CRIMINAL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 12998 OF 2024 (Arising from the Judgement of the District Court of Ilala at Kinyerezi dated 21st November 2023 (Hon. N.A. Baro, PRM) in Criminal Case No. 574 of 2022 _____________________________ ANTHONY BEATUS MWINGIRA……………..……….…….….. APPELLANT VERSUS REPUBLIC……………………………………..…..…….………...RESPONDENT JUDGEMENT Date of last order: 29th July 2024 Date of Judgement: 20th August 2024 MTEMBWA, J.: This Appeal stems from the decision of the District Court of Ilala at Kinyerezi in Criminal Case No. 574 of 2022, in which the Appellant was arraigned for the offense of incest by a male contrary to section 158 (1) (a) of the Penal Code, Cap 16, R.E 2022. It was alleged that on diverse dates and months in the year 2022, in Gongo la Mboto Mazizini area within Ilala District in Dar es Salaam Region, the Appellant had carnal knowledge of his daughter (name withheld) aged thirteen (13) years. For purposes of this Appeal, I shall refer to the victimized girl as “PW1” and or, where necessary, “the Victim.” 1 The Appellant pleaded not guilty to the charge. Consequently, the prosecution fronted three (3) witnesses and tendered one (1) exhibit. The Appellant (the accused by then) relied on his sworn testimonies and did not tender any documentary evidence. Having evaluated the evidence adduced during hearing, the learned trial Magistrate was satisfied that, the offense to which the Respondent was charged was proved beyond a reasonable doubt. As such, he proceeded to convict the Appellant as charged and sentenced him to thirty (30) years of imprisonment. Dissatisfied, the Appellant has laid before this Court the following grounds of appeal, and I quote in verbatim; 1. That, the learned trial magistrate erred in law to convict the appellant based on invalid evidence of PW 1 which was taken without complying with the provision of section 127 (2) of the Evidence Act, [cap.6 RE 2022] governing Evidence of tender age witness. 2. That, the learned trial magistrate erred in law and facts to accept and believe the evidence of PW.I as a Gospel truth without assessment of credibility and reliability of such evidence so as to avoid The danger of utilization of the evidence of the untruthful victim. 3. That, the learned trial magistrate erred in law for totally failure to evaluate and consider the defense evidence of the Appellant which casted a reasonable doubt on the prosecution case. 4. That, the learned trial magistrate erred in law and fact to convict the appellant basing on the prosecution case which 2 was not proved beyond reasonable doubt. When the matter was called up before me for orders on 10th June 2024, the Appellant appeared in person while Ms. Rose Makupa, the learned counsel, represented the Respondent. By consent, parties agreed to argue this Appeal by way of written submissions. Having reviewed the records, I am satisfied that only the Appellant adhered to the order. The Republic unjustifiably failed to file the reply submissions. As such, this is an exparte Judgement against the Republic. Taking up the podium, the Appellant compressed the first and second grounds of appeal and argued them altogether. He submitted that he was incorrectly convicted based on the evidence of PW1, which was received unprocedurally without compliance with the mandatory conditions of section 127 (2) and (6) of the Evidence Act, Cap 6 R.E 2022. He added further that the testimony of the victim of sexual offense should pass the test of truthfulness. He cited the cases of Mohamed vs. Republic, Criminal Appeal No.145 of 2017, Rehani Saidi Nyamila vs. Republic, Criminal Appeal No. 222 of 2019, and Hamis Halfani Pauda vs. Republic, Criminal Appeal No. 231 of 2019 (All unreported). The Appellant continued to note that the conditions for admissibility of the evidence of a child of tender years under section 127 (2) of the 3 Evidence Act (supra) have not been overridden by the provisions of section 127 (6) of the same Act. He referred this Court to the cases of Emmanuel Masanja vs. Republic, Criminal Appeal No. 394 of 2020, and Mohamed Ramadhani vs. Republic, Criminal Appeal No. 396 of 2021 (All unreported). That the evidence of a child witness given without due compliance with the pre-conditions under the said law has no evidential value at all and was fortified by the decisions of Mohamed Ramadhani (supra), John Makorongo vs. Republic Criminal No. 498 of 2020, Godfrey Wilson vs. Republic, Criminal Appeal No. 168 of 2018 and Faraji Said vs. Republic, Criminal Appeal No. 127 of 2018 (All unreported). It was argued that the conviction was grounded on the evidence of PW1, which was received unprocedural without due compliance with the mandatory conditions under section 127 (2) of the Evidence Act (supra). He added that the trial Magistrate did not test PW1 to know whether she understood the meaning and nature of an oath before jumping to the conclusion that she promised to tell the truth. He cited the cases of Godfrey Wilson (supra), Salum Nambaluka vs. Republic, Criminal Appeal No. 272 of 2018 (unreported), Hamis Issa vs. Republic, Criminal Appeal No. 274 of 2018 (unreported), and 4 Jafari Majani vs. Republic Criminal Appeal No. 402 of 2019 (unreported). The Appellant was of the view that the conditions precedent outlined in the cited cases require a child of tender age to be asked simplified questions, which may not be exhaustive depending on the circumstances of the case, including the child's age, the religion she/he processes, whether he/she understands the nature of oath, and whether or not the child promises to tell the truth and not tell lies. He submitted that the questions and the answers must be reflected in the records. Based on that, he argued that the trial Court’s record is entirely silent on whether there were questions put to PW1. He referred this Court to page 12 of the proceedings. On the same note, the Appellant questioned the PW1’s credibility. He added that the evaluation and assessment of the evidence of PW1 should be apparent in the impugned judgment. He cited the cases of Kaimu Said vs. Republic, Criminal Appeal No. 391 of 2019, and Siza Patrice vs. Republic, Criminal Appeal No. 19 of 2010 (all unreported). Based on that, he submitted that the assessment of the evidence of PW1 is not apparent in the judgment. Instead, the learned trial magistrate pre-determined the appellant's guilt by putting forward spiritual belief from the Holy Bible in the book of Mosses. He referred this 5 Court to page 7 of the impugned Judgement. The Appellant also combined the third and fourth grounds of appeal and argued them altogether. He claimed that he was incorrectly convicted based on the prosecution evidence, which was not proved beyond reasonable doubt in view of sections 110 and 112, read together with section 3 (2) (a) of the Evidence Act (supra). He cited the case of John Makolobera & Others vs. Republic (2002) TLR 296. On the strength of the cited authorities, the Appellant argued that in this case, the conviction was grounded on the testimony of PW1, which was received unprocedurally in contravention of section 127 (2) and (6) of the Evidence Act (supra). The Appellant also attacked and faulted the Charge. He complained that the particulars of the charge indicated that PW1 was raped by the Appellant on diverse dates and months in the year 2022. However, PW1 testified that she was raped once. He referred this Court to pages 13 and 17 of the typed proceedings. He added further that from the testimonies of PW1 and PW2, the victim was raped once on 4th October 2022. Based on that, he argued that the particulars could not sufficiently inform him of the accusations he was facing to enable him to prepare his defense. He insisted that the particulars in the charge differed from the evidence. He cited the case of Mashala vs. Republic, Criminal Appeal No. 179 of 6 2014 (unreported). The Appellant asserted that if PW1 was raped on 4th October 2022 and accordingly informed PW3 on the next day, which was 5th October 2022, the question would be how then she was medically examined by PW2 on 3rd October 2022. He considered this to be a contradiction on the part of the prosecution. He insisted that the trial Court failed to assess the evidence adduced. He cited the cases of Mathias Tomoth vs. Republic TLR 84 and Beda Philipp vs. Republic, Criminal Appeal No. 114 of 2009 (Unreported). Based on that, the Appellant submitted that it is a trite law that when witnesses' testimony contains inconsistencies and contradictions, the Court must address them, try to resolve them when possible, and decide whether the discrepancies and contradictions are only minor or whether they go to the root of the matter. He cited the case of Matiku vs. Republic (1995) TLR 3. He also complained about the delay in being arrested and arraigned in Court. Based on the arguments and cited authorities, the Appellant implored this Court to allow the appeal and set aside the conviction and sentences meted against him. That is what I have briefly gathered from the Appellant’s submissions in chief. As said before, the Respondent or Republic 7 unjustifiably failed to file the reply submissions. I will, therefore, determine the Petition of Appeal in line with the Appellant’s written submissions in chief. Having considered the Petition of Appeal and the submissions in support thereof by the Appellant, the question would be whether the offense of incest by male contrary to section 158 (1) (a) of the Penal Code Cap, 16 R.E 2022 was proved to the required standards of the law, that is, beyond reasonable doubt. In Ahmad Omari Vs. Republic, Criminal Appeal No. 154 of 2005, Court of Appeal of Tanzania at Mtwara (unreported), the Court observed that, in a criminal case, the burden of proof is on the prosecution and the standard of proof is beyond reasonable doubt. This is in consonant with Section 3(2) (a) of the Evidence Act (supra). It follows, therefore, that a person is found guilty and convicted of a criminal offense because of the strength of the