AWADHI ALLY NESTO MLAVA Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA DC CRIMINAL APPEAL NO. 20034 OF 2024 (Arising from the decision of the District Court of Kondoa at Kondoa dated 06/06/2024 in Criminal Case No. 39079 of 2024 before F. A. Kahamba, SRM) AWADHI ALLY @ NESTO MLAVA….……..…………….…………………APPELLANT VERSUS REPUBLIC…………….....................................................................RESPONDENT JUDGMENT Date of Last Order: 11th November, 2024 Date of Judgment: 06th December, 2024 E. E. KAKOLAKI, J In this first appeal the Court is moved to overturn the decision of the District Court of Kondoa delivered on 06/06/2024, that found the appellant guilty of the offence of Grievous Harm; contrary to section 225 of the Penal Code, [Cap 16 R.E 2022] as charged, convicted and sentenced him to five (5) years imprisonment and in addition ordered him to pay the victim compensation to the tune of Tsh.2,000,000/-. Facts leading to the case against the appellant are simple to narrate as it was contended by the prosecution before the trial court that, on 07 th November, 1 2023 at Maji ya Shamba Street within Kondoa District in Dodoma Region, the appellant unlawfully caused grievous harm to one Laurance Sadick by cutting him on both legs with sword and assaulting him using a club on different parts of the body. It was disclosed by the victim who featured as PW1 during the trial that, he knew the appellant before the incident day as the two were living together at appellant’s home for about a month whereby PW1 used to assist him in masonry work at Paulina’s house. On the 07/11/2023 it is said, the two were inside appellant’s home serving their dinner with appellant’s wife before the appellant suddenly stopped taking it and went outside while uttering some accusing words to them that, ‘kuleni na hawala yako’. In awesome state the victim decided to go out too where the appellant surfaced with in possession of a sword or machete and hoe handle and started attacking him on different parts of the body, thus suffered cut wounds on both legs and mouth before he was rescued in the next morning by the Maji ya shamba street chairman (PW2) and taken to Kondoa hospital where he was attended by Dr. Munisi (PW3) after being issued with a PF3 (exhibit P1) upon the report of the incident made at police. From the investigator’s version (PW4) the appellant was arrested on the same day when the victim passed at police but on interrogation with him denied all the accusation levelled against him, hence indicted before the District Court 2 of Kondoa faced with the charge of Grievous Harm, which allegations he flatly denied too. The case had therefore to go for full trial and upon evaluation of both parties’ evidence the trial Court was moved that, the prosecution had proved its case against the appellant beyond reasonable doubt hence proceeded to convict and sentence him as mentioned earlier, the decision which displeased him hence the present appeal. In his petition of appeal the appellant has expressed his grievances in four (4) grounds of appeal summarized thus:- 1. That, the trial magistrate in law and fact to sustain the appellant’s conviction based on unproved prosecution case against him beyond any reasonable doubt. 2. That, the trial magistrate erred in law and fact when convicted the appellant basing on weak voice identification since voice could be imitated. 3. That, the trial court ought to have drawn adverse inference against the prosecution’s failure to procure appellant’s wife who allegedly was present during commission of an offence. 3 4. That, appellant’s defence was not considered instead the trial court relied on prosecution case only to base his conviction. In view of the above grounds of appeal the Court was prayed by the appellant to allow his appeal, quash the conviction and set aside the sentence meted on him including compensation order while ordering for his immediate release from prison. At hearing of this appeal, the appellant appeared in person unrepresented while the respondent/Republic enjoyed services of Ms. Jackline Manyara, learned State Attorney. When the Court invited the appellant to argue his appeal he disclosed that, he has never been to school before hence prayed to have his grounds of appeal considered by the Court and allow the appeal by freeing him from prison. In response Ms. Manyara for the respondent informed the Court that the appeal is contested for want of merit. To start with the first ground of appeal she submitted that, the prosecution proved its case beyond reasonable doubt and in compliance with section 3(2)(a) of the Evidence Act, [Cap. 06 R.E 2022]. She contended that, for the offence of Grievous Harm under section 225 of the Penal Code to be proved three elements must be established y the prosecution which are one that, the victim sustained grievous harm, 4 second, the harm was caused to him unlawfully and third that, it is the accused person who caused or participated in causing the said harm. All these ingredients according to her were proved by the prosecution through four witnesses and one exhibit whereby PW1 (the victim) proved to have sustained injuries on both legs, mouth and other parties of the body caused machete