Bonus Nchimbi vs Republic (Criminal Appeal No. 347 of 2022) [2024] TZCA 795 (22 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA (CORAM: MWARIJA. J.A.. KEREFU. J.A.. And MAKUNGU. J J U CRIMINAL APPEAL NO. 347 OF 2022 BONUS NCHIMBI..................................................................... APPELLANT VERSUS THE REPUBLIC......................................................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Songea) (Mlvambina, J.) dated the 6thday of July, 2022 in DC Criminal Appeal No. 8 of 2022 JUDGMENT OF THE COURT 20th & 22n d August, 2024 KEREFU, J.A.: In the District Court of Mbinga at Mbinga, Bonus Nchimbi, the appellant herein, was charged with the offence of rape contrary to sections 130 (1) (2) (e) and 131 (3) of the Penal Code, Cap. 16 (the Penal Code). It was alleged that on 23r d July, 2021 at Lusonga Street within Mbinga District in Ruvuma Region, the appellant, unlawfully, had carnal knowledge of a girl child aged four (4) years.

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 four witnesses and two exhibits, to wit, the blanket (exhibit PI) and the Police Form No. 3 (exhibit P2). On his side, the appellant testified alone, as he did not call any witness. In a nutshell, the prosecution case, as obtained from the record of appeal, can be briefly stated as follows: That, at the material time, Avelina Salvinus Ndunguru (PW1) was living at Lusonga Street within Mbinga District with her husband one Philipo Nchimbi (PW3) together with their children including the victim, who testified as PW2 (name withheld). PW1 stated that, in the morning of 23rd July, 2021, she went to her restaurant where PW2 and her two sisters, Happy and Ritha slept. While on her way, she met PW2 coming from the said restaurant crying and walking with some difficulties while spreading her legs. PW1 noted that PW2 was also bleeding in her mouth. PW1 inquired from PW2 what had happened to her. PW2 informed her that the appellant took her into his room, covered her with the blanket (exhibit PI), took off her trouser and raped her. It was PWl's testimony that when she examined PW2's private parts she found sperms on her thighs and vagina. PW1 also found that PWl's vagina had joined the anus and it was bleeding.

Having observed PW2's condition, she took her home and informed PW3 who advised her to take her to Police. PW1 went on to state that, she went to the restaurant where she found the appellant coming from his room and informed her that he took PW2 to his room to rescue her from being eaten by dogs. PW1 stated further that she took PW2 to police. Upon obtaining the PF3, PW2 was taken to Mbinga District Hospital where she was examined and treated by Dr. Neema Joseph Mng'ong'ose (PW4) who found that PW2's vagina had bruises, bleeding and the hymen was not intact, an indication that it had been penetrated by a blunt object. PW4 recorded her findings in the PF3 (exhibit P2). In her testimony, PW2 stated that, on the material date, she slept at her mother's restaurant with her two sisters, Happy and Ritha. That, when the said sisters left for school, the appellant came and took her to his room and inserted his penis into her vagina and raped her. PW2 stated further that, after the incident she went out to look for her mother (PW1) while crying as she felt pain in her abdomen. In his defense, the appellant who testified as DW1, denied to have committed the offence. He contended that, on the material date he was making blocks and he was surprised to be arrested and taken to the

police where he was accused of having raped PW2. It was his defence that he knew nothing about that crime and the case was framed against him. At the end of it all, the trial court relied on the testimony of PW2 the best witness in this case whose evidence was corroborated by PW1, PW3 and PW4 and found that the charge against the appellant was proved to the hilt. Thus, the appellant was found guilty, convicted and sentenced to life imprisonment. The appellant's 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 three (3) grounds of appeal which can be conveniently paraphrased as follows: One, that, the evidence of PW1 and PW2 was tainted with contradictions thus, unreliable and incapable of sustaining his conviction; two, failure by the prosecution to summon material witnesses to testify before the trial court; and finally, that the prosecution case was not proved beyond reasonable doubt.

At the hearing of the appeal, the appellant appeared in person whereas the respondent Republic was represented by Mr. Baraka Mgaya, 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, if need to do so would arise. We respected his choice and we thus invited Mr. Mgaya to commence his response on the grounds of appeal. From the outset, Mr. Mgaya declared the respondent Republic's stance of opposing the appeal and intimated that he will argue the grounds of appeal in the manner indicated above. Before determining the grounds of appeal, we wish 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 and Mussa Mwaikunda v. The 5

Republic [2006] T.L.R. 387. We shall be guided by the above principle in disposing this appeal. The appellant's complaint on the first ground is on the contradictions between the evidence of PW1 and PW2 concerning the name of PW1. That, in her testimony found at page 8 of the record of appeal, PW1 stated that, her name is Avelina Salvius Ndunguru while PW2, at page 11 of the same record stated that the name of her mother is Avelina Msuha. It was the argument of the appellant that, the said evidence having been tainted with contradictions was incapable to mount his conviction. In response to the above ground, although, Mr. Mgaya readily conceded that there was contradiction between PW1 and PW2 on the name of PW1, he argued that, the same is a minor defect which does not go to the root of the matter. As such, he urged us to find the first ground of appeal to have no merit. Having revisited the evidence of PW1 and PW2 in respect of the contradictions complained of, we do not, with respect, consider them to be material to the extent of affecting the credibility and reliability of the evidence of PW1 and PW2. It has been the position of this Court that contradictions by a witness or between witnesses is something which

