Maulid Bezaleh

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA DC. CRIMINAL APPEAL NO. 66 OF 2023 (C/F Criminal Case No. 148 of 2020 before the District Court of Dodoma at Dodoma) MAULID BEZALEH MGONA.............................................. APPELLANT VERSUS THE REPUBLIC.............................................................. RESPONDENT JUDGMENT Last Order: 12th June, 2024 Date of Judgment: 7h August 2024 MASABO, J:- Maulid Bezaleh Mgona, the appellant herein, is serving a prison term of 30 years passed by the District Court of Dodoma (the trial court) after it found him guilty and convicted him of rape of SS (name withheld), a girl of 11 years of age. He was in addition to the jail term, sentenced to twelve strokes of the cane and to pay a compensation of Tshs. 1,000,000/= to the victim. The particulars of the offence are that on the 15th day of July 2020 at Mailimbili within Dodoma District in Dodoma Region, the appellant unlawfully had canal knowledge of the victim, a girl of 11 years of age, contrary to the provisions of sections 130(1) (2) (e) and 131 (1) of the Penal Code, Cap. 16 R.E 2019. During the trial the prosecution paraded four witnesses namely; PW1: the victim, PW2: Hidaya Salumu Bakari, PW3: Amir Athuman Hamisi, the victim's Page 1 of 20 uncle, and PW4: WP 4351 DC Ruthi, the investigator of the case. The defence side had only one witness, the appellant. It was the prosecution's case that on 15th July 2020 at Mailimbili, the victim (PW1) while on her way to school passed near the appellant's home. The appellant grabbed and lured her inside the house where he raped her. PW2 saw the victim entering the appellant's house. She notified the victim's auntie who then notified PW3 who is the victim's uncle. PW3 went to the scene of the crime. When he got there, he knocked. The appellant who was wearing shorts opened the door for him. When PW3 asked him about the whereabouts of the victim he pretended not to know. PW3 was furious, he slapped him. Suddenly, the victim who was terrified emerged under the bed where she was hiding and disclosed that the appellant has raped her. The appellant confessed to have raped the victim. Both, the appellant and the victim were taken to Mnada Mpya police station. The victim was issued with PF3 for medical examination. Upon examination, it was confirmed that there was vaginal penetration. The PF3 was tendered by PW4 the investigator of the case and it was admitted as Exhibit P2. PW4 also tendered a caution statement in which the appellant denied committing the offence on the alleged date but admitted to have committed the same offence against the victim in April 2020. The appellant objected to the admission of the cautioned statement claiming that he did not sign it. An inquiry was conducted whereby the trial court found the objection meritless and henceforth admitted the cautioned statement as exhibit Pl. Page 2 of 20 In his defence, the appellant denied to have committed the offence. He alleged that the victim's father and uncle invaded him as he was coming from work whereby they beat him up and took him to the police station. After a full trial, the trial court found the prosecution case to have been proved. Hence, the conviction and sentences above. Aggrieved by the conviction and sentences, the appellant has appealed before this court armed with the following nine grounds of appeal. One, there were contradictions and inconsistencies in the prosecution evidence. Two, the victim's evidence was received in contravention of the provision of section 26(a) (b) of the Written Law (Miscellaneous) Amendment Act, No. 2 of 2016. Three, the ingredients of rape were not proved. Four, there were procedural irregularities in the admission of exhibits Pl and P2. Exhibit P2 was wrongly admitted as the appellant was not informed of his right to summon the doctor for cross-examination. Five, the appellant was not informed of his right to have the doctor summoned for cross examination under section 240(3) of the Criminal Procedure Act, Cap. 20 R.E 2019. Six the age of the victim was not proved. Seven, the prosecution case was not proved to the required standards as there was no corroboration from the street leaders who arrested the appellant. Also, all the witnesses were from the victim's family. Eight, the defence was ignored. With leave of this court, the appellant filed the following nine additional grounds of appeal. One, the provision of sections 9(3) and 10(3) of the Criminal Procedure Act, were offended as a result, the prosecution brought witnesses in no particular order and at their pleasure. Two, the victim was Page 3 of 20 not a trustworthy witness as she failed to narrate how she was raped. Three, the PF3 was irregularly admitted. Four, there were contradictions between the prosecution witnesses. PW1 told the court that after the incident, the appellant ran away while other witnesses stated that the victim and the appellant were taken to the police station. Five, the case against the appellant was fabricated considering also that there was evidence that he was previously suspected of the same crime. Six, the prosecution evidence was full of lies and contradictions. Seven, the testimony of PW1 was fictitious. Eight section 57(2)(a) and (b) were offended in the admission of the caution statement (Exhibit Pl) as there was no certification that the appellant consented to be interrogated in the absence of his relatives. Lastly, the trial magistrate erred as he did not inform the appellant of his right to have a counsel. When the parties appeared before me for hearing of the appeal, the appellant appeared in person unrepresented. Mr. Francis Kesanta, learned State Attorney, appeared for the respondent Republic. The appellant being a lay person had nothing to submit in support of his grounds of appeal. He just prayed that his grounds be positively considered. On his part, Mr. Kesanta objected the appeal. He then consolidated the 1st ground of appeal and the 4th additional grounds of appeal and argued that there were no contradictions in the prosecution's evidence. PW2 and PW3 testified that they found the victim and the appellant at the scene of the crime. The victim stated that the appellant raped her when they were in his room. Further, the fact that the appellant was found at the scene of the Page 4 of 20 crime was conclusive evidence that he committed the offence. The case of Tumaini Yared Mtoro vs Republic, Criminal Appeal No. 218 of 2022 [2024] TZCA 23 TanzLII was cited in fortification of the submission. On the 2nd ground of appeal, he submitted that the recording of PWl's evidence was fully compliant with the law. As shown in page 9 of the proceedings, PW1 promised to tell the truth. Thus, the mandatory requirement of section 127(2) of the Evidence Act, Cap 6 R.E. 2022 was complied with. It was submitted further that even if there was any anomaly, PWl's evidence cannot be disregarded as section 127(7) of the Evidence Act requires that such evidence should be followed. In the 3rd ground which was consolidated with the 2nd and 3rd additional grounds, the applicant's complaint is that penetration was not proved. Countering this complaint, it was submitted that penetration was proved through exhibit P2. On the argument that the victim did not testify on how the offence was committed, it was argued that the victim was a child below 11 years. The failure to describe how she was raped is understandable and excusable due to her tender age. Just as the trial magistrate, the learned State Attorney relied on the case of Hassan Bakari @ Mamajicho vs. Republic, Criminal Appeal No. 103 of 2012 CAT at Mtwara (Unreported) to support his position. He submitted that PW1 testified that the accused person lured her inside the house and raped her. When other people came, they found him in shorts. Moreover, Mr. Kesanta argued that the appellant did not cross-examine on this averment thus suggesting that he was in agreement with what PW1 stated. The case of Tumain Yared Mtoro Page 5 of 20 (supra) was referred to support the argument as to the effect of the accused's failure to cross examine. On the lamentation that the appellant was denied his right to cross-examine the doctor which is the substance of the fourth ground of appeal, Mr. Kesanta submitted that at first, the appellant required the doctor to come for cross- examination but later on he forfeited that right after the doctor failed to show up. Thus, it is not true that the requirement of section 240(3) of the Criminal Procedure Act was offended. He added that the PF3 filed by a doctor was tendered by PW4 who was an investigator of the case. She knew about it and it was under her custody. Therefore, she was competent to tender it under section 173 of the Evidence Act. Mr. Kesanta submitted further that, in the 5th and 6th grounds of appeal, the appellant is complaining about the age of the victim but his complaint is baseless as there was no doubt that she was 11 years old. Her age was proved through the testimony of PW1 and PW3 and the proof was consistent with the principle in the case of Isaya Renatus vs Republic, Criminal Appeal No. 542/2015 [2016] TZCA 218 TanzLII. On the 7th ground, as to the admission of Exhibit P2, it was submitted that exhibits Pl and P2 were properly admitted after the court satisfied itself that they were admissible. On the 8th ground as to the failure to parade the street leaders and community policeman to corroborate the evidence adduced, it was argued that as much as those persons were among the witnesses, their absence was inconsequential. As per section 143 of the Evidence Act, there Page 6 of 20 is no particular number of witnesses required in a case. What matters is the quality of evidence not the number of witnesses. The witnesses who testified sufficiently proved the prosecution's case and there was no need for further witnesses. The learned counsel also invited the court to ignore the complaint that the witnesses were all relatives of the victim hence biased. He argued that as held in Mamajicho's case (supra), no law bars relatives from standing as witnesses. What matters is whether they were competent and their testimonies were properly recorded. On the 9th ground of appeal, it was argued that it had no merit as the appellant's defence was considered but found not to have cast any reasonable doubt on the prosecution's case. Turning to the remaining additional grounds that were not consolidated with the grounds above, it was