ENOCK BARNABAS V THE REPUBLIC new new new

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA CRIMINAL APPEAL NO. 136 OF 2023 (Arising from Criminal Case No. 82/2012 from Bariadi District Court) BETWEEN ENOCK S/O BARNABAS ……………………….…………. APPELLANT VERSUS THE REPUBLIC…………………………………….……. RESPONDENT JUDGMENT 7th March & 5th April 2024 MASSAM, J.: In the District Court of Bariadi at Bariadi (hereinafter trial court), the appellant, Enock S/O Barnabas was charged and tried of three criminal offences. The first and second counts were threatening to kill contrary to Section 89 (2) (a) of the Penal Code, Cap 6 R.E 2022. The third count was naming person a witch, contrary to Section 4 (b) and 5 (1) of the Witch Crafts Act, Cap 18 R.E 2022. It was the prosecution allegations that, on 8th day of September, 2022 at Nkololo Secondary School area, within Bariadi District in Simiyu Region by words the appellant did threaten to kill Mathayo S/O Karisian 1 and Rose D/O Joseph. The prosecution alleges further that on the same day the appellant did name one Rose D/O Joseph as a witch and that she is bewitching students of Nkololo Secondary School. The substance of the prosecution evidence that, warranted the trial court to find the appellant guilty as charged was as follows, PW1 and PW5 testified that, on 8/9/2022 while at the school parade, the appellant told the students that they were fainting at school because teacher Rose (PW5) and Teacher Mathayo (PW1) were poisoning them by putting drugs called opium in their food. PW 1 also testified that, On the same day at 1:00 pm while they were at school compound with other teachers the appellant told them that he will kill one by one using a gun and that PW1 came from north to sell drugs at the school. It was the further evidence of prosecution from PW3 (a student) that while they were at the school parade the appellant told them that “Wanafunzi kuna walimu hapa wanawawekea madawa ya kulevya kwenye chakula aina ya opium” he also said, “Madam Rose anawaroga wanafunzi wafeli mitihani”. Thereafter the matter was reported to PW3 (Second master) who reported the matter at the police station after discussing first at the emergency meeting. Then, the appellant was arrested and arraigned before the court. 2 During defence, the appellant claimed he is innocence for the offences levelled against him. Being satisfied with the evidence adduced by the prosecution, the trial court found the appellant guilty and convicted him with all the offences and sentenced him to serve one year imprisonment to each count or to pay fine of Tshs 100,000/=. Aggrieved by the trial court's conviction and sentences, the appellant has knocked the doors of this court armed with four grounds of appeal as follows: 1. That, the trial court erred in law and facts convicting and sentencing the appellant while the prosecution side had not proved the case beyond reasonable doubt. The copies of the referred judgment and proceedings is hereby attached. 2. That, the trial court erred in law and facts for finding him guilty, convicting, and sentencing the appellant as the magistrate failed to analyse and weigh up accordingly the contradicting evidence of the prosecution side. 3. That, the trial court erred in law and facts in convicting the appellant by relying on the words of “nitawapiga shaba mmoja mmoja” alleged to be uttered by the appellant in threatening to kill while the referred words did not establish offence under the law. 3 4. That, the trial Magistrate erred in law and facts in convicting the appellant by relying on the defective charge sheet which does not reflect facts and evidence adduced in court. On 7th day of March, 2024 when this appeal was called on for hearing before me, the appellant appeared in person, unrepresented whilst Mr. Saguya State Attorney represented the respondent. The parties argued the appeal orally. Arguing for the appeal, the appellant stated that the prosecution alleged that he was arrested by the District Commissioner, but he was never called before the court to state what was his offences. He added that every witness testified different stories and there were no specific words alleged he altered to the complainants. Again, he said that he was arrested twice but he was not aware of the offences he stands charged with. Lastly, he prays for justice to be done. Mr. Saguye on behalf of the respondent told this court that he is not in support of this appeal but he is in support of both the conviction and the sentence given by the trial court .Respondent in his reply submitted that starting with the 1st and 2nd grounds of appeal, it is his view that all charges were proved beyond reasonable doubt as the witnesses at the trial court testified how the appellant told the students 4 that the PW5 was bewitching them and PW1 testified how the appellant threated to kill him by using a gun and reported the mater at the police station. The evidence of PW1 and PW5 was supported with PW3 (a student) who was at the school parade and PW4 who the victims reported the matter to him. So nowhere the witness testified the contradictory evidence. Thus, he was of the view that all the charges were proved beyond reasonable doubt. So, the said two grounds found with no merit and prayed the same to be dismissed. Responding to the 3rd ground of appeal, Mr. Saguye stated that the words “nitakupi gashaba” was straight forward which means that the appellant is threatening to kill Pw1 and PW5, so he prayed for this ground to be found with no merit. As for the last ground, Mr. Saguye replied that the charge was not defective as it was written as per Section 135 of the Criminal Procedure Act, Cap 20 R.E 2022 the said section of law reflects the facts and evidence given by the witnesses So, this grounds too has no merit according to him. He added that even the punishment given to the appellant was contrary to the law as in this kind of offences the punishment is two years in jail while the court gave him the punishment of one year imprisonment the act which is contrary to