MASHAKA LUBUVA FINAL

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA PC. CRIMINAL APPEAL NO. 9 OF 2023 (Originating from Criminal Appeal No. 24 of 2022 of Kondoa District Court, Original Criminal Case No. 191 of 2022 of Kondoa Urban Primary Court.) 1. MASHAKA LUBUVA 2. MOHAMED ISSA VUKA 3. JUMANNE ALLY JUMA …..……………………..…. APPELLANTS 4. HAMIDU OMARY SARIKO 5. ABILAHI ATHUMANI YONDU VERSUS AYUBU ABDALLAH.…………………………………….………………..RESPONDENT JUDGMENT 12.11.2024 HASSAN, J.: The respondent prosecuted the appellants for the offence of Assault Occasioning Actual Bodily Harm contrary to section 241 of the Penal Code, [Cap. 16 R. E 2019] in the Kondoa Urban Primary Court. It is in the particulars of the offence that, on the 19th day of April, 2022 at 2000 hours there at Songambele Hamlet, Changaa Village within the district of Kondoa, Dodoma Region the appellants herein jointly and altogether wilfully and unlawfully did assault the respondent by pouring 1 on his face acidic liquid (battery liquid) causing damage to his right eye (one eyed). When the charge was read over in the trial court, the appellants denied to have committed the offence. Thereafter, the complainant called total of five (5) witnesses to testify in his favour. Whereas, the appellants entered their defence by calling four (4) witnesses. At the conclusion of the trial, the appellants herein were acquitted. Aggrieved, the respondent successfully appealed to the District Court of Kondoa where the appellants herein were convicted for the same. Upon determination of sentence, the appellants were released under the order of conditional discharge pursuant to section 38(1)(4) of the Penal Code. Additionally, apart from conditional discharge order, each appellant was ordered to pay the respondent one hundred thousand shillings within 30 days from that date of judgment. Pained by the decision of the appellate District Court, the appellants preferred the instant appeal geared up with the following grounds: 1. That, the appellate court erred in law and fact by convicting the appellants regarding the fact the respondent failure to prove the case beyond reasonable doubt. 2 2. The appellate court erred in law and a fact by failure to consider the evidence adduced by the appellants. 3. That, the appellate court erred in law and fact by considering the weak and contradictory evidence adduced by the respondents. When the appeal came for hearing, the appellants were represented by Ms. Joanitha Paul, learned advocate while the respondent was represented by Ms. Sophia Gabriel, also learned advocate. The appellants’ counsel submitted in support of the appeal by merging the 1st and 3rd grounds of appeal and arguing that, there were contradictions which led the respondent and his witnesses to fail to prove the case beyond reasonable doubt. That, the respondent and his witnesses testified that the respondent had been poured with water alleged to be acid, but neither of them has identified a person who poured the alleged acidic water to the respondent. She submitted further that, when he was cross examined by the 5th accused, the respondent has stated that, he does not know a person who assaulted him, but he then explained that it was a group of seven people. 3 Learned counsel went on submitting that the second complainant witness “SM2” has testified that himself and the respondent were walking together hand in hand, and the appellants were seven people and one of them poured the said water to the respondent. But he did not mention specifically, who was that person. However, the fourth complainant witness “SM4”, in his testimony stated that he went to “kijiweni” but he did not mention if he met the appellants. Whereas, the respondent and SM2 were also testified to have seen the appellants at “kijiweni” where they were together with SM4. She submitted further that, there was no any exhibit which was tendered and admitted in evidence which proves occurrence of this offence. And even a bottle which was alleged to contain an acid was not tendered in court. Although, SM2 and SM3 both alleged in their evidence to have returned to the crime scene and collect a bottle which had an acid. Arguing further, she submitted that even PF3 was not tendered to the court in spite of the fact that, a doctor who treated the respondent has testified as SM5. She also stressed that, it is legal requirement if it comes to criminal law thus, the complainant in the criminal case has to prove his case beyond reasonable doubt as per section 110 of the Evidence Act, 4 Cap. 6 and further it was addressed in the case of Jonas Mkizi v. Republic (1992) TLR. 213. Where the court held that the onus of proving the charge lies on the prosecution. Hence, it was the onus of