CIV

IN THE COURT OF APPEAL OF TANZANIA AT MTWARA f COR AM: KEREFU. 3.A.. RUMANYIKA. 3.A.. And MGEYEKWA, 3.A.1 CRIMINAL APPEAL NO. 38 OF 2022 GEORGE SEIF AMIRI......................................................... APPELLANT VERSUS THE REPUBLIC...............................................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mtwara) (Dyansobera. 3.1 dated the 15thday of December, 2021 in Criminal Appeal No. 54 of 2021 JUDGMENT OF THE COURT 5th & 11th June, 2024 KEREFU, J.A.: This is a second appeal by GEORGE SEIF AMIRI, the appellant, who was before the District Court of Kilwa at Kilwa Masoko, charged with two counts of unnatural offence and rape contrary to sections 154 (1) (a) and (2) together with sections, 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap. 16 (the Penal Code) respectively. In both counts, it was alleged that on 2nd September, 2020 at Nakiu Village within Kilwa District in Lindi Region, the appellant sodomized and raped a girl child aged six (6) years. To conceal the victim's identity and for purposes of protecting her privacy, we shall henceforth refer to her as 'RI\T or simply 'PW2' as she so testified before the trial court. The appellant denied the charge laid against him and as a result, the case proceeded to a full trial. To establish its case, the prosecution relied on the evidence of three witnesses and one documentary evidence, to wit, the PF3 (exhibit PI). The appellant relied on his own evidence as he did not call any witness. In a nutshell, the prosecution case, as obtained from the record of the appeal, can be briefly stated as follows: That, at the material time, Zaituni Abadalla Lelonchi (PW1) was living at Nakiu Village with her husband together with their one child (PW2), the victim. PW1 stated that, in the morning of 2nd September, 2020 at around 06:00 hours, the appellant, who was his neighbour, came to her house with his bicycle and asked for PW2. PW1 told him that PW2 was playing around. The appellant expressed his wishes that he wanted to go with PW2 to the shop so that he could buy her candy. PW1 told the appellant to give PW2 money so that she would buy candy for herself. The appellant claimed that he had no change. Thus, he wanted to buy some groceries at the shop to get some change and give her. It was the PWl/s testimony that the appellant took PW2 on his bicycle and they went together to the said shop. PW1 went on to state that, PW2, her daughter did not return home until late hours when she started to be worried because the appellant was drunkard man. PW1 started to search for PW2 and she went at the shop where she was told that the appellant did not go there. PW1 searched on other places including bars (three bars) but in vain. She later went to the appellants mother who told her that the appellant went to collect palm tree leaves for building the roof of their house. PW1 informed her husband on the missing of PW2 who reported the matter to the leaders of the Ward and a search of PW2 was mounted. PW1 stated further that, in the course of searching, the villagers found PW2 along Nanjilinji road and upon inquiry, PW2 told them that she was coming from the appellant. PW1 stated further that PW2's aunt inspected her and found that she was sexually abused ordinarily (raped) and against the order of nature (unnatural). In her unsworn evidence, PW2 testified that the appellant took her on a bicycle along Nanjilinji road and raped her both in front and at the back. Demonstrating on how the appellant sodomized and raped her, PW2 explained that the appellant undressed her and insert his penis into her anus and then into her vagina where dirty stuff together with blood went out. PW2 went on to state that, it was not possible for her to raise an alarm as the appellant threatened her that, if she attempted to scream, he would cut her with a razor blade. It was her further testimony that, having sexually abused her, the appellant left her alone. While there, she met her uncle, aunt and other people who took her home. Subsequently, PW2 was taken to Nakiu Hospital after they had obtained a PF3, where she was examined by Dr. Erick Firemon Miranzi (PW3). It was the testimony of PW3 that having examined PW2 he found her with many bruises on her genitalia and anus. That, PW2 could not sit, as she was discharging stool uncontrollably an indication that she had been penetrated on both sides, vagina and anus. PW3 filled the PF3 to that effect and the same was tendered in evidence as exhibit PI. In his defense, the appellant (DW1), admitted to know PW1 as his in-law and that, on the material date he passed by at PW rs home with his bicycle and PW1 demanded from him TZS 2,000.00 which he gave her. He also admitted to know PW2 as the daughter of PW1, although, he stated that he was not close to her and he did not have any bad blood with PW1. He thus denied to have committed the offence as he stated that, on that day he was on his way to collect palm trees' leaves and, on his way back, he was