Alfred Pasalima Msumba vs Director of Public Prosecutions (Criminal Appeal No. 104 of 2022) [2024] TZCA 905 (19 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SON6EA (CORAM: MWARIJA. J.A.. KEREFU. 3.A.. And MAKUNGU. J J U CRIMINAL APPEAL NO. 104 OF 2022 ALFRED PASALIMA MSUM BA ..................................................... APPELLANT VERSUS THE DIRECTOR OF PUBLIC PROSECUTIONS.........................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Songea) f Mlyambina. J.^ dated 31st day of March, 2022 in Criminal Appeal No. 05 of 2022 JUDGMENT OF THE COURT 12® August & I 9 h September, 2024 MAKUNGU. J.A: In the District Court of Nyasa sitting at Nyasa, the appellant was charged with two counts of rape and grave sexual abuse contrary to sections 130 (1) (2) (e) and 131 (1) together with section 138C (1) and (2) (b) of the Penal Code, Cap. 16 (the Penal Code) respectively. In the first count, he was charged with the offence of rape. It was alleged that on 27th April, 2021 at Ng'ombo Village within Nyasa District in Ruvuma Region, the appellant unlawfully had carnal knowledge of A.N (name withheld) a girl child aged four (4) years. In the alternative, he was charged with the offence of grave sexual abuse that on the same

date and place for sexual gratification, did insert his penis into the vagina of the said girl without her consent. On the second count, the appellant was charged with the offence of grave sexual abuse. It was alleged that on the same date and at the same place, for sexual gratification and without her consent, the appellant did insert his penis into the vagina of N.K (name withheld) a girl child aged three (3) years. The prosecution case mainly rested on the above two children's testimonies made before the trial court. They testified as PW6 and PW5 respectively. It was PW5's testimony that the appellant abused her by rubbing her buttocks with his "dudu" and he also did so on her vagina. On her part, PW6 testified that, the appellant raped her inside the hut of mama mkubwa. She felt pain at the time of rape. She testified further that, the appellant undressed her underwear and put her on the bed and inserted his 'dudu' into her vagina. Emma Mbele (PW3) was at her home doing cleanness when she heard the cries of PW5 nearby a hut owned by mama Sululu. She rushed to the hut and saw the appellant and PW5 naked. The appellant slept down looking the face up touching with her finger a private part of said witness. She left to call one mama Amina who, after arriving at the 2

scene PW5 got outside the hut and narrated to her about being raped by the appellant. Subsequently, mama Amina took PW5 home and PW3 kept her eyes on the appellant. A moment later, PW3 saw the appellant entering the hut with PW6, she followed them inside where she found the appellant already placed the said victim on the bed while naked and her underwear stripped. She shouted and Kassim Mketo (PW4) arrived alongside other people. When PW4 entered the hut he found PW3, PW6 and the appellant. Leonia Elius Ndiu (PW1) confirmed to be alarted by PW3 that PW6 was raped by the appellant. PW1 ran to the scene and met people including PW3, PW4 and PW6. They took the appellant to the village office and PW1 took PW6 to hospital. Merry Lupindo (PW7) was at her workplace at Ng'ombo Health Center when PW1 brought her daughter PW6. PW7 examined the said victim's vaginal area, saw her labia majora with whitish fluid and bruises indicating that she had been penetrated. After completing her examination, PW7 filled a report (exhibit P2) which she tendered in court and admitted as exhibit P2.

Meanwhile, the appellant was apprehended taken to the police and his account of what transpired was that, the case was framed by one George Katyale who suspected him having love affairs with his spouse. The learned trial Senior Resident Magistrate believed the evidence of PW5 and PW6 that the appellant raped them. He regarded their testimonies as coming from the victims of a sexual offence (rape), and can stand on its own merits under section 127(7) of the Evidence Act, Cap. 6 R.E 2019 to sustain the appellant's conviction. After convicting the appellant, he sentenced him to life imprisonment for the first count and thirty (30) years imprisonment for the second count and in addition to be inflicted twelve (12) strokes of the cane. Dissatisfied with the trial court's decision, the appellant filed his first appeal to the High Court at Songea. Mlyambina, J., who heard that appeal, concluded that the prosecution evidence in its totality proved both charges against the appellant. Still aggrieved, the appellant preferred this second appeal, disclosing six grounds of appeal in terms of the memorandum of appeal that was lodged on 15th August, 2022. However, at the hearing he raised three additional grounds with the leave of the Court.

In the memorandum of appeal, the first ground contended that there was no direct evidence linking him to the offence and faulted the first appellate court for failing to evaluate his petition of appeal. In the second ground of appeal, the appellant contended that PF3 issued to PW6 was not genuine for lack of name and signature of the police officer who issued it to PW6. The third ground faulted the High Court Judge for failure to find that PW7 was not a qualified medical practitioner. The fourth ground faulted the High Court Judge for relying on evidence of prosecution witnesses who were not credible. In the fifth ground of appeal, the appellant contended that the prosecution did not prove the charges beyond reasonable doubt in light of unresolved doubts. Lastly, the appellant claimed that his defence was not considered by the two lower courts. In the supplementary memorandum of appeal, the first ground faulted the first appellate Judge for failure to realize that the examination made by PW7 was wrong as the appellant tested HIV positive and PW7 found that, the victims were HIV negative. The second ground faulted the first appellate Judge for relying on uncorroborated evidence of PW3 and PW4 and that some material witnesses were not summoned to testify before the trial court. And third ground of appeal

contended that there were material witnesses who were not called to testify before the trial court. At the hearing of appeal, Ms. Generose Montano, learned State Attorney appeared for the respondent Republic. The appellant appeared in person without legal representation. The appellant informed the Court that, he would prefer the respondent's learned State Attorney to reply first the grounds of appeal. That being the position, we permitted Ms. Montano to address us on those grounds. At the outset, she submitted that ground four in the memorandum of appeal and ground one in the supplementary memorandum of appeal are new grounds complaining about factual matters, whose substance was not dealt with at the High Court. She moved the Court to refrain from entertaining them. We have carefully reviewed the said grounds of appeal, and we are in agreement with Ms. Montano, that indeed, the complaints in those grounds were not made before the High Court. The settled position of law is that, this Court can only look into matters that came up before the High Court and were decided upon and not matters that were neither raised nor decided unless they are points of law. See Felix Kichele and Another v. Republic, Criminal Appeal No. 159 of 2015 and Godfrey

Wilson v. Republic, Criminal Appeal No. 168 of 2018 (both unreported). Ms. Montano outright supported the appeal on the second count on the ground that the said charge was defective because in the particular of offence, it included the phrase "did insert his penis into the vagina" which amount to the offence of rape contrary to the offence of grave sexual abuse indicated on that count, she added. She argued that the prosecution was required to make amendment of the said count which was not done. In that circumstances, she argued that the appellant was prejudiced. She prayed that the conviction and sentence relating to that count should be set aside. We have carefully examined the said charge and specifically, in the particular of offence for the second count. We observed that the second count was intended for the offence of grave sexual abuse but as it was drafted, it is purely rape. We therefore agree with the argument advanced by the learned State Attorney that the charge on the second count was defective. Consequently, we set aside the conviction and sentence meted by the trial court on that count and upheld by the first appellate court.

Ms. Montano did not support the appeal on the first count of rape. She submitted on each ground of appeal seriatim. On the first ground of appeal, the learned State Attorney disagreed that the first appellate court dismissed the appeal of the appellant without considering all grounds of appeal indicated in the petition of appeal. She referred us to the impugned judgment at pages 84 to 89 of the record of appeal where the learned Judge determined all grounds of appeal filed by the appellant. However, he disagreed with them for lack of merit. She urged us to dismiss this ground of appeal. The learned State Attorney similarly urged us to dismiss the appellant's complaint in the second ground contending that the police officer who issued a PF3 to PW6 did not write his name and signature which casts shadow of doubt of the reliability of that document. Ms. Montano argued that the appellant was supposed to challenge that document during its admission before the trial court. The record at page 29 shows that PF3 was tendered and admitted in evidence as exhibit P2 without objection. She, however, admitted that the document lacks name and signature of the police officer but it was signed by a doctor and had a seal of the hospital. She argued that the said omission is minor defect which does not go to the root of the matter and dispute the fact that the said PF3 was issued to PW6. 8

