IN THE COURT OF APPEAL OF TANZANIA

AT MUSOMA

(CORAM: WAM BALL J.A.. KITUSI. J.A. And MASHAKA. J.A.^

CRIMINAL APPEAL NO. 514 OF 2019

OROKO WANKURU @ MNIKO............................................ APPELLANT

VERSUS
THE REPUBLIC.............................................................. RESPONDENT
[Appeal from the Judgment of the Court of Resident Magistrate
of Musoma (with Extended Jurisdiction) at Musoma]

( Nq'umbu. RM EXT. JUR.^

Dated the 10th day of October, 2019

in

Criminal Appeal No. 38 of 2019

JUDGMENT OF THE COURT

25th October & 4th November, 2021

WAMBALI, J.A.:

Oroko Wankuru @ Mniko, the appellant was arrested and later

formally arraigned before the District Court of Serengeti at Mugumu

on the offence of rape contrary to the provisions of sections 130(1)

(2) (e) and 131(1) of the Penal Code, Cap. 16 R.E. 2002 (now R.E.

2019) (the Penal Code). From the record of appeal, it is indicated

that the allegation which confronted the appellant was to the effect

that; on 4th May, 2017 at Machochwe Village within Serengeti

District in Mara Region, he had sexual intercourse with a victim; a

girl aged fourteen (14) years without her consent. To protect the

identity of the girl, we will refer her as the "victim" or "PW1."

As the appellant pleaded not guilty to the charge, a full trial

was conducted in which the prosecution side adduced evidence in

support of their respective position concerning the allegation laid in

the charge.

In short, it was the firm evidence of the victim (PW1) that on

the fateful date in the evening hours, she was in their farm fetching

grass at Machochwe Village where she was invaded by the

appellant, her step father, who was also in the same farm,

undressed her and thereby he succeeded to fulfil his desire to have

forceful sexual intercourse without her consent. During the

encounter, PW1 testified, she raised alarm which was responded to

immediately by her brother, Petro Michael (PW2) who after reaching

the scene of crime saw the appellant running to an unknown place.

On his part, PW2 testified that after the incident, he took the

victim and reported the matter, firstly, to the wife of the sub village

chairman, Marwa, B. Marwa (PW4) and later to Machochwe Police

Station whereby Police Form No. 3 (PF3) was issued to the victim

for medical examination. Thereafter, they proceeded to Machochwe

Dispensary where the victim was examined by Joseph Kiberenger @

Mwita (PW3), a clinical officer. After the examination PW3 filled the

PF3 indicating that the victim's vagina was penetrated because

there was evidence of the presence of sperms and bruises. The PF3

was tendered and admitted in evidence at the trial as exhibit PEI

and the contents thereof were accordingly read out by PW3 in the

presence of the appellant.

Marwa B. Marwa (PW4) the sub village chairman of Kichongo,

Machochwe village also testified at the trial and confirmed that on

4th May, 2017, he received information from his wife that PW2 and

the victim had gone to his residence while he was away to report on

the rape incident. He testified further that as on that day he

returned in the night, he followed the matter at the police station

the following day where he found that the complaint had been

registered by the victim and PW2. He was also informed that the

suspect (the appellant) who the victim and PW2 mentioned to have

committed the alleged offence had gone into hiding and thus they

started tracing him. PW4 affirmed that after the appellant's hiding in

the village for some few weeks, he escaped to Sirari, Tarime District

where he was later arrested in July, 2017.

 On her part, WP 5665 DC Sijali (PW5) who on 8th May, 2017

was assigned to investigate the complaint of the victim and the

involvement of the appellant, started her task immediately. She

testified that she made efforts with the relatives of the victim to

trace the appellant and as a result he was arrested at Sirari, Tarime

District and was sent to Police Station at Mugumu on 26th July, 2017

before he appeared at the trial court on 27th July, 2017.

Notably, after the closure of the prosecution case, the

appellant was found with a case to answer, and was thus called

upon to enter his defence and informed of his rights pursuant to

section 231(1) of the Criminal Procedure Act, Cap. 20 R.E. 2002

(now R.E. 2019) (the CPA). The appellant responded by informing

the trial court that he would give evidence on oath and he named

three witnessed who would have supported his defence.

According to the record of appeal, hearing of the appellant's

defence was adjourned several times from 26th September, 2018

until 25th October, 2018 when he informed the trial court that since

he had failed to procure the attendances of his intended witnesses

whose whereabouts were unknown, he would proceed to defend

the case on his own. He thus withdrew the request to summon the
respective witnesses. The prayer was granted and he was therefore

called upon to enter his defence. As it were, surprisingly, after he

was sworn, he opted to remain silent. The trial Resident Magistrate

then heard the prosecutor's brief comment on the action taken by

the appellant, and set the date of judgment.

