ALLY NASSORO Vs R

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA DC CRIMINAL APPEAL NO. 147 OF 2023 (Arising from the decision of the District Court of Kongwa at Kongwa dated 17/08/2023 in Criminal Case No. 41 of 2023 before N. S. Mwakibibi, SRM) ALLY NASSORO…..…………………….……………………………………APPELLANT Versus REPUBLIC…………….................................................................RESPONDENT JUDGMENT Date of Last Order: 09th September, 2024 Date of Judgment: 13th September, 2024 E. E. KAKOLAKI, J In this appeal the Court is moved to overturn the decision of the District Court of Kongwa dated 16/07/2023 that found the appellant guilty of the offence of Grievous Harm; contrary to section 225 of the Penal Code,[Cap 16 R.E 2022] as charged, convicted and sentenced him to five (5) years imprisonment and in addition ordered him to pay the victim compensation to the tune of Tsh.2,000,000/-. Before the trial court it was prosecution case that, on 26th February, 2023 at about 19.30 hours at Mtatana village within Kongwa District in Dodoma Region, the appellant wilfully and unlawfully caused grievous harm to one Jesca D/O Zakayo by assaulting her on both hands and her head, by using a bush knife commonly known as ‘’Panga, causing her to suffer severe 1 injuries. It was further disclosed that, after that incident the appellant disappeared from the village while the victim rushed to Kibaigwa Health Centre before she was referred to Kongwa District Hospital for further treatment in company of PW2 due to her critical condition where she was attended by PW3. A report of the matter was also made at Kibaigwa Police station on the same day and a PF3 (exhibit PE1) issued. Investigation of the matter was mounted that saw the accused arrested on 11/05/2023 before he was indicted before the District Court of Kongwa faced with the accusation as per the charge sheet, which allegations he flatly denied. The case had therefore to go for full trial and upon evaluation of both parties evidence after closure of defence case the trial Court was satisfied that, the prosecution had proved its case against the appellant beyond reasonable doubt hence proceeded to convict and sentence him as above mentioned, the decision which irritated him hence the present appeal. In this appeal appellant has advanced seven (7) grounds of appeal going thus:- 1. That, the trial court erred in law and fact when convicted and sentenced the appellant while the prosecution side had failed to prove the case beyond any reasonable doubt according to the circumstances of case. 2 2. That, the trial court erred in law and fact when dealt with the prosecution evidence on its own and arrived at the conclusion that the same comprised proof of the case as a result she seemingly rejected the defence case without analysis which is wrong approach in the field of law. 3. That, the trial court erred in law and fact in writing its judgment without taking into consideration mitigation factors from the appellant as a result infringed the right to be heard. 4. That, the trial court erred in law and fact in not assessing the credibility of prosecution witness whether sufficed to sustain conviction. 5. That, the trial court erred in law and fact when failed to warn itself to convict the appellant without taking into consideration the defence of ALIBI. 6. That, the trial court erred in law and fact when failed to assess the credibility of prosecution witnesses especially victim. 7. That, the trial Court erred in law and fact in convicting the appellant with uncorroborated evidence. 3 At hearing of this appeal the appellant appeared in person unrepresented while the respondent/Republic enjoying services of Ms. Magreth Fyumagwa, learned State Attorney. When the court invited the appellant to argue his appeal he prayed to hear first from the respondent so that he could make a rejoinder submission later on if need be, the prayer which was cordially granted. In her address Ms. Fyumagwa notified the Court right from the outset that, the respondent was supporting both conviction and sentence meted on the appellant on the reason that the charge against him was proved beyond reasonable doubt. She thereafter sought leave of the court to combine the 4th, 6th, and 7th grounds of appeal and argued them together for being interconnected while responding to the 1st, 2nd, 3rd and 5th grounds separately. It was her submission on the 1st ground of appeal that, the prosecution had proved its case against the appellant beyond reasonable doubt as under the provisions of section 225 of the Penal Code in which appellant’s charge was preferred, the prosecution was duty bound to prove three elements. That is to say, one that, the victim sustained injuries, second, the said injuries were sustained unlawfully and thirdly that, it is the appellant/accused who caused them. On the first and second elements of sustaining injuries unlawfully 4 she argued that, as per PW1 (victim) on 26/02/2024, she sustained multiple cut wounds