submitted that, the first additional ground is devoid of any merit as there is no proof that the appellant was prejudiced by the noncompliance with sections 9 and 10 of the Criminal Procedure Act. He had the opportunity to cross examine all the witnesses who testified against him. It was argued further that the complaint the case was fabricated from an already decided case was with no merit as it is a new fact. The prosecution was not aware of it. Even the appellant did not mention this case in his defence. Thus, it is a new fact that cannot be entertained at this stage. On the 5th additional ground, it was the submission of the learned counsel that the case against the appellant was not fabricated. The fact that he was previously suspected of committing a similar offence against the victim is true. Even the victim stated so in her testimony. She told the court that the Page 7 of 20 appellant had previously raped her but she did not report because the appellant was threatening her. The appellant did not cross examine her on this fact which shows that he admitted that he was habitually molesting the victim. On the 6th additional ground, he submitted that it is devoid of merit as the evidence rendered was consistent with the particulars of the charge. The disparity if any between the evidence and what was stated during preliminary hearing is inconsequential because as per section 192 of the Criminal Procedure Act, the sole purpose of the preliminary hearing is to accelerate criminal trial. Thus, the mistakes occasioned during the preliminary hearing cannot invalidate the proceedings as held in the case of DPP vs Lengai Ole Sabaya, Criminal Appeal No. 231 of 2022[2023] TZCA 17853 TanzLII. Submitting on the 7th additional grounds, Mr. Kesanta argued that it is also devoid of merit as the appellant did not demonstrate how the evidence was fictitious. The record clearly demonstrates that the victim's evidence was true and reliable. On the 8th additional ground, it was submitted that exhibit Pl was properly admitted and considered. On the complaint that the appellant was not informed of his right to have an advocate, Mr. Kesanta submitted that it is a farfetched outcry as no law requires the magistrate to inform the accused person of his right to have an advocate. Also, no law prohibited the applicant from looking for a counsel. It was all upon him to assess the case and see whether he needed services Page 8 of 20 of a counsel and engage one if he considered it necessary. The appellant has none but himself to blame for not seeking such assistance. In conclusion, Mr. Kesanta prayed that the appeal be dismissed and the conviction and sentence be upheld. The appellant had nothing to rejoin. Having considered the submissions by the parties and thoroughly read the record from the lower court, I will now proceed to determine the appeal. The main issue for determination is whether the case against the appellant was proved. It is a trite law that in criminal cases, the prosecution bears the legal and evidential burden to prove the case beyond reasonable doubt (see Jumanne Ramadhani Gange vs Republic (Criminal Appeal No. 509 of 2022) [2024] TZCA 278 TanzLII and Matibya Ng'habi vs Republic (Criminal Appeal No. 651 of 2021) [2024] TZCA 34 TanzLII). As stated earlier on, the appellant was convicted of rape and sentenced. The substance of the sole count laid at his door was that on 15th July 2020 at Mailimbili area within Dodoma Region and District and Region, he unlawfully carnally knew PW1, a girl child of 11 years of age. At the end of the trial, the court found him guilty and convicted him of rape contrary to section 130(1) (2) (e) and 131 (1) of the Penal Code, Cap 16 R.E 2019 (now 2022) whose substance I conveniently reproduce below. "130.-(1) it is an offence for a male person to rape a girl or a woman. (2) A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions: Page 9 of 20 (e) With or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man. 131.-(1) Any person who commits rape is, except in the cases provided for in the renumbered subsection (2), liable to be punished with imprisonment for life, and in any case for imprisonment of not less than thirty years with corporal punishment, and with a fine, and shall in addition be ordered to pay compensation of an amount determined by the court, to the person in respect of whom the offence was committed for the injuries caused to such person." The appellant has lamented that he was wrongly convicted as the offence was not proved. This court being the first appellate court for this appeal, is obliged to re-appraise and re-evaluate the evidence on record and come up with a finding on whether the prosecution proved its case to the required standard (see Wolde Kaier & Others vs Republic (Criminal Appeal No. 686 of 2020) [2024] TZCA 324 TanzLII and Samwel Manguye Rhobi vs Republic (Criminal Appeal No. 315 of 2020) [2024] TZCA 622 TanzLII). In the 5th and 6th grounds of appeal which I prefer to start with the appellant's discontentment is that the age of the child was not ascertained. The lamentation was sternly opposed by Mr. Kesanta who holds a view that the same was proved to the required standard. Undeniably, the age of the victim is an essential