prosecution evidence against him, which establishes his guilt beyond reasonable doubt (see also John Makolobela Kulwa Makolobela & Another alias Tanganyika vs. Republic (2002) TLR 296). In determining this Appeal, I shall also seek the guidance of the Court of Appeal of Tanzania in Mapambano Michael @ Mayanga vs. Republic, Criminal Appeal No. 258 of 2015, where it was observed that the first appellate Court must subject the entire evidence on record 8 to a fresh re-evaluation to arrive at a decision that may coincide with the trial Court or may be different altogether. The Appellant argued the grounds of appeal in groups. However, for clarity, I shall argue discuss each of them separately. In the first ground of appeal, the Appellant complained that the learned trial magistrate grounded the conviction on the invalid evidence of PW1, which was taken without complying with the provisions of section 127 (2) of the Evidence Act (supra), governing the evidence of tender-age witnesses. He expounded that the trial magistrate jumped to the conclusion that PW1 promised to speak the truth before asking her simplified questions related to age and religion, testing as to whether she understood the nature of the oath and whether or not she promised to tell the truth and not tell lies. He further stated that the questions and answers must be reflected in the records. He referred this Court to page 12 of the proceedings. On page 12 of the typed proceedings, PW1 was recorded as having promised to speak the truth. The Court then considered her to have promised to speak the truth and recorded her evidence without an oath. The record is silent as to the simplified questions asked to PW1. The procedure for taking the evidence of a child of tender age is provided for by the provisions of section 127 (2) of the Evidence Act. 9 For easy reference, I reproduce the section hereunder: A child of tender 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 lies. As explained in the case of Issa Salum Nambaluka vs. Republic, Criminal Appeal No. 195 of 2018 (unreported), the plain meaning of the provisions of subsection (2) of section 127 of the Evidence Act reproduced above, a child of tender age may give evidence on oath or affirmation or without oath or affirmation. Where a child of tender age is to give evidence without oath or affirmation, he or she must make a promise to tell the truth and undertake not to tell lies. Looking at the record, PW1 promised to tell the truth and the trial Court recorded her evidence without taking an oath. I don’t see any problem with that. I am unable to agree with the Appellant that simplified or test questions were necessary. As I know, the test questions are necessary if the child gives evidence on oath or affirmation. In Mathayo Laurance William Mollel vs. Republic (Criminal Appeal No. 53 of 2020) [2023] TZCA 52 (20 February 2023) the Court said; We are unable to agree with the appellant that the trial court ought to have conducted a test to verify whether the child witnesses knew and understood the meaning of oath or affirmation. In our considered view, that requirement would only 10 be necessary if the child witnesses testified on oath or affirmation. We respectfully think that if a child of tender age is not to testify on oath or affirmation, a preliminary test on whether he knew and understands the meaning of oath may be dispensed with. As said before, PW1 promised to tell the truth only. She did not promise not to tell lies. Even if it is an incomplete promise still, she promised to speak the truth. That would also entail not telling lies. In Mathayo Laurance William Mollel (supra), the Court noted as follows; We understand the legislature used the words "promise to tell the truth to the court and not to tell lies". We think tautology is evident in the phrase, for, in our view, ’to tell the truth" simply means "not to tell lies". So a person who promises to tell the truth is in effect promising not to tell lies. The tautology in the subsection is, in our opinion, a drafting inadvertency. From what I have tried to endeavor herein above, I entertain no doubt that the evidence of PW1 was taken in compliance with section 127 (2) of the Evidence Act. I, therefore, find out that the first ground of appeal is devoid of merits and I dismiss it. In the second ground of the appeal, the Appellant complained that the learned trial magistrate failed to assess the credibility and reliability of PW1’s evidence. He added that the assessment of the evidence of PW1 is not apparent in the judgment. Instead, the learned trial magistrate pre- determined the appellant's guilt by putting forward spiritual belief from 11 the Holy Bible in the book of Mosses. Indeed, I looked at the impugned Judgement of the trial Court and noted that what the trial Magistrate did was to give a summary of what was testified by prosecution and defense witnesses. There is nowhere he tried to assess the evidence of the witnesses testified, especially PW1 (victim). He did not even assert to