Hussein Abdalahman Kindamba vs Republic (Criminal Appeal No. 527 of 2021) [2024] TZCA 1227 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: MWANPAMBO, J.A., KAIRO, 3.A. And ISSA, J.A.^ CRIMINAL APPEAL NO. 527 OF 2021 HUSSEIN ABDALAHMAN KINDAMBA ........................................ APPELLANT VERSUS REPUBLIC ............................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Karavemaha, J.^ dated the 20th day of October, 2021 in Criminal Appeal No. 20 of 2021 JUDGMENT OF THE COURT 6th & 10th December, 2024 ISSA, J.A.: The appellant, Hussein Abdalahman Kindamba was arraigned before the District Court of Mbarali at Rujewa (the trial court) in Criminal Case No. 144 of 2017 on accusation that he committed the offences of rape contrary to sections 130 (1) (2) (e) and 131 of the Penal Code and unlawful wounding contrary to section 228 (a) of the Penal Code. The charge was that, on 20th July, 2017 at about 15.30 hours at Jangulutu Village within Mbarali District in Mbeya Region, the appellant had sexual intercourse with a girl child aged 2 years and 10 months and in the process

did cause her injuries on the neck using his fingers. To hide the identity of the child we shall refer to her as the victim. Following the appellant's denial of the accusation, a full trial ensued during which, the prosecution paraded six witnesses and two documentary evidence were tendered namely: PF3 of the victim, exhibit PI and a sketch map of the scene of crime, exhibit P2. For the defence side, only the appellant testified. After a full trial, he was convicted and sentenced to imprisonment for a term of 30 years for the first count and 1 year for the second. The appellant contested the trial court's findings, conviction and sentence before the High Court of Tanzania at Mbeya vide Criminal Appeal No. 20 of 2021, He was unsuccessful in his appeal which was dismissed, but the sentence was enhanced to life imprisonment. The background facts are that, on 20th July, 2017 at 15.00 hours Rehema Hamis (PW1), the mother of the victim was at home cooking when the appellant, his neighbour appeared and offered to buy banana for the victim. PW1 allowed the appellant to take her in order to buy her banana. The appellant did go to the shop owned by Saida Abek Mwasyeke (PW3) where he bought several bananas and gave one to the victim. The appellant after buying bananas did not return to PWl's house instead, he proceeded to his house. When PW1 finished cooking she realised that the

appellant has taken a long time and has not returned her child. She started making enquiry and met her uncle, Joel James Mlinge (PW2) on the way. When PW2 heard the story from PW1, he accompanied her searching for the victim. They passed at PW3's shop who informed them that she saw the appellant with the victim heading towards his house. The two proceeded to the appellant's house and found the victim lying on the ground outside his house unconscious. Her neck was swollen and the finger marks and nail scratch were visible on her injured neck. Looking at her genitalia, she found blood oozing which indicates that she has been sexually assaulted. They took the victim to the police station where a PF3 was issued and they rushed to the hospital where the victim was admitted for three days. Dr. Julias Njugilo (PW4) received the victim at the hospital and upon examination, he found injuries on her neck and eye. He also found bruises and fresh blood on her vagina. He concluded that the injuries on the neck and eye were caused by a sharp instrument whereas the bruises on the vagina was caused by a blunt object which was inserted by force. Elia Mwilongo, the village chairman testified as PW5. He arrived at the scene of crime and witnessed the child laying down unconscious. WP 10087 DC Everlyne (PW6) was the police officer who investigated the case.

The appellant, in his defence, had very little to say distancing himself from the accusation. He denied neighbouring PW1 or buying bananas from PW3. The trial court found that the prosecution evidence was sufficient to sustain the charge of rape. Its findings were based on the evidence of PW1 which was corroborated by the evidence of PW2, PW3, PW4 and PW5. On the strength of that evidence, it convicted and sentenced the appellant. Aggrieved, the appellant instituted Criminal Appeal No. 20 of 2021 at the High Court of Tanzania at Mbeya (the first appellate court) advancing six grounds of appeal. His main complaints were that the prosecution failed to prove the charges; the victim was not called to testify; the age of the victim was not proved; the banana peels found in his house were not tendered in evidence; there was no eye witness to the offence; and that the defence evidence were not considered. The first appellate court was satisfied that there was sufficient evidence establishing that the victim was raped and wounded by the appellant. It confirmed the findings of the trial court and dismissed the appeal, but as the victim was a child below ten years it enhanced the sentence to life imprisonment.