on her head and both arms after being assaulted by the appellant using a machete (panga) on the reason of jealousness following appellant’s accusation that she was engaged in extra marital relationship after seeing some massages from her mobile phone sent by customers, since she was a food vendor. According to her, PW1's evidence was corroborated by evidence of PW3 (doctor) who attended her at Kongwa Hospital and filled in the PF3 issued to her (exhibit P1), testifying that the victim sustained grievious injuries caused by sharp object on several parts of her body including her head which sustained skull fracture and both arms as one hand had its bone broken. On the third element as to who caused the said injuries Ms. Fyumagwa informed the Court that, PW1’s evidence was very clear on that element when explained that it is the appellant who was also her husband who assaulted her with machete after they quarrelled over customers’ messages that were found in her mobile phone, before she fell unconscious only to find herself admitted at Kongwa Hospital where she spent three days under treatment. It was her submission that, PW1’s evidence on identification of the appellant as her assailant is corroborated by PW2’s evidence who testified to have been called by the 5 said appellant who had a machete in his possession to witness what he had done to her young sister (PW1) only to find her laid down at Madingu’s home seriously injured before she was rushed to hospital while unconscious where she was admitted for three days. According to the learned State Attorney, the appellant was clearly identified by PW1 who was her wife and the incident took place in their house hence the case was proved beyond reasonable doubt. She thus prayed the Court to find the ground is without merit. On the 2nd ground of appeal Ms. Fyumagwa reacted that, it is no true that defence witnesses’ evidence was not considered. While appreciating the settled principle of law that, before conviction is entered the Court is duty bound to consider his/her defence case, Ms. Fyumagwa submitted that in the present matter appellant’s defence was considered by the trial court as evidenced at pages 6 and 7 of the impugned judgment and ruled out that the same did not dent the prosecution case in anyway. On the 3rd ground of appeal concerning appellant’s complaint that, his right to be heard was infringed when the trial court failed to take into consideration his mitigation, she retorted, the assertion was incorrect as he entered no mitigation hence not entitled to complain on violation of the right to be heard. On the 4th, 6th and 7th grounds of appeal in 6 relation to the complaint that the trial court failed to ascertain credibility of defence witnesses before his conviction, she resisted the contention while arguing that, PW1, PW2 and PW3’s are credible witnesses and their evidence entitled to be considered as contained no contradictions. She said, assessment of witness’s credibility in particular his demeanor is the trial court’s realm as the appellate court can only re-assess it by looking into coherence of witness’s testimony and considering his testimony in relation with other witnesses’ evidence as held in the case of Khamis Abius @ Ustadhi Vs. R, Criminal Appeal No. 246 of 2019 (CAT). On the 5th ground Ms. Fyumagwa countered that, the law in terms of section 194(4) of the Criminal Procedure Act, [Cap 20 R. E 2022] is posing a mandatory requirement for the person seeking to rely on the defence of Alibi to issue a Notice to that effect before hearing of the case, which notice in this matter was not issued by the appellant. She however argued that, despite of that non-compliance of the law his defence was considered but did not shake the prosecution case since the defence witnesses were contradicting each other. She said, for instance while the appellant is recorded to have testified to the effect that he spent a night with DW2 at his house and in morning DW2 went 7 to school, in his testimony DW2 denied to be a student saying he was peasant. She therefore invited the court to find no merit in the entire appeal and dismissed it. In rejoinder the appellant after having heard the Respondent's reply submission prayed the Court to examine the evidence on record versus his grounds of appeal and then proceed to allow for being a lay person hence incompetent to respond to the reply submission made by the State Attorney. I had an ample time to consider all the grounds of appeal as raised by the appellant and submission by both parties, revisit the evidence in records and thoroughly peruse the impugned decision. It is a settled principle of law as provided in section 3(2) of the Evidence Act, [Cap.6 R.E 2022] that, in criminal cases the standard of proof is that of beyond reasonable doubt and further that, the onus of so proving accused’s guilty to the offence charged with lies on the prosecution side and it never shifts as the accused has no duty of establishing his innocence