EMMANUEL MATOKE DRAFT JUDGMENT

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA CRIMINAL APPEAL NO. 1670 OF 2024 (Arising from original Criminal Case No. 78 of 2023 of Manyoni District Court at Manyoni) BETWEEN EMMANUEL MATOKE...........................................APPELLANT VERSUS THE REPUBLIC……………………………………..RESPONDENT JUDGMENT Date of last order. 21/08/2024 Date of the Judgment 28/08/2024 LONGOPA, J.: This appeal challenges the decision of the District Court of Manyoni which convicted and sentenced the appellant to serve five years imprisonment for committing assaults causing actual body harm contrary to section 241 of the Penal Code, Cap.16 R.E. 2022. It was alleged that on 2nd May 2023 at Mitoo ya Chini vacinity within Manyoni District in Singida Region, appellant did assault one Juma 1|Page Hassan by beating him using a stick in his head and caused severe pain to the victim. Upon conclusion of the hearing of the case, the appellant was convicted and sentenced thereof. Being aggrieved by conviction and sentence, hence on 19th June 2024, the appellant decided to challenge the decision by way of appeal on four grounds, namely: 1. That, the evidence adduced by the PW1 (the victim) was not corroborated by those Samaritans who were mentioned by the victim named Leah Manyehe and Vaileth Chibalayi. 2. That, the prosecution side not submit any statement from the peace of justice that I confessed to commit the said offence. 3. That, the learned magistrate erred in law and in fact that the case was not proved beyond reasonable doubt by the prosecution side. 4. That, the trial magistrate erred in law and in fact by ignored my defence and relying upon the prosecution side only. To argue the appeal parties appeared before me on 21st August 2024 where by appellant appeared in person to fend for himself while the respondent enjoyed the services of Ms. Victoria Njau, learned State Attorney. 2|Page The appellant adopted all grounds of the appeal as contained in the Petition of Appeal to form part of his submission. He also argued that the victim stated that there were other persons who witnessed the commission of the offense but those persons were not called as witnesses. It was stated that the appellant had threatened the witness while he was under arrest and custody of the prison authorities. He leaves the matter to the court for determination. On the other hand, Ms. Victoria Njau, learned State Attorney submitted that respondent objects as the appeal lacks merit and therefore, supports the conviction and sentence of the District Court on the following reasons: On the first ground regarding failure to call the good Samaritans who allegedly were present at the scene of crime, it was submitted that failure to call any of those witnesses did not affect the evidence of the prosecution against the appellant. PW1 who was the victim proved before trial Court on the commission of the offence where the appellant did injure/harm the victim through beating as revealed on page 6 of the trial Court’s proceedings. Also, PW1 evidence was credible and reliable. That was the reason the Court did consider the same. It is the position of the law that witnesses are considered to be credible and reliable and their evidence shall have weight except where there are reasons for disbelieving the 3|Page testimony of a witness as stated in the case of Goodluck Kyando vs Republic [2006] TLR 367. It was further submitted that in section 143 of the Evidence Act Cap 6 R.E 2022 that, there is no specific number of witnesses required to establish the case. For that the trial Court believed that evidence tendered was sufficient to convict the appellant. On the second ground regarding the extrajudicial statement, it was submitted that such ground was unmerited. There was no mention of any extrajudicial statement in the proceedings before the trial Court. The same was not stated nor tendered as it did not exist. There was nothing for the appellant to complain. On the fourth ground regarding failure to consider defence witnesses, it was submitted that trial Court considered the defence evidence. Page 3 of the Judgment reflects that the defence evidence was taken and considered. Further, this Court is empowered to re- evaluate and analyse the evidence before it to come up to an independent decision. In the case of Ally Patrick Sanga Vs Republic, Criminal Appeal No. 341 of 2017 where Court of Appeal of Tanzania at page 17 reflects this principle of the first appellate Court to re-evaluate and analyse evidence afresh to reach to an independent decision. On the third ground relating to proof of the case beyond reasonable doubt, they submit that it was the prosecution’s duty to 4|Page prove the case beyond reasonable doubt as correctly argued. The Prosecution managed to prove the case to the required standard. The charge was proper under section 241 of Penal Code, R.E 2022. According to the respondent, ingredients were that (1) there must be assault (2) extent of injury amounting to bodily harm. The prosecution proved the first element by bringing PW1 who was the victim as reflected on page 6 of the proceedings that appellant was the one who assaulted the victim. PW1 stated to had known well the appellant before the date of incident and the assault happened twice on the same day. PW1’s evidence was corroborated by PW3 who was the Chairperson of the area stated that the PW1’s statement was clear that appellant was the assailant. On extent of injury, PW2 medical doctor testified to have treated and examined the victim’s injury at page 10 of the proceedings. The cause of injury was stated to be caused by blunt object and areas that were affected by the assault. PW2 tendered Exhibit P1 – the PF3 was admitted, read out in Court and formed part of the evidence. They lucid that the prosecution proved the offence by rallying the witnesses who proved the commission of the offence without leaving any reasonable doubt thus meeting the standard of proof beyond reasonable doubt. 