CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA

AT SUMBAWANGA (CORAM: MWARI3A, J.A.r MASHAKA. J.A. And FELESHI. J.A.1 CRIMINAL APPEAL NO. 345 OF 2022 SALUM MACHIMU..................... ................................... . APPELLANT

VERSUS THE REPUBLIC........................ ............................. ........... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Sumbawanga) (Nkwabi. dated the 22nd day of June, 2022 in PC Criminal Appeal No. 21 of 2021

JUDGMENT OF THE COURT 18th & 28th March, 2025 MWARI3A. J.A.: This appeal arises from the decision of the High Court of Tanzania at Sumbawanga in DC Criminal Appeal No. 21 of 2021, originating from Mpanda District Court Criminal Case No. 157 of 2020. In that case, the appellant, Salum Machimu was charged with the offence of rape contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code, Chapter 16 of the Revised Laws. It was alleged that, on 21/10/2020 at Ilembo Msangama area within Mpanda District in Katavi Region, the appellant did have carnal knowledge of a girl aged 13 years, one "MK" (name withheld to disguise her identity). She shall hereinafter be referred to as the victim. When he was arraigned before the trial court, the appellant distanced himself from the charge. However, upon a full trial, he was found guilty of the offence charged and upon conviction, was sentenced to thirty years imprisonment. His appeal to the High Court was unsuccessful hence this second appeal. The background facts leading to the appellant's arraignment and ultimately, this appeal, may be briefly stated as follows: The appellant was until the time of his arrest, employed by the victim's mother, one Joyce Charles (PW2) as a shamba boy. On the date of the incident, the victim and her younger sister were sent by PW2 to go to their farm to look for lambs which had gone astray. They managed

to trace them. After that duty, the victim returned home but in a sad mood and crying. When she was asked by PW2 as to what had happened to her, the victim complained that she was raped by the appellant. The appellant who was not at home when the victim was sent to look for lambs, returned in the evening. Despite the victim's complaint, PW2 did not ask him about the incident, instead she deluded him to assist in taking the victim to hospital. While on the way to hospital, the appellant was arrested, sent to police and later charged as stated above. At the trial, apart from the evidence of PW2 and the victim, who testified as PW1, the prosecution relied on the evidence of other two witnesses, Samwel Kipeta (PW3) and Paulo Kilenga (PW4). Testifying before the trial court, PW1 stated that, when she went to the shamba in the company of her younger sister (hereinafter the child), she met the appellant who also participated in tracing the lambs. She testified further that, although all the lambs were traced/the appellant required the child to proceed with the search. Sensing that the appellant had the intention of separating her with the child, she prevented her from returning to the farm. PW1 went on to state that, the appellant took another approach. He picked a stick and started to beat and chase away the child. Having chased the child, he got hold of PW1, fell her down and after

having undressed her, had carnal knowledge of her while covering her mouth. As he was doing so, he warned her not to shout. After that awful event, PW1 returned home crying and narrated the incident to PW2, naming the appellant as the culprit. On her part, PW2 testified that, when PW1 returned home and complained about what was done to her by the appellant, she inspected her and found that, there was blood running on her legs. On inspecting her further, she found her bleeding from her vagina. PW2 then informed her husband about the incident and on his part, confirmed what had been observed by PW2. It was PW2's evidence also that, when the appellant returned home, she noticed that he had the intention of fleeing and thus prevented him from doing so. He lured him by seeking his assistance to take the victim to hospital. He agreed but on the way, he attempted to run away. She managed to get hold of her and through the assistance of other persons, he was arrested and taken to Mpanda Police Station. On his part, PW3 testified that he accompanied PW2 and the appellant taking PW1 to hospital after the incident. It was his evidence that, while on the way, the appellant attempted to run away but got arrested through the help of three persons, who apparently, noticed the struggle as the appellant was attempting to run away from PW2. After the victim had arrived at Katavi Regional