the law. He 5 prayed for the punishment to be set aside and another punishment to be given according to the law. In brief rejoinder, the appellant reiterated what has already submitted in his submission in chief. Having heard the submissions in support and against the appeal. Herein under is the court's determination of the appellant's grounds of appeal to see whether the same has merit or not. In determining the same this court will start with the 1st ground of appeal to see if the charges were proved beyond reasonable doubt as required by the law in criminal cases. In criminal cases, it is the prosecution that has a burden of proving its case beyond reasonable doubt. As it was held in the case of Pascal Yoya @ Maganga vs The Republic, Criminal Appeal No. 248 of 2017 (CAT at Arusha, Unreported) that: “It is a cardinal principle of criminal law in our jurisdiction that, in cases such as the one at hand, it is the prosecution that has a burden of proving its case beyond reasonable doubt.” 6 This also supported with section 110 (1) and (2) of the evidence act cap 6 R.E 2019 which states that:- ‘’ whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists’’ (2) when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person’ Again, in the case of Joseph Makune v Republic (1986) TLR 44 it was held that ‘ ’’’The cardinal principle of our criminal law is that the burden of proof is on the prosecution to prove its case. The duty is cast on the accused to prove his innocence ‘’ According to that this means that the burden never shifts to the accused. An accused only needs to raise some reasonable doubt on the prosecution case, and he need not prove his innocence. See the case of Mohamed Haruna @ Mtupeni & Another v. Republic, Criminal Appeal No. 25 of 2007 (unreported). Starting with the two offences of Threatening to kill contrary to Section 89 (2) of the Penal Code, the law provides that: 7 “Any person who– (a) with intent to intimidate or annoy any person, threatens to injure, assault, shoot at or kill any person or to burn, destroy or damage any property; is liable to imprisonment for one year and if the offence is committed at night the offender is liable to imprisonment for two years”. (Emphasis is mine). Guided by the cited provision, in order for the prosecution to prove this kind of offence they need to prove two things. First, that it was the appellant who uttered words that threatening the life of another person, second, that there was a person who was threatened to be killed by words. In our present case the prosecution alleged that on 8/9/2022 the appellant treated to kill PW5 by words ‘’nitawapiga shaba mmoja mmoja” I have revisited the records of the trial court and noted that when the appellant utters such words PW5 was not alone, and the appellant did not mention the names of the person. The same is proved by the evidence of PW1, PW2 and PW5 herself that the appellant stated that “we will kill one by one by schooling a person” and others said the appellants told them that “he will shoot them by using a gun”. 8 In both statements the appellant did not mention the name of PW1 and PW5 and they both admitted that there was more than one teacher when those words were uttered apart from the PW1 and PW5. That alone proved that maybe if those words were uttered, appellant did not mean for the PW1 and PW5 but for those teachers who were present at that time. So there is no evidence which proof that the appellant specifically meant that words to Pw1 and Pw5. For that reasons the offences of threatening to kill contrary to Section 89 (2) of the Penal Code, was not proved by the prosecution. As for the third offence of naming a person a witch, which was charged under Section 4(b) and 5 (1) of the Witchcraft Act, provides that: “(4) Any person, otherwise than in the course of communicating information to or obtaining advice from a court, a member of the police force, a local government authority or any public officer– (b) with any of the intents mentioned in subsection (1) of section5, names or indicates any person as being a witch or wizard, commits an offence under this Act. 9 (5 (1)) Any person who commits an offence under this Act with intent to cause death, disease, injury, or misfortune to any community, class of persons, person, or animal, or to cause injury to any property shall be liable to imprisonment not less than seven years. Guided by the cited provision of the Act if a person named someone as a witch commit an offence. In our present case when prosecution was testifying the PW3 (Amosi Lukwila, a student) stated that while they were at the school parade the appellant said that “Madam Rose anawaroga wanafunzi wafeli mtihani ”. His evidence was supported with that of PW4 who said that he also heard the appellant said “wanafunzi mnarogwa nilishawaambia hamtaki kusikia”. The complainant (Pw5) was not there but she heard those statements from the students who were at the parade which proved that they heard the appellant uttering those words. So, basing on the said evidence this court is satisfied that the appellant named PW5 as a witch before school parade and cause misfortune to PW5. For that reason, it is the firm view of this court that the prosecution proved the 3rd count beyond all reasonable doubt and failed to prove 1st and 2nd counts.so, the 1st 10 ground of appeal is partly allowed. As the 1st ground, dispose of the appeal there is no need to determine the rest of the grounds. All said, I entirely agree with the appellant that the prosecution failed to prove beyond reasonable doubt the 1st and 2nd counts of threatening to kill contrary to Section 89 (2) of the Penal Code. Thus, the appeal is partly allowed, as the 1st and 2nd count was not proved beyond the reasonable doubt so the conviction and sentence are hereby nullified and set aside as for the 3rd count was proved beyond reasonable doubt so its conviction and sentence are hereby upheld/supported. It is so ordered. DATED at SHINYANGA this 5th day of April, 2024. R.B. Massam JUDGE 5/4/2024 11 12