Hassan Andirahman v Republic

8. That there was a vendetta between him and the complainant’s family. The appellant also filed written submissions. I have perused and considered the written submissions. In addition, the appellant orally submitted in court that the names that appear in the file were different from his names of HASSAN ABDIRAHMAN. He stated that the name is wrongly written as Isaac Abdirahman. He then changed and said that his names were correctly written in the court file and that he had been misled by somebody about the variance of names. Learned Prosecuting Counsel Mr. Orwa opposed the appeal. Counsel submitted that the charge was not defective and that the appellant understood the charge against him and participated fully in the trial by cross examining witnesses. With regard to the allegation of a dubious medical report, counsel submitted that the appellant was not a medical expert no did he cross examine witnesses on the issue and as such the complaint was misplaced. Counsel submitted further that the prosecution had proved penetration in the medical report confirmed that the hymen was raptured and that there were lacerations in the private parts of the complainant. With regard to identification of the assailant counsel submitted that PW2 confirmed that the appellant was a neighbour and that the incident occurred at 6.00 Pm when there was sufficient light. In addition, PW2 described the clothes won by the appellant. The appellant also admitted that he was at the scene and as such there was possibility of mistaken identity. With regard to age of the complainant, counsel submitted that the victim or complainant was less than 11 years old, which was confirmed by the medical evidence indicating an age of between 8 and 9 years. As such, the complainant was a child of tender years. Counsel emphasized that there was no mandatory requirement to produce a birth certificate or age assessment form to prove the age of a complainant. With regard to corroboration, counsel urged this court to be guided by the Provision of 124 of the Evidence Act (cap. 80) and emphasized that there were no contradictions in the evidence of prosecution witnesses. With regard to calling of crucial witness, counsel argued that other than PW2 nobody was present during the incident. In any event, counsel argued that it was very difficult to find eye witnesses in sexual offences. Counsel also submitted that the appellant had not indicated the identity of the crucial witnesses who were not called by the prosecution to testify. Counsel argued that the failure to indicate the time of the incident was not fatal to a criminal case. With regard to existence of vendetta, counsel argued that the appellant did not cross examine any witnesses on the same. On sentence, counsel argued that the appellant was not given the benefit of mitigation. However, the sentence was a mandatory sentence and as such the failure of the magistrate to allow the appellant to mitigate did not render the sentence a nullity. Lastly, counsel argued that the appellant mocked the complainant after committing the offence which must have left a lasting mark on her which would remain the rest of her life. During the trial, the prosecution called 4 witnesses. PWI was Dr. Ali from Elwak District Hospital. It was his evidence that on 15th January 2015, a sick girl was brought to hospital. He examined her and notice blood stained clothes. The complainant said that she had been defiled, and he noted blood in her labia minora and the thighs. There was also a rapture of the hymen and laceration of the labia minora. He stated that there was actual penetration of the vagina and that the complainant was aged between 8 and 9 years. He produced P3 forms and treatment notes as exhibit. In cross examination, he stated that he did not see the appellant raping the complainant. He stated that he gave drugs to the complainant and did not know when the incident occurred.

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PW2 was the complainant who testified that she was a Standard 2 pupil aged 9 years. That on the day in question, she went to bring goats home and the appellant approached her when she was alone, held her shoulder eyes and mouth and pushed her down. He then removed her trouser and his kikoi, unzipped his short pants, as she screamed. She tried to struggle but he pushed her down, and she felt pain in her vagina, tried to pull herself away and cried. Her father shortly arrived and found her lying down after the appellant had left. She stated that she saw the appellant well and that she knew him before as a neighbour who looked after goats. She stated that when the father came, she narrated the whole story to him and informed him that the culprit was Isaac a neighbour because they used to call him Isaac. She stated that she was taken to hospital, and that her clothes were blood stained. In cross examination, she stated that the incident occurred at 6 Pm. She stated that she did not see the appellant as he approached, but only realized that he was holding her. She stated that he defiled her a distance from her home and that she was admitted in hospital. She then changed her story and said that she was discharged after treatment. She stated that they came from different clans with the appellant. PW3 was AME a cook in a school at Elwak. He was the father of the complainant and stated that on 15th January 2014 he was from work at 6.00 Pm, bought food and decided to go home. He found his daughter crying behind the house, her clothes blood stained, and her hair dirty with sand. When he enquired she stated that the appellant was the culprit. He saw the appellant running away and followed him. He also ran to the police station and informed the OCS about the incident who gave him four policemen, and they went looking for the appellant and found him taking tea, and arrested him. In the meantime the complainant was taken to Wargadud dispensary treated and referred to Elwak District Hospital. In cross examination, he maintained that he saw the appellant running away. He said that there were few trees at the scene and as such he could see him running away. He stated that he had known the appellant for 15 days before the incident. He stated that the appellant was arrested by the police and members of the public while drinking tea. He could not remember when the appellant was arrested. PW4 was PC Shadrack Mwendwa. It was his evidence that on 15th January 2014 at 8.00 Pm while on duty, the local chief informed him about a defilement case. They proceeded to the scene and found a minor who had been defiled. The appellant was then traced and arrested, and the complainant was taken to hospital. He recorded witness statements and took possession of exhibits which were the clothes worn by the complainant which had blood stains. He produced them as exhibit. In cross examination, he stated that he did not bribe the doctor to write a bad report. He stated that he did not know the complainant before. He maintained that the complainant knew the appellant very well. He stated that the chief and the complainant's father arrested the appellant and handed him over to the police. When put on his defence, the appellant gave unsworn testimony. He denied committing the offence and said that it was a fabrication. He stated that he was an orphan working for Ali Ibrahim who was the complainant’s neighbour. He stated that he had differed with the complainant's family over water at a borehole because he took the goats to the borehole for water. They thus decided to fabricate this charge against him. He stated that his parents had died in Mandera over Inter clan clashes. This is a first appeal. As a first appellate court I am required to examine all the evidence on record afresh and come to my own conclusions and inferences. See the case of Okeno – vs- Republic (1972) EA 32. I have re-evaluated the evidence on record. I have also considered the grounds of appeal of the appellant and the submissions on both sides. The appellant has said that the charge was defective. I have perused the charge sheet and I find no defects on the charge sheet. The appellant has also not pointed out to any defects. I dismiss that complaint by the appellant.

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The appellant has claimed that some important witnesses were not called by the prosecution to testify. Again, he has not given particulars about these crucial witnesses. The prosecution has an obligation to bring to court the witnesses they consider necessary to prove their case and they did so. The appellant has not indicated what type of evidence was crucial which was not produced by the alleged crucial witnesses. I find that no crucial witness was not called by the prosecution to testify in the present matter I dismiss that complaint. The appellant has complained that the date and time of commission of the offence was not given by the prosecution. There is no legal requirement that the time for the commission of an offence has to be stated by the prosecution. However in the present case, the time of the offence was given as 6.00 Pm. The date was also given as 15th January 2014. All the witnesses who could remember the date and time, were consistent about the date mentioned in the charge sheet. I thus find no basis to sustaining this complain. I dismiss this complaint. The appellant has complained that the complainant's family persuaded the doctor to write an unfavorable report in the case, I find no evidence to that effect. The medical evidence is quiet clear that the age of the complainant was between 8 and 9 years and penetration occurred. The complainant gave a graphic account of what occurred. Though the complainant referred to the appellant as Isaac, she was quiet clear that she was referring to the appellant whom she knew before. She gave an account of how the appellant suddenly emerged, grabbed her knocked her, down and defiled her. She was found by her father PW3 AE crying. At that time, the appellant was in the vicinity running away and he was seen by PW3. The medical evidence was that penetration had occurred as the hymen was broken, and lacerations were found in the genital organs of the complainant, in addition to blood stains which had spread to the clothes. In my view with the evidence on record, the age of the complainant was proved by the prosecution beyond reasonable doubt. Penetration was also proved again beyond reasonable doubt. As to the identity of the culprit, the evidence of PW2 the complainant and PW3 her father was consistent and believable. Both knew the appellant before. The incident occurred before sun set. Though the appellant claimed that there was an existing grudge over a drinking water at a borehole, in my view that defence was an afterthought. Like the trial court I do not believe that defence. Consequently I will uphold the conviction, as all the three elements constituting the offence of defilement were proved. With regard to sentence, the sentence provided by law where a victim is aged 11 years and below is life imprisonment. That is the mandatory sentence set by Parliament. The trial court thus had no discretion in the matter. The sentence can therefore not to be said to be either harsh or excessive. I will also uphold the sentence. Consequently, I find no merits in the appeal. I dismiss the appeal and uphold both the conviction and sentence of the trial court. Dated and delivered at Garissa this 22nd October 2015. GEORGE DULU JUDGE

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