Chole v. R. Crim. App. 27-M-71; 29/6/71; El-Kindy Ag. J.

Chole v. R. Crim. App. 27-M-71; 29/6/71; El-Kindy Ag. J.

            The appellant was charged with attempted defilement of a girl under twelve years of age c/s 132 (2) of the Penal Code but was convicted of indecent assault c/s 135 (1) of the Penal Code. the learned Magistrate admitted the  evidence on oath of the victim a child of 7 years, but before he did so, he recorded that the girl indicated to the Court that she knew the nature of the oath without conducting a viva voce examination as required by section 127 (2) of the Evidence Act, 1967.

                        Held: (1) “It has often been held that before the trial court admits evidence of the child, the trial court has to conduct viva voce examination of the child witness and this examination has to appear clearly from the record of the court, in order to satisfy itself that (a) the witness is possessed of sufficient intelligence and understands the duty of speaking the truth and (b) such a witness understands the nature of an oath. If the trial court is satisfied that the child understands the nature of an oath then the trial court should admit such evidence on oath, but where the trial court is not satisfied that such a witness understands the nature of an oath, then the trial court may receive such evidence if it is satisfied that he child is possessed of sufficient intelligence and understands the duty of telling the truth. In this case, the trial court simply recorded the conclusion which is not clear either. Recording that the witness says that she “knows the nature of an oath” does not tell us more than what the witness is alleged to have told the trial court. It does not tell

            us whether the trial court was satisfied that the witness knew the nature of an oath to justify the reception of her evidence on affirmation, as she did. With due respect t the learned magistrate, I am satisfied that trial court did not properly direct itself on the issue of admissibility of evidence of the victim. Therefore, as the evidence of this witness was not properly admitted, it ought not to have been taken into account in this case.” [Citing Sakila v. Republic [1967] E. A. 403]. (2) But in this case there was other evidence other than that of the victim which tends to support the conviction of indecent assault. (3) “The position seems to be that the law would hold that indecent assault would be held as having been proved, if the evidence established an assault on females, was done in indecent circumstances (see Russel on Crime, Vol. 1 12^th Edn. At pp. 723 and 724 top.) In this case, the evidence of Ndaki showed that the appellant was found in the following circumstances. He had laid the girl (P. W. 1) on the ground with her face, or stomach, upwards. He was found unbuttoning the girl’s dress. That he had already unbuttoned his trousers. That he had lifted the girl’s legs upwards. These circumstances not only left no reasonable doubt in mind that the appellant intended to have sexual intercourse with the girl, but that his conduct was most indecent. In law, the holding of the girl’s legs in that manner and undressing her amounted to an assault and in the circumstances the assault was indecent. I would therefore, respectfully agree that the evidence of Nduturu and Ndaki left no reasonable doubt as to the appellant’s guilt. The exclusion of the evidence of the girl was not fatal to the prosecution’s case. The conviction of indecent assault is accordingly upheld.” (4) Appeal dismissed.