have believed PW1 or any other witnesses called to testify. Even for the sake of the argument that she spoke the truth, the reliability and credibility of PW1 were not tested. PW1’s evidence generally seems not to have passed the test of truthfulness. In the circumstance, I am constrained to agree with the Appellant that the trial Court did not adequately assess the evidence of PW1. The question would be what will be a proper recourse to be taken by this Court. In Method Leodiga Komba @Todi & Another vs. the Republic, Criminal Appeal No. 150 of 2021 (unreported), the Court said; Admittedly, the trial court did not completely consider PWl's credibility. This glaring omission, now a subject of appeal, as rightly contended by the appellants, was a flagrant violation of the trite position now that words of victims, particularly in sexual offences, should not be accepted wholesome and relied on to found a conviction. This principle of law which is now common and has attained a respectable antiquity and is often referred to by the Court was pronounced in the case of Mohamed Said vs. the Republic, Criminal Appeal No. 145 of 2017 (unreported), that the word of the victim of the sexual 12 offence should not be taken as gospel truth but that such testimony should pass the test of truthfulness. In the instant appeal, the trial court did not, in its judgment, expressly state that it was in any way moved or believed PW1 as a witness of truth or credible. As would be discerned from the above quoted part of the judgment, it simply examined her evidence and held that it was corroborated by the testimonies of PW2 and PW6. As a trial court, trite legal proposition is that determination of credibility by demeanour is within its exclusive domain (See Yasin Ramadhani Chang'a vs. Republic [1999] T.L.R. 489). The issue of her credibility first featured in the High Court judgment. It is common knowledge that, even an appellate court may assess a witness's credibility by looking at the evidence on record. In Shabani Daud vs. Republic, Criminal Appeal No. 28 of 2000 (unreported).” (Emphasis mine) From the authority above, it is apposite that being the first appeal, this Court has mandate to assess the credibility and reliability of PW1 even if the trial Court failed to do so. I will, therefore, evaluate and assess the evidence of PW1 (victim). It must be noted, however, that credibility involves the issue of whether the witness appears to be telling the truth as he believes it to be. In essence, this entails reliability, truthfulness and or accuracy of the information given during hearing. The information given can be acted upon after assessing the witness's trustworthiness, demeanor, and/or credibility. However, demeanor is in the exclusive 13 monopoly of the trial Court. In Salum Ally vs. Republic, Criminal Appeal No. 106 of 2013 (unreported) the Court stated; on whether or not, any particular evidence is reliable, depends on its credibility and the weight to be attached to such evidence. We are aware that at its most basic, credibility involves the issue whether the witness appears to be telling the truth as he believes it to be. In essence, this entails the ability to assess whether the witness's testimony is plausible or is in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in the circumstances particularly in a particular case. The test for any credible evidence is supposed to pass, were best summarized in the case of Abbdalla Teje @ Ma lima Mabula Vs Republic, Criminal Appeal No. 195 of 2005 (unreported), to be: (i) Whether it was legally obtained; (ii) Whether it was credible and accurate; (iii) Whether it was relevant, material and competent; (iv) Whether it meets the standard of proof requisite in a given case, otherwise referred to as the weight of evidence or strength or believability. According to PW1 (victim), she was born on 26th March 2009, and the Appellant is her biological father, who lived at Gongo la Mboto. She lives at Mombasa with her mother. Sometimes, she had been asked to go to the Appellant's home for cleanness. One day, she was called by the Appellant to his bedroom and undressed her clothes and underpants and inserted his penis into her vagina. She felt pain. That the Appellant used 14 to beat her when she refused to be raped. She was not telling anyone because the Appellant threatened to beat her if she told anyone. One day, she told Ratifa (PW3) who waited until the completion of the standard seven national examination then arrested the Appellant to Stakishari Police Station. He identified the Appellant in Court. Cross-examined by the Appellant, PW1 testified that she usually goes to the Appellant’s House for cleanness. The Appellant usually wakes her at night and calls her to his bedroom, and rapes her. That she did not tell anyone because she was terrified by the Appellant. Reexamined by the learned state attorney, PW1 testified that she used to go for cleanness on Saturday and she did not tell anyone because of fear of being beaten by the Appellant. PW2, a