In his further pursuit to exonerate himself from liability, the appellant lodged a memorandum of appeal predicated on six grounds which go thus:

1. That the first appellate court erred in law when it dismissed the appeal o f the appellant without taking into account that failure o f the prosecution to bring the said child (a victim) to be seen by the trial court to prove her appearance and questioned her to prove her intelligence the charge against the appellant was not proved per law.

2. That the high court judge erred in law when it dismissed the appeal o f the appellant without evaluating well the petition o f appeal filed by the appellant.

3. That the first appellate court misdirected itself when it dismissed the appellant appeal without regarding the evidence o f PW4, a doctor who in his evidence did not explain if he saw penetration as per law since the blood seen to the unknown victim who did not appear in the trial court can be caused by finger nails scratching o f the victim herself.

4. That the high court judge erred in law for dismissing the appeal o f the appellant without taking into account that no one saw the appellant committing the offence. Mere presence o f the accused person at the scene o f crime is not enough.

5. That the first appellate court misdirected itself by dismissing the appellants appeal without regarding that PW1 failed to tender the clinic card or birth certificate, hence the said case was not proved as per law.

6. That the appellants defence was not considered by both two courts. At the hearing of the appeal, the appellant was present in person fending for himself. Upon inquiry, he adopted his grounds of appeal and opted for the respondent Republic to submit first and to rejoin later if need arises. The respondent Republic, on the other hand, had the services of Ms. Naomi Mollel and Ms. Zena James, learned Senior State Attorneys. Ms. Mollel, out rightly expressed the respondent's stance to oppose the appeal. She commenced her submission with the 1s t ground in which the appellant was complaining that the victim was not brought in court to testify. Ms. Mollel admitted that the victim was not brought in court to testify as she was not a competent witness in terms of section 127 (1) of the Evidence Act. She was a child aged 2 years and 10 months. She added that, there are circumstances where a case could be proved without calling the child of tender age. She buttressed the point by citing the Court's decision in Haji Omary v. The Republic [2015] TZCA 313, TANZLII. The issue for determination in this ground of appeal, is on the effect of the omission to call a victim to testify in court. The Court had an opportunity to address this issue in similar circumstances in Haji Omary

(supra) where the victim of unnatural offence aged 4 years was not called to testify. The Court stated: "The law recognizes that there are instances where charges may be proved without victims o f crimes testifying in court Take murder for example where the victims are deceased. Senility, tender age or disease o f mind may prevent a victim from testifying in court (See section 127 o f the Evidence Act) but this does not mean that a charge cannot be proved in the absence o f the victim's testimony. In this case the victim was a four year old child. He was indeed a child o f tender age. Though we agree that ideally the reason for non-taking o f the testimony o f the victim should have been entered on record however such failure neither weakened the case for the prosecution nor resuited in a failure o fjustice." In the light of the settled position of the law, we find theground of appeal lacking in merit. The victim was a child of 2 years and10 months who was incompetent to testify. Hence, the fact that she was not summoned to appear in court and testify did not cause any injustice to the appellant. This ground is dismissed for lack of merit.

In the second ground of appeal, the appellant argued that his grounds of appeal were not considered by the first appellate court. Ms. Mollel, on the other hand, submitted that this is a misconception on the part of the appellant as each ground of appeal was considered separately from page 45 to 51 of the record of appeal. We are in agreement with Ms. Mollel, having examined the grounds of appeal appearing at page 42 of the record against the judgment which reveals that all grounds were discussed in detail in the judgment. Therefore, this ground has no merit and is dismissed. The appellant in the 3rd ground of appeal is faulting the first appellate court for convicting him while PW4, the doctor did not prove that there was penetration. Ms. Mollel had a different view, she submitted that the doctor was clear in his findings. He found bruises and fresh blood coming out from the victim's genitalia. He concluded that the bruises were caused by insertion of a blunt object by force. She prayed for the dismissal of this ground for lack of merit. Proof of penetration is crucial in the offence of rape. In fact, it is one of the ingredients of the offence of rape in section 130 (1) of the Penal Code. Subsection (4) of this provision elaborates on what amounts to penetration to constitute rape. It provides:

