JUDGMENT HAME MBOJE MATENDELE VS REPUBLIC

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CRIMINAL APPEAL NO. 7600 OF 2024 (Originating from the District Court of Mbarali at Rujewa, Criminal Case No. 84 of 2023) HAME MBOJE MATENDELE………………...………………………...… APPELLANT VERSUS THE REPUBLIC………………………………………………………… RESPONDENT JUDGMENT Date of last Order: 22nd July, 2024 Date of Judgment: 15th August, 2024 KAWISHE, J.: The appellant Hame Mboje Matendele was arraigned before the District Court of Mbarali at Rujewa in Criminal Case No. 84 of 2023 charged with offence of unnatural offence contrary to section 154(1) (a) of the Penal Code [Cap 16 R.E 2022]. At the end of the trial he was convicted and sentenced to serve life imprisonment sentence. Particulars of the offence available show that on diverse dates from May 2022 to April 2023 at Magea Street within Mbarali District in 1 Mbeya, the appellant wilfully and unlawfully did have carnal knowledge to one PW1 (the victim’s name withheld for dignity, will refer him as the victim or PW1 interchangeably) against the order of nature, a boy aged 9 years old. Before the trial court, the prosecution marshalled 4 witnesses with one document. The appellant defended himself as well. At the end of the trial, the trial court found the appellant guilty of the offence he was charged with. He was convicted and sentenced accordingly. The appellant being aggrieved with the decision of the trial court, filed an appeal before this court with four grounds of appeal as follows: 1. That, the trial court erred in law when convicted and sentenced the appellant without regarding the heavy contradiction of the prosecution who casts a shadow of doubts of the guilty of the appellant as follows: (a) PW2 on 1/4/2023 through PF3 issued by the police went to the hospital to examine PW1 according to the said allegation and the PF3 filled on the same date. (b) PW3 testified that on 3/4/2023 PW1, PW3 and SWO attended there with the PF3 to examine PW1 according to the said incident. (c) PW3 testified that the one who gave him the information of this allegation was the secretary of SMAUJATA but the said secretary did not testify in the trial court. 2. That, the trial court erred in law when convicted and sentenced the appellant without regarding that PW1 and PW2 did not testify in their testimonies if the said information was given to the teacher or SMAUJATA secretary or SWO but PW1 and PW2 went to the hospital on 1/4/2023 not otherwise. 2 3. That the trial court erred in law when convicted and sentenced the appellant without evaluating deeply the evidence of PW1, PW2, PW3 and PW4 and convicted the appellant unlawful. 4. That the defence of the appellant was not considered by the trial court. The parties agreed to dispose of the appeal way of a written submission. Thus, the court made an order whereby the parties complied with the schedule. The appellant was unrepresented, appeared in person whereas, the respondent/Republic enjoyed the service of Ms. Upendo Lyimo, learned State Attorney. Submitting on the grounds of appeal, the appellant argued the 1st and 2nd grounds collectively. In his written submission under paragraph 1 to 3 he argued that, in his evidence PW1 testified before the trial court that, he was sodomized by his step father, by the name of Ngosha when his mother went to fetch vegetables, but he failed to tell his mother due to the threats from the appellant. He argued further that, PW2 in her evidence testified that, she saw fresh blood stains in the victim’s stool on 1st April, 2023. That, PW1 told his mother, PW2 that he was sodomized by the appellant by the name of Hame Mboje in the morning. That in the same day she reported the matter to the police. He claimed that, the case against him is a fabricated one. 3 The appellant argued that, the evidence of PW1 and PW2 contradicted each other as PW1 did not testify before the court that, his mother saw blood stains in his stool. Also, the appellant submitted that, how PW2 observed fresh blood while now days they use the toilet to ease themselves. The appellant further submitted that, the evidence of PW2 was not corroborated when she saw blood stains, PW2 did not state who witnessed the blood stains. The appellant contended further under paragraph 4 of his submission that, PW3’s evidence was doubtful and unbelievable as even PW1 and PW2 did not testify if the victim failed to control his stool. Also, that PW3 examined PW1 on 3rd April, 2023 while accompanied by Social Worker Officer and his teacher and after examination he found that he was penetrated. In his evidence PW2 testified that, she was issued with PF3 on 1st