In the end, after the trial Resident Magistrate evaluated the

prosecution evidence in the record and took note of the appellant's

stand of not entering his defence, he was fully satisfied that the

case was proved to the required standard. Hence, he convicted and

sentenced the appellant to thirty (30) years imprisonment.

The appellant unsuccessfully appealed against the conviction

and sentence as the Court of Resident Magistrate of Musoma

presided over by Ng'umbu (RM. EXT. JUR) after the High Court

transferred the appeal to that court, dismissed the appeal in its

entirety; hence this second appeal. He has therefore lodged his

memorandum of appeal comprising six grounds of appeal. However,

since some of the grounds of appeal make reference to the same

matter, we think for purpose of our determination, the appellant's

complaints can be compressed and paraphrased into the following

four grounds of appeal: -

 1. That the evidence o f the victim (PW1) was wrongly admitted
and relied upon as it was taken contrary to the provisions o f
section 127 (2) o f the Evidence Act■ Cap. 6 R.E. 2019.
2. That the appellant was not informed his right provided under
section 240 (3) o f the Criminal Procedure Act■ Cap. 20 R.E.
2019 and that the PF3 which was admitted as exhibit PEI was
based on assumption not supported by scientific reasons,
hence unreliable.
3. That the appellant was wrongly convicted and sentenced to
imprisonment for thirty years based on incredible witnesses
whose evidence were not corroborated as required by law.
4. That the prosecution case was not proved beyond reasonable
doubt.

At the hearing of the appeal, the appellant appeared remotely

through a video conference facility linked between the court room

and Musoma Prison. On the adversary side, the respondent

Republic was duly represented by Mr. Kainunura Anesius, learned

Senior State Attorney assisted by Mr. Mafuru Moses and Mr. Frank

Nchanila, learned State Attorneys.

Addressing the Court on the substance of the appeal, Mr. Anesius

basically conceded to the appellant's complaint in the first ground of

appeal. The respective ground is premised on the complaint that

the evidence of the victim (PW1) was taken in disregard of the

requirement of the law in terms of section 127(2) of the Evidence

Act, Cap. 6 R.E. 2019 (the EA). He amplified that according to the

record of appeal, there is no indication that the trial court asked the

victim to promise to speak the truth before her evidence was

recorded at the trial. In his firm view, the omission was fatal

rendering the evidence of PW1 to be discounted from consideration

in determining the guilt of the appellant.

In the event, relying on the decision of the Court in Masanja

Makunga v. The Republic, Criminal Appeal No. 378 of 2018 and

Issa Salum Nambaluka v. The Republic, Criminal Appeal No.

272 of 2018 (both unreported), Mr. Anesius implored us to discount

the evidence of PW1.

Having perused the record of proceedings of the trial court in the

record of appeal, we entirely agree with the learned Senior State

Attorney that there is no indication that the learned trial Resident

Magistrate complied with the provisions of section 127(2) of the EA

by requiring the victim (PW1), a witness of tender age, to promise

to tell the court the truth before she adduced her evidence at the

trial.
 Similarly, we are in agreement with the learned Senior State

Attorney that the omission is fatal as propounded in several

decisions of this Court including; Geoffrey Wilson v. The

Republic (Supra), Masound Mgosi v. The Republic, Criminal

Appeal No. 195 of 2018, Abdallah Nguchika v. The Republic,

Criminal Appeal No. 182 of 2018, Yusufu Molo v. The Republic,

Criminal Appeal No. 343 of 2017 (all unreported) and Masanja

Makunga and Issa Salum Nambaluka (supra) referred to us

during his submissions. Indeed, it is acknowledged that the

consequence which should follow on such omission is to have the

requisite evidence of the witness discounted.

Consequently, we hold that the omission is fatal, and thus we

discount the evidence of PW1 and allow this ground of appeal.

Next for our consideration is the complaint of the appellant in the

second ground of appeal on the reliability of PW3's report contained

in the PF3 (exhibit PEI) and the alleged non-compliance with the

provision of section 240(3) of the CPA.

Firstly, we agree with Mr. Anesius that the complaint of the

appellant on this matter is misplaced. This is because according to

the record of appeal, PW3 who tendered exhibit PEI was duly
8
summoned by the prosecution and testified at the trial. More

importantly, apart from tendering the PF3 and explaining its

contents as required, the appellant cross-examined him on what he

found when he examined the victim. Thus, it is surprising that the

appellant complains at this stage of the second appeal that he was

not accorded the right enshrined in section 240(3) of the CPA.

Indeed, according to the record of appeal, we note that he did not

complain on this issue in his first appeal as evidenced by the

grounds of appeal in the petition of appeal he lodged before the

first appellate court.

Secondly, we also subscribe to the submission of the learned

Senior State Attorney that the PF3 was not based on assumption

not backed by scientific reason as alleged. We are settled that at

the trial, PW3 fully explained his findings which he filled in the PF3

after he examined the victim in the presence of the appellant who

cross-examined him, but did not shake the substance of his

testimony concerning the medical report. In the event, we are

satisfied that the second ground of appeal is without merit and we

dismiss it.
 With regard to the third ground of appeal, Mr. Anesius,

submitted that even in the absence of the evidence of PW1 which

has been discounted, the remaining evidence of PW2, PW3, PW4

and PW5 suffices to ground the appellant's conviction of the offence

of rape. He submitted that PW2 went to the scene of crime

immediately after the alarm was raised by the victim and saw the

appellant escaping to an unknown place. He added that as PW2 was

familiar to the appellant who together with the victim they lived in

the same house for sometime as their step father, properly

recognized him and could not have mistaken his identify with

another person. In his view, the evidence of PW2 with regard to

the person he saw escaping from the scene of crime on that fateful

day leaving the victim helpless is not hearsay. On the contrary, he

submitted, it was based on what he saw and that is why he

immediately reported the incident to the wife of PW4 and to the

Police at Machochwe Police Station who started to trace the

appellant until he was arrested hiding at Sirari, Tarime District.

Moreover, Mr. Anesius submitted that the evidence of PW3 who

tendered the PF3 which was admitted as exhibit PEI rendered

credence to the finding that the victim's vagina was penetrated on

10
the material day as there was sign of bruises and sperms.

Therefore, he argued that the provision of section 130(4) of the

Penal Code was fully satisfied by the prosecution. He argued further

that the evidence of PW4, the sub-village chairman and PW5, the

investigator, left no doubt that the involvement of the appellant on

the incident of rape was reported immediately to the relevant

authorities. He maintained that it took sometime to arrest the

appellant because he had escaped and shifted from Machochwe

village to Sirari in Tarime District. In his submission, the appellant's

conduct of escaping from his residence indicated that he was

involved in committing the offence of rape. The learned Senior

State Attorney therefore, urged us to confirm the finding that the

two courts below properly believed the evidence of PW2, PW3, PW4

and PW5 because they are credible and reliable, and thereby

dismiss the third ground of appeal.

We have closely examined the evidence of PW2, who in the

absence of the victim's evidence forms an important part of the

prosecution evidence concerning the occurrence of the incident of

rape as submitted by the learned Senior State Attorney. For the

11
sake of clarity, we deem it appropriate to reproduce the substantial

part of PW2's evidence thus:-

7 am a peasant; I know one Christina Michael\

and she is my young sister; a daughter o f my
young mother (aunt). I remember on 04/05/2017
in the evening hours, I was walking in the area
near home where we planted grass; I heard a call
for help. I made a follow up to the area, I saw a
person about 70 meters running, I identified to be
Oroko Wankuru because o f broad sunlight. We
lived together for a year after my father died, he
is my step father. I decided to go to the scene. I
found the victim one Christina, who to/d me that
she, was raped by the accused person whom I
saw running. We made a follow up with my
young brother, could not find the accused. We
took the victim to Machochwe Police Station; it
was about 19:00 to 20:00 hours. We opened the
case MCC/RB/192/2017, we were introduced to
go home and the victim should not take bath till
next day when we will go for medical
examination. We did so, the next day we went to
the hospital and the doctor's report revealed that
the victim was indeed raped. The process to trace
the accused followed. The victim mother was
hiding the accused and obstructed our mission to

12
 find the accused. The accused took the said
mother and a ii the children including the victim
and shifted to Sirari, Tarime..."

Admittedly, according to the record of appeal, the above

reproduced testimony of PW2 which contained very important facts

on the occurrence of the incident of rape and the conduct of the

appellant was not greatly disturbed during cross-examination by the

appellant. In essence, it remained unchallenged. As depicted from

the record of appeal, during the brief cross-examination of PW2 by

the appellant his firm response was as follows: -

"-It was in the evening hours before sunset at

about 17:00 hours.

-After the incident, you ran away and you

conspired with the victim's mother and hired a
vehicle and shifted to Sirari"

Clearly, in view of the above naked facts exposed by PW2 and

the appellant's failure to shake his evidence through cross

examination, at this stage, the appellant cannot be justified to

challenge the witness's credibility as claimed in his argument in

support of the grounds of appeal. We also take note of the fact

that through the same argument, the appellant raised the complaint

13
that during the preliminary hearing, according to the narrated facts,

those who were mentioned to have gone to the scene of crime and

saw him were Maisarya Michael and Marwa Michael and not PW2.

We think this complaint is also misplaced at this stage. First,

because according to the record of appeal, the appellant disputed

all the narrated facts except the particulars concerning his name.

