20211130 TZHC Mwanza

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IN THE HIGH COURT OF TANZANIA

AT MWANZA . ORIGINAL JURISDICTION (Mwanza Registry) CRIMINAL SESSIONS CASE NO. 181 OF 2014 i

REPUBLIC versus MAGITA S/0 ENOSHI @ MATIKO .......................................... ACCUSED

JUDGMENT 12th & 30th Nov 2021 RUMANYIKA, J.: According to information and charges filed on 22/08/2004, having had been arrested and was arraigned in Tarime district court say 8 years later on 28/9/2012, Magita Enoshi @ Matiko (the accused) stood charged with offence of acts intended to cause grievous harm C/s 222 (a) of the Penal Code Cap 16 RE.

2019. The particulars of the offence would read that on 20/08/2010 at Nyarero village in the district of Tarime, Mara region the accused did grievously harm John Kichere@ Mwita (the victim). Messrs Frank Nchanila and Costantine Mutalemwa learned -state attorney and counsel appeared for the Republic and accused respectively. 1 I sat with, and enjoyed useful assistance of Ms. Suzana Petro, Mwasham Salum and Mr. Ahmada Mushandagani ladies and gentleman assessors. Perhaps it would bring no harm also at this stage one to know that the appellant having had been convicted and sentenced, he appealed, and, for some reasons the highest fountain of justice nullified all the proceedings related to summing up notes to, and assessors' opinion and ordered a retrial. All was done and here is the judgment. The evidence ran thus; Pw1 John Kichere @ Mwita (56) a peasant and resident of Nyarero village - Tarime district stated that as he was at about 20.00 hours of 20/08/2010 at home of Vick Mwita his lover, four (4) people whom he knew before they just stormed in armed with pangas and crabs, and, with respect to the house alleged burnt down they accused and slushed him with pangas they chopped his right fingers off therefore permanently disfigured him. That the assailants (inclusive of the accused) they even threatened to chop his head off but shortly on arrival the policemen rescued him. That as

the moon strongly shone he recognized one also 2 -- through attire properly identified the accused (his mate at Nyarero primary school) and fellows. That he was seriously injured so that three days later was referred to KCMC - Moshi hospital for further medication. That too, one Adamu Mambya eye witnessed the incident but he did not, during interview state the extent of, and the light intensity as he wasn't, on that one led by the recording police officer so was the fact that in response to the alarms raised, too, one Anthon Mushumbusi arrived at the scene (copy of pwl's statement was admitted as Exhibit "D1". Pw2 Dr. Juma Kisinza (59) a clinical officer of Tarime designated district hospital, 1987 - 1990 diploma graduate of Ifakara College he stated that following the incident, now at work and in ordinary course of business on 20/08/2010 at about 21.20 he received and examined the victim who had right three fingers chopped off and left ear and back head cut injured therefore permanently disfigured and he (the victim) came back to his senses at about 24.00 hours (copy of the PF3, on behalf of the medical officer in charge signed was admitted as Exhibit "Pl''). Pw3 Elias Bahati John (41) a resident of Nyarero village, Ta rime district stated that as he was, in the material night at about 20.00 hours 3 -- home and heard the victim cry for help, together with John Barnaba

(his father) they rushed onto the sc~ne and found the victim down there but still held light by the accused who alleged one had burnt down Mbusiro's house but shortly thereafter some policemen arrived and drove both the victim and accused away, at the same time the latter blamed the said Mbusiro for having had victimized him and just abandoned the case. That he (pw3) gave a police statement more than a year later and the recording officer omitted some essential facts (copy of the statement - Exhibit "D2''). The accused himself the sole defence witness stated that he was a resident of Nyarero village and member of a traditional army "Sungusungu" thereof. That having had heard public alarms and rushed to the scene (home of his maternal unt) he found the victim under arrest for charges of arson (Vicky's house burnt down). That if anything, he was only fixed much as pw1 had the disfigurement and scurs before. That if anything, he should have been arrested, charged and arraigned in court 2 1112 years before much as he was always there but was not arrested and arraigned until the year 2012 (P1 No. 69 of 2012). That only at the request of the local chair he escorted and produced Pwl to police perhaps that one could 4 ·· be the reason for the cooked charges. Also given the PF3 and short falls. That is s all. Having had agreed to, and the court invited them, very briefly the learned

attorneys submitted as under: ~ Mr. Costantine Mutalemwa learned counsel submitted; one, that however weak the accused's defence case might be, the prosecution had not, beyond reasonable doubts proved their case two, that if anything the evidence adduced by the three prosecution witnesses had fundamental contradictions more so exhibit "D1" three, that although was named as eye witness, for reasons only known to them the alleged Anthon Mushumbusi neither appeared in court nor was a copy of his statement I produced under Section 34B of the Evidence Act Cap 6 RE.

