Facts
The District Court of Ukerewe, Tanzania, on the evidence of the complainant and two other school girls, convicted the appellant of defiling a girl under the age of twelve years under s. 136 (1) Penal Code and imposed a sentence of two years’ imprisonment. The District Court recorded that the complainant was between twelve and thirteen years of age. On appeal the Republic submitted that the High Court was empowered under s. 319 (1) (a) (ii) of the Criminal Procedure Code to substitute a finding of guilty of rape under s. 131 of the Penal Code.
Held
(i) no alteration to a finding of guilty of rape should be made, because the accused was not charged with it and had had no opportunity to put forward a defence to it.
(ii) the procedure adopted by the trial court in admitting evidence of witnesses of tender years was wrong. A trial court should examine a witness to satisfy itself that.
(a) the witness is possessed of sufficient intelligence and understands the duty of speaking the truth.
(b) understands the nature of an oath. If satisfied as to (a) but not as to (b) the evidence may be received but not on oath if satisfied as to (a) and (b) evidence should be taken on oath.
Appeal allowed. Conviction and sentence quashed.
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