"For the purposes o f proving the offence o f rape - (a) Penetration however slight is sufficient to constitute the sexual intercourse necessary for the offence This provision is very clear that even a slight penetration is sufficient to constitute rape. In the instant appeal, the appellant is arguing that penetration was not proved by PW4, but upon glancing at the testimony of PW4, he testified that although the internal of the vagina was intact, he found bruises at the vagina which was caused by a forced penetration by a blunt object. We are of the view that although penetration was slight as it did not cause damage to the internal part of the genitalia, it was sufficient to constitute rape. The ground is found meritless and is dismissed. The complaint in the 4th ground of appeal is that there was no person who witnessed commission of the offence. In her response, Ms. Mollel conceded that there was no eye witness except the 2 years-old girl who was not competent to testify, but she argued that the conviction of the appellant was based on circumstantial evidence which was water tight. The chain of evidence was not broken from the time he took the child until she was found in front of his house. In addition, she said the

first appellate judge addressed this issue on page 57 to 59 of the record. She prayed for the dismissal of this ground for lack of merit. We agree with both the appellant and Ms. Mollel that there was no eye witness in the instant case which is normal in sexual offences which are committed in secrecy. Most of the time, the proof of the case depends on the victim and that explains the long-standing proposition of law that, the best evidence in sexual offences comes from the victim (see: Selemani Makumba v. The Republic [2006] T.L.R. 379 and Godi Kasenegali v. The Republic, [2010] TZCA 5, TANZLII. In the instant appeal, the victim was a girl aged 2 years and 10 months who was incompetent to testify. Therefore, we are left with circumstantial evidence as rightly held by the first appellate court. The Court in Mohamed Selemani v. The Republic [2012] TZCA 221, TANZLII laid down basic principles governing reliability of circumstantial evidence. The Court cited the case of R. v. Kiphering Arap Koske and Kimure Arap Matatu (1949) E.A.L.R. 135 where the Eastern Africa Court of Appeal stated: 1 That in order to justify, on circumstantial evidence, the inference o f guilt, the inculpatory facts must be incompatible with the innocence o f the accused and incapable o f explanation upon any other reasonable hypothesis than o f his guilt,

and the burden o f proving facts which justify the drawing o f this inference from the facts to the exclusion o f any reasonable hypothesis o f innocence is always on the prosecution and never shifts to the accused Applying the above principles to the instant appeal, it is clear that the circumstantial evidence pointed to the guilty of the appellant. He took the victim from PW1 and passed at a shop of PW3 where he bought banana for the victim. After that he did not return the victim to her mother, but headed to his house with her. Moments later, people found the victim unconscious in front of appellant's house and blood was coming out of her genitalia. In addition, the appellant was the last person seen with the victim. The chain leading to the discovery of the child was not broken. The evidence pointed to the guilt of the appellant, hence, we find no merit in this complaint and dismiss it. In the 5th ground of appeal, the appellant is faulting the age of the victim. His argument is that there was neither a clinical card nor a birth certificate which was tendered in evidence. Ms. Mollel conceded the fact, but she argued that the mother of the victim was the one who testified about her age and she was in a better position to testify on the age of the victim. The issue of age was discussed by the first appellate court and

rightly held that the evidence of the mother of the victim was cogent to ground conviction. Further, the first appellate court observed that, the evidence of PW1 was not challenged in cross-examination signifying that it was accepted. The law is settled on how to prove the age of the victim as the parent, guardian, doctor or victim can testify on the age of the victim. See - Issaya Renatus v. The Republic [2016] TZCA 218, TANZLII and Rutoyo Richard v. The Republic [2020] TZCA 296, TANZLII. We are, therefore, satisfied that the age of the victim was sufficiently established by PW1. The ground lacks merit and we dismiss it. The last complaint is that the defence case was not considered. Ms. Mollel had a different view and argued that, the defence case was considered by the first appellate court on page 61 of the record of appeal and the finding of the court was that the defence did not shake the prosecution case. Glancing at the record of appeal on page 19 and 20, the appellant testified for the defence as the sole witness. His defence was hardly five lines which narrated how he was arrested. He also denied the accusation that he raped the victim. Despite that brief defence, the trial court addressed it at page 8 of the record and the first appellate court considered it at page 61 of the record. The two courts were satisfied that

the defence did not raise any doubt on the prosecution case. We agree with the findings of the two lower courts and dismiss this ground of appeal. In the upshot, since we have dismissed all grounds of appeal and found no reason to interfere with the concurrent findings of the two courts below on the appellant's guilt, we dismiss the appeal in its entirety. It is so ordered. DATED at MBEYA this 10th day of December, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 10th day of December, 2024 in the presence of the Appellant in person and Mr. Augustino John Magessa, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL