jdgment Ramadhan

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CRIMINAL APPEAL NO. 20207 OF 2024 (Appeal from the decision of the District Court of Nyamagana at Mwanza (Hon. J. A.Mpuya PRM) in criminal case No.136 of 2022) RAMADHANI JUMA ...……..…………………………………...………… APPELLANT VERSUS THE REPUBLIC …………………...……………….….………………… RESPONDENT JUDGMENT 1st & 31st October, 2024 CHUMA, J. The Appellant was arraigned in the District Court of Nyamagana for contravening section 241 of Penal Code Cap 16 RE.2019. It was alleged by the prosecution that the appellant on the 15th day of July, 2022 in Kishiri area within Nyamagana District in the City and Region of Mwanza did beat Manyiri Richard on his leg by using a spanner and pushed him on the wall thereby causing him to suffer actual bodily harm. The appellant denied the charge but at the end of the trial, he was found guilty, convicted, and sentenced to imprisonment for five (5) years. The trial court’s decision has utterly aggrieved the appellant. He has instituted this appeal, challenging both conviction and the sentence fronting three grounds of appeal as here under; 1|Page 1. That the trial court erred in law and act to convict the appellant while the evidence against the appellant was contradictory and unreliable. 2. That the trial court erred in law and act to convict the appellant while the prosecution case was not proved beyond reasonable doubt. 3. That the trial court erred in convicting the appellant as the appellant was not fairly tried. In this appeal, the appellant enjoyed the legal service of Mr. Mtewele Learned Counsel while Ms. Matha Mtiti State Attorney appeared for the Republic. Arguing for the appellant Mr. Mtewele on first and second grounds contended that the record reveals several contradictions in evidence testified by prosecution witnesses. The first contradiction is on the party of the body alleged to have been beaten by the appellant. PW4 on page 28 line 18 stated that the small and large born of his right leg was broken. PW1 on page no 9 paragraph three stated that he was beaten on his right leg. The PF3 (exhibit P2) on page 31, in its party two item iv reveals that the victim reported to have been assaulted with a metal rod on his right ankle. But also, part three Roman iii is written about swelling on right ankle joints. Party three Roman vi indicates what was revealed to be a fracture of the tibia fibula 2|Page The charge sheet and the evidence of the witnesses reveal that the appellant was injured in his ankle but the evidence shows that he was hit on his leg. According to the Oxford Dictionary ankle is a joint that connects the foot and leg. The Medical Doctor who filed the PF3 is known as Pascal Pascal. He was listed on PH page 6 as prosecution witness no. five but he was not summoned to testify in court. Instead, PW4 Pascal Shauritanga is the one who was summoned to testify as per page 28. Is the one who tendered the PF3 in court. In his view, the PF3 was improperly admitted into evidence because it contravened section 240(3) of Criminal Procedure Act, Cap. 20 R.E 2019 (CPA) which requires a medical officer who filled the PF3 to testify in court. He then prayed the PF3 to be expunged from the record. The evidence of PW4 is disregarded because was not involved in examining the victim. There is a contradiction in the spanner used to beat the victim. According to page 9 paragraph 3, PW1 was beaten by the spanner. But when cross-examined he explained that the spanner used to beat him is before the police as an exhibit. PW3 on pages 22 and 23 investigator of this case on cross-examination stated that the spanner used to hit the victim was not brought before the court as the same was taken by the 3|Page appellant's child. This shows a clear contradiction between PW1 and PW4. More so the referred spanner was not brought in court. He contended further that another contradiction is on page 9 first paragraph PW1 alleged to have found the appellant with his wife at home. The investigator on page 23 alleged to have recorded the statement of the accused’s wife, but also on the second paragraph alleged to have proved and revealed that the appellant hit the victim after also asking the appellant’s wife. The referred wife appears in the prosecution witness list on page 6 as the second witness. According to section 143 of TEA, no specific numbers are required to prove the case but each case has to be determined according to the circumstances of the case. It is cardinal law that the prosecution is duty-bound to call those witnesses who from their connection to the transaction in question can testify material facts. If such witnesses are within reach but are not called with no reason the court may draw an adverse inference to the prosecution. In this matter, the named witness was important because she was at the scene of the crime, interrogated by police and no reason was ever given for not calling her to testify. I link to Pascal Pascal who was listed as a prosecution witness but never called to testify without reason. Mr. Mtewele prayed this court to 4|Page draw adverse inferences against the prosecution. His submission was supported by the case of Raphael Mhando Vs. R Cr. Appeal No 54/2017 on page 13. He also submitted that in any criminal