surrounded by a group of people who attacked and brought him to the VEO where he became unconscious. That, later he was arrested and taken to the Police Station where he was informed that he was alleged to have raped PW2. He thus challenged the evidence of PW2 that she was couched on what to say before the trial court. At the end of it all, the trial court relied on the testimony of PW2 whose evidence was corroborated by PW1 and PW3 and found that the charge against the appellant was proved to the hilt. Thus, the appellant was found guilty, convicted on both counts and sentenced to life imprisonment. The appellant was also ordered to pay compensation to the victim at the tune of TZS 1,000,000.00. The appellants appeal before the High Court hit a snag, as the first appellate court dismissed the appeal and upheld the trial court's conviction and sentence. Still aggrieved, the appellant has preferred the present appeal. In the Memorandum of Appeal, the appellant raised seven (7) grounds of appeal which can be conveniently paraphrased as follows: One, that the prosecution case was not proved beyond reasonable doubt as required by the law; two, that exhibit PI was un- proceduraliy tendered and admitted in evidence; three, the evidence of PW1, PW2 and PW3 were tainted by contradictions thus, unreliable and incapable of sustaining the appellant's conviction; four, the learned High Court Judge erred in law and fact by convicting and sentencing the appellant while he pleaded not guilty to all counts; five, that, it was improper for the first appellate court to rely on the testimonies of PW1 and PW2 who were incredible and unreliable witnesses; six, failure by the prosecution to summon material witnesses who were said to have found PW2 at Nanjilinji along the road; seven, that the defence evidence was not considered; and lastly, the appellant's conviction was based on insufficient circumstantial evidence. At the hearing of the appeal, the appellant appeared in person whereas the respondent Republic was represented by Ms. Faraja George, learned Senior State Attorney. When given an opportunity to amplify on his grounds of appeal, the appellant adopted his grounds of appeal and preferred to let the learned Senior State Attorney to respond first but he reserved his right to rejoin, 6 if need to do so would arise. We respected his choice and we thus invited Ms. George to commence her response on the grounds of appeal. On taking the stage, Ms. George from the outset, declared the respondent Republic stance of opposing the appeal. She then proposed to begin with the second, sixth and seventh grounds of appeal separately followed by the first, third, fourth, fifth and eighth grounds which will be argued conjointly as they were all on the complaint that the prosecution case was not proved to the required standard. We shall therefore determine the grounds of appeal, in the same manner proposed by the learned Senior State Attorney. However, before doing so, it is crucial to state that, this being a second appeal, under normal circumstances, we would not interfere with concurrent findings of the lower courts if there were no mis-directions or non-directions on evidence. Where there are mis-directions or non­ directions on the evidence, the Court is entitled to interfere and look at the evidence With a view of making its own findings. See for example Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] TLR 149, Salum Mhando v. Republic [1993] T.L.R. 170 and Mussa 7 Mwaikunda v. The Republic [2006] T.L.R. 387. We shall be guided by the above principle in disposing this appeal. Responding to the second ground on the appellant's complaint that exhibit PI was improperly admitted in evidence, Ms. George readily conceded that the said exhibit has no evidential value because after its admission it was not read over in court for the appellant to understand its contents and that the same deserves to be expunged from the record. She however urged us to find that, the oral account of PW3 is still sufficient to corroborate the evidence of PW2 as it explained in detail what was contained in the PF3. Having closely considered the appellant's complaint and the submission made by Ms. George in respect of exhibit PI, we agree with them that the said exhibit was un-procedurally admitted in evidence. We however find the second ground of appeal to be misconceived because the said exhibit is no longer part of the record as it was already expunged by the first appellate as clearly indicated at page 70 of the record of appeal. We need to emphasize that, as eloquently argued by Ms. George, even without exhibit PI, the oral account of PW3 is quite sufficient to cover the contents of the PF3 as it explained in detail what was contained in that document. Likewise, the evidence adduced by PW1 and PW2 is sufficient to sustain the conviction against the appellant. This is so because, in sexual offence cases, a PF3 is not the only evidence to prove rape and or unnatural offence, other