Referral Hospital, she was examined by PW4 whose evidence was to the effect that, the victim, who was bleeding from her vagina, was penetrated by a blunt 4 object. He found further that, her hymen had been perforated. He tendered the victim's PF3 and the same was admitted in evidence as exhibit P2. In his defence, the appellant disputed the evidence of PWl, that he met her at the farm. He testified that, on the materia! date, he was at the river where he had gone to take bath. He stated also that, from the river, he went home and while he was about to sleep, he was called by PW2 and accused him of having raped the victim. He was asked to assist to take her to hospital. While on the way, after having hired a bajaj and after they had boarded it, instead of going to hospital, he was sent to Mpanda Police Station. He attributed the charge against him as a result of his claim for his outstanding salary. He contended that, he was arrested and charged after he had claimed for his 12 months7salary out of the three years7salary he had worked for without being paid. Having considered the prosecution evidence and the defence, the trial court was satisfied that, the case had been proved to the required standard. It believed the evidence of PWl which was supported by that of PW2, PW3 and PW4. As to the appellant's defence, the trial court was of the view that, the same did not raise any

reasonable doubt against the prosecution evidence, particularly so because, he did not cross­ examine PW2 as regards his claim of unpaid salary. It also considered the appellant's conduct of attempting to run away and observed that, such conduct supported the prosecution's case. On the basis of the above stated considerations, the trial court found the appellant guilty as charged, convicted and sentenced him as stated above. His appeal to the High Court was predicated on four grounds which boil down to the complaint that, the case was not proved because; first, the child (the victim's younger sister) was not called to testify; secondly, that the evidence of PW4 was wrongly admitted; thirdly, that the appellant's defence was not considered and fourthly; that the age of the victim was not proved. The High Court found that, all the four grounds lacked merit and thus dismissed the appeal. On the failure to call the child asa witness, the learned first appellate Judge found that, suchevidence was unnecessary given the fact that, there are no specific number of witnesses required to prove a case and that, the evidence which was adduced by the prosecution witnesses, sufficiently proved the charge. With regard to the evidence of PW4, which was corroborative evidence, the learned Judge observed that, the same related to medical examination of the victim and was thus properly admitted.

On the appellant's defence and the age of the victim, it was held that, while it was not correct that the trial court did not consider the defence, the age of the victim was proved by PW2, her mother who, apart from her oral evidence, tendered an affidavit to prove that the victim was aged 13 years. On those findings, the High Court dismissed the appeal. In this appeal, the appellant has raised three grounds of appeal. The same are paraphrased as follows: 1. That the High Court erred in faw and fact in upholding the appellant's conviction while the case against him was not proved beyond reasonable doubt 2. That the High Court erred in law and fact in upholding the appellant's conviction while the trial court had failed to drew adverse inference against the prosecution for failure to call material witnesses; to wit, any member o f the village authority and the victim 's younger sister.

3. That, the High Court erred in law and fact in failing to find that the trial court had failed to consider the appellants defence. At the hearing of the appeal, the appellant appeared in person, unrepresented while the respondent Republic, was represented by Ms. Flavia Shiyo, learned Senior State Attorney assisted by Mr. Joseph Mwakasege, learned State Attorney. When he was called upon to argue his appeal, the appellant opted to hear first, the respondent's reply to his grounds of appeal and thereafter, would make a rejoinder if he would deem it necessary. After the learned Senior State Attorney's reply submissions, the appellant did not, however, have any substantial rejoinder to make. He merely prayed to the Court to consider his grounds of appeal, allow his appeal and set him free. Submitting in reply to the third ground of appeal, Ms. Shiyo opposed the appellant's contention that his defence was not considered. She argued that, the defence was considered and at the end, it was rejected. According to the learned Senior State Attorney, to reject the defence does not entail a failure to consider it She cited the case of Marco Kihamba v. Republic, Criminal Appeal No. 16 of 2022 (unreported) to buttress her argument. The learned Senior State Attorney argued further that, the appellant's defence that the trial court would have considered the fact that he accepted to escort the

victim to hospital as evidence of his innocence, is underserved given the strong evidence linking him with the offence. 8 As for the first ground of appeal, Ms. Shiyo submitted that, the case was proved beyond reasonable doubt by the prosecution witnesses. She referred to the evidence of PW1, PW2 and PW4 and argued that, from their evidence, ail the ingredients of the offence of rape were proved. She contended that, the evidence of PW1 and PW4 proved that the victim was penetrated while the evidence of PW1 and PW2 proved, first the age of the victim and secondly, that the offence was committed by the appellant. Citing the case of Selemani Makumba v. Republic [2006] T.L.R. 396, the learned Senior State Attorney submitted that, the evidence of PW1, which was found to be credible, was in itself sufficient to warrant the appellant's conviction. She submitted further that, the victim named the appellant to PW2 immediately after she had arrived home and that such was an assurance of her credibility. She cited the case of Marwa Wangiti Mwita v. Republic [2002] T.L.R. 36 to bolster her argument. Relying also on the conduct of the appellant of attempting to run away when he returned home in the evening of the fateful day and on the way to hospital, Ms. Shiyo argued that, such conduct was a proof of the appellant's guilt mind. She cited the case of Elias Paulo v. Republic, Criminal

Appeal No. 7 of 2004 (unreported) in support of the her argument. On the second ground, the learned Senior State Attorney submitted that, the said persons were not necessary because the evidence of the witnesses who were called by the prosecution was sufficient to prove the case against the appellant. She relied on the provisions of section 143 of the Evidence Act, Chapter 6 of the Revised Laws to support her argument that, no specific number of witnesses is required to prove a case, rather, it is the credibility of the evidence which matters. We have duly considered the appellant's grounds of appeal and the reply submissions made by the learned Senior State Attorney in opposition thereto. To begin with the third ground, that the appellant's defence was not considered, we agree with Ms. Shiyo that the appellant's complaint in this ground is without merit. In its judgment at pages 40-41 of the record of appeal, the trial court considered the appellant's defence that he was not at the scene of crime at the material time. It also considered the defence that the case was fabricated because of grudge which existed between the appellant and PW2 over unpaid salary. The court found that, the appellant's defence did not raise any reasonable doubt, more so because of the appellant's conduct of attempting to flee as testified by PW2 and PW3. She argued that such evidence was reliable

because the same was not challenged by way of cross-examination. We therefore, dismiss this ground of appeal for want of merit. With regard to the first and second grounds of appeal, we hasten to state that, we agree with the learned Senior State Attorney that, the same are without merit. As stated above, the appellant's conviction was basically founded on the evidence PW1, PW2 and PW4. In the famous case of Seiemani Makumba (supra) cited in the decisions of both lower courts and referred to by Ms. Shiyo in her submission, the Court underscored the principle that, the true evidence of rape must come from the victim. In this case, the evidence of the victim (PW1) was found by the trial court to be credible and the first appellate court concurred with that finding. This being a second appeal, the Court cannot interfere with that concurrent findings of fact unless it is satisfied that, such decisions were arrived at out of misapprehension of evidence or if there were any mis­ directions of non-directions resulting into miscarriage of justice. See for example, the cases of Shihobe Seni and Another v. Republic [1992] 11 T.L.R. 92 and Benedict Buyobe @ Bene v. Republic (Criminal Appeal No. 354 of 2016) [2018] TZCA 338 (19 November 2018). The evidence of PW1 was corroborated by PW4 who examined her and found that she was penetrated. The allegation that the appellant was raped

was therefore proved. Again from the evidence of PWl which, as found above was credible, proved that the offence was committed by the appellant who was well known to her before the date of the incident because he was an employee of her mother, PW2. As submitted by the learned Senior State Attorney, the appellant's act of attempting to escape at PW2's house and on the way while escorting PW2, who was taking PWl to hospital, was an act which was inconsistent with his innocence. That conduct supported the evidence of PWl and PW2 that he had committed the offence against the victim. See for instance the case of Rashid Mtanga Ahamadi v. Republic (Criminal Appeal No. 249 of 2008) [2011] TZCA 139 (29 September 2011) in which the Court observed that: "... we are satisfied that the appellant's conduct o f running away just after he saw PW l and PW3, is related to his guilty conscience to the act he committed to PW l, such conduct is inconsistent with innocence". It is for these reasons that, in our finding, the case was proved to the hilt. We therefore, agree with the learned Senior State Attorney that the first and second grounds are equally devoid of merit. In the event, the appeal is hereby dismissed. DATED at SUMBAWANGA this 27th day of March, 2025. A. G. MWARIJA

JUSTICE OF APPEAL L. L. MASHAKA

JUSTICE OF APPEAL E. M. FELESHI

JUSTICE OF APPEAL The Judgment delivered this 28th day of March, 2025 in the presence of the appellant in person and Mr. David Mwakibolwa, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original/ J.

3. KAMALA

DEPUTY REGISTRAR

COURT OF APPEAL /