the respondent herein to prove his case beyond reasonable doubt. The appellants’ learned counsel finalized her submissions by arguing that the District Court has convicted the appellants without the charge being proved beyond reasonable doubt. Thus, she prayed the court to allow the appeal and quash the conviction arrived by the appellate District Court. On her part, learned counsel for the respondent kickstarted her submissions against the appeal by tackling the 1st ground of appeal thus; it is true that the law under regulation 1 (1) of the Magistrate Courts (Rule of Evidence in Primary court) Regulations requires that, a person who is supposed to prove the charge is a claimant or complainant. Further to that, regulation 5 (1) of the same law provides that, for criminal case the burden of prove is beyond reasonable doubt. She therefore argued that, an element of offence for this section is occasioning actual bodily harm. Thus, the respondent is required to prove existence of that element. That, to that effect, witnesses SM1, SM2, SM3 and SM5 have all proved beyond 5 reasonable doubt that respondent was attacked by pouring acidic water into his body which caused harm to his right eye. She further submitted that; a complainant (SM1) has identified the appellants that they are the people who committed the offence. She added that thought, it was at 2000 hours, which is night time, he managed to identified them because they were together in the afternoon and they were close. The complainant further pressed that the appellants were close to the extent that he managed to identify them. Also, he testified that, after the act he reported at police station, and he went to the hospital for further treatment. He stressed that his evidence was corroborated by the evidence of SM2. In the end, it was the learned counsel’s submission that the respondent has proved his case beyond reasonable doubt. Moving on for the 3rd ground of appeal, the learned counsel submitted that there was no contradictory evidence adduced by the respondent. She therefore maintained that, SM1’s evidence was well corroborated by his witnesses. For instance, SM1 and SM2 have properly identified the respondent, and therefore, their evidence was strong and that is why the appellants have failed to identify the alleged contradictions. In conclusion, learned counsel for respondent prayed the 6 court to dismissed the appeal and subsequently, the sentence and compensation imposed by the appellant District Court to be re-assessed in order to reflect spirit of the law. In rejoinder, the appellants’ learned counsel submitted that section 241 of the Penal Code requires among others, identification of a person who committed the offence. Thus, from the evidence adduced by SM1 to SM5, there is no one who had identified a person who committed the assault to the respondent. For instance, the respondent himself stated during cross examination that, he did not know a person who had assaulted him. Therefore, learned counsel reiterated her submissions that that there is no evidence of identification of the appellants adduced by the respondent and his witnesses. Lastly, once again she prayed the appeal to be allowed, conviction and sentence to be set aside. At best, that was what learned counsels from each side have submitted for and against the appeal. Up next is for the court determination. Notably so, my deliberation of the appeal will base on whether the appeal has merit and, or whether a conviction entered by the appellants District Court was proper. Starting with the burden of proof in criminal cases in cases originating from primary courts which is guided by Rule 5 of the 7 Magistrates’ Courts (Rules of Evidence in Primary Court) Regulations, thus; “5. Criminal cases- (1) In criminal cases, the court must be satisfied beyond reasonable doubt that the accused committed the offence. (2) If, at the end of the case, the court is not satisfied that the facts-in-issue have been proved the court must acquit the accused.” That being a benchmark for determination of this matter, now it gives me liberty to look on facts leading to the grievances of the appellant. It was alleged that on the 19th day of April, 2022 the respondent (SM1) while on his way from “kijiweni” to his home at around 2000 hours in the company of his guest, one Twalibu Halifa Kijaji (SM2) he was assaulted by the appellants. It happened that, while on their way back home there came one motorcycle with 2 people one of them being Ashiru who asked for direction to George’s home. And that, the 5 appellants were also around the place. When the respondent wanted to respond to Ashiru, he felt something being poured on his face and in the mouth. From that point, his eyes