The learned State Attorney next urged us to find that PW7 is a qualified medical practitioner in terms of section 3 of the Medical, Dental and Allied Health Professionals Act, 2017. She submitted that according to section 240 (1) of the Criminal Procedure Act, PW7 evidence is acceptable before the court. She argued that the appellant failed to cross-examine PW7 on that matter. She referred us to the case of George Maili Kemboge v. The Republic, Criminal Appeal No. 327 of 2013 (unreported). The learned State Attorney urged us to find that the case against the appellant was proved beyond reasonable doubt. She submitted that the victim's evidence established the offence of rape, and we should accord her evidence the weight it deserves. To support that, the evidence of the victim of rape is the best in the circumstances, she referred us to two decisions of this Court in Selemani Makumba v. Republic [2006] T.L.R 379 and John Martin @ Marwa v. Republic, Criminal Appeal No. 22 of 2008 (unreported). In Selemani Makumba (supra), this Court restated that; "True evidence o f rape has to come from the victim if an aduit, that there was penetration and no consent\ and in case o f any other woman where consent in irrelevant, there was penetration".

The learned State Attorney similarly urged us to dismiss the appellant's complaint on the sixth ground contending that the two courts below did not consider his defence evidence. Ms. Montano referred us to page 58 of the record of appeal where the trial court considered the defence case. Concerning the second and third grounds of appeal in the supplementary memorandum of appeal which faulted the trial court for having failed to find that the prosecution evidence was insufficient for its failure to summon material witnesses including Selemani (Mzee Zani) and mama Martha to testify before the trial court, the learned State Attorney disagreed and urged us to dismiss them. She contended that, the prosecution summoned all key witnesses including PW6 who was the best witness to prove the offence the appellant was charged with. She cited section 143 of the Evidence Act, and argued that, the said provision 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 this appeal, the prosecution case was proved beyond reasonable doubt by the evidence of PW6 who lucidly explained what transpired at the scene of crime and her evidence was ably corroborated by the evidence of PW2, PW3, PW4 and PW7. 10

That, having established its case against the appellant, the prosecution found it unnecessary to summon other witnesses. In his brief rejoinder, the appellant reiterated the contents of his grounds of appeal and urged us to allow his appeal and let him free. We have examined and considered the grounds of appeal and submissions from both sides. In terms of section 6 (7) (a) of the Appellate Jurisdiction Act, Cap. 141 our mandate when hearing a second appeal is mainly concerned with issues of law, not matters of facts. The trial and the first appellate courts concluded that the appellant had sexual intercourse with the 4 years old PW6. It is appropriate to ask whether, from the perspective of the appellant's grounds of appeal, there are reasons to interfere with that concurrent findings of facts. In the first ground of appeal, the appellant faults the first appellate court for dismissing his petition of appeal without considering all grounds raised. We agree with Ms. Montano, the learned State Attorney, that we should dismiss this ground of appeal. She is correct to submit that on pages 84 to 89 of the record of appeal; the first appellate court considered all grounds of appeal submitted by the appellant, and in the final result, the appeal was dismissed for lack of merits.

In the second ground of appeal, the appellant is challenging the evidential value of exhibit P2 that the Police Officer who issued it did not write his name and signature which cast shadow of doubt on its reliability. As submitted by Ms. Montano, it is on record that during the trial, the appellant did not cross-examine on that aspect. It is trite law that, a party who fails to cross-examine a witness on a certain matter is deemed to have accepted the same and will be estopped from asking the Court to disbelieve what the witness said, as the silence is tantamount to accepting its truth. See our previous decisions in Cyprian Athanas Kibogoyo v. Republic, Criminal Appeal No. 88 of 1992 and Hassan Mohamed Mgoya v. Republic, Criminal Appeal No. 134 of 2012 (both unreported). We are therefore, in agreement with Ms. Montano that, since the appellant did not utilize that opportunity during the trial, challenging the said exhibit at this stage of an appeal, is nothing but an afterthought. That said, we equally find the second ground of appeal devoid of merit. As for the submissions on the third ground of appeal, the same challenged the qualifications of PW7 as a medical practitioner, we are also of the view that, the same is devoid of merit. As submitted by Ms. Montano that PW7 is a qualified medical practitioner in terms of section 3 of the Medical, Dental and Allied Health Professionals Act, 2017. Also it 12