2019. That on that one the court be pleased to draw adverse inference. Four; that if at all the accused was red handed arrested then the arresting police man should have appeared in court and testify on where and when exactly was the accused arrested much as the latter alleged to have made a statement say 13 months later moreover in his statement Pw3 did not tell policemen that during the fracas the victim had the three fingers chopped off. What reasonable doubts! The prosecution case therefore crumbles. We shall 5 - - humbly submit and pray. Mr. Mutalemwa learned counsel further submitted. That is all. Mr. Frank Nchanila learned state attorney submitted; (1) that they had proved their case beyond reasonable doubts, the credible and reliable Pwl having had properly identified and readily named the accused (case of Chacha Jeremia Mrimi & 3 Others v.R, Criminal Appeal No. 551 of 2015 (CA) unreported leave alone evidence of the doctor (Pw2) (2) that actually the 1st two prosecution witnesses were credible and their evidence inclusive of Exhibits "D1" & "D2" was contradiction free. The alleged Anthon Mushumbusi may have been scared by the assailants and ran away yes, but too John Barnaba and Pw3 eye witnessed the incident therefore the issue of contradiction in evidence it should not have raised (case of Abdallah Rajah Waziri v. R, Criminal Appeal No. 16 of 2004 (CA) unreported (3)

that in terms of timing the accused did not challenge Pwl's evidence that he was identified and arrested on the spot much as arrest and arraignment in court of the accused were two different issues the learned state attorney submitted. That is all. I thanked the learned attorneys for the brief and useful submissions. 6 The ladies and gentleman assessors unanimously opined for the Republic that the accused was properly identified by Pwl and Pw3, then Pw2 (the doctor) corroborated the formers' evidence. I thanked the assessors and discharged them. The prosecution case solely hinges on Pwl and Pw3's evidence of visual identification at night essentially. Pw3 may have had eye witnessed it all yes, but yet again he told the court that the police recorded his statement more than a year later. It is very unfo1tunate that no reason for . the delay was given if at all, like was stated by the two prosecution witnesses the accused was properly identified and arrested almost red . handed ·much as also, the records will show that he was, for the first time ... arraigned in the committal court on 28/09/2012 say two good years plus later and this was the accused's main complaint. I think like it is the case here, where an accused was identified arid almost on the spot arrested, not only the latter's arraignment in court timely entailed timely justice but also credibility and reliability of

the identifying witnesses. Also see the case of Michael Msigwa v. R, Criminal Appeal No. 216 of 2019 CA, unreported that once credibility of a witness is doubted automatically the prosecution case shakes. In •my considered opinion therefore, the ·accused wasn't 7 properly identified because all possibilities of mistaken identity could not have been eliminated under the circumstances. The threshold in the famous case of Waziri Aniani v. R (1980) T.L.R 250 was not met. The accused may have had been on the spot, or as the case may be immediately arrested yes, but as said, without reasons no prosecution witnesses appeared in court with a view to proving the accused wrong that in fact it had not taken them that unreasonably long to arrest the accused. Such unexplained failure/inability of the two witnesses at the earliest opportunity possible to name the accused it may also mean that the latter was not actually identified. The court is in favor of accused to draw adverse inference such that most probably naming ·of the accused it was but afterthought (case of Marwa Wangiti Mwita and Another v. R, Criminal Appeal No. 6 of 1995 CA unreported. In the upshot, the accused is acquitted. Unless he was held for some other lawful cause, the accused be released immediately from remand. It is so ordered. Right of appeal explained. 8 S.M.RU JU .lie,,.,_ ,, 29/11/2, Judgment delivered under my hand and seal of the court in court this 30/11/2021 in the presence of Ms. L. Meli SA and Mr. C. Mutalemwa advocate. S. M. R ANYIKA

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