April, 2023 and went to the hospital with PW1 thus, who is the credible witness. The appellant further submitted under paragraph 5 of his submission that, in his evidence PW4 stated that he received a phone call from the secretary of SMAUJATA that, he wanted him to meet PW2 with PW1. That, PW2 informed PW4 that PW1’s faeces had fresh blood, but when PW4 interviewed PW1 according to such information PW1 did 4 not tell him. He further testified that on 3rd April, 2023 they went to the police and issued with PF3. That, they went for medical examination. The results were that PW1 was penetrated in his anus. They surrendered the PF3 to the Police Station for legal steps. On the third ground of appeal, which was elaborated under paragraph 6 of his submission, the appellant argued that, the trial court failed to evaluate deeply on the following that, PW1 did not testify if he met with PW4 or with the secretary of SMAUJATA; PW2 never testified at the trial court if on 3rd April, 2023 was not called to proof the genuineness of PF3 as she was also given the PF3 and went for examination in the hospital; the secretary of SMAUJATA was not called to proof how she got such information and PW1 told him/her who sodomized him; and the trial court failed to solve the said contradictions in the evidence of PW1, PW2, PW3 and PW4. The appellant prayed his appeal to be allowed. In her reply, the respondent stated clearly that, she was against the appeal. Ms. Upendo Lyimo, learned State Attorney argued the 2nd and 3rd submissions on the grounds of appeal in the appellant’s submission collectively. She stated that, the complaints lack merits, that it is vividly stated at page 6 of the trial court’s typed proceedings where 5 the victim testified that he lives with his mother and mentioned the appellant by his famous name Ngosha, and at page 8, PW2 mentioned the real name of the appellant as Hame Mboja. The learned State Attorney added that, on the memorandum of agreed facts, the appellant agreed that he lives in the same house with the victim and are well known to each other. Thus, the evidence of PW1 and PW2 prove that the appellant is known to them because they used to live together in the same house. Therefore, there is no contradiction in their testimony, the difference of names in PW1 and PW2 does not raise any doubt on the identification of the accused person. The learned State Attorney submitted further that, the victim was the material witness in the prosecution side to prove the important elements of the offence which is penetration, and it was properly proved. She referred to page 6 of the trial court’s typed proceedings where PW1 testified that, “Ngosha who is the accused person before this court has sodomized me two times in his bedroom. He used to sodomise me by undressing my clothes and entering his penis into my anus, the incidents were leaving me in pains”. Therefore, failure of PW1 to testify that his mother saw fresh blood in his stool, and failure of PW2 to summon another witness to observe the said stool to corroborate her 6 story, is not fatal, it has nothing to do in proving the charge against the appellant as required by the law. The learned state attorney continued to argue that, the material issue to be determined is whether the victim was penetrated or not. She referred to page 6 of the trial court’s typed proceedings where the victim orally proved to have been penetrated by the appellant. That, the victim’s evidence was corroborated by the evidence of PW3 a medical practitioner who conducted a medical examination. That, PW3 filled the PF3 after examined the victim. The issue stated by PW3 that the anus was loose or not is immaterial. She averred that, at page 12 of the trial court’s typed proceedings, the PF3 was tendered and admitted as exhibit P1 by PW3 and testified that he examined the victim on 3rd April, 2023. That, PW2 testified that she discovered the incident on 1st April, 2023 and thereafter took PW1 to the hospital. The learned State Attorney argued that, there is discrepancy on dates of which is a minor discrepancy which does not affect the substantial part of the case. She insisted that, when looking at the charge it shows that, the offence was committed on diverse dates from May, 2022 to April, 2023. To bolster her argument, she cited the case of Khaji Manelo vs. R, Criminal Appeal No. 338/2008, CAT. 7 Responding on the issue of credibility of PW2 and PW3, she argued that, it is a settled legal principle that, every person is competent to testify in the court of law as per section 127(1) of the Evidence Act, Cap 6 R.E 2022. She cited the case of Goodluck Kyando vs. Republic, [2006] TLR 