started irritating severely. Upon assistance of his guest 8 (SM2), he was escorted home for First Aid, and later to hospital for further treatment. When cross examined by the appellant, the respondent said he did not exactly know who assaulted him but the liquid was coming from the appellants’ direction. He went on saying that there was sufficient light that is why he identified the appellants. The eye witness, SM2, on his part, primarily his evidence corroborated the testimony of the respondent in as far as, how the incident occurred. Though, he did not testify on how he managed to identify the appellants at the crime scene. Provided it was at night time when the whole sage arose. He also testified to have gone back to the crime scene and collected an acid can with the same on it. Then it came for “SM5”, a doctor who attended the respondent while at hospital for treatment. Apart from his mere testimony that he treated the respondent, and filled PF3. However, he neither tendered the said PF3 as exhibit nor confirmed that the liquid was an acid. Again, neither of them mentioned the hospital to which the treatment was manifested. Now, having narrated the facts in nutshell, I will look on the complaints as raised by the appellants. As per the grumble raised by appellant’s counsel that the offence was not proved beyond reasonable 9 doubt. Here, there is an issue about identification of the appellants at the crime scene which was raised by the appellants’ counsel in the rejoinder. I will take comfort to begin with this issue first. From the evidence, it is apparent that the alleged crime occurred during night hours, notably at 2000 hours as testified by SM1 and SM2. Therefore, in the circumstance the crucial question for determination of the court at this point is whether, factors akin to the proper identification of the appellants at the crime scene were satisfied. In our jurisdiction the land mark case which has categorically demonstrated the factors allied for proper visual identification is that of Waziri Amani v. R [1980] TLR. 250. It includes; time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred, for instance, whether it was day or night time; whether there is good or poor light at the scene. Upon assessing evidence of visual identification, it was further emphasised in this milestone case of Waziri Amani vs Republic (supra) thus: "... in a case involving evidence of visual identification, no court should act on such evidence unless all possibilities of mistaken identity are 10 eliminated and that the Court is satisfied that the evidence before it is absolutely watertight ... " See also a few similar decisions in Raymond Francis vs Republic, [1994] TLR 100, Juma Senge vs R, Criminal Appeal No. 164 of 2008, Obadia Msese vs R, Criminal Appeal No. 243 of 2008, Shamir John vs R, Criminal Appeal No. 166 of 2004 (all unreported), and many more. Now, looking at the instant case, the respondent alleged to have identified the appellants because there was enough light. He gave this version when he was cross examined by SU3. But he did not mention in his evidence from which source the light came from. In my view, the respondent was duty bound to show from which source the light which enabled him to identify the appellant came from. It might be the light from a touch, electric lights, moonlight, fire or even lightning. At this point, I am aware that when he was intercepted by the court for clarity at the end of cross examination, the respondent mentioned that he was able to identify the appellants by moonlight. In my firm opinion that was not part of his evidence for the district court to rely upon in its conviction. More so, in his testimony, the respondent has not indicated the distance at which the appellants stayed from where he was in order to ascertain possible observation of the appellants who were in a group as it has been 11 testified by the respondent himself and SM2, again the respondent has not testified for how long it took for him to identify them before the offence was committed. Therefore, by his failure to clearly demonstrate upon these factors, I am inclined to agree with the appellants that they were not properly identified at the crime scene. And in my view, indeed based on the circumstance, there might be a chance of mistaken identity. Nevertheless, further to what I have ventured hereabove, I have also posed a question thus, had the respondent properly identified the appellants at the scene of crime. In his evidence, he could not have a piece of the puzzle as to who exactly had assaulted him by pouring the alleged acidic liquid. The respondent and the eye witness, SM2 were not in a position to clarify who exactly has or have committed the alleged crime. Worth enough, there is no evidence either from the respondent or his witnesses which link the appellants of having a common intention to commit the alleged crime. Considering the nature of the alleged crime, it does not click in mind that all the appellants at once would have held a bottle of acid and poured to the respondent’s face. This was well clarified by the trial court. Thus, unless there was evidence of a common intention of which each party’s role should have been defined, otherwise it cannot 12 be taken as omnibus that all persons in a group were responsible for the alleged crime. See for example section 23 of the Penal Code, it provides: “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.” The above doctrine has been propounded in a number of decisions in our jurisdiction and beyond. In Wanyiro Wamiero and Others v. R [1955] 22 EACA at page 523 the defunct Eastern Africa Court of Appeal, in relation to section 21 of the Penal Code of Kenya which was identical with our section 23, said: “In order to make the section applicable, it must be shown that the accused had shared with the actual perpetrators of the crime, a common intention to pursue a specific unlawful purpose which led to the commission of the offence charged.” 13 In our jurisdiction the doctrine gained support in the numbers of cases. Notably, among those authorities are in Mathias Mhyeni and Another v. Republic [1980] TLR 290, Alex Kapinga and three others v. Republic, Criminal Appeal No. 252 of 2005 and Daimon Malekela @ Maunganya v. Republic, Criminal Appeal No. 205 of 2005 (both unreported), to mention only a few. On the basis of these authorities, application of section 23 of the CPC has been well articulated. It entails that to convict two or any persons in a group, there must be cogent positive evidence to establish that one or more of those persons had shared with the accused a common intention to pursue an unlawful act and that in the execution of the said pre- conceived plan an offence was committed by both or some or all of them. The catch - words for our purposes are cogent positive evidence. The question is whether or not there was such evidence in the instant case. As I have demonstrated hereabove, my answer is in a negative. Needless to say more, but for clarity I would repeat that, there is no evidence which shows that the appellants had pre-planned arrangement to commit this crime. Coming to another crucial issue left with doubts thus, in the charge sheet it was alleged that, the appellants did assault the respondent by 14 pouring acidic liquid “maji ya sumu (BETRI)”, but the same was not proved by the complainant and his witnesses to clear the doubt whether the alleged liquid poured on his face was really an acidic liquid or not. It is a common knowledge that an acid is mixture or a compound of chemical elements. To mention few examples, it could be hydrochloric acid (HCL), Nitric acid (HNO3), Sulphuric acid (H2SO4) and so forth. Therefore, be it as it may, to identify as to whether or not the liquid was an acid, or to identify its type and gravity requires a scientific experiment. And, to testify before the court, an expert ought to have been summoned. However, in the case at hand, all those aspects were overlooked as no expert has been called to testify on the same. Or even at worst, there should have been the evidence directly linking the alleged liquid to the item or things such as battery of which, in the common knowledge of its nature, it contains acid or acidic liquid. Notably, the extent of the damage/assault caused by the alleged acid was also not proved in the trial court. For instance, although doctor was called to testify as SM5, but PF3 which he filled after his observation of the respondent injury has not been tendered in evidence. Thus, SM5 has only testified with a mere word without proof of his medical investigation to the respondent. In my view, that is contrary to the 15 requirement of PGO which needs the medical practitioner who conduct examination to fill a Police Form No. 3 which will finally be used in evidence to represent what was observed. In consequence thereof, I am of the firm position that, the respondent has failed to prove his case against the appellants beyond reasonable doubt. Thus, the appeal has merit and it is accordingly allowed. In the end, conviction, sentence and orders meted to the appellants by the appellate District Court is thus quashed and set aside respectively. It is so ordered. DATED at DODOMA this 12th day of November, 2024 S. H. Hassan JUDGE 12/11/2024 16 Judgment delivered this 12th day of November, 2024 in presence of the appellants and their advocate, as well as the respondent who appeared in person. S. H. HASSAN JUDGE 12/11/2024 17