5|Page It was the Respondent’s prayer that this appeal be dismissed for lack of merits and that the appellants’ conviction and sentence be upheld. Having heard the submissions by both parties, it is now high time to focus on the demanding question for determination by this court. I think, the borne of contention requiring resolution and determination of this court is whether, this appeal is meritorious.I have dispassionately considered the grounds of appeal, the proceedings and judgment of the trial court to determine validity of the appeal or otherwise. The fourth ground of appeal was on the fact that the trial magistrate ignored the appellant defence and relying upon the prosecution side only. The law requires that in writing a judgment, a court has to consider not only the evidence in support of one party in a case and completely ignore the evidence for the other party, however worthless it may be. Failure to consider defence evidence constitutes a fatal error. In the case of Maganga s/o Udugali vs Republic (Criminal Appeal No. 144 of 2017) [2021] TZCA 639 (3 November 2021) (TANZLII), at page 24, the Court observed that: After all, all what an accused is required to do in his defence is to raise doubts on the evidence of the prosecution side. We think that the appellant managed to raise such doubts which ought to have gone to his benefit. 6|Page Upon perusal of the court file and the judgment of the District Court of Manyoni at page 4 reveals that trial magistrate considered the defence evidence which according to trial magistrate did not manage to create reasonable doubts on the prosecution's testimonies. It is settled view of this court that defence evidence was considered in determination of the matter before the court. Therefore, it can be concluded that the fourth ground of appeal are devoid of merit. I shall proceed to dismiss this ground for being unmerited. The first, second and third grounds of appeal relate to the proof of the case beyond reasonable doubt. The appellant’s complaint that the prosecution did not prove the case beyond reasonable doubt. In addressing this aspect, there are three important aspects. First is the burden and standard of proof, second is the number of witnesses, and third ingredients of the offence. The standard and burden of proof lies on the one who alleges to establish the guilt of the appellant beyond reasonable doubt. It is settled law that prosecution has an obligation to prove the case beyond reasonable doubst. In the case of Syridion Michael vs Republic (Criminal Appeal No. 262 of 2022) [2024] TZCA 365 (15 May 2024) (TANZLII), at page 23, the Court of Appeal stated that: The principles that reasonable doubts in the prosecution case should be resolved to the benefit of an accused person and also 7|Page that it is the duty of the prosecution to prove the case against the accused beyond reasonable doubt. The importance for the prosecution to prove the case against an accused person beyond reasonable doubts cannot be overemphasised. As to what is a proof beyond reasonable doubts, the Court in Magendo Paul & Another v. Republic [1993] T.L.R. 219, stated that: "For a case to be taken to have been proved beyond reasonable doubts, its evidence must be strong against the accused person as to leave remote possibility in his favour which can easily be dismissible." The prosecution in the lower court had the total of three witnesses namely PW1, the victim, PW2 who is a Medical doctor that examined the victim and tendered Exhibits R1 which is PF.3 and PW3 (the Hamlet Chairman). The three witnesses testified to the effect that it is the appellant who assaulted the victim. According to the available evidence, PW 1 stated categorically that it is the appellant who beat him in his legs and head using a stick on 02/05/2023. PW 1 immediately informed the Hamlet Chairman that it is the appellant who assaulted him causing injuries to the victim. The evidence of PW 1 was corroborated fully by the evidence of PW 2 and PW 3. It was PW 2 that he examined the victim who has injuries including a fracture on his leg and injuries on his heard. PW 2 tendered a PF 3 which was admitted as Exhibit R.1. This Exhibit R.1 was not objected by the appellant. It was PW 2 that the nature of injury in 8|Page the victim’s leg was so serious harm to an extent of possibility of leading to disability. PW 3 informed the court that when he got the information of the victim being seriously assaulted, immediately the victim named the appellant as the assailant. The Chairman and villagers went to arrest the accused/ appellant in the same night whereby the appellant at first refused to open the door until when villagers commenced to take action by attacking the windows that is when the appellant agreed to be arrested. It is lucid that the evidence of the prosecution was sufficient to establish the offence. I am satisfied that the prosecution evidence in particular that of PW 1 was consistent with its corroborating testimonies of PW 2 and PW 3. That evidence of PW 1 is credible and reliable. In the case of Issa Juma Idrisa & Another vs Republic (Criminal Appeal No. 218 of 2017) [2020] TZCA 206 (5 May 2020) (TANZLII), at pages 20-21, the Court of Appeal observed that: It is trite law that in assessing a witness' credibility, his or her evidence must be looked at in its entirety, to look for inconsistencies, contradictions and/or implausibiiity; or if it is entirely consistent with the rest of the evidence on record: See, for instance, Shabani Daudi vs. R., Criminal Appeal No. 28 of 2000 (unreported) and Soda 9|Page Busiga @ Sumu ya Mamba vs. Republic, Criminal Appeal No. 58 of 2012 (unreported). It appears that both courts below were satisfied that the victim was a credible witness. But, notwithstanding the fact that the trial court's findings on credibility