363 to cement her position that PW2 and PW3 were credible witnesses. The learned State Attorney continued to reply to the submission by the appellant by stating that, in sexual offences the best evidence comes from the victim as stated in the case of Selemani Makumba vs. Republic, Criminal Appeal No. 94 of 1999 which is in line with section 127(6) of the Evidence Act. She argued that, the victim testified on how the incident occurred and he established the key elements of the offence the appellant was charged with. She insisted that, the complaint that PW1 did not tell PW4 when interviewed according to such allegation is immaterial, the same does not raise doubt to the prosecution evidence. Replying to the allegation that, PW1 did not testify in court if he was interviewed by PW4 or met SMAUJATA secretary. The learned State Attorney argued as it was argued in the preceding complaint that, the elements of the offence were proved by the victim. Thus, the silence of PW1 and PW2 testimonies to state if the said information was given to 8 the teacher or SMAUJATA secretary or Social Worker Officer has not prejudiced the appellant. She argued that, the duty of calling the material witnesses is on the prosecution as per section 143 of the Evidence Act. She maintained that, the witnesses who testified before the trial court were material witnesses and sufficient to proof the charge against the appellant. The learned State Attorney in summing up she insisted that, the contradictions stated by the appellant are minor contradictions which do not go to the root of the case. She referred the case of Khaji Manelo (supra). She prayed the appeal to be dismissed. There was no rejoinder made. Having summarised the submissions made by the parties, there are three issues to be determined basing on the grounds of appeal and the submission made by the parties. The issues are: first, whether there was contradictory evidence adduced by the prosecution witnesses; if answered in the affirmative, what is the remedy; second, whether the prosecution witnesses were credible witnesses; and third, whether the evidence was not evaluated and the defence evidence was not considered. 9 In determining the first issue, which base on the third and fourth arguments in the appellant submission covering 1st and 2nd grounds of appeal, as to whether there was contradictory evidence adduced by the prosecution witnesses which goes to the root of the case. The appellant claimed that, there were contradictions which dented the evidence of the prosecution witnesses. In reply, the learned State Attorney conceded that, there were minor discrepancies which did not go to the root of the matter. That the appellant was not prejudiced by the same. The law is very specific that, the court has to consider if the discrepancies complained of go to the root of the case or are just minor discrepancies. The issue of discrepancies in a case was well discussed by the Court of Appeal and made a position which will lead this court in deciding the same. It was intensely discussed in the case of Dickson Elia Nsamba Shapwata and Another vs. Republic, (Criminal Appeal 92 of 2007) [2008] TZCA 17 (30 May 2008) where it was stated that: ‘In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The court has to decide whether the inconsistencies and contradictions are only minor, or whether they go to the root of the matter’. In making its decision, the Court appreciated the legal work of the learned authors of Sarkar, The Law of Evidence, 16th edition, 2007 at 10 page 48. Later on, the Court of Appeal had an ample time to amplify the principle which it developed in the case of Dickson Elia Nsamba Shapwata and Another (supra) in the case of Marando Slaa Hofu and 3 others vs. R, Criminal Appeal No. 246 of 2011, where the Court stated clearly that: “Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence and those are always there however honest and truthful a witness may be. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode credibility of a party’s case, material discrepancies do”. [Emphasis mine]. Being led by the case law cited, in this case at hand the appellant complaint is on the issue of name, the same was not stated in the appellant’s grounds of appeal, but it was raised when submitting on his written submission under paragraph 2 and 3 that, PW1 in his evidence stated that his step-father by the famous name of Ngosha sodomised him, but PW2 in her evidence stated that, PW1 told her that was being sodomised by the appellant by the name of Hame Mboje. I am inclined to the respondent’s submission that the discrepancy on how the witnesses described the appellant is not material discrepancy. The appellant was described by PW1 and PW2 by his name and the same 11 was not disputed by the appellant before the trial court. It seems both names are used to describe the appellant, that is why the same was not disputed by the appellant. The appellant is a person properly known to PW1 and PW2 as they lived together in the same house. The respondent did not touch on the claim that, how PW2 saw the fresh blood in the faces while they use toilet. From the proceedings of the trial court, I am convinced that, failure of the respondent to respond on the same has no impact. I decided to revisit the trial court’s typed proceedings to see the issue of fresh blood. The appellant questioned, how did they so the fresh blood on the faeces while, they use toilet to ease themslves. So unfortunate to him, his defence has baked him in his own fat. At page 19 of the proceedings the appellant stated, I quote: “Later on, April, 2023 when I returned home from the farm I entered in toilet and found blood stains, I asked my wife on the blood she did not know, I asked the child also denied …” When cross examined at page 19 he stated; “the victim was sodomized again in April, 2023 when I saw blood in the toilet, …” with this he is telling the court that, he also so the fresh blood. Thus, he should not question on how his wife saw the fresh blood on the faeces. He has entangled himself in his own defence. He neither clarified how he 12 observed the fresh blood in the toilet. In short, he is acknowledging the fresh blood stains in toilet as testified by PW2. Therefore, the ground has no merit. On the issue that the date of examination is different, as stated in the first ground of appeal and argued in the fourth paragraph of the appellant’s written submission. The appellant complained that (PW2) the victim’s mother testified that, on 1st April, 2023 through PF3 issued to her by the police she went to the hospital to examine PW1 and PF3 was filled on the same day, but PW3 the doctor in his evidence testified that on 3rd April, 2023 PW1, PW4 and SWO attended in the hospital with the PF3 to examine PW1. In determining this discrepancy as started in the case of Dickson Elia Shapwata & Another (supra) that in evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The learned State Attorney replied that, such minor discrepancies did not prejudice the appellant. I had to revisit the trial court’s typed proceedings. At page 8, PW2 stated that she discovered the incident on 1st April, 2023 and reported the same to the police and was availed with a PF3. She testified, “I was given a PF3 and went to Mbarali District Hospital with the victim for examination, the examination 13 tested positive that the victim was sodomized and had bruises in his anus, I then returned the PF3 at the Police Station.” She did not tell the date she returned the PF3 to the police. Thus, the complaint has no merit. Even if there was discrepancy over the date of examination the same does not go to the root of the case. I have to make myself very clear that, I have observed that the appellant did not dispute the victim being penetrated rather, disputing the dates of examination. It is a trite law that, in sexual offences the prosecution has to prove penetration. The PF3 is just an evidence to show that there was a medical opinion. Since the victim testified in court that he was sodomized by the appellant twice and the appellant did not object or dent the evidence. Even if the medical doctor, PW3 was not called to testify, as long as the victim credibly testified he was sodomized was enough to convict the appellant. Having discussed the above contradictions, I am convinced with the learned State Attorney’s submission that the same has no merit, because they are minor discrepancies which do not dent the prosecution’s case. Considering the case cited by the learned State Attorney, Khaji Manelo (supra), where the case of Said Ally Ismail 14 vs. The Republic, Criminal Appeal No. 241 of 2008 was cited. The Court stated that: “It is not every discrepancy in the prosecution’s witnesses that will cause the prosecution case to flop. It is only where the gist of the evidence is contradictory then will the prosecution case be dismantled...”