ingredient of the offence of rape committed against a child below 18 years (commonly referred to as statutory rape). It distinguished this type of rape from the rape of adults which, unlike statutory rape, requires proof that the intercourse was nonconsensual. Thus, for the Page 10 of 20 appellant to be convicted of statutory rape it had to be proved that PW1 was a child of 11 years as alleged in the charge sheet. The law as regards proof of age is now settled that, the age of a person can be established through diverse means including a birth certificate, the person's own oral evidence and, in respect of children, the testimony of a parent or guardian (see the cases of Isaya Renatus vs Republic (supra); Jaspini Daniel @ Sikwaze vs Director of Public Prosecutions (Criminal Appeal 519 of 2019) [2021] TZCA 58 TANZLII and Rutoyo Richard vs Republic (Criminal Appeal 114 of 2017) [2020] TZCA 298, TANZLII). In the present case, the record shows that PW1, the victim, testified to be 12 years old when giving evidence on 18/01/2021, meaning in 2020 when the offence was committed, she 11 years old the age. This was corroborated by her uncle who testified as PW3. None of these two witnesses were cross examined on this fact. As correctly submitted by Mr. Kesanta, the law in our jurisdiction is well settled on the consequences of failure to cross examine on important facts. As stated in Tumaini Yared Mtoro vs Republic (supra): "It is trite law that, a party who fails to cross examine a witness on a certain matter is deemed to have accepted and will be estopped from asking the court to disbelieve what the witness said, as the silence is tantamount to accepting its truth." Thus, in this case I am fortified that, the victim's age was proved a finding and the respective grounds of appeal are therefore with no merit. Page 11 of 20 The issue of age was also raised in 2nd ground of appeal. In this grounds, the appellant has complained that the evidence of the victim was of no value as it was recorded contrary to the amendment ushered into section 127(2) of the Evidence Act by section 26(a) (b) of the Written Law (Miscellaneous) Amendment Act No. 2 of 2016 which states thus: 127(2) A child offender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell any lies. The import of this provision as interpreted in the case of Geofrey Wilson v. Republic, Criminal Appeal No. 168 of 2018 [2019] TZCA 109 TanzLII and a string of other authorities from the Court of Appeal is that it serves two purposes. First, it recognizes a child of tender age as a competent witness capable of giving evidence on oath or affirmation. And, second, it requires that if a child of tender age is to give evidence without oath or affirmation, she/he must first undertake to tell the truth and not lies (Also see Issa Salum Nambaluka v. Republic, Criminal Appeal No. 272 of 2018 [2020] TZCA 10 TanzLII. As stated above, the victim was a child of 12 years when testifying hence, a child of tender age. Thus, she fell squarely within the scope of this provision. It was therefore crucial that the recording of her evidence proceed in total adherence to the requirement above meaning that she could adduce evidence on oath or upon making an undertaking to tell the truth. Revelations from the trial court record, credibly demonstrate that before testifying as PW1, the victim was asked several questions by the trial Page 12 of 20 magistrate and after she had answered them, she undertook to tell the truth. No anomaly is exhibited in the procedure followed by the trial court. All I could spot is a minor and curable anomaly in the title of the question-answer part which reads as "voire dire', a procedure that is no longer required. As for the questions and answers, they are perfectly in order as they clearly show how the undertaking to tell the truth was derived (see Geofrey Wilson v. Republic (supra). The appellant's lamentation in this ground is also devoid of merit. The next ground for consideration is the 4th and 7th grounds of appeal which I consolidate with the 8th additional ground of appeal. In these grounds, the appellant has lamented that Exhibit Pl and P2 were wrongly admitted. In respect of exhibit Pl, he has argued that the caution statement was recorded in contravention of section 57(2) (a) and (b) of the Criminal Procedure Act as it has no certification to the effect that he consented to be interviewed in the absence of his relatives. Section 57(2)(a) and (b) which is at the center of this ground requires the police officer recording a statement of the accused to, as far as practicable, record the questions asked and the answers thereto. I will not be detained by this complaint as, although this document was admitted as an exhibit, it was not used to convict him. The trial court judgment is silent about it meaning that it accorded it no weight. As regards the PF3 which was admitted as Exhibit P2, the appellant has complained that it ought not to attract weight because it was tendered by PW4 who is an investigator of the case and not the doctor who examined the victim and prepared it. Yet, contrary to section 240(3) of the Criminal Page 13 of 20 Procedure Act the court did not explain to him his right to have the doctor summoned for cross