Paulo Simeu Mkame vs Republic (Criminal Appeal No. 126 of 2024) [2026] TZCA 368 (27 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: SEHEL. 3.A., MGONYA. 3.A. And KHAMIS, 3.A.) CRIMINAL APPEAL NO. 126 OF 2024 PAULO SIMEU MKAME....................................................... .............. APPELLANT VERSUS THE REPUBLIC............................................................... ............. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Luvanda. 3.) dated the 18th day of September, 2023 in Criminal Appeal No. 86 of 2023 JUDGMENT OF THE COURT Iff* February & 27th March, 2026 MGONYA, J.A.: The appellant, Paulo Simeu Mkame, was charged with grave sexual abuse contrary to sections 138C (1) (d) and (2) (b) of the Penal Code, Cap. 16 R.E. 2022, before the District Court of Kibaha at Kibaha (the trial court). It was alleged that, on diverse dates between August 2022 and September 2022 in the Disunyara area within Kibaha District in Coast Region, for sexual gratification, the appellant rubbed his penis on the anus and vagina of a girl child aged 7 years. In this judgment, the girl will be referred to as the victim or PW1, so as to conceal her identity. The appellant denied the charge, and the case went to a full trial. At the end of the trial, the trial court found that the charge was proved to the required standard and thus convicted the appellant and sentenced him to serve 20 years' imprisonment. Briefly, the facts leading to this appeal, as garnered from the record, are as follows: the victim and the appellant knew each other, as the appellant used to go where she resides with her grandmother. That sometimes he asked the victim's grandmother if the victim and her sibling could accompany him to his place to collect firewood. That in the course of collecting the firewood, the appellant called the victim into his room. While inside the room with a victim alone, the appellant undressed her, took his penis and then rubbed it on her vagina and anus. According to the victim's evidence, the incidents occurred several times during the daytime. The victim's testimony on how she knew the appellant was corroborated with the testimony of her grandmother (PW3). PW3 told the trial court that the appellant was close to her family. He visited her place several times where she assisted him by buying him new clothes, as he had poor clothes, which made the children laugh at him. PW3 told the court that, sometimes the appellant asked her to send her grandchildren to pick firewood near his place. Hence, she allowed her grandchildren to go near the appellant's house to collect the firewood. It was the victim's mother (PW2) who noticed the unusual behavior in the victim, who seemed scared and not at peace whenever the appellant was around. PW2 asked PW1 whether something was going on between the two. At the beginning, PW1 was hesitant to disclose to her mother, as she was scared of the appellant, who warned her that he would slaughter her if she disclosed his mischief. Upon keeping on asking, PW1 finally told her mother what was happening between the two. According to PW2, the victim toid her that the appellant used to rub his penis on her vagina and the anus. Being informed of that, PW5, who is a victim's aunt reported the matter to the police, and took the victim to the hospital after obtaining a PF3. PW5 told the trial court that, at the hospital, the victim was examined by PW6, who observed that she was a virgin, though her labia majora were expanded. PW6 further detected that, the victim had a smelly discharge caused by bacteria, which indicates a sexually transmitted infection. Therefore, she prescribed some medications for vaginal discharge syndrome. After all that, the appellant was arrested by PW7, an auxiliary police on 5th October, 2022, and the legal process followed. In his defense, the appellant categorically denied any involvement in the commission of the offence. He told the trial court that he didn't 3 know the prosecution witnesses as he was a stranger in that area, having been there for only two years. At the end of the trial, the trial court found that, the prosecution proved the case against the appellant to the hilt and accordingly convicted and sentenced the appellant as intimated above. Aggrieved, the appellant unsuccessfully appealed to the High Court, which upheld the trial court's decision. Still aggrieved, the appellant has come to this Court on a second appeal. In the memorandum of appeal, the appellant had four (4) grounds of appeal, namely: 1 . That the first appellate court erred in law by upholding the appellant's conviction ; while he was wrongly deprived of an opportunity to be heard during the hearing of the appeal, hence unfair trial; 2. That the first appellate court erred in law and fact by upholding the appellant's conviction, while the particulars of the offence are not supported by the evidence on record regarding the months of the said incident 3. That the first appellate court grossly erred by holding the appellant's conviction on a case that contains several contradictions and lacks of coherence; and 4. That the