Fabian Chumila vs Republic (Criminal Appeal No. 136 of 2014) [2014] TZCA 2160 (13 June 2014)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: MSOFFE. J.A.. KAIJAGE. J.A. And MMILLA. J.A.^ CRIMINAL APPEAL NO. 136 OF 2014 FABIAN CHUMILA.......................................................................APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Songea) (Teemba, J.^ dated the 18th day of April, 2013 in DC. Criminal Appeal No. 29 of 2012 JUDGMENT OF THE COURT 11t h & 13t hJune, 2014 MSOFFE. J.A.: The Appellant and PW1 Anna Chumila are father and daughter, respectively. PW1 testified and told the trial District Court of Mbinga (Mahimbali, RM) that on 28/3/2011 she was at her grandfather's house where the Appellant came and asked her to send firewood to his house. She obliged and went to a bush, picked up firewood and sent to the Appellant. On arrival there, the Appellant told her to go out and collect fodder for pigs. She, together with one Peter and the Appellant went out together to collect

the said fodder. On the way Peter was left to go towards a different direction. In the absence of Peter the Appellant sexually assaulted PW1. According to PW1 the ordeal went on as follows:- . . . my father had commanded me to He down obeying his command. After I had obeyed his command he undressed his trouser and zip and started raping me. I mean he held his penis and undressed my pant (clothes) and then inserted his penis into my vagina. By that time he was on top o f me. After he had finished his appetite, we got up and went back to the position where we had left Peter. .. PW2 Shukurani Ndunguru was at the scene at the material time. He stated . . . There, I saw this Fabian Chumila sexing his daughter Anna d/o Chumila. I could not believe my eyes what was happening. It was in this situation that Fabian Chumila had been on top o f his daughter while naked and sexing his daughter who was in bottom.. . The incident was reported to the police. PW1 was issued with a PF3. PW3 Dr. Denisy Mahinya examined her private parts and observed bruises which was an indication she had been carnally known. On further examination, he found that PW1 was HIV positive. In the meantime, the 2

Appellant was arrested and taken to the police. In the testimony of PW4 D.1165 CpI. Haule, the Appellant . . freely admitted to me that he had been conceived with deviiish idea and as a the result; he had sexed his daughter while in the bush... "PW4 also recorded the Appellant's cautioned statement whereby he admitted committing the offence in question. It was essentially on the basis of the above evidence that the Appellant was charged before the District Court of Mbinga with incest by male contrary to section 158 (1) (a) of the Penal Code, as amended by section 19 of the Written Laws (Miscellaneous Amendments) Act No. 4 of 1998, where he was convicted as charged and sentenced to thirty years in prison. His first appeal to the High Court (Teemba, J.) was unsuccessful. Still aggrieved, he has preferred this second appeal. In his memorandum of appeal, and also in his oral submission before us, the Appellant has canvassed several grounds. However, as correctly submitted by Mr. Wilbroad Ndunguru, learned State Attorney for the respondent Republic, who argued in support of conviction and sentence, the grounds crystallize on one major point. That the prosecution case was not proved beyond reasonable doubt. 3

Admittedly, this is a second appeal where under section 6 (7) (a) of the Appellate Jurisdiction Act (CAP 141 R.E. 2002) an aggrieved party may appeal to this Court on a matter of law (not including severity of sentence) but not on a matter of fact. Case law has however, established that where the findings are manifestly unreasonable, where there was a misapprehension of the evidence, where there were misdirections or non directions on the evidence, etc. this Court may interfere - See DPP v. Jaffari Mfaume Kawawa (1981) TLR 149, Issa Saidi Kumbukeni v. R (2006) TLR 277, and Maneno Daud v. R, Criminal Appeal No. 165 of 2013 (unreported), to mention just a few cases on the point. In their concurrent and respective findings of fact the courts below were satisfied that the Appellant committed the offence in question. The issue is whether there is basis for us to interfere with the findings of fact by the said courts that the prosecution case against the Appellant was proved beyond reasonable doubt. In our respectful opinion, this issue should not detain us. Without much ado, our answer to this issue is in the negative. As clearly shown above, PW1 was well supported by PW2 who actually saw the Appellant in flagrante delicto having sexual intercourse with PW1.

This happened in broad daylight, so there was no question of mistaken identity. At any rate, there was no intimation by anyone that PW2 could have possibly mistaken the Appellant for someone else. And as fate would have it, PW1 was later examined and signs of rape were detected in her private parts. Furthermore, the unchallenged evidence of PW4 above was, inter alia >that the Appellant admitted to him that he sexed his daughter because "he had been conceived with a devilish idea." Surely, in the midst of the above evidence any reasonable tribunal properlyidi recti ng itself to the law and the evidence would have grounded a conviction. In his memorandum of appeal, arid also in his oral submission before us, the Appellant has raised two other points which deserve our special mention. Firstly, he is of the view that PW2 cooked up, or rather fabricated, a story against him because of a previous quarrell over an adulterous association between the said PW2 and his (the Appellant) wife. Our own appreciation of the evidence of PW2 in the record before us shows that on 15/11/2011 he gave a fairly long testimony, in examination-in-chief, cross- examination and re-examination, covering about three printed pages. Yet,

the Appellant never cross-examined him on the alleged adulterous association. In the absence of cross-examination to the above effect, we think this point was, and indeed still is, an afterthought. The principle has always been that failure to cross-examine on an important point implies that one is admitting the truthfulness of the testimony on the point. At any rate, as correctly submitted by Mr. Ndunguru, the case against the Appellant was in relation to the offence of incest. The case had nothing to do with the alleged adultery. Secondly, he is of the view that the defence case was not considered, and specifically that he was not given the opportunity to call witnesses. Yet again, this complaint has no basis because it is not borne out by the record. The record before us is very clear that his defence, which was a general denial of guilt and to the effect that the case against him was a framed up by PW2, was well considered and rejected by the courts below. The record is also clear that on 22/2/2012 he told the trial District Court that he had no witnesses to call. If so, he should not now be heard to complain. In the end result, for reasons stated, this appeal has no merit. We hereby dismiss it. 6

DATED at IRINGA this 12th day of June, 2014. J. H. MSOFFE JUSTICE OF APPEAL S. S. KAIJAGE JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL