MACHIA MALULU AND 2 OTHERS VERSUS REPUBLIC

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA CRIMINAL APPEAL NO 25417 OF 2024 (Arising from the Judgment of District Court of Iramba in Criminal Case No 4708 of 2024). BETWEEN MACHIA MALULU ……………………………………….…….………….1ST APPELLANT NYAHIDI WEJA…………………………………...……….….………….2ND APPELLANT NGASA MACHIYA……………………………….…..…………..……….3RD APPELLANT VERSUS THE REPUBLIC ……………………………………..………………………RESPONDENT JUDGMENT Date of last order: 04/12/ 2024 Date of Judgment: 26/02/ 2025 LONGOPA, J.: The appellants, Machia s/o Malulu, Nyahidi s/o Weja and Ngasa s/o Machia stood charged with, convicted and sentenced for three counts of causing grievous harm contrary to section 225 of the Penal Code, Cap 16 R.E. 2022. It was stated that all the appellants jointly and together on 23rd day of January 2024 a day time at Mseko Village within Iramba District in Singida Region willfully and unlawfully assaulted Nganga s/o Kija on his left eye; Kulwa s/o Weja Machanya on his head; and Dotto 1|Page s/o Weja Machanya on his head using a stick an act which resulted into serious injuries of the victims. All the appellants denied any wrong doing necessitating the prosecution to call four witnesses to establish their case while the defence had only three witnesses, the appellants in person. The District Court of Iramba at Kiomboi convicted all the three appellants in all the three counts and sentenced them to serve four (4) years imprisonment term and compensation of the victim to the tune of TZS 200,000/= for each victim. It was this conviction and sentence on one hand and the order of compensation on the other hand which made the appellants dissatisfied. They were determined to challenge this decision of the trial Court dated 20th August 2024. The appellants on 5th September 2024 being dissatisfied by the decision of the District Court of Iramba at Kiomboi instituted an appeal against the whole of the conviction and sentence on the following grounds, namely: 1. That, the trial court erred in law and fact in holding that charges of grievous harm levelled against the appellants 2|Page were proved to the required standard of a criminal case thus wrongly convicted the appellants on weak and deficient evidence on record. 2. That the trial court erred in law and fact in composing judgment which has conviction only and does not have the sentence which was meted upon the appellants. 3. That, the trial court erred in law and fact in convicting and sentencing the appellants on weak, contradictory and wanting evidence. 4. That, the trial court erred in law and fact in not drawing adverse inference on the conduct of prosecution of not calling material witnesses in the case without giving any reasons. 5. That the trial court erred in law in not titling the case both proceedings and judgment as such to bring confusion as to who are the real parties therein. On 4th December 2024 the appeal was heard in presence of the parties. The appellants enjoyed the legal services of Mr. David Malugu for the first appellant, Mr. Cheapson Kidumage and Mr. Godwill Benda, learned 3|Page advocates for the second and third appellants while the respondent were represented by Mr. Francis Mwakifuna and Mr. Amani Japhet, both learned State Attorneys. It was Mr. David Malugu, learned advocate who commenced submission by abandoning the fifth ground of appeal and combining submission for the 1st and 3rd grounds of appeal as they relate to the same aspect of standard of proof in criminal case which is proof beyond reasonable. The counsel for the first appellant stated that the appellants were charged with the offence of grievous harm contrary to section 225 of the Penal Code. The charge stated that the offence happened on 23/01/ 2024 and the evidence of PW 1 who is one of the victims stated the offence happened on 21/ 01/ 2024 during the evening hours. This is reflected on pages 10-11 of the proceedings. There was discrepancy between the charge and evidence on record from PW 1 that goes to the root of the case thus creating reasonable doubts on the prosecution’s case as the victim’s evidence did not support the charge. 4|Page It was a further submission that evidence of PW 2 does not disclose the perpetrators/ offenders at all as shown in pages 13 and 14 of the proceedings. Thus, there is nothing connecting the appellants with commission of the offence. The counsel for first appellant to reiterate that legal position on the matter cited the principle in the case of Kalebi Daudi Mbeho versus Republic, Criminal Appeal No 40126 of 2023, at page 8 the Court noted about the ingredients of the offence to include: first, existence of grievous harm. Second, the grievous harm must have been caused by unlawful act or omission; and third, the appellants are the ones who did commit the unlawful or omitted to do thus causing grievous harm. It was argued that nothing of these ingredients were proved in the instant appeal thus the case was not proved to the required standard as there is nothing to link the appellants herein with the grievous harm. With regard to the 4th ground, it was submitted that a material witness was not called. One of the victims was not called to testify before the trial court without any justification nor reasons being advanced thus the prosecution failed to avail opportunity to the trial court to be able to understand the whole of the matter in question. The evidence of the 5|Page prosecution was led by PW 1 and other witnesses but there was nothing connecting the appellants to have committed the offence. The evidence on pages 10, 11, 13, 14 and 17 has nothing explicitly showing that appellants participated in the commission of the offence. There was no proof of case to the required standard by the prosecution. It was the prayer of the counsel for the first appellant at this juncture that this Court be pleased to allow the appeal as it has merits. Mr. Kidumage, learned advocate for the second and third appellants supported abandoning the 5th ground of appeal and argued on the rest. It was submitted that on the 1st ground, the offence was not proved to the required standard. The evidence on record shows that there were many people at the scene of crime as reflected in pages 10-11 of the proceedings. It is not clear how the appellants were identified among the multiple persons who were at the scene. According to the counsel for second and third appellant, the prosecution ought to have stated categorically participation of the each of the appellants in the commission of the offence. The eye-witnesses PW 1 and PW 2 did not categorically state the participation of the appellants. It 6|Page was only stated that the 2nd appellant was the instigator of the land dispute in that place. There is nowhere PW 1 stated that the 2nd appellant committed the offence. Indeed, the 3rd appellant as well at all to have participated. PW 2 stated that the 2nd appellant was among the people who were present at the scene of the crime but there is nothing on record regarding participation of the 3rd appellant in causing grievous harm. There is nothing on record that the witnesses stated that the appellants had participated. The failure to bring material witness one of the victims made the prosecution evidence totally weak. Further, it was argued that it was expected that treatment of the victim would entail production of medical treatment certification not only PF 3 evidence. The offence was not proved as the evidence was so weak to establish the offence. The duty to prove was placed on the prosecution but they failed to discharge that duty thus the court erred to convict and sentence the appellants for the offence that was not proved. On 3rd ground, it was submitted that the evidence was contradictory despite the same being too weak. The contradiction is on the date when 7|Page the offence was committed. The charge stated that incident happened on 23/01/ 2024 while the evidence of PW 1 indicates that the offence was committed on 21/01/ 2024 as per testimony in page 10 while PW 2 stated at page 13 stated that the offence was committed on 23/01/2024. On other hand, the evidence of PW 3 who was an investigation officer at page 17 of the proceedings stated that the incident happened on 03/01/2024. There are three different dates thus such whole evidence is contradictory in nature. The learned counsel for the second and third appellants implored this court to consider whether disparities are minor or material as per decision in the case of Mohamed Said Matula versus Republic [1995] TLR 3 where the Court of Appeal stated that such contradiction must be addressed on whether it is material or minor. It was reiterated that the trial court did not address the same as the contradiction brought a lot of reasonable doubts and the trial court did not analyse the same to find whether it impaired the case. With regard to the 4th ground, it was submitted that material witnesses who were not called without valid reasons. These included Dotto Weja one of the victims, and PW 1 mother as well as Village leadership 8|Page who were dully informed. All these were material witnesses to testify on the matter. The learned advocated added that though it is true that there is no number of the witnesses required but material witnesses were critical to this case. In Aziz Abdallah versus Republic [1991] TLR 71, the Court of Appeal stated on the importance of the calling material witnesses and the effect thereof which is to draw adverse inference. The last ground is the 2nd ground, it was submitted that there is only conviction of the appellants which appear in the judgment. The sentence appears only in the proceedings contrary to the provisions of Section 312(2) of the Criminal Procedure Act, Cap 20 R.E. 2022 that categorically require the sentence that was imposed on the offender must be pronounced and stated in the judgment. The sentence is missing in the judgement which ends up in the conviction thus contravened the law. It was on totality of that submission, advocate for the second and third appellant prayed for upholding of the appeal and acquittal of the second and third appellants thereon. The respondent’s counsel Mr. Francis Mwakifuna, learned State Attorney objected the whole of the appeal by stating that all grounds of 9|Page appeal were devoid of merits thus conviction and sentence of the trial court imposed on the appellants was proper and in accordance with the law. It was argued that with regard to the 1st ground appellants stood charged with offence of grievous harm contrary to section 225 of the Penal Code. The ingredients include: (1) victim sustained harm (2) harm was caused by unlawful action or omission, and (c) the accused/ appellant is responsible for the harm. The counsel for the respondent stated that evidence and exhibits on record proved the existence of all these ingredients. PW 1 stated to have been attacked by the appellants. Harm was proved by to have occurred vide the PF 3 which was tendered as exhibit. PW 2 also cemented to have sustained injuries and that victims were hurt seriously thus taken to hospital. Further, harm was caused unlawfully as there was a dispute before between the victims and appellants thus it was the appellants who attacked the victims by sticks. It was reiterated that evidence is ample that appellants are the ones who caused harm to the victims. PW 1 and PW 2 stated/ named the appellants by their names to have participated in offence causing grievous 10 | P a g e harm. The respondent cited that principle in the case of Huba Hassan Makihi versus Republic, Criminal Appeal No 378 of 2018 to reiterate that the ingredients of the grievous harm must be proved and indeed proved in the instant appeal. On the 2nd ground, it was submitted that sentence was stated and pronounced in the judgement after conviction. The sentence is found in the proceedings having heard both the mitigation and aggravating factors. The most crucial aspect was the conviction. On contradiction regarding date of the incident, the learned State Attorney stated that that at page 10 of the proceedings it is clear that the incident happened on 21/01/ 2024. It was not objected by the appellants. PW 2 stated that the same happened on 23/01/2024. This is cured Preliminary Hearing as it reveals that incident happened on 23/01/ 2024. As such, it was reiterated that the same was minor contradiction curable under Section 388 of the CPA and that the court is entitled to determine whether the same is minor or otherwise as per principle in Alex Ndendya versus Republic, Criminal Appeal No 207of 2018- the Court should determine whether contradiction is minor or otherwise. 11 | P a g e On 4th ground, it was submitted that section 143 of the Evidence Act, Cap 6 R.E. 2022 the prosecution is not compelled to call a particular number of witnesses. The offence was proved by ingredients of the offence. The respondent reiterated that a single witness can prove a case in law. Mr. Francis Mwakifuna, learned State Attorney thus cited the case of Godfrey Gabinus @Ndimbo and 2 Others versus Republic, Criminal Appeal No 273 of 2007, the Court stated that single witness can be adequate to prove the case. It was further averred that all material witnesses were called. The victims and medical doctor proved the offenders were responsible for the commission of the offence. The case of Khatibu Kanga versus Republic, Criminal Appeal No 290/ 2008 was cited to have relevance on this appeal as it had similar facts. All the crucial witnesses testified before the court. It was emphasized that the named persons were not material as the witnesses who testified proved the case to the required standard. Thus, the respondent prayed for dismissal of the appeal as the conviction and sentence was properly arrived at upon proof of the case beyond reasonable doubts. 12 | P a g e In a brief rejoinder, the counsel for first appellant reiterated the submission in chief and implored this Court to quash the conviction, set aside the sentence and order immediate release of the first appellant. In the same tenor, the learned counsel for second and third appellants emphasized that absence of the sentence in the judgment makes the same incomplete hence nullifying everything on record and that failure to call material witness was fatal irregularity that cannot be cured. Having heard the submissions by the parties, it is the duty of this court to analyse the appeal by considering the available evidence on record, applicable legal principles both statutory and judicial precedents, the charge, judgment and submissions in light of the grounds of appeal. In order to have clear position, it is pertinent to note that prosecution rallied four witnesses to prove their case while defence had three witnesses. Summary of the evidence on record indicates as follows: PW 1, Kulwa Weja testified on affirmation that on 21/01/2024 while at home with Dotto Weja and Nganga Kija were at home when some people arrived around evening hours and stated exhuming graves/cemetery. There were many people including Machia, Nyahidi and Ngassa. One Machia scare PW 1 with a stick and suddenly struck PW 1 on the back. PW 1 stated to have 13 | P a g e been hurt on the head. The source of the problem is a land dispute which was instigated by Nyahidi. PW 2, Nganga Kija, stated that on 23/01/ 2024 they were surrounded by people including Nyahidi, Ngasa, Machiya and Bala. They were beaten by sticks and given PF 3 to get treatment. PW 2 stated to have been beaten on the back and on face. PW 2 stated to have been given a PF 3 for treatment. PW 3, G. 5449 CPL Abdallah stated that on 03/01/ 2024 one Ganga reported to police to have been assaulted and injured and he was given PF 3. On 09/01/2024 PW 3 and other police officers went to the arrested the appellant. They arrested Ngassa who led them to Nyahidi. The appellants upon being interrogated, they did not admit to have injured or assaulted anyone. PW 4, Juma Abdallah Mkoma stated that on 23/01/ 2024 in the morning he attended some patients who appeared to have been injured on face and had scratches and PW 4 tendered PF 3 as Exhibits PE 1, PE 2 and PE 3 for Kulwa Weja, Dotto Weja and Ganga Kija respectively. 14 | P a g e The defence evidence was that DW 1 Nyahidi Weja refuted to have injured anyone and reiterated that on 13/01/ 2024 he went to Igunga in the morning and returned late. He was not there on the incident day. PW 2, Ngassa Machiya stated that on alleged date of the incident he was at the Malendi Centre where he was engaged in wiring of house of one Mayila Rwehe where he spent the whole day. PW 2 stated to have been searched by the police on allegations that he had injured the victim. PW 2 reiterated that it was alleged that incident happened on the day he was busy on wiring. It was PW 2 evidence that a case against him is fabricated one. PW 3 stated that he called Nyahidi on 13/01/ 2024 to borrow money as he had a sick person at Igunga. It was PW 3 that he met with Nyahidi in the morning of that day. He stated that he does not the complainants. Disparities between charge and evidence is always a serious anomaly in criminal proceedings. The disparities of the charge and evidence are considered that a charge is not proved to the required standard. The guidance on this aspect was stated in Francis Fabian @ Emmanuel vs Republic (Criminal Appeal No. 261 of 2021) [2023] TZCA 17936 (12 December 2023) (TANZLII), at pages 4-5, the Court noted that: 15 | P a g e Moreover, it is a duty of the prosecution to produce all necessary evidence to each and every allegation made therein. In the case of Abdel Masikiti vs. Republic, Criminal Appeal No. 24 of 2015 (unreported) at page 8 thereof, this Court insisted that, it is incumbent upon the Republic to lead evidence showing that the offence was committed on the date alleged in the charge sheet, which the accused was expected and required to answer. If there is any variance or uncertainty in the dates or month, then the charge must be amended in terms of section 234 of the CPA. If this is not done as in this appeal, the preferred charge will remain unproved and the accused shall be entitled to an acquittal. Short of that a failure of justice will occur. It should not be re-emphasized that the prosecution being the initiators of the charge have been empowered by the law to amend the charge at any stage of the trial to address the anomaly on variance between charge and evidence under section 234 of the Criminal Procedure 16 | P a g e Act, Cap 20 R.E. 2022. Failure to seize such opportunity to amend the charge the conclusion of the case has only single effect of failure to prove the charge thus the accused is entitled to acquittal. This position was also reiterated in Frenk Onesmo vs Republic (Criminal Appeal No. 476 of 2020) [2024] TZCA 41 (14 February 2024), the Court of Appeal observed on difference of charge and evidence. At page 11, it stated that: We propose to decide another issue relating to the evidence being at variance with the charge which was argued by the learned State Attorney. We are in agreement with her that, while the particulars of the offence alleged that the offence of rape was committed between 22nd May, 2017 and 22nd August, 2017, the victim testified that her sexual relationship with the appellant started in April 2017. Thus, had the prosecution found this variance, they ought to have amended the charge in terms of section 234 (1) of the CPA. However, the prosecution did not comply with the law and therefore the charge remains unproved. See also; 17 | P a g e Issa Mwanjiku @ White v. Republic, Criminal Appeal No. 175 of 2018 (unreported). There were four important witnesses who testified in respect of the dates. The two witnesses where victims named in the charge, an investigation officer and medical doctor who allegedly attended the victims of the incident leading to arraignment to the court. While the charge stated that the offence was committed on 23rd January 2024, the victims differ in their testimonies. PW 1 testified that offence was committed on 21st January 2024. PW 2 stated that the offence was committed on 23rd January 2024 during the evening. At the same time, PW 3 who was investigation officer stated that incident happened on 3rd January 2024 as the date when the matter was reported to police station. Also, PW 4 a medical doctor had two version of story in his testimony. Oral evidence is that he attended the victims on morning of 23rd January 2024. In PW 4’s documentary evidence, it is recorded that the incident happened or wounds indicated that they happened two days ago. It means the victims got injuries either on 21st January 2024 or 22nd January 2024 as Exhibits PE. 1, PE 2 and PE 3 bear the 23rd January 2024 and 24th January 2024 dates. 18 | P a g e According to the evidence on record, the offence might have committed on three separate dates. Thus, there is no certainty at all. One, it might have been committed in 21st January 2024 as per evidence of PW 1. Two, on 22nd January 2024 as per the Exhibits tendered by PW 4. Three, on 23rd January 2024 as per evidence of PW 2 and PW 4. Four, on 3rd January 2024 as per the evidence of PW 3. The difference of dates of the offence is categorically at variance with the charge. The evidence does not reflect the charge preferred against appellants herein. Such disparities go to the root of the matter as the charge remains unproved. There is another angle of addressing the case on the issue of material witness. Though the parties have different views in their submissions, it is pertinent to analyse if the charge was proved. It is on record that trial court found that all counts were proved thus convicted the appellant and sentenced them to imprisonment. Also, the trial court ordered compensation to all the three victims of the crime. The finding on the guilty, sentence and order call for re-examination of the material witnesses. 19 | P a g e The charge is categorically that three victims were involved in the incident leading to the arraignment of the appellant to court. On evidence, it is only two victims who appeared to court. It is settled opinion of this court that all the three victims were material witnesses to this case. The reason is simple and straightforward that there is a specific count regarding that person which was found to be proved. The main question how was that count proved without the appearance of the victim in court to testify? Does he exist at all? The law on material witnesses is plainly clear as reiterated in the case of Jackson s/o Hakiel Msuya vs Republic (Criminal Appeal No. 138 of 2021) [2024] TZCA 430 (11 June 2024), at pages 9-10, where the Court of Appeal stated that: In determining this ground of appeal, we have seen it pertinent to comprehend the definition of "the material witness" for us to determine whether the above outlined witnesses were material witnesses or otherwise. According to LII Legal Information Institute, a material witness is a witness who possesses information going to some fact that affects the merits of the case. Generally, the information 20 | P a g e the material witness possesses has to have strong probative value and few, if any, other witnesses possess the same information. In our recent decision in George Jonas Lesilwa v. Republic (Criminal Appeal No. 374 of 2020) [2024] TZCA 269 (16 April 2024) the definition of "material witness" was also well described as: a witness who can testify about matters having some logical connection with the consequential facts especially if few others, if any, know about these matters, (See Black's Law Dictionary 8th Ed. page 1634). Generally, the information the material witness possesses has a strong probative value and, very few, if any witness, possess the same information. It should be needless to say, at this juncture that, probative value is the probability of evidence to reach its proof purpose of the fact in issue." A material witness was also defined in the case of Wachawaseme John v. Republic, Criminal Appeal No, 21 | P a g e 468 of 2022, (unreported) where the Court held: "In law, generally a material witness is a witness whose evidence is relevant and consequential to the substantive legal proceeding." In the circumstances of the case, it is this court’s informed and settled opinion that one Dotto Weja who was one of the victims. There are no reasons whatsoever for his non-appearance to testify in court. In the case of Martin Jacob @ Mlila vs Republic (Criminal Appeal No. 434 of 2021) [2024] TZCA 447 (11 June 2024) (TANZLII), at page 17, the Court noted that: Equally important is the failure to call a material witness. The learned State Attorney's argument was that the ten- cell leader was not a material witness in view of section 143 of the Evidence Act, while Mr. Kayaga maintained throughout that the ten-cell leader was a material witness, whose failure to call affected the prosecution case. It is trite law that any person who is in a better position to explain some missing links in the case is a 22 | P a g e material witness. This is a person to whom the incident was reported to first, therefore he had information or knowledge of the subject matter which is material to the outcome of the case. The effect of failure to call material witness is for the trial court to draw adverse inference that in case such witness would have appeared he could have testified against the party who failed to call such witness. This court is so guided to find that as the prosecution failed to call material witness, namely Dotto Weja who was one of the victims impaired the prosecution’s case to great extent thus leaving a lot of reasonable doubts that incident in question might not have happened at all as there was no tangible and cogent reason to refrain from calling a material witness. In Pascal Mwinuka vs Republic (Criminal Appeal 258 of 2019) [2021] TZCA 174 (5 May 2021) (TANZLII), at pages 23-24, the Court of Appeal illustratively noted that: At this juncture, while we agree with Ms. Mpagama that in terms of section 143 of the Evidence Act, Cap 6 R. E. 2019, a party is not compelled to parade a certain number of witnesses to support his case as also rightly observed by 23 | P a g e the Court in Separatus Theonest @ Alex v. The Republic, Criminal Appeal No. 135 of 2003 (unreported), we however hold the firm view that this is not always the position in every case. Equally important, it is settled that depending on the circumstances of the case, failure to summon an important witness at the trial entitles the court to draw adverse inference to the respective party's case. It is in this regard that in Aziz Abdallah v. The Republic (1991) TLR 91 it was stated that:- "Where a witness who is in a better position to explain some missing links in a party's case is not called without any sufficient reason being shown by the party, an adverse inference m ay be drawn against that party, even if such inference is only a permissible one". Having found that there was failure to call one Dotto s/o Weja as a victim to testify on the allegation levelled against the appellant, it is opportune moment for the trial court to draw adverse inference against the prosecution court. This court being the first appellate court is entitled to step into the shoes of the trial court, the court considers such failure has 24 | P a g e significantly impacted the evidence of the prosecution. Essentially, this creates a reasonable doubt that the offence might have not happened at all as there is nothing on record regarding the whereabout of the person who is said to have been injured on his head. In the case of Alex Ndendya vs Republic (Criminal Appeal No. 207 of 2018) [2020] TZCA 202 (6 May 2020) (TANZLII), at pages 14-15, the Court stated that: The law on the point is as put by the learned State Attorney; the Court will only take into consideration contradictions which are not minor and go to the root of the matter - see: Mohamed Said Matula v. Republic [1995] T.L.R. 3 and Dickson Elia Nsamba Shapwata (supra), Issa Hassan Uki v. Republic, Criminal Appeal No. 129 of 2017 (unreported), Mohamed Haji Ali v. Director of Public Prosecutions, Criminal Appeal No. 25 of 2018 - [2018] TZCA 332 at www.tanzlii.org. to mention but a few. But, we ask ourselves, what are material discrepancies or contradictions which go to the root of the 25 | P a g e matter and what are minor which do not? As good luck would have it, this is not the first time the Court is asking itself this question. The Court traversed on the point in Elia Nsamba Shapwata (supra). In that case, in answering the question, the Court quoted an excerpt from the learned authors of Sarkar, the Law of Evidence, 16th Edition, at p. 48 which excerpt we find it worth recitation here: "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 mental disposition such as shock and horror at the time of the occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are 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.” 26 | P a g e It is on record that evidence of PW 1, PW 2, PW3 and PW 4 differ significantly on date and time of the occurrence of the incident grievous harm. PW 1 stated that the incident happened on 21st January 2024 during evening. On the other hand, PW 2 stated that the same happened on 23 rd January 2024 during the evening. PW 4 a medical doctor stated to have attended the victims, PW 1 and PW 2 on 23rd January 2024 in the morning. At the same time, PF 3 forming Exhibits PE 1, PE 2 and PE 3 reveal that the injuries were of two days ago of the date of observation. These Exhibits are dated 23rd January 2024 and 24th January 2024 respectively. More significantly, PW 3 an investigation officer stated that victims namely one Ganga went to Police station on 3rd January 2024 reported to have been assaulted and injured. It was until 9th January 2024 when the police visited the Malendi Mseko to arrest the accused. In Pembe Abdallah Mkali vs Republic (Criminal Appeal No. 640 of 2022) [2024] TZCA 676 (1 August 2024) (TANZLII), at page 8, the Court observed that: …an appellate court may determine credibility of a witness or witnesses by considering the coherence and consistence 27 | P a g e of the evidence of a given witness, or the same factors between the evidence of two or more witnesses. If the evidence contains contradictions the same must be addressed and a decision made on the magnitude of their effect. If the effect of the contradictions or inconsistencies go to the root of the case, the case is not proved for its credibility and competence are corroded, but if not, the case remains proved and the evidence is deemed valid and the sentence lawful. This court having noted that evidence of the prosecution’s witnesses differs significantly for all the four witnesses rallied to court had testified in opposing manner. Evidence of PW 1 contradicted of that of PW 2 though both were victim of the same incident. The duo differed on dates of the offence. Also, evidence of PW 3 widened the gap of doubts as the date of the occurrence of the offence has a difference of about 20 clear days with the charge. Also, evidence of PW 4 to large extent departed from that of PW 1 and PW 2. According to PW 2, the incident happened on the evening of 23rd January of 2024 while PW 4 examined PW 1 and PW 2 in the morning of that date prior to the incident happening. This also touched on 28 | P a g e the charge as though the charge alleged that offence was committed on 23rd January 2024 during the day, documentary evidence tendered by PW 4 reveals that wounds and bruises found on PW 1 and PW 2 were wounds sustained two days before that date of examination i.e. two days prior to 23rd January 2024. It is settled law that in criminal trials the duty to prove that an offence was committed lies on the prosecution. The prosecution evidence is scanty, disjointed and incoherent as demonstrated in this judgment. In the circumstances, one cannot bank on such evidence to find that there existed a proof to the required standard. In Samson Patrick @ Thomas vs Republic (Criminal Appeal No. 463 of 2021) [2024] TZCA 1294 (19 December 2024) (TANZLII), at pages 12-13, the Court of Appeal instructively observed that: Finally, in determining the complaint that the lower courts did not consider that the charge was not proved beyond reasonable doubt, this Court when defining the term "beyond reasonable doubt" in Magendo Paul & Another v. Republic [1993] T.L.R. 219 had this to say: “For a case to be taken to have been proved beyond reasonable doubt 29 | P a g e its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed.” It is settled that, the duty and standard of the prosecution to prove the case beyond reasonable doubt is universal in all criminal trials and the duty never shifts to the accused. See for instance, Matibya Ng'habi v. Republic (Criminal Appeal No. 651 of 2021) [2024] TZCA 34 (14 February 2024; TanzLII). Furthermore, the Court of Appeal of Tanzania has demonstrated in Daimu Daimu Rashid @ Double D vs Republic (Criminal Appeal No. 5 of 2018) [2019] TZCA 366 (4 November 2019) (TANZLII), at pages 7-8, that: In disposing this appeal, we wish to take off by asserting the cardinal principle of criminal justice system in Tanzania that the prosecution bears the burden of proving its case beyond reasonable doubt. This is clearly provided under Section 3 (2) (a) of the Evidence Act, Cap. 6 R.E 2002. As 30 | P a g e to what it means by proof beyond reasonable doubt, the Court in the case of Samson Matiga v. R, Criminal Appeal No. 205 of 2007(unreported) at page 5, had this to say:- “prosecution case, as the law provides, must be proved beyond reasonable doubt. What this means, to put it simply, is that the prosecution evidence must be so strong as to leave no doubt to the criminal liability of an accused person. Such evidence must irresistibly point to the accused person, and not any other, as the one who committed the offence. (See also Yusuf Abdallah Ally v. Republic, Criminal Appeal No. 300 of 2009, (unreported)). The said proof does not depend on the number of witnesses but rather, to their credibility (See section 143 of the Tanzania Evidence Act Cap 6 R. E 2002 and the case of Goodluck Kyando v. Republic, Criminal Appeal No. 118 of 2003 and Majaliwa Guze v. Republic, Criminal Appeal No. 213 of 2004 (both unreported).” There is nothing on record to point out irresistibly that the incidents complained off in the charge were proved against the appellant to warrant 31 | P a g e conviction. It is with no flicker of doubts that prosecution miserably failed to prove the case against the appellant to the required standard of proof beyond reasonable doubts. On account of all the analysis, it is lucid that in totality of the evidence on record, there is irresistible truth on the 1st, 3rd and 4th grounds of appeal that the prosecution failed to prove the case against all the three appellants beyond all reasonable doubts. As such, the conviction and sentence thereof were erroneously arrived at. This court therefore quashes the conviction of the appellants to the all the three counts of grievous bodily harm the appellant stood convicted and sets aside the sentence thereof. The proper judgment ought to have been dismissal of the case against the appellants for failure to prove the case beyond reasonable doubts as the standard envisaged by the law in this jurisdiction in criminal matters. Having quashed the conviction and set aside the sentence against all the three appellants, it is hereby ordered that the appellants, Machia s/o Malulu, Nyahidi s/o Weja and Ngasa s/o Machia should be set free from today. I order immediate release of all the three appellants from 32 | P a g e custody unless their continued incarceration in prison is for another lawful cause. It is so ordered. DATED at DODOMA this 26th day of February 2025 E.E. LONGOPA JUDGE 26/02/2025. 33 | P a g e