Hamadi Salumu Fundi vs Republic (Criminal Appeal No. 000012119 of 2026) [2026] TZHC 3055 (11 June 2026)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT LINDI CRIMINAL APPEAL NO. 000012119 OF 2026 HAMADI SALUMU FUNDI .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT JUDGMENT KAINDA, J This is an appeal emanating from the judgment of the District Court of Lindi at Lindi delivered on the 4th day of May, 2026 in Criminal Case No. 3431 of 2026, wherein the appellant, Hamadi Salumu Fundi, was convicted of the offence of rape contrary to Sections 130(1), 130(2)(e), and 131(1) of the Penal Code, [Cap 16 R.E 2023], and sentenced to life imprisonment. Being dissatisfied with the entire decision, the appellant lodged this appeal advancing four grounds of complaint, namely that the trial court erred in law and fact by convicting and sentencing him while the prosecution failed to prove the case beyond reasonable doubt that the trial court erred by convicting him relying on false and uncorroborated evidence of the victim and other witnesses; that the trial court erred by disregarding the defence evidence without giving reasons and wrongly concluded that the prosecution’s case was stronger; and that the trial court erred by convicting him based on contradictory evidence. He therefore prayed that the appeal be allowed, the conviction and sentence be set aside, and he be set at liberty. Hon. SYLVESTER KAINDA Page. 1 Before this court on the hearing date, the appellant appeared in person, being linked from Lindi Prison to the court proceedings virtually, while the Republic was represented by Mr. Majaliwa Sebastian, learned State Attorney, linked to the court from NPS offices at Nachingwea District. When the matter was called for hearing, both parties indicated their readiness to proceed, and the court invited submissions. The learned State Attorney, Mr. Sebastian Majaliwa, submitted that the Republic supported both the conviction and the sentence, maintaining that the appeal was wholly devoid of merit. He consolidated his response to the first, third, and fourth grounds of appeal, arguing that the charge against the appellant had been proved to the requisite standard. He submitted that the offence of rape, particularly statutory rape, requires proof of three essential ingredients: the age of the victim, proof of penetration, and the positive identification of the perpetrator. On the issue of age, he referred this court to the well-settled principle in the case of Isaya Renatus v. Republic , Criminal Appeal No. 542 of 2015, which holds that the age of a victim may be proved by the testimony of the victim herself, a parent or relative, a medical practitioner, or by the production of a birth certificate. In the present case, he submitted, PW1, the victim herself, testified that she was eight years old and a pupil in standard three at a primary school in Lindi district, and this evidence was corroborated by PW3, Dr. Aisha Abdul, who examined the victim and confirmed her age to be eight years. On the second ingredient of penetration, Mr. Majaliwa submitted that PW1 gave a graphic account of how the appellant took his “dudu” and inserted it into her private parts, which she described as “kwa bibi kwangu,” and that she experienced pain during the act. This testimony, he argued, was corroborated by PW3, the medical doctor, who upon examination found that the victim’s hymen was absent, an observation consistent with penetration by a blunt object. As for identification, the learned State Attorney submitted that the victim positively named the appellant as the person who had carnal knowledge of her, referring to him as her uncle, and that the incident took place during daytime, a fact that was further corroborated by PW2, Seif Mohamed, and PW5, Ashraf Juma, both of whom Hon. SYLVESTER KAINDA Page. 2 witnessed the appellant in the very act of raping victim at the sawmill. He therefore contended that the prosecution had proved its case beyond reasonable doubt. Addressing the second ground of appeal concerning the alleged disregard of the defence evidence, Mr. Majaliwa referred this court to page four of the trial court’s judgment, where the learned trial magistrate specifically analysed the defence case, considered the alibi raised by the appellant and the testimony of DW2, and found that it did not raise any reasonable doubt in the prosecution’s case. He concluded by praying that the appeal be dismissed in its entirety. The appellant, in his rejoinder, simply prayed that the court consider his grounds of appeal and acquit him, without making any further substantive submissions. Having heard the submissions of both parties and having carefully read and re-read the record of the trial court, including the judgment, the testimonies of all witnesses, the documentary exhibits tendered, and the grounds of appeal themselves, this court now proceeds to deliver its considered judgment. The background to this matter, as it emerges from the evidence, is both tragic and deeply disturbing. The victim, a tender child of only eight years, was the appellant’s own niece, a relationship that should have been one of protection and care but instead became one of unspeakable violation. The evidence at trial painted a picture of repeated sexual abuse perpetrated by the appellant against this young girl over a period of time, at various locations including a dump site, a sawmill, and the appellant’s own home. The victim, testifying as PW1, told the trial court in her own simple and childlike language that the appellant used to come to her home and take her away to places where he would commit the act. She described how the appellant would take his “dudu” out of his trousers after unzipping them and put it “kwa bibi kwangu,” a phrase that, as she demonstrated before the trial court by touching the area between her legs where the female private parts are located, unmistakably referred to her vagina. She said she felt pain when he did this, but she could not cry out for help because he threatened to kill her if she told anyone. This testimony was Hon. SYLVESTER KAINDA Page. 3 given in a straightforward manner, and the trial magistrate, who had the singular advantage of observing her demeanour, believed her. The evidence of the victim was not left to stand alone. PW5, Ashraf Juma, a person who knew both the appellant and the victim, testified that in January of the year 2026, while returning home from the farm at around eleven o’clock in the morning, she heard the sound of a child crying near a sawmill. Drawn by the sound, she approached and saw the appellant lying on top of the victim, both of them completely without clothing, and the appellant was in the act of raping her. PW5 observed this from a distance of about ten steps for a period of about three minutes before she left the scene, her heart heavy with what she had witnessed. On her way, she met PW2, Seif Mohamed, who was coming from the opposite direction. When she tried to stop him from proceeding further, telling him what was happening, PW2 insisted on going to see for himself, and he too witnessed the same horrific scene, the appellant on top of the victim, both unclothed. These two witnesses then went and reported what they had seen to Seif’s mother, who directed them to report the matter to the Executive Officer. The chain of events leading to the appellant’s arrest was further narrated by PW6, Salum Yusufu Nalwiu, a member the street government at Mlandege Street, who received information from members of the public that the victim had been raped by the appellant. After confirming the information with PW5, he contacted a social welfare officer and thereafter the police. PW4, Inspector Hashim Idd Fakh, received a phone call from a social welfare officer on the 17th of January, 2026, and after making inquiries, he located the victim and questioned her. Initially, the victim was silent about what had happened, but when a woman who was a member of the street government spoke with her more gently, the child disclosed that the appellant had raped her. The matter was then officially reported to Lindi police station. The investigating officer, PW7, WP 9157 Corporal Christina, who served in the Gender Desk Department, took over the investigation. She interrogated the victim on the Hon. SYLVESTER KAINDA Page. 4 18th of January, 2026, and the victim confirmed that the appellant had raped her on multiple occasions. PW7 prepared a PF3 form, which was tendered and admitted as exhibit P1, and accompanied the victim to Sokoine Hospital for examination. The medical officer, PW3, Dr. Aisha Abdul, examined the victim’s private parts and found that everything was in order except that the victim’s hymen was absent, and it was her expert opinion that there was a possibility that the vagina had been penetrated by a blunt object. This medical evidence, though not conclusive proof of rape in itself, was consistent with the victim’s account and served to corroborate her testimony that she had been carnally known. Additionally, PW7 drew a sketch map of the SIDO area where the incident was said to have occurred, which was tendered and admitted as exhibit P2. The appellant, in his defence, denied the accusation and attempted to raise an alibi. He told the court that on the 17th of January, 2026, he had gone to the farm, worked there, and later joined others in collecting stones and loading