trial, the prosecution bears a burden of proof beyond reasonable doubt not only that the offence was committed but that it was committed by the accused person. In this case, there is no clear evidence from PW1 to PW4 which shows that any one of them saw the appellant beating the victim. Hence the case was not proved as per section 3(2) and section 110(1) of Tanzania Evidence Act, Cap. 6 R.E 2019 (TEA). The principle on the burden of proof was discussed in the case of Kasim Seleman @ Gamale Vs. R Cr. Appeal No.635/2020 on pages 9 and 10. Regarding ground three of the appeal, according to page no. one of the proceedings, the matter was before Hon. Rioba but on page 17.10.2022 the matter appears to have been pertained by Hon. Mpuya without reason. He finally prayed this court to allow this appeal by setting aside the decision of the trial court and set at liberty the appellant. Ms. Mtiti SA supported the conviction and sentence against the appellant. Regarding the alleged contradiction by the prosecution 5|Page witnesses, it was her submission that this ground lacks merit and has to be dismissed. This is because all the prosecution witnesses established the offence in issue against the appellant beyond the required standard In a Criminal Case. Hence section 3(2) and section 110(1) of TEA were complied with by proving its case without doubt via four prosecution witnesses. PW1 the victim on page 8 of court proceedings explained how he was hit or beaten by the appellant by using a spanner. The charge sheet indicates that on 15.7.2022 the victim went to the appellant's home and was beaten while performing his duty. On page 35 of the proceedings, the appellant admitted being at home and the victim came for water bill claims. The appellant admitted obstructing PW1 from disconnecting water pipes. This proves the allegation against the appellant who obstructed PW1 from performing his duty as a result used a spanner to hit the victim. On page 9 paragraph three PW1 stated that the appellant did beat him via 14 size spanner in the cause of disconnecting the water pipe. The evidence of PW2 corroborates that of PW1 because, in paragraph three of page 16, he also visited the scene of the crime and found PW1 injured on his right leg. The evidence of PW4 a Medical Doctor also proved that PW1 was injured on his leg. On page 28 he attended to the victim who had an injury in his leg and that was with PF3 from the police. He saw a wound on the victim's leg and after examination, the victim was found 6|Page with a fracture on his leg and filed the PF3 admitted as exhibit P2 on page 30 of court proceedings, and were not challenged or objected by the appellants’ side. Therefore, the offence was proved and no contradiction in the prosecution evidence but even if it was there are just minor contradictions that do not go to the root cause of the instant case. Regarding the injured part of the body, the ankle is located at the lower end of the leg and hence is part of the leg. PW4 proved that the victim had pain in his right leg clearing the alleged contradiction. On the weapon used between the spanner and the metal object, PW4 indicated what caused the victim's injury. Spanner is designed by a metal object. Concerning Exhibit P2, the names of PW4 and exhibit P2. The listed Pascal S. Pascal during PH and Pascal Shauritanga testified instead of the listed one Pascal S. Pascal. The testified witness is the same person who has been listed as Pascal S. Pascal appearing in the PF3 and PH on page 6. The word S represent Shauritanga. Section 240(3) of CPA was complied with by calling PW4 in court and was cross-examined by the defence side which they did even not object to or challenge the admission of exhibit P2. I refer this court to the case of Godluck Kyando Vs. R Cr. Appeal [2003] TLR 118 on page 363 every witness is entitled to credence unless there is reason for not 7|Page believing so. This point again is baseless and has to be dismissed as well. See also the case of Dickson Elia Nsamba Vs. R Cr Appeal No. 92 of 2007. The court emphasized the importance of examining whether the contradictions go to the root cause of the matter. Concerning the last ground of appeal, this point has no merit because the trial court rightly reached its final verdict. The appellant was accorded all rights in the course of the trial. She did admit that at first, the matter was before Hon. Rioba and later pertained by Hon. Mpuya. Since Hon. Rioba got transfer to another duty station no doubt the matter was re-assigned to Hon. Mpuya and I am sure the procedure was followed. By then the case was before Hon. Rioba on the earliest stage before hearing. There is nowhere the appellant seems to be prejudiced by such case transfer. The appellant had a chance to object that re- assignment if at all he thought prejudiced. She prayed this appeal be dismissed. In his Rejoinder submission, Mr. Mtewele's advocate stated that Ms. Mtiti SA admitted missing of record on the transfer of the case between the referred Magistrate but believed that the procedure was followed. But the court is not moved by beliefs. She did so even on names on the contradiction of Pascal S. Pascal and Pascal Shauritanga which in law is 8|Page not tenable. As to the appellant’s admission