. With this position, considering the arguments raised by both parties and the discussion made, the first issue is answered in the negative. Responding to the second issue, as to whether the prosecution witnesses were credible witnesses. There is plethora of case law on witness’s credibility. To begin with, I would like to appreciate the position made in the case of Shabani Daudi vs. Republic, Criminal Appeal No. 20 of 2001 (unreported), on how the credibility of the witness can be assessed, it was held that: “The credibility of a witness can also be determined in other two ways, that is, one, by assessing the coherence of the testimony of the witness, and two, when the testimony of the witness is considered in relation to the evidence of other witnesses”. It is a general rule that, all witnesses’ evidence is entitled to credence and belief, as it was stated in the case of Goodluck Kyando (supra), unless there are good and cogent reasons to disbelieve a witness. The cogent reasons to disbelieve one’s evidence include where the evidence 15 is improbable or implausible, or where it has been materially contradicted by the evidence of the other witness of same party. Therefore, in this case at hand, on the credibility of PW1, PW2 and PW3, in my view, their evidence is credible and free from any contradictions. The evidence of PW1 was sufficiently corroborated by the evidence of PW2 and PW3. The victim explained where he lives with the appellant, when the appellant sodomized him and the place the appellant used to sodomize him, that was in the bedroom of the appellant and victim’s mother. The same was stated by PW2 who was informed by PW1. Consequently, it is difficult to disbelieve the evidence of PW1 and PW2. PW3 evidence also proved that there was penetration. Hence, PW1, PW2 and PW3 are truthful and reliable witnesses. I hold so because, PW1 identified the appellant as his step-father, corroborated by the evidence of PW2 the victim’s mother and the appellant’s wife. Also, the appellant, when cross examined by the State Attorney confessed that, he is in good relationship with the victim. At page 20 of the trial court’s typed proceedings, he responded; “there is a good relationship between me and the child, he said before this court that, I sodomised him twice, I did not ask any question to the victim on the day he testified before this court...” This is clear that there is no fabricated 16 case as he claimed. According to him, the family had no misunderstandings. The appellant stated that he did not cross examine the victim, PW1. It is a trite law that failure to cross examine it amounts to acceptance of the evidence given. This principle is well established in the case of Simon s/o Shauri Awaki @ Dawi vs. Republic (Criminal Appeal No. 62 of 2020) [2022] TZCA 51 (23 February 2022) where the Court stated that: “It is a well-established principle of law that, when a party fails to cross-examine on a certain matter, he/she is deemed to have admitted the said facts.” On the same principle see Nyerere Nyegue vs. Republic, Criminal Appeal No. 67 of 2010 and Mustapha Khamis vs. Republic, Criminal Appeal No. 70 of 2016 (both unreported). Following the response of the appellant during cross examination, I decided to revisit the trial court’s proceedings. At page 7, the appellant cross examined the victim. The victim responded; You sodomized me two times in your bedroom which you sleep with my mother, I did not tell anyone on the incidents since you threatened to kill me.” With the evidence given by the victim, PW1, I see no doubt. Thus, I concede with the learned State Attorney’s submission. 17 In his written submission, the appellant raised a complaint on discrepancy but the same was not raised in the ground of appeal. He submitted that PW3 testified that, PW1 cannot control his stool. That, PW3 stated that during examination he found the anus was loose thus, making the victim unable to control his faeces. The appellant complained that the same was not testified by PW1 and PW2. It is my considered view that, the discrepancies do not go to the root of the case. I state so because, the issue of failure to control faeces is not needed as the sole way of proving the sodomy. Sodomy is proved by penetration and the bruises discovered. It has to be noted that, a person may be sodomized once and still maintain his/her muscles to control faeces. This does not dismiss the offence. As long as penetration was proved, the issue of lose rectum is a result of sodomy and it does not bar the law from rewarding the assailant. As I stated earlier, the victim was the key witness whose evidence is the best evidence, see Selemani Makumba (supra). Therefore, the expert was just testifying that there was penetration and the same was proved. So, there is no need to disbelieve the evidence of PW3 simply on the ground that the evidence of PW1 and PW2 does not mention that the victim cannot control his faeces. Therefore, the ground has no merit. 