cannot be avoided in any particular case. See for instance the cases of Dickson Elia Nsamba Shapwata & Another v. Republic, Criminal Appeal No. 92 of 2007 [2008] TZCA 17 and Issa Hassan Uki v. Republic, Criminal Appeal No. 129 of 2017 [2018] TZCA 361. Therefore, in the light of the above position of the law, and taking into account the nature of the contradictions pointed out, in this appeal by the appellant, we agree with Mr. Mgaya that the same is a minor defect which do not go to the root of the matter and or corrode the evidence of PW1 and PW2. As such, we find the first ground of appeal devoid of merit. On the second ground, the appellant blamed the prosecution for failure to call the material witnesses, such as Happy and Ritha who were said to have slept in the same room with the victim on that fateful date to testify before the trial court. He also faulted the prosecution for failure to summon the police officer who conducted investigation on the matter and drew the sketch map of the scene of crime. That, if the said people could have been called to testify before the trial court, would have shed more light on what exactly happened on that fateful date. In response, although, Mr. Mgaya also readily conceded that the said persons were not summoned before the trial court to testify, he 7

argued that, those persons were not material witnesses given the nature of this case. In addition, and to substantiate his argument, he cited section 143 of the Evidence Act and submitted that, the said law does not require a specific number of witnesses to prove a fact because what is required is the quality of evidence and credibility of witnesses. He thus insisted that, in the instant appeal, the prosecution case was proved beyond reasonable doubt by the evidence of PW2 who clearly narrated what transpired at the scene of crime and her evidence was corroborated by the evidence of PW1, PW3 and PW4. That, having established its case against the appellant, the prosecution found it unnecessary to summon other witnesses. He thus urged us to also find that the second ground is unmerited. Having revisited the evidence on record and taking into account the principle which is applicable in proving sexual offences, we agree with the submission made by Mr. Mgaya on this aspect. We however, wish to emphasize that, pursuant to section 143 of the Evidence Act, there is no particular number of witnesses which is required in proving a certain fact, what matters is the weight of evidence and credibility of a witness. Besides, it is the prosecution that has the duty to prove its case and the right to choose which witnesses to call so as to give evidence in 8

support of the charge. See for instance, the cases of Yohanis Msigwa v. Republic [1990] T.L.R. 148 and Abdallah Kondo v. Republic, Criminal Appeal No. 322 of 2015 [2016] TZCA 836. That said, we equally dismiss the second ground of appeal for lack of merit. On the last ground, the appellant faulted the first appellate court for failure to observe that the prosecution case was not proved to the required standard. He specifically challenged the evidence of PW4 and exhibit P2 on account of failure by PW4 to state her qualifications. He contended further that PW1 failed to establish the chain of custody of exhibit PI (the blanket). According to him, the said omission had weakened the prosecution case, thus the charge against him was not proved beyond reasonable doubt. In response, Mr. Mgaya opposed the appellant's complaint by referring us to page 16 of the record of appeal and argued that PW4 clearly narrated her qualifications and the same was not doubted by the appellant as he did not cross-examine her on that aspect. He also stated that PW1 ably explained where she found exhibit PI and how the same was kept and finally brought before the trial court. He then emphasized that, in convicting the appellant, the trial court relied mainly on the testimony of PW2, the victim who clearly testified on how she was raped 9

by the appellant. That, the testimony of PW2 was corroborated by PW1, PW3 and PW4. Relying on the principle which is applicable in proving sexual offences, he argued that the evidence of PW2 was the best evidence which could have been relied upon by the trial court to mount the appellant's conviction even without any corroboration, as long as the court was satisfied that the witness was telling the truth. In that regard, and based on his submission, he insisted that the prosecution case was proved beyond reasonable doubt and urged us to dismiss the appeal in its entirety. In his brief rejoinder, the appellant did not have much to say other than reiterating the issues he raised in his grounds of appeal and urged us to allow the appeal and set him at liberty. Having carefully considered the submissions made by the parties and scanned the entire record of appeal, we agree with Mr. Mgaya 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 on how the incident occurred. PW2 in particular, at page 12 of the record of appeal, narrated on how the appellant came and took her to his room when her 10

two sisters had gone to school. She clearly demonstrated on how the appellant covered her with the blanket, undressed her and inserted his penis into her vagina and on how she felt pains in her abdomen. As rightly submitted by Mr. Mgaya, 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 and Rashidi Abdallah Mtungwa v. Republic, Criminal Appeal No. 91 of 2011 (unreported), among others. As intimated above, the testimony of PW2, the best evidence in this case, was well corroborated by the testimony of PW1 who found PW2 on the way crying and walking with some difficulties while spreading her legs. The evidence of PW1 and PW2 was well corroborated by PW4 who medically examined PW2's private parts and found that PW2's vagina had bruises, bleeding and the hymen was not intact. 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 of a witness to name a suspect at the earliest opportunity is an important assurance of his reliability, in the same way as unexplained delay or complete failure to do so should put a prudent court to enquiry." It is also on record that, throughout the trial, the appellant did not cross examine PW1, PW2, PW3 and PW4 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. 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. In the circumstances, we see no reason to differ with the lower courts' concurrent findings in respect of the evidence of PW1, PW2, PW3 and PW4. In totality, we are satisfied that both lower courts adequately evaluated the evidence on record and arrived at a fair and impartial decision. Accordingly, the third ground of appeal fails.

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 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 SONGEA this 22n d day of August, 2024. A. G. MWARIJA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Judgment delivered this 22n d day of August, 2024 in the presence of the appellant in person and Mr. Kauli George Makasi, learned Senior State Attorney for the Respondent/Republic is hereby