rather denting doubts on the prosecution case. See also the cases of Mohamed Said Matula Vs. R [1995] TLR. 3 (CAT), Aburaham Daniel Vs. R, Criminal Appeal No. 6 of 2007, Arusha Registry (CAT- unreported) and Nathaniel Alphonce Mapunda and Benjamin 8 Mapunda Vs. R [2006] TLR 395. It is also trite law that, an appeal in the first appellate court is in the form of re-hearing the course which this Court is prepared to take in this matter. See the cases of Siza Patrice Vs. R , Criminal Appeal No. 19 of 2010 and Kaimu Said Vs. R, Criminal Appeal No. 391 of 2019 (both CAT-unreported). Now the major issue revolving around in almost all grounds of appeal is whether the prosecution proved its case beyond reasonable doubt against the appellant on the charge of Grievous Harm under section 225 of the Penal Code, [Cap. 16 R.E 2022]. The said section 225 of the Penal Code reads: 225. Any person who unlawfully does grievous harm to another is guilty of an offence and is liable to imprisonment for seven years. As correctly submitted by Ms. Fyumagwa for the offence of Grievous Harm under section 225 of the Penal Code to be proved three elements must be established by the prosecution. One that, the victim sustained grievous harm (injuries), second, the said injuries were unlawfully caused and thirdly, it is the accused person who caused it/them. In the present case it is gathered from evidence of PW1 a food vendor, wife to the appellant and a resident of Mtanana village that, on the 9 evening of 26/02/2023 while coming from paying visit to her mother in law passed at her husband’s working place in the same village to collect the keys for their house in which both of them went together home. On entering the house she testified, put her mobile phone on the table which was picked by his husband (appellant/accused) and started reading messages before he came across one of the message in which the customer was asking her for evening food where she replied him that could not prepare it so he go for another alternative. She said, the appellant became suspicious as to why asking for food through phone messages instead of going at her work place and accused her of having extra –marital relationship with that man, the accusation which she denied. That is when the appellant took a machete (panga) and started assaulting her on different parts of her body while asking her as to whether there were other hidden messages in which she responded in negative. According to PW1, the assault continued until when she lost consciousness as neighbours who came to her rescue were also threatened by machete. She explained, when gained her conscious found herself admitted at Kongwa hospital where she stayed for three days. Her evidence is corroborated by PW3 the doctor who attended her and filled in the PF3 (exh. P1) confirming that, when reached at the 10 hospital she was in unconscious state with multiple cut wounds on her body as her head had its skull fractured as well as her both arms wounded in which one of them had one of its bone broken. Further corroboration is found in the PF3 (exh. P1) disclosing that, she had a total of 16 cut wounds on her arms, face and scalp, all areas swollen. Another corroboration as rightly submitted by Ms. Fyumagwa is found in PW2’s evidence to the effect that, it is the appellant/accused who called her from her home within Mtanana village around 20.00 hours to come and witness on how he had maimed his young sister (PW1) and that, he had a machete in possession, only to find PW1 unconscious laid at Madingu’s home while her body covered with blood before the hamlet chairman Rojasi Ngubesi (PW4) came and victim rushed to Kibaigwa Health Centre and later on referred to Kongwa Hospital where she was admitted for 3 days. She also mentioned that, from that day the appellant disappeared from the village until 11/05/2023 when he was arrested. In his evidence PW4 confirmed PW1’s evidence of being assaulted by machete as well PW2’s version in that PW1 was found laid at Madingu’s home. He explained that, on the evening of 26/02/2023 when informed of the incidence of appellant assaulting his wife he passed at PW1 and 11 appellant’s house and found a crowd of people before he entered in their house only to find the floor full of blood. And that thereafter he informed the village chairman whereby a decision to rush the victim straight to the hospital was made by them while he together with the village chairman passing at Police for reporting the incident and collection of PF3. From the above evidence this Court like the trial court is satisfied that, the victim (PW1) sustain multiple cut wounds which no doubt were grievous in nature to the extent of causing permanent disability. It is further satisfied that, there was no justification for the attacker to cause her suffer the said grievous harm hence the findings that the same were caused unlawfully. The first and second elements therefore I find were proved beyond reasonable doubt. Lastly is the issue as to whether the appellant is the one who caused the said grievous harm to PW1. In his defence (DW1) the appellant relied on the defence of Alibi contending that, on the fateful day the victim who is also his wife had informed and sought permission from him to visit her parents in the same village as there was a patient there to visit and take care. That, after going there she did not come back on that day until the next day at around at 06.30 am when PW1’s uncle informed him of his wife being attacked by unknown person and her admission at Kongwa 12 hospital but could not be able to visit her rather collected Tshs. 100,000/- from his parents and sent it through his mother for taking care of his sick wife. He alleged that, on the 26/02/2023 after closing his business in company of his young brother (DW2) they went straight home and spent a night there together until next day when he continued with daily routines as DW2 went to school. That he was in the village until when arrested in May, 2023 on the date he would not remember on allegation that he is responsible for the assault of his wife before he was later on taken to court. His defence of Alibi was corroborated with DW2 who testified to the effect that, on the 26/02/2023 night after closure of DW1’s office at around 21.30 hours both went to his home where they spent a night together until next day morning around 09.00 hours when they went to open the office. When cross examined this witness denied to be schooling saying was a peasant. As to whether he had any clue of her sister in law (PW1) being assaulted, he denied any knowledge. Lastly in defence was DW3 who claimed to be a close friend to PW1 and stated that, on unmentioned date at around 14.00 hours PW1 informed her that she was going out and from then she never heard anything concerning injuries sustained by her nor her whereabouts. 13 Having considered the unshaken evidence of PW1 and PW2 regarding appellant’s identify of the incident date this Court is satisfied that, the appellant was identified on the fateful day as the two witnesses being familiar to him his identification was by recognition which the law finds it more reliable and assuring as compared to identification by stranger. See the case of the case of Nicholaus Jame Urio Vs. R, Criminal Appeal No. 224 of 2010 (CAT-unreported) when quoted with approval the decision of Court of Appeal of Kenya in Kenga Chea Thoya Vs. R, Criminal Appeal No. 375 of 2006 (unreported) where it was stated that: ’’On our own evaluation of the evidence, we find this to be a straightforward case in which the appellant was recognized by witness PW1 who knew him. This was clearly a case of recognition rather than identification. It has been observed severally by this Court that recognition is more satisfactory, more assuring and more reliable than identification of a stranger.’’ I am alive to the fact that this offence was committed in the evening when it had started getting dark hence a need to disclose the source of light, size of the room, time in which the identifying witness was under observation, brightness of light and whether the witness knew the attacker before as held in numerous authorities since identification under such circumstances must be watertight. See the cases of Waziri 14 Amani V. R [1980] TLR 250, Raymond Francis Vs. R [1994] TLR 100 and August Mahiyo Vs. R, [1993] TLR 117, Maliki George Ndengakumana Vs. R, Criminal Appeal No. 353 of 2014 (CAT- unreported)and Godfrey Gabinus @ Ndimba Vs, R, Criminal Appeal No. 273 of 2017 (CAT –unreported). In this case however having considered its circumstances I do not find the requirement for disclosing all conditions favourable for proper identification though so pivotal was necessary as one, when cross examined on the time she passed at appellant’s office to collect keys before the two went together home PW1 said it was around 18.30 hours which in my view in February time it was not dark. Secondly, appellant was her husband and the two were in company from appellant’s office until when they entered in their house. Third, there is no evidence that at their home when the misunderstanding occurred were more than two persons inside the house leave alone their little child who is aged one and half years. Fourth, when assaulting her with machete the appellant was uttering words demanding to know whether there were other messages other than he had seen hence was under observation for considerable time. Fifthly, appellate was clearly identified by PW2 when went to inform her of the wounds he had inflicted to PW1 and took her up to the place 15 where PW1 was found laid down, the fact which he never disputed. Under the circumstances and with all that cogent evidence this Court like the trial court is satisfied that, there is no possibility that there could be mistake of identity of the appellant. In considering his defence of Alibi I find the same to be a total lie despite of being corroborated by DW2 and DW3 whose evidence also is doubtful. While, DW1 is claiming to have stayed in his office until 21.00 when he closed his office and together with DW2 went to his home and spent a peaceful night there, neither of them is speaking of the blood that had spread in the house as per evidence of PW4 whose evidence I have no reason to doubt as was never shaken by DW1 even by cross examination. One would wonder if were not in full knowledge of what had happened how DW1 and DW2 could spend a peaceful sleep in the house under such circumstances without making any report to the village authority or police. Indeed DW1 told lies to the Court in a situation he ought not to do. Again how could he stay at home and fail to visit his sick wife admitted at the hospital for three days with full knowledge that she was subjected to assault. In my humble view his behaviour is so strange and inconsistent with innocent mind. As that is not enough DW2 and DW3 who came in to corroborate DW1’s Alibi 16 despite of being close relative and friend to PW1 all denied to have any knowledge of her being assaulted something that would not be expected to come from witness of their type. Lastly is the contradiction between DW1’s evidence and that of DW2 when DW1 claimed to have spent night with DW2 at his house until morning when DW2 went to school while DW2 saying that he was not a student rather a peasant and that on the next day he did not go to school rather went together with DW1 at his office. With that evidence full of contradictions and lies I find DW1’s Alibi was not only not established but also dented no any doubt to prosecution case instead corroborated it as corroboration may as well come from word or conduct as it was held by the Court of Appeal in the cases of Pascal Kitigwa R (1994) TLR 65and Mboje Mawe and 3 Others Vs. R, Criminal Appeal No. 86 of 2010 (CAT-unreported). I therefore find appellant’s lie before the trial Court that he slept in the house that had blood without noticing the same corroborates prosecution case by confirming that it is him and him alone who committed the offence. In view of the above evidence and after having considered appellant’s defence, I find the prosecution case was proved beyond reasonable doubt against the appellant on the charge of Grievous Harm he stood 17 charged. The above raised issue is answered in affirmative. The findings also dissolves the 1st, 2nd and 5th grounds of appeal as this Court find them barren of merits. Next is the 3rd ground on the complaint that, the trial magistrate failed to consider appellant’s mitigation. I think this ground need not detain this Court as looking at the typed proceedings on 16/08/2023 when the appellant was availed with an opportunity to enter his mitigation had nothing to say when replied ’’sins cha kusema’’. Under the circumstances I agree with Ms. Fyumagwa that, the trial Court had nothing to consider from him as mitigation factors before sentencing him, hence the ground is unmeritorious. Lastly is the 4th, 6th and 7th grounds all faulting the trial court to assess credibility of prosecution witnesses before conviction the appellant. As a matter of law as correctly submitted by Ms. Fyumagwa, the legal stance which I embrace credibility of the witness in particular his demeanor is in the domain of the trial court. The appellate court will only interfere or question it when it is established that, the witness gave contradictory statements or testimonials as compared to other witnesses or his testimony is incoherent. See the case of Shaban Daudi Vs. R, Criminal Appeal No. 28 of 2001 (CAT-unreported) and Khamis Abius Kilambo 18 @ Ustadhi (supra). The appellant herein apart from alleging that the trial court failed to assess credibility of prosecution witnesses no more was stated as to who amongst prosecution witnesses had his evidence incredible. As found above when re-evaluating evidence in record none of the prosecution witness seem to have rendered incoherent testimony to attract this Court re-assess his/her evidence. Much as this Court is satisfied that, all prosecution witnesses were credible enough and believed their evidence basing on the principle that every witness is entitled to credence, I find no reason to fault the trial court’s decision related to those ground. The 4th, 6th and 7th grounds of appeal I hold are wanting in merit too. All said and done, I find the appeal is wanting in merit and therefore remain with no option than to uphold trial court’s findings on both conviction and sentence imposed on the appellant which I hereby do. The appeal is therefore unmeritorious and dismissed in its entirety. Order accordingly. Dated at Dodoma this 13th of September, 2024. 19 E. E. KAKOLAKI JUGDE 13/09/2024. Court: The Judgment has been delivered at Dodoma today on 13th day of September, 2024, in the presence of the Appellant in person and Mr. Gothard Mwingira and Ms. Magreth Fyumagwa, State Attorney for Respondents and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI JUGDE 13/09/2024. 20