and hoe handle that were in possession of the appellant. And that, it is the appellant who caused them as seen at page 9 of the typed proceedings. According to her the victim (PW1) sufficiently narrated on how the appellant attacked him and how he identified him since they were living together in the same house for more than one month. PW1's evidence in her submission, was corroborated by the village chairman (PW2) who found the victim at the scene of crime injured on both legs, hand and mouth while his clothes stained with blood. And that, it is the victim who mentioned the appellant to him as his assailant before he was taken to Police station where he was issued with PF3 and rushed to the hospital for medical attention as exhibited at page 13 of the proceedings. Ms. Manyara went on submitting that, PW3 (the doctor) who attended PW1 also cemented his version when testified that, he sustained serious wounds on both legs and had his hand broken and injured on mouth by sharp object as can be traced from pages 5 14-15 of the typed proceedings. And further that, he stitched him on those wounds and conducted x-ray test before he filled in the PF3 that was received in evidence as exhibit PE1 without objection from the appellant. With all that evidence she submitted it is evident that, the offence with which the appellant was booked and convicted with was proved beyond reasonable doubt. On the second ground where the complaint is based on poor identification of the appellant based on voice identification, she also contested the same arguing that, the appellant was identified without any mistake of identity. She defended her submission explaining that, identification by PW1 was not solely based on voice identification but also through solid eyes assisted by the light from the fire that was outside burning brightly. Further to that she claimed, the appellant was close to the appellant who was also giving out utterances when attacking him as seen at page 9 of the proceedings and that, PW1 was known to the appellant a month before since both were working together and living at appellant's home as seen in his testimony at page 8 of the typed proceedings. It was also in PW1's evidence she added, that, on the fateful day together with the appellant and his wife were taking their evening meal before the appellant got angered while addressing him 6 ‘kuleni na hawara yako’ when he moved out, collected machete and hand hoe from the house and started attacking him accompanying the attack with utterances. When PW1 was cross examined by the appellant the learned State Attorney insisted, the later never challenged that fact of identification. In fortifying her stance, the learned State Attorney referred the Court to the case of Issa Hassan Uki Vs. R, Criminal Appeal No. 129 of 2017 (CAT) Tanzlii where the Court observed that, failure of the party to cross examine the witness on a certain matter leads the Court to believe his story and estop the said party from disbelieving the story. It is from that uncontested fact she argued with force that, the trial Court at page 9 of the judgment was satisfied that, it is the appellant who attacked the victim considering proximity between them and the utterances made by the appellant to him plus the period of time the two encountered before he assaulted him with the said machete and hoe handle. Under the said circumstances she submitted, it was possible and conducive environment for the victim to identify the appellant by voice as the two lived together for considerable time. She drew this Court’s attention to the case of Waziri Zuberi Makombe Vs. R, Criminal Appeal 289 of 2007 (CAT) at page 5, where the 7 Court of Appeal observed that, for identification on voice to be relied upon the witness must establish that was very familiar with the voice in question. In this case since the appellant was living with PW1 and there was enough light from the bush fire outside the house she impressively submitted that, the conditions for unmistaken identity of the appellant were favourable. As regard to the third ground she submitted that, it is not mandatory that appellant's wife must have been summoned to testify in favour of prosecution’s case as the law under section 143 of the Evidence Act, does not make it mandatory for prosecution to bring a specific number of witnesses to prove a certain fact as it was held in the case of Christopher Marwa Mturu Vs. R, Criminal 561 of 2019 (CAT) at page 10, where the Court emphasized on the need to consider quality of evidence and credibility of the witness and not number of witnesses called to prove a certain fact. In this case she argued, PW1's evidence is credible and therefore sufficiently proved the charge against the appellant. And lastly, she contested the merit of the fourth ground of appeal submitting that, it is not true that, appellant's defence was not considered by the trial court as at page 10 of the judgment his defence was sufficiently considered and rejected. According to her it was correct to reject his defence since his denial that, it was his first time to see 8 the victim in court did not dent prosecution case. In the case of George Jonas Lesilwa Vs. R, Criminal Appeal No. 374 of 2020 (CAT) at page 23 she argued, the Court of Appeal insisted on the need to consider accused's defence even if it is to be rejected the duty which the trial court discharged. In this matter since appellant's defence was considered and rejected she voiced this ground is bound to fail. In the end she prayed the Court to find the appeal is wanting in merit hence proceed to dismiss it. The appellant lay as he is as alluded to above had nothing material to rejoin to respondent’s submission apart from insisting to have put much trust to this Court and keep on praying for the same to examine his grounds of appeal and allow the appeal. I took time to internalize appellant’s grounds of appeal and considered submissions from both parties as well as revisiting the evidence adduced before the trial court in a bid to address and determine appellant’s grievances. The law is certain under section 110(1) and (2) that he who alleges must prove. It is a settled principle of law as provided in section 3(2) of the Evidence Act, [Cap.6 R.E 2022] and correctly so submitted by Ms. Manyara that, in criminal cases the standard of proof is that of beyond reasonable doubt and further that, the onus of so proving accused’s guilty 9 on the offence charged with lies with the prosecution side and the duty never shifts since the accused has no duty of establishing his innocence rather creating doubts on the prosecution case. See also the cases of Mohamed Said Matula Vs. R [1995] TLR. 3 (CAT), Aburaham Daniel Vs. R, Criminal Appeal No. 6 of 2007, Arusha Registry (CAT-unreported) and Nathaniel Alphonce Mapunda and Benjamin Mapunda Vs. R [2006] TLR 395. It is also trite law that, an appeal in the first appellate court is in the form of re-hearing the course which this Court is prepared to take in this matter. See the cases of Siza Patrice Vs. R , Criminal Appeal No. 19 of 2010 and Kaimu Said Vs. R, Criminal Appeal No. 391 of 2019 (both CAT-unreported). To start with the first ground of appeal the issue is whether the prosecution proved its case beyond reasonable doubt to sustain appellant’s conviction on the charge of Grievous Harm preferred under section 225 of the Penal Code, [Cap. 16 R.E 2022]. Before moving further I find it apposite to reproduce in verbatim section 225 of the Penal Code which reads: 225. Any person who unlawfully does grievous harm to another is guilty of an offence and is liable to imprisonment for seven years. 10 As correctly submitted by Ms. Manyara, learned State Attorney, for the offence of Grievous Harm under section 225 of the Penal Code to be established three elements must be proved by the prosecution namely One that, the victim sustained grievous harm (injuries), second, the said injuries were unlawfully caused and thirdly, it is the accused person who caused it/them. Having reviewed the evidence on record from all four prosecution witnesses, I concur with the submission by the learned State Attorney that the prosecution case was sufficiently proved against the appellant to the required standard. I so view as to start with the first element, PW1’s evidence corroborated with that of PW2 who came to his rescue and took him to hospital via police station where he was issued with PF3 by PW4 and later on attended by PW3 who also filled in a PF3 (exhibit P1), in wholesome sufficiently proved that the victim sustained injuries on both legs, mouth and one hand. According to PW3’s evidence the x-ray test conducted to PW1 found him with fracture on both legs and hand dislocation, the injuries which in the end termed as grievous harm, hence a proof of the first ingredient. 11 As to the second element the issue is whether the said injuries were unlawfully sustained. From the evidence PW1, I think this issue need not detain this Court. It is so as there was no justification from his attacker for causing him such serious injuries. It is the intention of the causer of injuries or attacker that makes the sustained injury(ies) unlawful. In the present matter it is learnt from PW1’s evidence that before the attack by the appellant whom they were enjoying dinner together with his wife at his house the latter who seemed to have been felt with jealous abruptly stopped eating and went outside the house while saying ‘kuleni na hawala yako’ (meaning appellant’s wife) before PW1 also followed him out only to find him in possession of machete and hoe handle, which weapons he used to assault him (PW1) on different parts of the body, the attacks that maimed him seriously. Additionally, the attack from the appellant was accompanied with utterances that, ‘una bahati sana mimi uwa napiga hadi naua’, which makes this Court believes and therefore conclude that, the said injuries were unlawfully caused by the appellant to the victim, hence proof of the second element as if the same were made in self defence the appellant would have stated so. 12 The above conclusion takes me to the third element in which the issue is whether it is the appellant who cause the said injuries. Again, as rightly submitted by Ms. Manyara, the submission which I endorse the evidence of PW1 and PW2 sufficiently proved this element. In his evidence PW1 who was known to the appellant before and whom they were together in his house for almost a month and whom were serving dinner with his wife on the incident day testified on how the appellant jealously stopped taking meal while uttering words carrying accusations of the two having love relationship saying that, ‘haya kuleni na hawara yako’, before he went out where he collected machete and hoe handle which he used to attack him while outside. Apart from being together inside when they came out during the attack PW1 averred, managed to identify his attacker as the appellant with aid of bush fire that was burning outside as well as by his voice and that, the attack continued until when he became weak only to be rescued in the morning by PW2 and taken to hospital. PW1’s testimony is cemented by evidence of PW2 who confirmed to have found him dumped in unfinished house in worse condition where he mentioned before him his attacker to be the appellant before he was taken to hospital after passing at police and issued with PF3. Further corroboration is found in the investigator’s evidence (PW4) who also 13 deposed to have been told by the victim (PW1) that it is the appellant who attacked him. PW1’s act of mentioning his attacker to PW2 and PW4 at the earliest possible time in my humble view added value on his evidence for making him a reliable witness thus trusted by this Court as it was held in the case of Marwa Wangiti Mwita and Another Vs. R, [2002] TLR 39, when the Court of Appeal observed that: ’’The ability of a witness to name a suspect at the earliest opportunity is an assurance of his reliability, in the same way as unexplained delay or complete failure to do so should put a prudent court to enquiry.’’ (Emphasis added) The fact that appellant was mentioned at the earliest possible time as PW1’s attack is also confirmed by the appellant in his own defence when stated to have received the information of victim being injured and dumped in unfinished house who mentioned him as his attacker. The appellant testified and I quote him in his evidence from page 23 of the typed proceedings: I remember on 07th November, 2023 I was at home ay old stand at around 11.00 hours, I received a phone call from Mzee Ally Bohari told me that there was a victim found at unfinished house in our farm while injured and the victim was 14 telling them that it’s me who committed the crime. I was told by that person that I was needed by the chairman.’’ From the above excerpt of appellant’s own defence, it is undisputedly appreciated fact that, the victim (PW1) whom the trial court found to be a credible and reliable witness mentioned him to third parties as his attacker hence an assurance to this Court that, the identification made was free from any mistake of identity. I so find after consideration of other factors including the fact that, there was bush fire illuminating brightly outside plus close proximity between the two during the attack accompanied with appellant’s utterances to PW1 whom they were together soon before the attack, which factors in their totality wash out this Court’s doubts on any possibility of mistaking identity of the appellant as it was also observed in a plethora of authorities. See the cases of John Jacob Vs. R, Criminal Appeal No. 92 of 2009, Daniel Paul @ Meja Vs. R, Criminal Appeal No. 307 of 2016, Baya Lusana Vs. R, Criminal Appeal No. 593 of 2017 (all CATunreported) Tanzlii. Additionally, the appellant himself did not dispute or contradict that sound version on his identification from the victim something which would be expected to come from him during cross examination. It is settled law that, failure to cross examine on important aspects leads the court to believe the 15 story of the witness and estops the accused from inviting the court to disbelieve him/her. See the cases of Nyerere Nyague Vs. Republic, Criminal Appeal No. 67 of 2010, Issa Hassan Uki (supra) Jaspini Daniel @Sizakwe Vs. DPP, Criminal No. 519 of 2019, (CAT-unreported) Hatari Masharubu @Babu Ayubu Vs. R, Criminal appeal No. 590 of 2017 [2021] TZCA 41 www.tanzlii.org/tz/judgment. In Jaspini Daniel @ Sizakwe (supra) the Court of Appeal held that: “….it is settled law that failure to cross examine a witness on an important matter implies acceptance of the truth of the witness evidence in that respect…” In this case since the appellant failed to cross examine the victim PW1 on such important aspect of his identification, then an adverse inference is drawn against him in that he accepted what was stated by him. Much as there is no any contrary evidence coming from the appellant that there was any reason for PW1 to testify lies against him, this Court like the trial court is satisfied that, he is the one who caused the injuries sustained by PW1. In light of the above deliberation, I find the 1 st ground of appeal wanting in merit and dismiss it. 16 Next in consideration in the second ground in which the complaint is that, the trial court erred when failed to consider that appellant’s conviction could not be based on weak evidence of voice identification. Having weighed the submission by Ms. Manyara in this ground, I find no merit in appellant’s complaint for two good reasons. One, that is not true that, voice identification was the only evidence relied on