court erred in law and fact by upholding the appellant's conviction based on a case that was notproved beyond a reasonable doubt, hence the offence remains unproven. At the hearing of the appeal, the appellant appeared in person unrepresented, whereas the respondent Republic was represented by Ms. Janeth Masonu, learned Senior State Attorney, assisted by Mr. Charles Maige and Ms. Zamdat Abubakary, both learned State Attorneys. When invited to amplify the grounds of appeal, the appellant prayed to the Court to adopt his written submission in support of the appeal filed on 03rd October, 2024 to form part of his oral submissions. He further prayed the Court to consider his grounds of appeal. In his written submission, the appellant opted to argue the appeal on three main issues, to wit: one, there was divergence between the prosecution evidence and the charge sheet; two, there were contradictions in the prosecution's case; and three, the case against the appellant was not proved to the required standard in criminal cases. 5 Elaborating on the first issue, the appellant argued that the charge sheet is the foundation of the complaint against the accused and that the prosecution is required to bring the evidence to prove the particulars of the offence stated in the charge sheet. To fortify his submission, the appellant cited the case of John Leon Kimario v. Republic, Criminal Appeal No. 105 of 2021 (unreported). He went further to argue that in this appeal, the particulars of offence in the charge sheet depict that the appellant committed the offence between August and September 2022, hence the prosecution ought to bring evidence to prove that fact. According to the appellant, none of the prosecution's witnesses testified to the effect that the offence was committed within that range. Arguing in respect of the 2n d and 3rd issues, which were argued conjointly, the appellant submitted that the offence was not proved beyond a reasonable doubt. He argued that, there was no sufficient evidence led by the prosecution to ground the appellant's conviction. He said, the appellant was implicated by the evidence of PW1, while PW2, PW3, PW4, PW5, PW6, and PW7 were not eyewitnesses. Thus, whatever those witnesses told the trial court was hearsay evidence, which had no evidential value. The appellant further argued that although in sexual offences the victim is the best witness, courts have to consider evidence from other witnesses corroborating it. To bolster his argument, he cited the case of John Daud v. Republic (Criminal Appeal No. 4821 of 2020) [2024] TZCA 97, where we held that, even if the evidence in sexual offences comes from the victim, such evidence is not free from scrutiny by the court and it should pass the usual test of self-coherence, credibility, and/or its veracity in comparison with other available evidence. The appellant stressed that PW l's evidence required corroboration. Arguing further on that issue, the appellant contended that, in the circumstances of this case, the only evidence that could have corroborated the evidence of PW1 was from her sibling, whom they used to go together to pick firewood. However, she was not summoned to testify. He contended that, failure to call such material witnesses entitled the court to draw an adverse inference against the prosecution. To fortify his submission, the case of Mgambo Saanane v. Republic (Criminal Appeal No. 225 of 2021) [2024] TZCA 247, was referred to. The appellant submitted further that, there were contradictions in evidence between PW1, PW2, PW3, PW5, and PW6. The contradiction was on the date on which the offence was reported to the Police and the date the victim got treatment. He argued that PW1, PW2, and PW3 testified that, after having the information on 19th September 2022, the victim was sent to the Police whereby they were issued a PF3, and the victim was sent to the hospital for a medical checkup. According to the appellant, that version of the story contradicts the testimony of PW5 and PW6. He said, PW5 and PW6 testified that the matter was reported to the Police on 21st September, 2022; thereafter the PF3 was issued and the victim was sent to the hospital by PW5. According to the appellant, the alleged contradiction on dates, goes to the root of the matter, hence the same should be resolved in his favor. In reply to the appellant's grounds of complaint, starting with the first issue, Ms. Masonu admitted that the victim did not say when exactly she was abused; she only said that several times she had gone to the appellant's house, where he called her inside, undressed her, and kept his penis on her vagina and anus. Moreover, PW3, the victim's grandmother, testified that she remembers that the offence took place in August, as it was during that month the appellant asked her to go with PW1 to fetch firewood. Ms. Masonu argued further that, at the age of 7 years, it is not easy for the victim to remember the exact dates she was abused. The learned Senior State Attorney contended further that, the appellant was given a chance to cross-examine the appellant, but he didn't ask anything about the exact dates. In her view, failure to cross-examine on that issue, meant that the appellant admitted the facts. To fortify her stance, she referred to our decision in the case of Nyerere Nyague v. Republic (Criminal Appeal No. 67 of 2010) [2012] TZCA 362. 