18 Reverting to the third issue that, whether the trial court evaluated the evidence of both parties. This issue will be determined basing on the 3rd and 4th grounds of appeal. The appellant submitted that, the evidence of PW1, PW2, PW3 and PW4 was not evaluated and the evidence of the appellant was not considered before trial court. The law is very trite that when the trial court did not evaluate the prosecution evidence properly, the law gives room for the first appellate court to re-evaluate the evidence as a whole and make its own conclusion. This was stated in the case of Prince Charles Junior vs. Republic, Criminal Appeal No. 250 of 2014 CAT Mbeya (unreported). In this case at hand the trial court did not evaluate the evidence of both parties, as per requirement of the law. Therefore, this being the first appellate court re-evaluates the evidence of both parties, as follows: It was evidenced by the prosecution witnesses in the trial court, PW1 the victim stated that, he was sodomized by the appellant. His step father famous known as Ngosha. That, he sodomized him two times in their bedroom which he slept with her mother (PW2). It was during morning hours when PW2 had left to fetch vegetables. The appellant undressed the victim and entered his penis into his anus. The victim did not report the matter because DW1/appellant threatened to kill him. The 19 evidence of PW1 was corroborated by the evidence of PW2, PW3, and PW4. PW1 narrated the whole story to PW2 on the day when it was noticed that there were fresh blood stains in the victim’s faeces. PW2 discovered the incident on 1st April, 2023. The victim mentioned the appellant to PW2 as the one who sodomized him. The victim was able to mention the accused/appellant at the earliest possible stage. In the case of Emmanuel s/o Mathias vs. Republic (Criminal Appeal 132 of 2020) [2022] TZCA 319 (7 June 2022) it was stated that: “It is settled that the ability of a witness to mention a suspect at the earliest opportunity is of utmost importance.” PW2 went to report the incident at Rujewa Police Station, and she was issued with PF3. Later on, she went at Mbarali District Hospital with the victim. PW3 examined the victim and it was stated that the victim was penetrated by hard object, and the victim anus was loose thus, making him fail to control his dung, he had bruises and great pains in his anus, the same was caused by penetration in the anus for more than once. PF3 was filled on 3rd April, 2023 and the same was admitted as exhibit P1 without any objection from the appellant. That, on 3rd April, 2023, PW4 received information from the secretary of SMAUJATA which deals with children, women and elderly 20 people, to go to the scene of crime. He went there but the victim did not tell him what happened. PW4 decided to go to police to take PF3 and he went to the hospital with the victim to be examined. It was discovered that, he was penetrated. The evidence adduced by the prosecution witnesses testified that the appellant sodomized the victim, and there is no contradiction in their evidence. The issue is whether the defence evidence raised any doubt in the prosecution’s evidence. In his defence the appellant stated that, two years back the victim was sodomized by his friends, but the same was settled by the victim’s mother. This does not raise doubt on the prosecution’s evidence. The appellant alleged further that, he did not escort the victim’s mother and the victim to the hospital when they were issued with the PF3, because on that day he went to the farm. The same allegation also does not raise doubt on the prosecution case. The accused/appellant, in his defence alleged that, on April 2023, when he returned from the farm he found blood stains in the toilet, when he asked his wife did not know about blood, the same was stated by the victim. He wondered that later on it was said he sodomized the child. When the child/victim testified, he cross examined him. The victim 21 responded that he was sodomized by the appellant twice. In my opinion the accuse/appellant’s defence does not shake the evidence of the prosecution. It is my view that, the prosecution case has been proved beyond reasonable doubt. Despite that there are allegations made by the appellant that PW1 and PW2 did not testify before trial court that they were interviewed by PW4 or they met with the secretary of SMAUJATA. The same is not fatal in proving the offence of unnatural offence. Also, the complaint that the secretary of SMAUJATA was not called to testify before the trial court on how she got the information and if the victim told the secretary who sodomized him. The same is not fatal. The prosecution is at liberty to choose witnesses for its