evidence on the record can as well do so. In Ally Mohamed Mkupa v. Republic, Criminal Appeal No. 2 of 2008 [2010] TZCA 24: [13 October 2015: TanzLII], we stated that: "It is true that PF3 (Exh.Pl) would have supported the commission o f the offence but rape is not proved by medical evidence alone. Some other evidence may also prove it As for the sixth ground on the appellant's complaint that material witnesses who found the victim along Nanjilinji road were not summoned, Ms. George cited section 143 of the Evidence Act and argued that, the said law does not require a specific number of witnesses to prove a fact, what is required is the quality of evidence and credibility of witnesses. She thus insisted that, in the instant appeal, the prosecution case was proved beyond reasonable doubt through the evidence of PW2, the best witness who clearly narrated what transpired. She added that the evidence of PW2 was corroborated by PW1 and PW3. That, having established its case against the appellant, the prosecution found it unnecessary to summon other witnesses. She thus urged us to find that the sixth ground is devoid of merit. We wish to state that, the burden of proof in criminal cases lies on the prosecution shoulders and the standard is proof beyond reasonable doubt. Therefore, and as correctly argued by Ms. George, the prosecution is at liberty to bring only those witnesses who could advance their case regardless of the number - see section 143 of the Evidence Act. What is required is the quality of evidence and the credibility of the witnesses. This position has been emphasized in several decisions of this Court. See for instance, the cases of Yohanis Msigwa v. Republic [1990] T.L.R. 148, Hassan Juma Kanenyera v. Republic [1992] T.L.R. 100 and Mwita Kigumbe Mwita & Another v. Republic, Criminal Appeal No. 63 of 2015 [2016] TZCA 276: [17 October 2016: TanzLII]. In the latter case, the Court stated that: "In each case, the court looks for quality, not quantity of the evidence placed .before it The best test for the quality o f any evidence is its credibility. It was for the prosecution to determine which witness should prove whatever fact it wanted. " Being guided by the above authorities, we go along with Ms. George's submission and also find the sixth ground of appeal devoid of merit. In responding to the seventh ground, Ms. George was very brief and to the point that, the appellant's complaint that his defence was not considered is not supported by the record. To clarify her argument, the learned counsel referred us to pages 48 to 50 of the record of appeal and argued that the trial court sufficiently considered the appellant's defence and rejected it for being incapable of weakening the prosecution case. She thus urged us to find the seventh ground to have no merit. Having perused the record of appeal, we agree with the learned State Attorney that the appellant's complaint under this ground is not supported by the record, as it is apparent at pages 48 to 50 of the record of appeal that the trial court adequately considered and weighed the appellant's defence against the prosecution case but rejected it. We wish also to emphasize that it is one thing to consider the defence case and it is quite another to accept it. It cannot be argued that the defence was not considered merely because its version was not accepted by the court. See the case of David Gamata and Another v. Republic, Criminal li Appeal No. 216 of 2014 [2015] TZCA 362: [7 December 2015: TanzLII]. That said, we equally find the seventh ground of appeal devoid of merit. The appellant's complaint in the first, third, fourth, fifth and eighth grounds is to the effect that the prosecution case was not proved to the required standard. He contended that the evidence of PW1, PW2 and PW3 was tainted with contradictions thus, they were not credible and reliable witnesses. On this, Ms. George argued that, the prosecution case was proved beyond reasonable doubts through the evidence of PW2 which was corroborated by PW1 and PW3 and there were no any contradictions in their testimonies. She elaborated further that, the trial court and the first appellate court properly evaluated the evidence adduced by the said witnesses and were satisfied that the evidence of PW2, the victim which is the best evidence in cases of this nature was corroborated by PW1 and PW3. That, the evidence clearly indicated on how the appellant took PW2 on his bicycle and later, PW2 was found sexually assaulted and upon being asked, she mentioned the appellant as the person who sexually abused her. Ms. George added that, in his testimony found at page 26 of the record of appeal, the appellant himself admitted to know both PW1 and PW2 before the incident as they were neighbours and PW1 was his in-law. The appellant further admitted that, on the fateful date, he went to PWl's house with his bicycle. Based on her submission, she urged us to dismiss the entire appeal for lack of merit. In rejoinder submission, the appellant did