to have beaten the victim the record is silent on it. He concluded by insisting on his prayer to allow this appeal for the reasons advanced in his submission in chief. The parties’ contending submissions bring out the pertinent question of whether the guilt of the appellant was established to support the conviction from which this appeal arises. To start with the first and second grounds of appeal, Mr. Mtewele was of the contention that the prosecution’s evidence carries some contradictions The first contradiction is on the party of the body alleged to have been beaten by the appellant. PW4 on page 28 line 18 of the typed proeedings stated that the small and large born of his right leg was broken. PW1 on page no. 9 paragraph three of the typed proceedings stated that he was beaten on his right leg. The PF3 exhibit P2 on page 31, in its party two item iv reveals that the victim reported to have been assaulted with a metal rod on his right ankle. But also, part three Roman iii is written about swelling on right ankle joints. Party three Roman vi indicates what is revealed to be a fracture of the tibia fibula. The charge sheet and the evidence of the witnesses reveal that the appellant was injured in his ankle but the evidence shows that he was hit 9|Page on his leg. He referred to the Oxford Dictionary which defines the ankle as a joint that connects the foot and leg. The other contradiction is on the spanner used to beat the victim. PW1 when cross-examined stated that the spanner used to beat him is before the police as exhibit. PW3 on pages 22 and 23 investigator of this case on cross-examination stated that the spanner used to hit the victim was not brought before the court as the same was taken by the appellant's child. On the other hand, Ms. Mtiti State Attorney on the injured party argued that the ankle is located at the lower end of the leg and hence is part of the leg. PW4 proved that the victim had pain in his right leg clearing the alleged contradiction. The law is clear, that discrepancies and inconsistencies in the witnesses’ testimony can only be considered adversely if they are fundamental. This means that, the contradictions which are of trifling effect ignorable. In Luziro s/o Sichone Vs. Republic, CAT-Criminal Appeal No. 231 of 2010 (unreported), the Court of Appeal held: “We shall remain alive to the fact that not every discrepancy or inconsistency in witness’s evidence is fatal to the case, minor discrepancies in detail or due 10 | P a g e to lapses of memory on account of passages of time should always be disregarded. It is only fundamental discrepancies going to discredit the witness which counts.” The foregoing holding followed in the footsteps of another magnificent decision of the Court of Appeal of Tanzania in Disckson Elia Nsamba Shapurata & Another Vs. Republic, CAT-Criminal Appeal No. 92 of 2007 (unreported) in which the learned Justices quoted the passage in Sarkar’s Code of Civil Procedure Code. It was held as follows: “Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to material disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party’s case material discrepancies do.” That contradictions do not affect the central story, especially in confessions, are considered to be immaterial. 11 | P a g e Going through the evidence and as rightly submitted by Ms. Mtiti SA, despite slight varies all evidence refers to a right leg. Even the ankle is on the right side of the leg. I distance myself from the submission by Mr. Mtewele that the charge sheet indicates that the victim was injured on the ankle because the record is clear that the victim alleged injury on his leg. More so the whereabouts of the spanner used to beat the victim which Mr. Mtewele termed as another contradiction PW1 saying that the spanner was before the police while PW3 asserted that the spanner was taken by the appellants’ child, again this does not affect the central story that the victim was beaten by the appellant. It is a discrepancy that does not corrode the credibility of a party’s case and I am not prepared to give it any prominence that can be of any decisive nature in the testimony of the prosecution. I choose to ignore it as being only minor and immaterial which does not go to the route cause of the matter. This ground fails. Mr. Mtewele advocate for the appellant also raised another concern as far as burned of proof is concerned. He asserted that in this case, there is no clear evidence from PW2 to PW4 which shows that any one of them saw the appellant beating the victim. Hence the case was not proved as per section 3(2) and section 110(1) of TEA. 12 | P a g e On her side Ms.Mtiti State Attorney counted that the evidence of PW2 corroborates that of PW1 because, in paragraph three of page 16, he also visited the scene of the crime and found PW1 injured on his right leg. The evidence of PW4 a Medical Doctor also proved that PW1 was injured on his leg. On page 28 he attended to the victim who had an injury in his leg and that was with PF3 from the police. He saw a wound on the victim's leg and after examination, the victim was found with a fracture on his leg and filed the PF3 admitted as exhibit P2 on page 30 of court proceedings which were not challenged or objected to by the appellants’ side. It is quite clear from the evidence that apart from the victim himself the rest never witnessed the incident. But circumstantially, and as explained by Ms. Mtiti SA, the evidence of PW1 was corroborated by PW2 who visited the scene of the crime and saw PW1 being injured. And that the appellant was also there and was arrested and taken to Nyakato Police. The circumstance indicates without any doubt that the appellant is the one who committed the offence against PW1. Regarding compliance with section 240(3) of CPA, Mr. Mtewele's advocate was of the view that the PF3 was improperly admitted into evidence because it contravened section 240(3) of CPA which requires a 13 | P a g e medical officer who filled the PF3 to testify in court. In his submission who was listed during the Preliminary hearing is Pascal S. Pascal but who testified as PW4 is Pascal Shauritanga. Ms. Mtiti on her side contested the argument stating that who testified in court was the same person who was listed during PH and that the word S represents Shauritanga. She went on arguing that PW4 testified in court and tendered PE2 which was not objected to. I have gone through the evidence and scrutinized PE2, no doubt was tendered by PW4 a medical Doctor from Bugando as was listed during PH. And that as submitted by Ms. Mtiti SA the appellant never objected to the admission of PE2 as per page 29 of the proceedings. It is my considered view that since PW4 appeared in court to testify and tendered PF3 exhibit 2, the appellant ought to have cross-examined him on this aspect and raised concern on PE2. But that was not done, raising at this juncture this court considers it as an afterthought idea. I am therefore at once with Ms. Mtiti SA that section 240(3) of CPA was complied with by calling PW4 who testified accordingly. This point also fails. Regarding ground no. three, the appellant’s conviction was questionable as the appellant was not fairly tried. It was the submission of Mr. Mtewele that according to page one of proceedings, the matter was 14 | P a g e before Hon. Rioba but on page 17.10.2022 the matter appears to have been pertained by Hon. Mpuya without reason. This ground in essence was admitted by Ms. Mtiti SA though with reservation that by then the case was before Hon. Rioba in the earliest stage before the hearing. There is nowhere the appellant seems to be prejudiced by such case transfer. It is trite law that whenever a magistrate or judge changes in the course of a hearing, the reasons for that change must be recorded and communicated to the accused person. Section 214 (1) of the Criminal Procedure Act provides that, where a case is partly heard and a trial magistrate changes, the successor magistrate may take over and continue with trial or committal proceedings. The successor magistrate may act on the evidence or proceedings recorded by his predecessor and where he considers it necessary may resummon the witnesses and recommence the trial or the committal proceedings. In the case of Priscus Kimaro Vs. R Criminal Appeal No.301 of 2013, the court held that; “...where it is necessary to reassign a partly heard matter to another magistrate, the reason for the failure of the first magistrate to complete the matter must be recorded. If that is not done, it may lead to chaos in the administration of justice. Anyone, for personal 15 | P a g e reasons, could just pick up any file and deal with it to the detriment of justice”. A similar stance was stated in the case of Juma Kuyani & Musa Daudi Vs. Republic Criminal Appeal No. 525 OF 2015 (Unreported) the Court of Appeal insisted that: “in terms of Section 214 (1) of the CPA, reasons must always be given and recorded, in case of change of trial magistrate even for purpose of passing sentence” In the instant case, both parties are at one that the proceedings are silent as to what reasons made Hon. Mpuya take over the case from Hon. Rioba. Having gone through the trial Court’s Proceedings, it is clear that Hon. Mpuya took over the case when it was at the preliminary stage before PH. Hon.Rioba only took the accused plea and surety approval. The matter was then taken over by Hon. Mpuya from the PH stage to an end. Though no reasons were assigned by Hon. Mpuya because the taking over was at a very early stage, as rightly submitted by Ms. Mtiti State Attorney for the republic never prejudiced the appellant. I would have decided otherwise had the matter been in an advanced stage where the law confers the trial magistrate with the discretion to decide whether to recall witnesses and recommence the hearing afresh or not. In arguing so I am 16 | P a g e not ignoring the above authorities but the circumstance of this case differs from that in the cited case. More so each case is always decided according to the circumstance of the case beforehand. In the upshot of all this, I find the appeal barren of fruits. Accordingly, I dismiss it and uphold the decision of the trial court. I so order. Right of appeal explained. DATED at MWANZA this 31st day of October, 2024. W.M. CHUMA JUDGE 17 | P a g e Judgment delivered in court in attendance of Mr. Mtewele advocate for the appellant and Ms. Mtiti State Attorney for the republic this 31st day of October 2024. C. KISONGO DEPUTY REGISTRAR 18 | P a g e