8 Responding to the third issue that the case was not proved beyond a reasonable doubt, Ms. Masonu submitted that, all seven prosecution witnesses who were brought before the trial court, testified on how the child was abused. She argued that the victim was able to establish how the appellant abused her. That the victim's testimony was corroborated by PW6's testimony, who observed that her labia majora had expanded she had a bad smell discharge caused by bacteria due to a sexual infection. Likewise, the learned Senior State Attorney argued that the victim named the appellant as the one who abused her. Hence, in her view, the prosecution’s case was proved to the hilt as all the prosecution witnesses were consistent. To support her stance, she referred us to our previous decision in the case of Goodluck Kyando v. Republic [2006] TLR 263. Premising on what she submitted, the learned State Attorney urged us to find that this ground has no merit and dismiss it. In his rejoinder, the appellant had nothing to rejoin; rather, reiterated his prayer for the Court to consider his appeal and set him free. As we have noted above, the two lower courts had concurrent findings that the charge against the appellant was proved to the hilt. Tlnat being the case, this Court is warned not to interfere with the concurrent findings of the two lower courts unless there was a misapprehension of evidence, a miscarriage of justice, or a violation of some principles of the 9 law or practice. See - Amri Yahaya Mfikilwa v. Fatuma Mohamed Nampembe (Civil Appeal No. 180 of 2022) [2025] TZCA 279, Neli Manase Foya v. Damian Mlinga, Civil Appeal No. 25 of 2002 (unreported), and Himid Sangwa v. Republic (Criminal Appeal No. 17 of 2022) [2025] TZCA 312. Therefore, in resolving the last issue, our focus will be on whether there was a misapprehension of evidence and a violation of some principles or practice that led to the lower courts' finding that the charge was proved to the hilt against the appellant. As alluded to above, the appellant invites us to interfere with the first appellate court's findings based on four grounds. However, in the course of submitting in support of, he opted to argue those grounds sorted into three issues only, as indicated earlier. Essentially, the gist of the appellant's complaint in the first issue is that the prosecution witnesses did not prove that the offence was committed between August and September 2022, as it was alleged in the chargesheet. That is, PW1 never testified about the month, as she only stated that it was when her grandmother sent her to fetch firewood near the appellant's home. He discredited PW2's, PW3's, PW4's, and PW5's evidence that the same is silent on whether PW1 told them that she was abused in August and September 2022. On the other hand, the Senior State Attorney contended that there is good evidence from the 10 prosecution witnesses that the offence was committed on the alleged dates. Having considered the matter critically and revisited the evidence of the prosecution witnesses, we find the appellant's complaint on the first issue is baseless. We say so because the chargesheet, which is the foundation of the appellant's conviction, demonstrated that the offence was committed on diverse dates between August, 2022 and September 2022. Admittedly, in her testimony, PW1, who is the best witness, in her testimony, did not mention the exact date or month she was abused. PW1 told the court that, it was several times, mostly during morning hours, when she went to collect firewood near the appellant's home. Similarly, PW2, in her testimony at page 18 of the record of this appeal, told the trial court that it was in August when the appellant asked the victim to go and collect firewood near his place. Therefore, as rightly argued by the learned Senior State Attorney, the prosecution evidence was in harmony with a chargesheet since PW2's evidence proved that it was in August when the victim went to the appellant's place. More so, having considered what PW1 narrated to her mother, which corroborated with the evidence of PW6, who examined PW l's private parts on 21st September and found that her labia majora expanded and she contaminated sexual infection. In our view, the absence of li specific dates as to the commission of the offence did not material impeach the victim's account as to when she was sexually abused by the appellant. Also, taking things into reality, we are at one with the first appellate court Judge's findings that expecting a girl aged 7 years old to mention a specific date, month, and year is a mockery of justice to the detriment of the victims. Further, it is on record that the appellant did not cross- examine the prosecution witnesses on that aspect, which was tantamount to acceptance of the evidence as accurate. See - for instance, Damian Ruhele v. Republic (Criminal Appeal No. 501 of 2007) [2012] TZCA 269, Fabian Emmanuel v. Republic (Criminal Appeal No. 197 of 2023) [2025] TZCA 1148, and Goroban Brand @ Katumbo v. Republic (Criminal Appeal No. 4 of 2022) [2025] TZCA 118. In the latter, the Court held that: "In Director of Public Prosecutions v . Mohamed Said & Another (supra), we restated the law that a failure to cross-examine or re-examine a witness on a relevant fact leaves his evidence intact." All that said, we dismiss this ground of complaint for being unmerited. The second issue concerns the appellant's complaint that there were contradictions regarding the date when the offence was reported to the police and when the victim got treatment. Having keenly gone through the record of this appeal, we found the appellant's complaint on the alleged contradictions wanting. It is clear from the record that it was PW5 who reported the matter to the police and brought the victim to the hospital. Further, it is on record at page 22 of the record of appeal that PW5 told the court that she took the victim to the police station on 21s t September, 2022, where they were issued a PF3. That, after being issued the PF3, they went to the hospital on the same date, where the victim was examined. PWS's evidence corroborated the testimony of PW6 at page 24 of the record of appeal. PW6 told the trial court that it was on 21st September 2022, in the afternoon, when the victim, accompanied by another person, went with a PF3. That he received them and examined the victim, where he diagnosed her with vaginal discharge. Thereafter, he gave her medicine for vagina discharge syndrome. Further, it is evidenced from Exh. P2 (a PF3), that the same was issued on 21st September, 2022, by Mlandizi Police Station. Therefore, having revisited the prosecution's witnesses' testimonies, we agree with the findings of the first appellate court that the alleged contradictions never existed. Therefore, we dismiss this ground of complaint for being destitute of merit. 13 On the last issue where the appellant faulted the first appellate court to uphold the conviction while the case was not proved to the hilt, the appellant complained that there was no sufficient evidence led by the prosecution to ground the appellant's conviction. Having perused the record of appeal, we think this issue should not detain us. The law on grave sexuai abuse in Tanzania is very clear that: "138C.-(1) Any person who , for sexual gratification, does any act, by the use ofhis genital or any other part of the human body or any instrument or any orifice or part of the body of another person, being an act which does not amount to rape under section 130, commits the offence of grave sexual abuse if he does so in circumstances falling under any of the following descriptions, that is to say - (a) without the consent of the other person; (b) with the consent of the otherperson where the consent has been obtained by the use of force, threat or intimidation or putting that other person in fear of death or of hurt or while that other person was in unlawful detention; (c) with the consent of the other person where such consent has been obtained at a time the other person was of unsound mind or was in a 14 state of intoxication induced by alcohol or any drugs, matter or thing; (d) with or without the consent of a person who is under the age of eighteen years" In the appeal at hand, the appellant was charged under section 138C (1) (d) of the Penal Code, Cap. 16 R.E., 2022; therefore, the prosecution had a duty to prove that, for sexual gravitation, the appellant did use his genitals to offend PW1, who is under the age of 18 years. It is on record of this appeal that the victim disclosed to her mother (PW2) that the appellant used his penis to rub on her vagina and anus. That the said act was done several times when she went near the appellant's place to collect firewood. PW l's testimony was duly corroborated by the evidence of PW6, who testified that upon interviewing PW1, she told him that appellant's "Kidude cha kukojolea" was used to rub her vagina. PW6 further testified that he examined the victim's private parts and found that there had been foreplay done to her, which caused her labia majora to expand. Regarding the age of the victim, PW2 told the court that PW1 was born on 21s t May, 2015, hence she was 7 years old when she was abused. With those findings, we find no cogent reasons to interfere with the two 15 lower courts' findings that the prosecution's case was proved to the hilt against the appellant. Hence, the last issue is equally declared meritless. Premising on our analysis and findings above, we find the appellant's appeal is destitute of merit. Consequently, we dismiss it in its entirety. DATED at DODOMA this 26th day of March, 2026. B. M. A. SEHEL JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL Judgment delivered this 27th day of March, 2026 via Video Conference, in the presence of the Appellant in person, Ms. Winiwa Kasala, State attorney for the Respondent and Mr. Julius Kilimba, Court Clerk; is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL 16