Most importantly, he duly signed the memorandum of matters not

in dispute. It would have made a difference if he would have

agreed to all the narrated facts in which the said persons were

mentioned. Second, at the trial, he heard the evidence of PW2 and

did not cross-examine him on the allegation that he was not among

the persons who allegedly responded to the alarm raised by the

victim on the fateful date. Third, it is unfortunate that despite the

damning allegation on his involvement in the rape incident raised by

the evidence of PW2, the appellant did not offer his defence when

he was accorded that opportunity. If the appellant has testified in

defence of the case, he would have probably denounced the

prosecution version of evidence or raised doubt not only to PW2's

evidence but also to other witnesses, that is, PW3, PW4 and PW5.

On the contrary, as we have intimated above, despite being

informed of his legal rights before he defended himself in terms of

14
section 231(1) of the CPA and promised to give evidence on oath,

he opted to remain silent when it was his turn to do so. The

appellant cannot therefore, be heard to blame the trial and the first

appellate courts for finding the remaining prosecution witnesses

credible and reliable while he did not exercise his right to firmly

challenge their evidence at the trial.

Equally important, we note that the appellant did not shake

the evidence of PW3 and the contents of exhibit PEI which was

read over to him and indicated that the victim's vagina was

penetrated on the fateful day. Therefore, in the circumstances of

the case at hand, in absence of the victim's evidence which is

always taken to be the best as propounded in several decisions of

this Court, for instance, Selemani Makumba v. The Republic

[2006] T.L.R. 379, medical evidence comes in to prove the

occurrence of sexual intercourse upon a finding that penetration

was fully established. It is in this regard that in Issa Hamis

Likamalila v. The Republic, Criminal Appeal No. 48 of 2003

(unreported), the Court stated that: -

"On/y when carnal knowledge is in dispute would

medial evidence be required to prove whether
rape has been committed on the victim . "

15
 Indeed, the Court went further and stated that: -

"When rape is not in dispute and section 240 (3)

o f the CPA has not been complied with causing
medical evidence to be excluded, as is the case
here, the court can determine the rape case on
available evidence. "

(See also Prosper Majoera Kisa v. The Republic, Criminal

Appeal No. 73 of 2003; Shaban Ally v. The Republic, Criminal

Appeal No. 50 of 2001 and Salu Sosoma v. The Republic,

Criminal Appeal No. 31 of 2006 (all unreported).

In the present case, as the evidence of the victim has been

discounted, the medical evidence which left no doubt on the

occurrence of rape together with the evidence of PW2 who went to

the scene of crime and saw the appellant running away, has to be

taken as highly reliable in grounding the conviction of the appellant.

Indeed, the evidence of PW4 and PW5 which was not seriously

challenged on the conduct of the appellant who initially went into

hiding in the same village after he disappeared from his residence

before he relocated to Sirari, Tarime District, renders credence to

his involvement in the incident. As submitted by the learned Senior

State Attorney, by escaping the appellant that he knew was being

16
traced in connection of the offence of rape of the victim who they

lived in the same house before the incident.

Moreover, we are settled that the failure of the appellant to

cross-examine the prosecution witnesses on very vital matters

disables him to discredit their credibility and reliability in supporting

the prosecution case as he is taken to have accepted their evidence.

For emphasis, we wish to reiterate what the Court stated in

Damian Ruhele v. The Republic, Criminal Appeal No. 501 of

2007 relying in Cypian Athanas Kibogoyo v. The Republic,

Criminal Appeal No. 88 of 1992 that:-

"We are aware that there is a useful guidance in

iaw that a person should not cross-examine if
he/she cannot contradict But it is also a trite law
that failure to cross-examine a witness on an
important matter ordinarily implies the
acceptance o f the truth o f the witness evidence. "

In the event, we are satisfied that the two courts below

properly believed the evidence of PW2, PW3, PW4, PW5 and exhibit

PEI in finding the appellant guilty of the offence he was charged

with and that the evidence was duly corroborated. Ultimately, we

dismissed the third ground of appeal.

17
 Lastly, in view of the deliberations we have made above with

regard to the evidence of the prosecution which was not greatly

challenged by the appellant during cross-examine and his failure to

offer his defence, we entirely agree that the prosecution proved its

case beyond reasonable doubts.

In the end, save for the first ground of appeal which we have

allowed, the appeal is dismissed.

DATED at MUSOMA this 3rd day of November, 2021

F. L. K. WAMBALI
JUSTICE OF APPEAL

I. P. KITUSI
JUSTICE OF APPEAL

L. L. MASHAKA
JUSTICE OF APPEAL

The Judgment delivered this 4th day of November, 2021 in the

presence of Mr. Frank Nchanila, learned State Attorney for the
Respondent/Republic and the Appellant appeared remotely via
Video link from Musoma Prison is hereby certified as a true copy of
the original.