not have much to say other than praying the Court to consider his grounds of appeal, allow the appeal and set him free as he said, he had been in prison for almost four years. Having carefully considered the submissions made by the parties on these grounds and scanned the entire record of appeal, we agree with Ms. George that both courts below properly evaluated the evidence on record and were satisfied that the case against the appellant was proved beyond reasonable doubts. We have specifically revisited the testimonies of PW1 and PW2 and there is no doubt that they clearly explained the incident. PW1 in particular, at page 14 of the record of appeal, narrated on how the appellant came to her house and picked PW2 on his bicycle and disappeared with her for the entire day. PW2 also explained on how the appellant sodomized and raped her. She clearly demonstrated on how the appellant undressed her and insert his penis into her vagina and anus 13 where dirty stuff together with blood went out. That, she did not raise an alarm because the appellant threatened her that, if she raises an alarm, he would cut her with a razor blade. As rightly submitted by Ms. George, in cases involving sexual offences the best evidence is that of the victim. The sole evidence of the victim can be safely relied upon by the court to sustain a conviction. See for instance the cases of Selemani Makumba v. Republic [2006] T.L.R. 379, Hamis Mkumbo v Republic, Criminal Appeal No. 124 of 2007 and Rashidi Abdallah Mtungwa v. Republic, Criminal Appeal No. 91 of 2011 (both unreported), among others. Moreover, in this case, as correctly found by the lower courts, PW2's evidence was corroborated by PW1 and PW3. We are also mindful that under these grounds, the other appellant's complaint is to the effect that the prosecution witnesses PW1, PW2 and PW3 were not credible witnesses as their evidence is tainted with contradictions and inconsistences. Having revisited the testimonies of these witnesses, we agree with Ms. George that there are no any contradictions in their evidence as each witness testified on what she or he saw and perceived. Even if, there are some contradictions and 14 discrepancies, we do not, with respect, consider them to be material to the extent of affecting their credibility and cannot corrode the evidence adduced and shake the version of the prosecution case. As intimated above, the testimony of PW2, the best evidence in this case, was well corroborated by the testimony of PW3 who medically examined PW2's private parts and found her with many bruises on her genitalia and anus. That, PW2 could not sit, as she was discharging stool uncontrollably an indication that she had been penetrated on both sides, vagina and anus. It is also on record that the testimony of PW1 gave a detailed account on how the appellant went in her house and disappeared with PW2 for the entire day. All these witnesses, in our view, proved the prosecution case to the required standard. In addition, PW2 was a credible witness as she mentioned the appellant immediately after the incident. On this point, we wish to refer to our earlier decision in Marwa Wangiti Mwita & Another v. Republic [2002] T.L.R 39, where we observed that: "The ability o f a witness to name a suspect at the earliest opportunity is an important assurance o f his reliability, in the same way as unexplained delay or complete failure to do so should put a prudent court to enquiry." 15 It is also on record that, throughout the trial, the appellant did not cross examine PW1, PW2 and PW3 on all those aspects. 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. We find support in our previous decisions in Cyprian Athanas Kibogoyo v. Republic, Criminal Appeal No. 88 of 1992 (unreported) and Hassan Mohamed Ngoya v. Republic, Criminal Appeal No. 134 of 2012 [2013] TZCA 347: [25 September 2013: TanzUI]. In the circumstances, we see no reason to differ with the lower courts' concurrent findings in respect of the evidence of PW1, PW2 and PW3. In totality, we are satisfied that both lower courts adequately evaluated the evidence on record and arrived at a fair and impartial decision. We thus also find that the first, third, fourth, fifth and eighth grounds of appeal are devoid of merit. For the foregoing reasons, we do not find any cogent reasons to disturb the concurrent findings of the lower courts, as we are satisfied 16 that the evidence taken as a whole establishes that the prosecution's case against the appellant was proved beyond reasonable doubt. In the event, we find the appeal devoid of merit and it is hereby dismissed in its entirety. DATED at MTWARA this 10th day of June, 2024. R. J. KEREFU JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 11th day of June, 2024 in the presence of the Appellant in person unrepresented and Mr. Justus Revocatus Zegge, State Attorney for the Respondent/Republic is hereby certified as a true \ z • A. L. KALEGEYA I pfePUTY REGISTRAR / A ^iM 1HT AP Jk n n c A I V iCOURT OF APPEAL