by the trial court to ground his conviction as there was also visual identification which this Court has already found when considering the 1st ground of appeal to be watertight and to have sufficiently proved his identity as victim’s attacker. Second, the circumstances of the case and PW1’s evidence on the fact that he stayed with the appellant at his home for a month and took dinner together before the attack on that day satisfies this Court that, PW1 was acquainted with appellant’s voice hence no possibility of confusing it or having it imitated as alleged appellant. My firm findings is fortified in the decision of the Court of Appeal in the case of Stuart Erasto Yakobo Vs. R, Criminal Appeal No. 202 of 2004 (CAT- Unreported) where the Court had this to say on the factors to be considered by the court when relying in voice identification: 17 ’’For voice identification to be relied upon it must be established that the witness is very familiar with the voice in question as being the same voice of a person at the scene of crime. See Badwin Komba @ Ballo Vs. R, (CAT), Criminal Appeal No. 56 of 2003 (Unreported). Also see Kangaja Ally and Juma Ally Vs. R (1980) TLR 270.’’ (Emphasis supplied). I now move to consider the 3rd ground of appeal in which I think also need not consume this Court’s precious time. It is his complaint that, his wife whom PW1 alleged to be present when assaulted was not called to corroborate his testimony hence adverse inference be drawn against the prosecution. It is settled law under section 143 of Evidence Act, [Cap. 06 R.E 2022] that, no legal requirement for the prosecution to call specific number of witnesses for proving a specific fact as what matters is the quality and credibility of witnesses. It is so as the prosecution was at liberty to sort out which evidence it needed to establish its case. After all, it is not all evidence which comes out during investigation is relevant for proving prosecution’s case. See the cases of Ally Mkombozi Vs. R., Criminal Appeal No 7 of 2007, Rashid Issa Vs. R, Criminal Appeal No. 210 of 2010 (both CAT-unreported) 18 and George Jonas Lesilwa (supra). It was held in the case of George Jonas Lesilwa (supra) that: ’’We wish to emphasize that, pursuant to the provisions of section 143 of the Evidence Act, [Cap. 06 R.E 2022], there is no legal requirement for the prosecution to call a specific number of witnesses. What is required is the quality of evidence and the credibility of witnesses. See Yohanis Msigwa Vs. R, [1990] TLR 148 and Hassan Juma Kanenyera Vs. R [1992] TLR 100.’’ (Emphasis supplied). In this case since there is no doubt as to the quality of PW1’s evidence and his credibility and given the fact that, the prosecution have discretionary powers to sort out which evidence would prove their case which discretion they exercised diligently, it would be gainless to force them procure the witness whom they might have considered unbeneficial or not supportive to their case bearing in mind that, appellant’s wife is only competent but not comparable witness in terms of section 130(1) of the Evidence Act, [Cap. 06 R.E 2022]. I thus find the ground is meritless. Lastly is the fourth ground in which the appellant is faulting the trial magistrate for not considering his defence when evaluating and analysing the whole evidence. That instead, relied on prosecution evidence only to 19 base its conviction. After reviewing the impugned judgment, I do not agree with the appellant contention that his defence was not considered at all as what is counted in it is the general denial that he did not commit the offence. The trial court at page 10 of the judgment I note, considered appellant’s defence when claimed to have seen the victim (PW1) for the first time in court and found it to be wanting to the extent of not raising doubt to the prosecution case. I concur with the trial court’s findings in that, it was a total lie for the appellant to claim that was seeing the victim for the first time in court as when PW1 was testifying in court that, they lived together with the appellant at his home for a period of about a month or so and that on 07/11/2023 even before his attack the two and appellant’s wife were enjoying their dinner at his home, the appellant never contradicted him on those incriminating facts during cross examination nor negated them in his defence by explaining as to where was he on the night of 07/11/2023. Since there is no contrary evidence from the appellant to dent prosecution’s case through PW1’s evidence and other prosecution witnesses, I find the trial court was justified to reject appellant’s defence as to so do does not necessarily mean his defence was not considered. This ground, I hold must fail too. 20 All said and done, I conclude by declaring that this appeal is meritless and the same is hereby dismissed in its entirety. It is so ordered. Dated at Dodoma this 13th day of December, 2024. E. E. KAKOLAKI JUGDE 13/12/2024. Court: The Judgment has been delivered at Dodoma today on 13 th day of December, 2024, in the presence of the appellant in person, Ms. Jackline Manyala, State Attorney for the Respondent and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI JUGDE 13/12/2024. 21