them onto a vehicle, returning home in the evening. He called DW2, Issa Mohamed Kambwili, who supported his account. However, the trial magistrate carefully considered this defence and found that it did not raise any reasonable doubt in the prosecution’s case, particularly because the appellant had admitted during the preliminary hearing that he was arrested on the 18th of January, 2026, and not on the 17th, thereby undermining the relevance of his alibi. The trial magistrate also noted that the appellant alleged that the case against him was fabricated due to a misunderstanding with the victim over her insistence that she should go to school, but he failed to cross-examine the victim on this point, which, under the well-established principle in Emmanuel Saguda @ w Sulukuka v. Republic , Criminal Appeal No. 422 of 2013 [2014] TZCA 2184 as tantamount to acceptance of the prosecution’s evidence on that matter. Now, this court, as a court of first appeal, has the duty to re-evaluate the evidence on record and to draw its own conclusions, bearing in mind that it did not have the opportunity to observe the witnesses as they testified. This court has done so, and it finds that the evidence against the appellant was overwhelming. The victim’s testimony was clear, Hon. SYLVESTER KAINDA Page. 5 consistent, and credible. She was an eight-year-old child who spoke in the language of a child, using terms like “dudu” for the male organ and “kwa bibi kwangu” for her private parts, and she demonstrated her meaning in a manner that left no doubt. The law is well settled, as this court recalls from the case of Selemani Makumba v. Republic , [2006] T.L.R. 379, that the evidence of the victim alone, if credible, can sustain a conviction for rape, and in this case, that evidence was not only credible but was amply corroborated by the direct evidence of PW2 and PW5, who actually witnessed the appellant in the act of raping the victim at the sawmill. These were independent witnesses who had no reason to lie against the appellant, and their testimony was consistent and unshaken during cross-examination. Furthermore,themedicalevidencefromPW3confirmedthatthevictim’shymenwas absent, which is consistent with the history of penetration that the victim described. The identification of the appellant was not in doubt, as he was well known to the victim as her uncle, and the incident occurred in broad daylight in the presence of witnesses who knew him. The appellant’s defence of alibi was properly considered by the trial magistrate and rightly rejected, as it did not cover the dates on which the offences were alleged to have occurred, and it was not supported by any evidence that would create a reasonable doubt in the prosecution’s case. On the issue of the victim’s age, this court is satisfied that it was proved beyond any shadow of doubt. The victim herself said she was eight years old, and this was confirmed by the medical doctor who examined her. This court is guided by the authority in Isaya Renatus v. Republic (supra), which this court fully endorses, that the age of a victim can be proved by the victim’s own testimony, a parent, a medical practitioner, or by a birth certificate. The prosecution led sufficient evidence on this point, and the defence did not challenge it. As for the allegations of contradiction in the prosecution’s evidence, this court has carefully scrutinised the record and finds no material contradiction that would go to the root of the case. The minor discrepancies that exist, such as the description of the clothing worn Hon. SYLVESTER KAINDA Page. 6 by the victim and the appellant at the time of the incident, are not material and do not affect the core of the prosecution’s case, which was that the appellant raped the victim. The law is that not every discrepancy in the evidence of prosecution witnesses is fatal, so long as the evidence as a whole is consistent and credible. In the final analysis, this court finds that the trial court properly evaluated the evidence, correctly applied the law, and arrived at the right conclusion. The conviction was safe, and the sentence of life imprisonment, which is the minimum sentence prescribed by law for the offence of rape of a child of the age of eight years, was lawful and appropriate in the circumstances. The appellant’s appeal fails entirely, and it is hereby dismissed in its entirety. Accordingly, the conviction and sentence of the trial court are hereby affirmed, and the appellant shall remain in custody to serve his sentence as lawfully imposed. Order accordingly. Dated at LINDI this 11th of June 2026 . Hon. SYLVESTER KAINDA Page. 7 S. J KAINDA JUDGE OF THE HIGH COURT Hon. SYLVESTER KAINDA Page. 8