medical doctor at Pugu Kajiungeni Health Centre, nearly corroborated PW1’s evidence. He testified that on 3rd October 2022 at about 10:00 hours, received PW1 in company with her stepmother, alleging that she was raped. He examined PW1’s vagina and could not see bruises, blood lent and hymen. The PW1’s anus had no problem at all. He also performed pregnancy and venereal disease tests and found nothing. He then filled in the PF3 (Exhibit P1). On cross-examination, PW2 testified that PW1 was in good condition, walking properly, accompanied by her stepmother and a nurse on duty. 15 According to PW3, the PW1’s biological mother, in 2022, she lived with her (victim) at Mazizini. She testified that the Appellant is the biological father of PW1, who was born on 26th March 2010. She testified further that PW1 is a pupil at Majani Secondary School. In his defense, the Appellant (DW1) testified that his father-in-law, Seleman, called him on 10th October 2022. He went to his home on 13th October and met him, his wife and children. The in-law reminded him of the need to maintain PW1 who was by then living with him. He demanded Tanzanian Shillings 150,000/= per month, and at the time, he told him that his daughter had informed him that he had raped PW1. He decided to call PW1 and asked her about the allegations, and she denied it. The in-law asked for Tanzanian Shillings 2,000,000/= to end the matter. He failed, and as a result, PW3 requested his father to send him to jail. The Appellant continued to testify that he later told them he could pay Tanzanian Shillings 500,000/=. Then Ramadhani called the street chairman who came to interrogate PW1 at home, who denied having been raped. He was arrested and sent to Stakishari Police Station, where he stayed for two months. On 22nd December 2022, he was arraigned before this Court for the offense of incest by male, which he denied. On cross- examination, the Appellant confirmed to be not in conflict with PW1. He testified further that the said Tanzanian shillings 500,000/= intended to 16 buy clothes and window maintenance of the children’s rooms. I have dispassionately examined the evidence adduced during hearing and I am satisfied that PW1 (victim) was telling nothing but the truth. She was direct, consistent, credible and coherent on what the Appellant did to her. I examined the evidence of PW1 closely and noted that she knew what she was talking about. The evidence of PW2 (medical doctor) and PW3 (his mother) corroborated closely the evidence of PW1. The collective prosecution evidence adduced during hearing directly points fingers to the Appellant to be the one who committed the offense contrary to section 158 (1) (a) of the Penal Code Cap (supra). The section provides as follows; Any male person who has prohibited sexual intercourse with a female person, who is to his knowledge his granddaughter, daughter, sister or mother, commits the offence of incest, and is liable on conviction- (a) if the female is of the age of less than eighteen years, to imprisonment for a term of not less than thirty years; (b) N/A From the testimony of PW1 and PW3, I have no doubt that the Appellant is the victim's biological father. Their testimonies revealed further that the victim was born on 26th March 2009 and thus was below 17 the age of eighteen in 2022. According to Exhibit P1 (PF3), the victim was presumed to be 13 years old. PW1 testified that she was called one day by the Appellant in his bedroom in undressed her clothes and underpant and also undressed himself, then inserted his penis into her vagina. She felt pain. The Appellant did not cross-examine on this crucial, incriminating, and very damaging aspect. In my opinion, he admitted to the allegations made by the victim. According to section 27(7) of the Evidence Act (supra), where in criminal proceedings involving sexual offense, the only independent evidence is that of a child of tender years or of a victim of the sexual offense, the court shall receive the evidence, and may, after assessing the credibility of the evidence of the child of tender years of as the case may be the victim of sexual offense on its own merits, notwithstanding that, such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceedings, the court is satisfied that the child of tender years or the victim of sexual offense is telling nothing but the truth. From PW1’s evidence, I am satisfied that she was a credible and a witness of truth. I am highly guided by the decision of the Court of Appeal of Tanzania in Mohemed Said vs. Republic, Criminal Appeal No. 145 of 2017, where the Court quoted the decision of the Supreme Court of 18 Philippines in the case of PEOPLE OF THE PHILIPPINES vs. BENJAMIN A. ELMANCIL, G. R. No. 234951, dated March, 2019 and noted as follows; In reviewing rape cases, this Court has constantly been guided by three principles, to wit: (1) on accusation of rape can be make with facility; difficult to prove but more difficult for the person accused though innocent to