examination. This lamentation is similarly with no merit as it sharply contrasts with what transpired before the trial court after the PF3 was produced and admitted as exhibit P2 on 17/2/2022. As per the record after the court admitted the PF3, the accused person requested that the doctor be summoned to appear for cross examination. In compliance with section 240(3) of the Criminal Procedure Act, the trial court granted his prayer and ordered that the doctor be paraded for cross examination on 3/3/2022. On that day the doctor was not paraded as a result the trial was adjourned to another date. By 2nd May 2022, the doctor had not been paraded. On that day, the appellant waived his right. He expressly told the court that he no longer wished to cross examine the doctor. In the foregoing, his lamentation that he was unaware of his right to cross-examine the doctor is disregarded as it serves no purpose other than misleading this court. The 4th and 7th grounds of appeal as well as the 8 additional grounds of appeal are all without merit and are dismissed. Next is the provisions of section 9(3) and section 10(3) of the Criminal Procedure Act which is the kernel of the appellant's complaint in the 1st additional ground of appeal. Although his lamentation did not come out clearly, it would appear that he meant to complain that he was not furnished with the statement of the complainant and the witnesses, an omission which in his view, offended the provision above. A complaint similar to this was raised in the case of Elibariki Naftal Mchomvu vs R, Criminal Appeal No. 332 of 2019 [2022] TZCA 606 TanzLII. Determining it, the Court of Appeal stated thus: Page 14 of 20 Admittedly, section 9 (3) of the CPA stipulates the requirement for the trial magistrate to cause the information given by a complainant to the police on the commission of the charged offence to be given to the accused if the said complainant is named as a witness. For clarity, we extract the said provisions: "9.-(3) Where in pursuance of any information given under this section proceedings are instituted in a magistrate's court, the magistrate shall, if the person giving the information has been named as a witness, cause a copy of the information and of any statement made by him under subsection (3) of section 10, to be furnished to the accused forthwith." In the instant case, it has been conceded that the trial magistrate did not cause a copy of the information or statement to be given to the appellant. As we stated in Abdallah Seif {supra), the accused's entitlement to such information or statement enshrined in section 9 (3) of the CPA is one of the key tenets of fair trial. Nonetheless, in this case it has not been demonstrated that the omission caused the appellant any injustice. We agree with Ms. Mlenza that he utilised fully the opportunity to cross-examine the complainant as well as other witnesses, which suggests that he was able to marshal a formidable defence despite not having been served with a copy of the complainant's statement. Accordingly, we hold that the error did not occasion any failure of justice justifying our interference. It is, therefore, curable under section 388 of the CPA. From this authority, it is patently clear that a conviction or sentence will not be reversed on a mere complaint that the trial court did not comply with the provision of section 9(3) of the Criminal Procedure Act unless it is demonstrated that the appellant suffered an injustice as a result of such Page 15 of 20 omission. Therefore, it was not sufficient for the appellant herein to just lament that section 9(3) was offended. He had to demonstrate the injustice he suffered as a result of that. Since he did not and the record shows that he fully utilized the opportunity to cross examine the prosecution witnesses, this ground is devoid of merit and it is dismissed. The 6th additional ground of appeal is on the discrepancies between the evidence adduced in court and the facts narrated during the preliminary hearing. I outrightly dismiss this ground as I agree with the learned State Attorney that, the factual narration during the preliminary hearing cannot controvert the evidence made under oath during the trial. Besides, and as stated while dealing with the above grounds of appeal, the appellant had an opportunity to cross examine all the witnesses. He could have raised this point during trial but he did not and waited to belatedly raise it as a ground of appeal. The 9th additional ground of appeal is with no merit and I dismiss it because, as correctly argued by Mr. Kesanta, no law obliges the trial magistrate to inform the accused person of his entitlement to engage counsel to represent him. There is similarly no law that bars an accused person or a party to the case, be it civil or criminal, from engaging a counsel. The appellant was at liberty to engage an advocate if he wished but he did not. Since he waived his right. He has none but himself to blame. In the 1st ground of appeal and the 4th additional ground of appeal, the appellant has alleged that the prosecution evidence was marred by Page 16 of 20 discrepancies in the narration of the witness. He has contended that whereas PW1 stated that the appellant ran away after the