SHILINDE LUCAS JUDGEMENT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MWANZA AT MWANZA CRIMINAL APPEAL NO. 6324 OF 2024 (Appeal from the Judgement of the District Court of Misungwi, Criminal Appeal No. 05 of 2023) SHILINDE LUCAS ……………………………………………. APPELLANT VERSUS REPUBLIC ……………………………………………….. RESPONDENT JUDGEMENT 21st & 28th June 2024 CHUMA, J. The appellant Shilinde Lucas was charged with the offense of Grievous harm contrary to section 225 of the Penal Code Cap. 16 RE. 2022. It was alleged that on 21/12/2022 during the time at Mwambola village within Misungwi District, Mwanza willfully and unlawfully caused grievous harm to one Juma s/o Tena @ Wilfred by cutting him on the head with a panga causing him to suffer grievous harm. The trial court convicted and sentenced the appellant to pay a fine of Tsh 1,500,000/- or to serve 3 years and a 1- month jail term. Being aggrieved by the conviction, the appellant found his way to this court with the following grounds of appeal; - 1 1) The presiding magistrate relied and acted upon a poor visual identification as the eye witness (es) failed to properly describe the attire and physical appearance of the accused. 2) Exhibit P-01 (the PF3) was not positively identified and loudly read out after the admission 3) Complainant's evidence was not corroborated 4) The prosecution side failed to prove the case beyond reasonable doubt. When the appeal was placed before me for hearing the appellant had no representation while the republic was represented by Ms. Brenda Mayala State Attorney. The appellant’s submission was on the basis that he was not identified by the victim and or the police officer which makes the evidence of PF3 doubtful because there was no corroboration evidence on the event and therefore considers the conviction to be improperly founded. On the other hand, Ms. Brenda State Attorney for the Republic disputed all four grounds of appeal raised by the appellant. 2 Ms. Brenda submitted that page 8 of the typed proceedings states clearly how the appellant was well known to the victim and the incident occurred in the morning. She further argued that on page 11 of the proceedings, PW3 identified the victim and had similar evidence of how the appellant committed the offence to the respondent. This court was invited to the case of Masali Lukanya and Luswaga Leonard V Republic Criminal Appeal No. 625 of 2021 on page 13 the court insisted on inter-alia that naming the accused at the earliest opportunity was significant because the ability of a witness to name a suspect at the earliest opportunity is an important assurance of reliability. Ms. Brenda SA further contended that the ability of PW1 and PW3 to mention the accused at the earliest stage indicated how they were familiar with the accused. She also submitted that PW1 and PW3 properly identified the accused and the appellant never challenged their evidence and asked this court to see the case of Heleniko Ndimki and Kuzenza Marco V Republic Criminal Appeal No. 443 of 2018. In addition, Ms. Brenda argued that the second ground of appeal is baseless because the evidence of the medical doctor who is PW6 explained 3 how he attended to the victim and the appellant had nothing tangible to challenge the PF3 and that the exhibit was read out in court as per the proceedings. On the third ground, she went on to submit that the evidence of PW1 was corroborated by the evidence of PW3 who witnessed the incident, and PW6 who examined the victim, and hence this ground lacks merit. Lastly, Ms. Brenda submitted that the prosecution proved their case beyond reasonable doubt as the victim was injured in the head as per the medical report and testified by PW6 but also the evidence was straight on what transpired in court on page 8 of the proceedings. Therefore, the appellant's allegation that the victim failed to identify him as the one who committed the offence is baseless and she considered it to be an afterthought. In his rejoinder, the appellant maintained his stand that he did not injure the victim and the victim never identified him. Having heard the parties’ submissions and my close look at the court records this court is duty-bound to determine whether the prosecution proved their case beyond reasonable doubt. To begin with, it was the 4 appellant's argument that he was not identified by the victim a fact which Ms. Brenda contested by arguing that PW1 and PW3 identified him as it was broad daylight. I will analyze the 1st and 3rd grounds of appeal together. Going by the proceedings of the trial court, PW1 claimed to have known the accused who used to carry him with his motorcycle, and PW1 under oath stated that the accused did cut him in his head. Page 8 of the proceedings PW1 is quoted to have said; - “I know the accused as he was doing motorcycle business and he always carry me” During cross-examination, PW1 stated;- “you cut me” Moreover, the evidence of PW2 who is an eye witness in identifying the accused stated as follows; - “PW1 was attacked and was cut by Panga on his head by DW1” During re-examination, the witness said that; - “DW1 was the one who cut PW1” 5 The issue of visual identification was well stated in the case of Abdul Farijalah Thimossichulah V Republic [2008] TLR, 7 (CA) where the court held that; - “It is well settled that in a case involving evidence of visual, identification, no courts should act on such evidence unless all possibilities of mistaken identity are eliminated and that the court is satisfied that the evidence before it is watertight” This principle is founded in the case of Waziri Amani V Republic [1950] TLR 250. As seen above in witness statements PW3 was also an eye witness who seemed to have known the accused doing motorcycle business whereas on the material date, he was also cut by the accused, an incident which took place in the morning therefore they were able to see the accused properly. PW3 managed to identify even the clothes that the accused was wearing. This court finds that the evidence on record is clear and the fact that the event occurred during the day and that the eyewitnesses were familiar with the accused and pointed him directly as the one who did commit the offence, I am of the view that the accused was properly identified. 6 Furthermore, it is true that the law requires corroboration of evidence in various circumstances though the circumstances of the case are different and not all evidence has to be corroborated. The appellant in this case claimed the evidence that led to his conviction was not corroborated. The record shows that PW1 saw the accused committing the offence against him. PW2 and PW3 were present at the incident and saw the accused as elaborated earlier and they knew him before the material date.PW6 testified on the injuries sustained by the victim which were of grievous harm caused by a sharp object. It is my considered view that the corroborated evidence on record was done accordingly. Regarding the admissibility of exhibit P-01 which is PF3 tendered by PW6 which the appellant argued that it was not read out loudly, I find his argument to be improper because the record shows that he was asked if he had an objection. The appellant had nothing material to say but rather responded that he was not guilty and the trial magistrate went on to admit it and thereafter ordered it to be read. Page 24 of the proceedings reads as follows; - Court; There is no genuine reason raised therefore the exhibit is hereby admitted as P-01 7 PP; I pray the said exhibit to be read Court; The exhibit is hereby read out loudly before the accused As correctly pointed out by Ms. Brenda, exhibit P-01 was read out loudly as required under section 210 of the Criminal Procedure Act. Lastly, It is the duty of the prosecution side to prove their case beyond reasonable doubt, in the case of Mariki George Ngendakumana V Republic, Criminal Appeal No. 353 of 2014 CAT-Bukoba (unreported), the court held that;- “It is the principle of law that in Criminal Cases the duty of the Prosecution is two folds; one to prove that the offence was committed, two that it is the accused who committed it” In the case of Longinus Komba V Republic, 1973 TLR 39 the court held that; - “In criminal cases the burden of proof is on the prosecution to establish their cases beyond reasonable doubt” 8 In the event, I find that the judgment of the trial court analyzed properly the evidence and convicted the accused on the strength of the prosecution evidence thus finding this appeal devoid of merit. I therefore uphold the judgement and orders of Misungwi District court in Criminal Appeal No 05 of 2023. The appeal is dismissed. Dated at MWANZA this 28th Day of June 2024. W.M. CHUMA JUDGE Judgment delivered in virtually before the appellant in person and Ms. Brenda Mayala State Attorney for the Republic this 28th day of June 2024. W.M. CHUMA JUDGE 9