is on record that during the trial, the appellant did not cross-examine PW7 on that aspect. It is clear to us that, a medical practitioner is defined in section 3 of the above Act as follows; "Medical practitioner" means a person holding a degree, advanced diploma, diploma or certificate in medicine or dentistry from an institution recognized by the Council, with his level o f competency and registered, enrolled or enlisted to practice as such under this Act". We observed that PW7 testified that; 7 studied and completed a clinical course at Songea Clinical Officer Training Center. I was studied there since 2015 - 2018 and awarded Diploma in Medicine" On the fifth ground, the appellant faulted the learned High Court Judge for failure to observe that the prosecution case was not proved to the required standard. He contended that the evidence adduced by PW7 did not find penetration as the hymen was intact. According to him, the said finding has raised doubts in the prosecution case which should have been resolved in his favour. In response, Ms. Montano challenged the appellant's complaint which, she said, according to section 130 (4) (a) of the Penal Code 13

penetration however slight is sufficient to constitute the sexual intercourse necessary to the offence. In the instant appeal, it is our view that, the evidence of PW7 sufficiently proved penetration. In her examination, PW7 found bruises on the labia manora, discharge of whitish fluids to the labia majora resembling spermatozoa and bleedings from PW6's vagina. She went further to prove that a blunt object penetrated the vagina of PW6. It is also our settled view that, the evidence of PW6 and PW7 sufficiently proved the offence the appellant was charged with. See the case of Selemani Makumba (supra). In addition as submitted by the learned State Attorney, the evidence of PW6 was also corroborated by the evidence of PW3, PW4 and PW7. As such, we are satisfied that both lower courts adequately evaluated the evidence on record and arrived at a fair decision. In the circumstances, we also find the fifth ground of appeal unmerited. The complaint in the sixth ground of appeal was that the appellant's defence was not considered. The record of appeal on page 58 shows clearly that his evidence was properly considered. His only defence was that the case was framed against him. We find that his defence is unsupported and does not cast any doubt on the prosecution case. The sixth ground of appeal, therefore, has no merit and it is hereby dismissed. 14

On the second and third grounds of appeal in the supplementary memorandum of appeal, the appellant faulted the prosecution for failure to call the material witnesses, such as Selemani (Mzee Zani), mama Martha and children (kids) who were playing at that place to testify before the trial court. He contended that if the said persons could have been called to testify before the trial court, would have shed more light on what exactly happened on that fateful date. On our part, having revisited the evidence on record and considering the principle which is applicable in proving sexual offences, we agree with the submission made by the learned State Attorney that the two grounds are without merit. We however, wish to emphasize that, pursuant to section 143 cited above, there is no particular number of witnesses which is required in proving a certain fact, what matters most is the weight of evidence and credibility of a witness. Besides, it is the prosecution that has the duty to prove the case and the right to choose which witness or witnesses to call so as to give evidence in support of the charge. See for instance the case of Yohanis Msigwa v. Republic [1990] T.L.R 148. That said, we equally dismiss the second and third grounds of appeal in the supplementary memorandum of appeal for lack of merit. 15

For the foregoing reasons, we do not find any cogent reasons to disturb the concurrent findings of the lower courts, as we are satisfied that the evidence taken as a whole clearly establishes that the prosecution's case against the appellant on the first substantive count of rape was proved beyond reasonable doubts. In the event, we find the appeal devoid of merit and it is hereby dismissed to the extent explained above. DATED at DAR ES SALAAM this 19th day of September, 2024. A. G. MWARIJA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Judgment delivered this 19th day of September, 2024 in the presence of the Appellant in person via video facility from Songea Prison and M r. Elipidi Tarimo, learned State Attorney for the Respondent/ Republic vide video facility from the High Court of Tanzania at Songea, is hereby certified as a true copy of the original.