incident, the rest of the witnesses stated that he was found at the scene. This is a farfetched outcry and with no merit because at page 10, PW1 narrated eloquently how she and the appellant were found at the scene by PW3. Thus, there is no discrepancy worth the consideration of this court or reversal of the trial court findings. In the 3rd ground of appeal which I consolidate with the 5th ground of appeal and the 2nd and 3rd additional ground of appeal, the appellant's major discontentment is that the offence of rape was not proved as the victim gave no graphical description of how she was raped. She just stated that she was raped without explaining what exactly happened to her. Much as I agree with him that the victim provided no graphical description of rape, I find his argument unfounded and without merit, because it is now settled that, the failure of the child victim of a sexual offence to graphically describe how she was raped or molested is understandable and excusable because, it may be attributable to cultural backgrounds, upbringing, religious feelings, the audience listening, the age of the person and the like which may inhibit her/him from graphically describing how rape was committed (see Hassan Bakari @ Mamajicho v. Republic, (supra); Hassan Kamunyu vs Republic (Criminal Appeal No. 277 of 2016) [2018] TZCA 259 TanzLII and Masalu Kayeye vs Republic (Criminal Appeal No. 120 of 2017) [2020] TZCA 302 TanzLII. Therefore, depending on the circumstances of the case, the conviction can be entered or sustained even in the absence of such a Page 17 of 20 graphical description. In the present case, the relevant circumstances and corroborations are relevant. First, PW1 stated that she was raped by the appellant on 15/7/2020. When she was asked if she knew what it means by rape, she confidently stated that she knew. Also, when the appellant cross examined her she maintained that he raped her on 15/7/2020. Second, PW1 testimony was corroborated by Exhibit P2 containing a medical report showing that there was evidence of vaginal penetration. Third, the appellant was found at the scene of the crime where he had locked himself inside with the victim who was neither her child nor a relative. Worse still he was found wearing only a short and had even made her to hide under the bed. All these facts were uncontroverted as the appellant did not cross examine the prosecution witnesses of these facts. As already stated, law is settled that, failure to cross examine a witness on important facts connotes acceptance of such fact and it will be difficult to suggest that the evidence should be rejected (see Issa Hassani Uki v. Republic, Criminal Appeal No. 129 of 2017 [2018] TZCA 361, TanzLII and Kaiza Gaudin vs Republic (Criminal Appeal No. 170 of 2022) [2024] TZCA 387 TanzLII. Thus guided, I am of the firm view that, all these factors considered conjointly show that the offense of rape was committed. The appellant has complained that the street leader and the community police who allegedly arrested him and took him to the police station were material witnesses and ought to be paraded. While agree with him that these people were among the witnesses, I differ with him on the consequences of Page 18 of 20 the omission to parade them. As submitted by Mr. Kesanta, it is incontrovertible that in terms of section 143 of the Evidence Act, no particular number of witnesses is required in any particular case for the proof of any fact because what matters is not the quantity but the quality of evidence (see Yohanis Msigwa v. Republic [1990] T.L.R. 148 and Nkanga Daudi Nkanga vs Republic (Criminal Appeal No. 316 of 2013) [2014] TZCA 213 TanzLII. In the present appeal, the evidence tendered was sufficient and the essence of these two was not fatal considering as stated above that PW2 saw the appellant and the victim entering the house and took the initiative to notify another person who notified PW3. When PW3 went to the scene he found them and he was the one who informed the street leaders who came and arrested the appellant. His testimony was uncontroverted. Lastly, the appellant has complained that his defence was ignored. In my scrutiny of the judgment to see whether his defence was ignored as lamented, I have observed that the allegation is untrue. The appellant's evidence was considered as reflected in page 14 of the judgment but found to have cast no reasonable doubt on the prosecution's case. On my side, having critically examined it, I have also found it an exculpatory statement considering that, when the prosecution witnesses were implicating him he did not controvert them. I have also observed that his exculpatory statement was in itself contradictory. At first, he stated that he knew the victim as he met her only once on the date he was beaten but later on, he changed and stated that he did not know the victim. That, he met her for the first time in Page 19 of 20 court. The contradiction shows that he is untrustworthy and his testimony was therefore unreliable. That said and done, I have found no merit in the appeal. Consequently, the appeal fails and is dismissed in its entirety. The conviction and sentence of the trial court are upheld. DATED at DODOMA this 7th day of August 2024 Page 20 of 20