded or discounted.
 30

On this Mr. Tangoh agreed and urged us to discount it, although he

insisted that the evidence of PW1 Stella and PW3 Remija proved the

offence of rape. We discount, therefore, the evidence of PW2 Nelia.

Once the so called evidence of PW2 Nelia is discounted, are we left

with any other sufficient evidence to sustain the conviction of the

appellant? In spite of Mr. Tangoh's pressing that there is such evidence,

we regret to say that this being a criminal case we have none on record.

We have already given our reasons why we have found the evidence of

PW1 Stella extremely wanting in cogency. The evidence of other witnesses

does not irresistibly lead to the conclusion that PW2 Nelia was raped and

even if she was the that culprit was the appellant. In short, the guilt of the

appellant was not proved reasonable doubt. This disposes of the third and

seventh grounds of appeal.

Since the prosecution failed to prove its case beyond reasonable

doubt, we hereby quash and set aside the appellant's conviction.

Furthermore, as the appellant was admittedly below eighteen years of age

the prison sentence imposed, as conceded by Mr. Tangoh, was illegal in

terms of section 131 (2) (a) of the Penal Code. It is also quashed and set

aside. The same applies to the compensation order.

In fine, we allow this appeal in its entirety. The appellant is to be

released from prison forthwith unless he is otherwise lawfully held.

DATED at IRINGA this day of September, 2010.

JUSTICE OF APPEAL

JUSTICE OF APPEAL

JUSTICE OF APPEAL