IN THE COURT OF APPEAL OF TANZANIA

AT DODOMA

(CORAM: KILEO, J.A., BWANA, J.A. And ORIYO, J.A)

CRIMINAL APPEAL NO. 205 OF 2007

SAMSON MATIGA……………………………………………………….APPELLANT

VERSUS

THE REPUBLIC………………………………………………..………RESPONDENT

(Appeal from the decision of the High Court of Tanzania

at Dodoma)

(Masanche, J)

dated 9th day of May 2007

in
Criminal Appeal No. 70 of 2006

……………..

JUDGEMENT OF THE COURT

4th & 6th April, 2011

BWANA, J.A.:

The appellant, Samson Matiga, was charged with and convicted

of the offence of Rape contrary to sections 130(1)(2) and 131(1) of

the Penal Code, Cap 16 (R.E. 2002) in the District Court of Mpwapwa

at Mpwapwa. He was sentenced to serve a prison term of thirty (30)

years. His first appeal before the High Court was unsuccessful,

hence this second appeal.

 The facts of the case may be stated briefly as follows. On the

night of 5 May 2004, the complainant, Rose Lemabi, PW1, was

sleeping in her room at Ikuyu Village of Mpwapwa District. She was

a widow. At midnight, the appellant came by and asked PW1 to

open the door for him. When asked by PW1 who he was, he simply

replied that he was a human being (“mimi mtu”). Without much to

do, the appellant is said to have forced the door open and went

straight to her bedroom. He took off his clothes and raped PW1. It

appears that she had no clothes on, other than a bed sheet she used

to cover herself.

In the process, PW1 raised an alarm and some people rushed

to her rescue. They included Abedi Luhilo, PW2, and Abrahamani

Nyamonga, PW3, her father in law. Upon entering the bedroom,

PW2 found the appellant raping PW1. He pulled him off PW1 and in

the process, a fight ensued. When PW3 went in he found the fight

on. The appellant was naked. Both PW2 and PW3 got hold of the

appellant, tied up his hands and took him to the Village Executive

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Officer’s (the VEO) office. Subsequently he was taken to a police

station and the present proceedings were set in motion.

The appellant denied any liability, claiming that the case was

fabricated. He maintained that PW2 and PW3 were among people

who had beaten him up some hours earlier due to other grudges.

Both the trial court and the first appellate court were not convinced

with the defence evidence. Both courts were of the view that the

prosecution case had been proved beyond reasonable doubt.

When this second appeal came before us, the appellant was

unrepresented while the respondent Republic was represented by

Mr. Victor Kahangwa, learned Senior State Attorney. Mr. Kahangwa

did not support the conviction, ostensibly on the following grounds:-

 The prosecution had not proved its case to the required

standard of proof that is beyond reasonable doubt.

 There were discrepancies in the evidence of the key

prosecution witnesses, including PW1 herself, PW2 and

PW3. According to Mr. Kahangwa, those discrepancies

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 were so fundamental that they put the prosecution case

into disrepute.

Meanwhile, the appellant raised a number of issues in his

Memorandum of Appeal consisting of the following:-

 That the prosecution case was not proved to the required

standard.

 That key witnesses, such as the Village Executive Officer,

were not called to testify. Instead, only PW1, PW2 and

PW3 testified. He averred that all the three are relatives

so their evidence should have been taken with due care.

 The doctor who prepared the PF3 was not made available

for his cross examination as required under the law.

As stated earlier herein, the respondent Republic does not support

the conviction. We are, however of a different view. In our

considered judgment, we think that there was sufficient evidence not

only in support of a conviction of attempted rape, as found by the

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first appellate court, but of rape proper. We now show why we

strongly hold such views.

A prosecution case, as the law provides, must be proved

beyond reasonable doubt. What this means, to put it simply, is that

the prosecution evidence must be so strong as to leave no doubt to

the criminal liability of an accused person. Such evidence must

irresistibly point to the accused person, and not any other, as the one

who committed the offence (see Yusufu Abdallah Ally Vs

Republic, Criminal Appeal NO. 300 of 2009, unreported). The said

proof does not depend on the number of witnesses but rather, to

their credibility (See section 143 of the Tanzania Evidence Act Cap 6

R.E 2002 and the case of Goodluck Kyando vs Republic, Criminal

Appeal No. 118 of 2003, and Majaliwa Guze Vs Republic, Criminal

Appeal No. 213 of 2004, both unreported). In the instant case both

courts a quo found that a conviction could be grounded on the

evidence of those three prosecution witnesses. We have carefully

examined the evidence on record of the said witnesses and we are in

total agreement with that finding. The prosecution case had been

proved beyond reasonable doubt that the appellant had committed

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the offence. We see no plausible explanation, for example, why

should the appellant be found in the bed room of PW1 at mid night,

naked and in her bed. The credibility of the three prosecution

witnesses was not disputed before the two courts a quo.

We are alive to and minded of the long established practice

that when it comes to the assessment of the demeanour of

witnesses, the trial court is best suited to assess them as opposed to

an appellate court, which in most cases depend on information

discerned from a court record. The latter court will interfere with

that assessment only if it considers or discovers material irregularities

or other glaring errors, including misdirections or non-directions (See

The DPP vs Jaffari Mfaume Kawawa (1981) TLR 149, 153).

The other point that we considered and differed with

Mr. Kahangwa is on the issue of discrepancies in the prosecution

evidence. Mr. Kahangwa’s submission appears to centre on who,

after raising the alarm, first came to the rescue of PW1. Was it PW2

or PW3 and did they enter the room together or otherwise. Further,

Mr. Kahangwa attempted to convince us that there seemed to exist

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some grudges between the appellant and PW1’s family hence, the

whole case could have been concocted. With unfeigned respect to

Mr. Kahangwa’s views, we are convinced that those discrepancies in

the evidence of those witnesses, if at all they existed, then they are

like a storm in a tea cup. This Court had an occasion to remark on

this issue in the case of Saidi Ally Ismail vs Republic Criminal

Appeal No. 241 of 2008, unreported, thus:-

“………however it is not every discrepancy in the

prosecution’s witnesses that will cause the prosecution

case to flop. It is only where the gist of the evidence is

contradictory then the prosecution’s case will be

dismantled…….”

In our considered view, the discrepancies pointed out by

Mr. Kahangwa do not make the prosecution case to be “dismantled”.

One of the grounds of appeal raised by the appellant is that the

prosecution did not call key witnesses, including the VEO. It suffices

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to state here that there is no fixed number of witnesses to be called

to testify in a given case. Section 143 of Cap 6(supra) states:-

“Subject to the provisions of any other written law, no

particular numbers of witnesses shall in any case be

required for proof of any fact”.

What is important, therefore and as stated above, is the credibility of

the said witnesses. Be they relatives or not, is immaterial. (See

Saada Abdallah and Others v Republic, (1994) TLR 132; Juma

Senge v Republic, Criminal Appeal No. 164 of 2008; Paulo Tarayi

v Republic, Criminal Appeal No. 216 of 1994; Deo Barili Olomi v

Republic, Criminal Appeal No. 245 of 2007; all unreported).

Concerning the issue of PF3 and the non calling of its maker in

compliance with the provisions of Section 240(3) of the Criminal

Procedure Act, Cap 20 (R.E 2002) it suffices to state the following

principles of law:-

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  As a rule of practice, medical evidence is preferred

for corroboration in sexual offences. However such

evidence is not conclusive. Lack of such evidence

does not necessarily mean that a given sexual

offence, such as rape, was not committed. (See

Prosper Mnjoera Kisa v Republic, Criminal

Appeal No. 73 pf 2003, unreported).

 Where all other evidence irresistibly point to the

fact that rape was committed then a conviction may

be grounded as the lack of such medical evidence

does not vitiate the prosecution case in view of

other independent evidence.

 Section 127(7) of Cap 6 clearly stipulates that

conviction for rape can be founded even on

uncorroborated evidence of a child of tender years

or a single prosecution witness, where the court is

satisfied that she is telling the truth.

The record before us does not show that the provisions of section

240(3) of Cap 20 were complied with. That provision states:-

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 “S. 240

1. ………

2. ……….

3. When a report referred to in this section is

received in evidence, the court may, if it thinks

fit; and shall, if so requested by the accused

person or this advocate, summon and examine

or make available for cross examination the

person who made the report and the court

shall inform the accused of his right to

require the person who made the report to

be summoned in accordance with the

provisions of this section”(emphasis

provided).

In the present case the PF3 was tendered as an exhibit without

calling the medical officer who prepared it. The trial court was duty

bound to inform the appellant of his right to require the said medical

officer to be summoned for cross examination. The appellant’s reply

should have then been recorded. This fundamental procedural

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requirement was not complied with, thereby denying the appellant

his basic right. In view of the foregoing, the evidence adduced from

the said PF3 cannot be relied upon. It is hereby expunged from the

record. On several occasions this court has reached such conclusions

(See Saasita Mwanamaganga v Republic, Criminal Appeal No.

187 of 2005; Meston Mtlinga v Republic, Criminal Appeal No. 426

of 2006, Rashid Omary v Republic, Criminal Appeal No. 298 of

2009(all unreported)).

Expunging the PF3 notwithstanding, the court can proceed to

determine the case on the available evidence (See Issa Hamisi

Likamalile v Republic, Criminal Appeal No. 125 of 2005,

unreported). In the instant case there is ample evidence adduced by

all the three prosecution witnesses which irresistibly implicate the

appellant with the offence of rape as there was ample evidence to

establish the charge. We therefore uphold and restore the findings

of the trial court and as stated earlier, differ with the Senior State

Attorney.

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 For the reasons stated hereinabove save for our

observation on the finding by the High Court concerning attempted

rape, we do not find any basis on which to fault both the factual and

legal findings of the courts a quo. The appeal is therefore dismissed

in it entirety. The appellant to serve the thirty (30) years prison term

as that sentence is the statutory mandatory minimum.

DATED at DODOMA, this 5th day of April, 2011

E.A KILEO
JUSTICE OF APPEAL

S.J. BWANA
JUSTICE OF APPEAL

K.K. ORIYO
JUSTICE OF APPEAL

I certify that this is a true copy of the original.

M. A. MALEWO
DEPUTY REGISTRAR
COURT OF APPEAL

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