is binding on the appellate court on the reason that a trial court had the opportunity of observing and assessing her credibility, the Court may interfere with such finding and make its own assessment bearing in mind the circumstances apparent on the record of appeal as we stated in the case of Omari Ahmed vs. Republic [1983] TLR 52 that:- “The trial court's finding as to the credibility of witnesses is usually binding on an appeal court unless there are circumstances on an appeal court on the record which call for reassessment o f their credibility.” The evidence of the prosecution was strong and consistent that defence evidence did not raise any meaning reasonable doubts. Thus, the evidence was sufficient to warrant conviction and sentence of the appellant. Further, I am in concurrence with the respondent’s submission that according to Section 143 of the Evidence, Cap 6 R.E. 2022 there is no particular number of witnesses are required for the prosecution to prove their case against the accused person. The weight of the three 10 | P a g e prosecution witnesses was sufficient to prove the offence of assault causing bodily harm. The only thing prosecution consider is the proof of the case beyond reasonable doubt which sometimes only victim or one person can do so. Therefore, in this particular case prosecution only rallied three witnesses to prove their case against the appellant. It is important to note that the ingredients of the offence were proved by the three witnesses who prosecution called. Section 241 of the Penal Code, Cap 16 R.E. 2022 provides that: 241 Any person who commits an assault occasioning actual bodily harm is guilty of an offence and liable to imprisonment for five years. From this provision of law, the following are the ingredients which prosecution was required to prove against the accused (the appellant). First, that the appellant applied force, hit or touch another (the victim); second, that the appellant did so intentionally or recklessly; third, without consent or lawful excuse; and fourth, that action caused bodily harm to the other person (the victim). The evidence of the PW1 was to the effect that on 2/5/2023 the appellant asked him to by cigarette for him, he refused from thereby appellant started beating him. PW1 avoided the appellant to no avail he proceeded to beat him on legs and on head by using stick. According to 11 | P a g e PW2 he examines PW1 and discovered that he had some injuries in his left leg and the inner bone was seen, had fracture on the leg and his head was also injured and also right leg was fractured. In the case of Chacha Range and Another vs Matinde Nyabite (PC Criminal Appeal 4 of 2021) [2021] TZHC 5806 (24 August 2021)(TANZLII), at page 4 it was stated inter alia that:- Therefore, apart from proving the assault, the prosecution is required to prove that the extent of the injury resulting from the assault amounted to actual bodily harm. This position was also stated in Khamis Juma @ Elia v R, Criminal Appeal No. 238 of 2016 HCT Tabora (unreported), when this Court held as follows: - "For the prosecution to prove an offence under these provisions, therefore, it must establish that the extent of the injury caused by the alleged assault amounts to actual bodily harm. According to the evidence of PW2 Ainea Mlewa Chitalasita a medical Doctor at Manyoni District Hospital as supported by EXHIBIT R1, the PF3, Juma Hassan following the assault which was inflicted on him by using a blunt object sustained severe body pains and cut wounds on head and both legs were fractured and blood swollen tenderness. Therefore, the appellant applied force by beating the victim and he did it intentionally only because the victim refused to buy him cigarette, the 12 | P a g e act which led to legs fracture and head pain and wounds. This actual body harm is what section 241 of the Penal Code punishes. In the case of Director of Public Prosecutions vs Israel s/o Kunenge and Dito Jocktan (Criminal Appeal 68 of 2020) [2020] TZHC 4168 (11 December 2020), at page 8 the High Court stated that: The assault which was inflicted on her by using a heavy blunt object she sustained multiple body pains on the left hip and traumatic swelling in the back. It is the holding of this court that this is what section 241 of the Penal Code punishes. Therefore, the available evidence on record reveals that the prosecution managed to establish beyond reasonable doubt that appellant was the one committed assault causing actual bodily harm against the victim. The evidence of PW 1, PW 2, and PW 3, left no reasonable doubts whatsoever. The defence evidence did not manage to rise anything significant to weaken the watertight evidence of the prosecution. The evidence of prosecution’s case was strong establishing all necessary ingredients of the offence of assault causing actually bodily harm. The conviction and sentence by the trial District Court of Manyoni was well informed by the strength of prosecution evidence on record. Three witnesses of the prosecution testified sufficiently to prove 13 | P a g e commission of the offence. I shall therefore at this stage overrule the first, second and third grounds of appeal for being devoid of any merits. Thus, all the grounds of appeal are lacking any cogent merits to warrant this court to allow the appeal. I shall proceed to dismiss all the grounds of the appeal in its entirety. In the final analysis, the appeal against conviction and sentence is hereby dismissed for want of merits. The decision of the trial Court is upheld, both the conviction and sentence imposed against the appellant for the offence of assaults causing actual bodily harm contrary to section 241 of the Penal Code, Cap 16 R.E. 2022 as entered into by the District Court of Manyoni at Manyoni. It is so ordered. DATED and DELIVERED at Dodoma this 28thday of August 2024. E.E. LONGOPA JUDGE 28/08/2024. 14 | P a g e 15 | P a g e