case. If the prosecution decides not to call a certain witness it does not prejudice the accused/appellant. Also, the allegation that PW1 and PW2 did not state if they gave information to PW4 or secretary of SMAUJATA or the Social Worker Officer, in my view it is immaterial to the prosecution side. The law is very trite that the best evidence in sexual offences has to come from the victim. This being a sodomy like other sexual offence cases, only two persons are usually involved when it is committed. Therefore, the only evidence to be relied upon is that of the victim. This 22 was held in the case of Abdul Mohamed Namwanga @ Madodo vs. Republic (Criminal Appeal No. 257 of 2020) [2022] TZCA 123 (21 March 2022). The Court of Appeal stated that: “...we are alert 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 mostly crucial and must be examined and judged cautiously”. [Emphasis mine]. See also, the case of Selemani Makumba (supra), cited above by the respondent’s counsel, it was said that: “True evidence of rape has to come from the victim, if an adult, that there was penetration and no consent, and in case of any other woman where consent is irrelevant, that there was penetration”. Therefore, the evidence of the victim was very sufficient to prove the offence which the appellant was charged with. The prosecution managed to establish the important elements in proving the offence of unnatural offence. There is the allegation by the appellant that the secretary of SMAUJATA was not called to testify, as a general rule under section 143 of the Evidence Act, it states that no particular number of witnesses shall in any case be required for the proof of any fact. There is a plethora of cases amplifying this principle. One of them is the case of Abraham Sykes vs. Araf Ally Kleist Sykes (Civil Appeal No. 226 of 23 2022) [2024] TZCA 20 (7 February 2024), and in the case of Baraka Lusekelo Kibona & Another vs. Republic (Criminal Appeal No. 189 of 2021) [2024] TZCA 579 (18 July 2024). In the latter case it was stated: “We agree with the learned senior state attorney that, under the provisions of section 143 of the Evidence Act, it is not the number of witnesses but their credibility which matters. In here, the record is clear that; when the second appellant was being searched PW2 was among the independent witnesses. She testified in details how the search was conducted and she confirmed that the stolen television was found in the second appellants residence. With this evidence, the omission to call the assistant ten cell leader was inconsequential”. Having this position of the Court of Appeal, in this case at hand, the complaint that the secretary of SMAUJATA was not called to testify before trial court on how she got information is baseless. Therefore, in my opinion the complaint by the appellant has no merit. The important elements of the offence have been proved by PW1 who testified how the incident occurred. The appellant raised remote and fanciful possibilities which were incapable of raising doubt. Therefore, after re-evaluating the evidence of the appellant there is no any doubt which shook the evidence of the prosecution side. Thus, the trial court was right to find the appellant guilty of the offence he was charged with. As a result, thereof, the third 24 issue is answered in the affirmative. However, the same does not change the conviction and sentence meted on the appellant. The appellant advanced four grounds of appeal and expounded them in 6 paragraphs in his written submission. After labourious discussion, the court found out that: there is no contradiction in the testimonies of PW2 on the taking the PF3 as she did not state that she returned the PF3 on the same date as alleged by the appellant. The discrepancies claimed of are minor, do not go to the root of the case. The trial court did not evaluate the evidence of both parties as per the law. But after re-evaluation of the parties’ evidence, the court found out that the prosecution proved the case beyond reasonable doubt. The evidence of the victim is credible and reliable. Consequently, the appeal succeeded in the 3rd and 4th grounds which did not turn the conviction and sentence trial court. The appeal failed on the 1st and 2nd grounds. In the upshot, the conviction and sentence of the trial court are confirmed and upheld. It is so ordered. Right of appeal is explained. 25 Dated and Delivered at MBEYA this 15th day of August, 2024. E. L. KAWISHE JUDGE Court: Judgment delivered in the presence of Ms. Upendo Lyimo, learned State Attorney for the Respondent and in the presence of Mr. Hame Mboje the appellant. E. L. KAWISHE JUDGE 26