disprove; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits and cannot draw strength from the weakness of the evidence for the defence. And as a result of these guiding principles, credibility of the complainant becomes the single most important issue. If the testimony of the victim is credible, convincing and consistent with human nature and the normal course of things the accused may be convicted solely on the basis thereof. In Onesmo Laurent @ Salikoki Vs. Republic, Criminal Appeal No. 458 of 2018, Court of Appeal at Moshi, the Court observed at page 12, thus; ….. we are cognizant that in view of the inherent nature of the offence of rape or any other sexual offence where only two persons are usually involved when it is committed, the testimony of the complainant is very crucial and must be examined and judged cautiously. Indeed, in this context, we held, for instance, in Selemani Makumba (supra), that the best proof of rape (or any other sexual offence) must come from the complainant. 19 Consequently, the complainant's credibility becomes the most important matter for consideration. The Court continued to note at pages 12 and 13, thus; If the evidence of the complainant is credible, convincing and consistent with human nature as well as the ordinary course of things, it can be acted upon singly as the basis of conviction - see section 127 (6) of the Evidence Act. In sexual offenses like the one at hand, the victim’s credibility becomes an essential matter for consideration. If the victim is coherent, consistent, and credible, the Court may proceed to convict, notwithstanding other corroborative evidence. In this case, PW1 (victim) did not seem to have been telling lies. She was credible. Her evidence was corroborated closely by PW2 (medical doctor) and PW3 (mother). It is my further observation that in view of the testimony of PW1, the defense evidence casted no doubt at all. To that end, I am satisfied that the offense of incest by male contrary to section 158 (1) (a) of the Penal Code Cap (supra) was proved beyond reasonable doubt. The second and fourth grounds of appeal are devoid of merits, and I dismiss it. Arguing on the third ground of appeal, the Appellant alleged that, the learned trial magistrate erred in law for failure to evaluate and consider the defense evidence of the Appellant, which casted a reasonable 20 doubt on the prosecution case. It was regrettable that the Appellant argued nothing on this ground of appeal and instead traversed to argue something not raised in the Petition of Appeal. First, he insisted that the evidence of PW1 was taken improperly. Indeed, I have already resolved on this aspect when I was dealing with the first ground appeal. In the second, he attacked the charge for having been defective. What was raised is not what had been argued by the Appellant. In his submissions, the Appellant complained that the particulars of the offense indicated that PW1 was raped by the Appellant on diverse dates and months in the year 2022. However, PW1 testified that she was raped once. Based on that, he argued that the particulars could not sufficiently inform him of the accusations he was facing to enable him to prepare his defense. In the first place, I agree with the Appellant that PW1 did not testify on whether she was raped on diverse dates and months. There is no evidence indicating that she was raped several times by the Appellant. From her testimony, the Appellant called her on an unknown date to his bedroom. While there, the Appellant undressed her clothes and underpant and he undressed himself and inserted his penis into her vagina. She felt pain. The records are silent as to how many times the Appellant did that to PW1. 21 As said before, PW1 testified that the Appellant carnally knew her on an unknown date. She had previously reported the incident to PW3. PW2 and PW3 corroborated her story. In that respect, I am unable to agree with the Appellant that PW1 was supposed to testify how many times she was carnally known by him. Even if it was a single-day incident, to me, it still sounds the same: that the Appellant had canal knowledge with PW1. As said before, the Appellant did not cross-examine on this damaging and very incriminating aspect. In the case of Damian Ruhele vs. Republic (Criminal Appeal 501 of 2007) (2012) TZCA 160, the Court observed that failure to cross-examine a witness on a crucial matter ordinarily implies the acceptance of the truth of the witness's evidence. In the premises, I find the third ground of appeal devoid of merit, and I dismiss it. To that end, I wholesomely agree with the trial Court that the offense to which the appellant was charged was proved beyond reasonable doubt. All grounds of appeal raised in the Petition of Appeal are devoid of merit and dismiss them in entirety. I, therefore, uphold and sustain the conviction entered and sentence meted against the Appellant by the trial Court. I order accordingly. Right of appeal fully explained. 22 DATED at DAR ES SALAAM this 20th August 2024. H.S. MTEMBWA JUDGE 23