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IN THE HIGH COURT OF THE UNITED REPlJfiLIC Of TfcNihl^A TABORA SUB REGISTRY AT TABORA DC CRIMINAL APPEAL NO. 1645 OF 2024 (Originating from the Resident Magistrate's Court of Tabora in Criminal Case no. 4 of2023) REPUBLIC........................................................... APPELLANT VERSUS MWIGULU S/0 JIKINGA @ MWIGULU GANGAI S/0 LUPONJA MASHISHANGA @ GANGAI ULE S/0 MAKENZI SHIJA @ MAHUGA @ MWANASADO MAHUNI S/0 PAUL SHIJA LUSHINGE S/0 JIKINGA MWIGULU @ RIMU LUPONJA S/O MASHISHANGA GANGAI LUPONDEJA S/0 JILASA GAMANDU MAKENZI S/0 SHUJA MWANDU KUVA S/0 SAMALI RESPONDENTS NASIBU S/0 RAMADHANI @ NDEGEA GODFREY S/O MARTIN @ MASOUD BUNDARA S/O MATHIAS @ KANONI MOSHI S/O MPONDA @ JITUNGULU MBUGA S/O SANGADI LUBEMBELEJA S/O CHARLES @JILALA MAXIMO S/O LEONARD @ LUHUNGA SAMALI S/O NYADO @ SARAGANDA 1 JUDGMENT Date of Last Order: 16/01/2025 Date of Delivery: 06/03/2025 MANGO, J. The Respondents herein with other three persons were charged before the Resident Magistrate's Court of Tabora for five counts of grievous bodily harm contrary to sections 225 and two counts for malicious damage to property contrary to section 326(1) of the Penal Code [Cap 16 R.E 2022]. It was alleged that on the 19th day of December 2022 at Nyahua Mbuga National Park area within Sikonge District in Tabora Region, the Respondents attacked Manyiri s/o James Makaranga, Yustonian s/o Adolf @Haron, Mustapha s/o Juma @Kayanga, Zainabu d/o Hamisi @Juma and Diana d/o Nifashe with sticks on different parts of their bodies causing them to suffer grievous bodily harm contrary to section 225 of the Penal Code Cap 16 R.E 2019. Whereas in the second part the accused persons were together charged on the same material place, day and time did willfully and unlawfully destroy two motor vehicles make Toyota Land Cruiser with registration numbers STL 9823 and 04JU0167 both property of Tanzania Forest Service (TFS). During trial and after closure of prosecution case, the trial court observed that there was no prima facie case established against all accused persons for the offences charged. The court went on to dismiss the charges against them and acquited all 20 accused persons. Aggrieved by the order of the trial court the Republic is now before this Court armed with four grounds of 2 appeal against fourteen (14) Respondents out of twenty (20), that; 1. That, the Presiding Magistrate erred both in law and facts in acquitting the lst/2nd,3rd,4th,5th,6th,7th,8th,9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 8th and 20th respondents on no case to answer. 2. That the Presiding Magistrate erred both in law and facts in holding that there is no enough evidence on record to prove the charge of grievous bodily harm against the respondents. 3. That the Presiding Magistrate erred in law in acquitting the 1st,2nd,3rd, 4th, 5th,6th,7th, 8th,9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 19th and 20th respondents without proper evaluation and analysis of the evidence adduced by the prosecution against them. 4. That, the Presiding Magistrate erred in law and fact in acquitting 3rd respondent on ground that, he was not fluent of Swahili language in connection with the caution statement. When the appeal was called on for hearing, the Appellant/Republic was represented by Ms. Wivina Rwebangira and Mr. Charles Magonza, learned State Attorneys. When the Court invited Ms. Rwebangira to submit in respect of the grounds of appeal, she started by clarifying that on 23rd September 2024, this court ordered to effect service against the Respondents through publication. The Appellant complied with the order and published the summons in three Uhuru newspaper which dates: 22nd October 2024 at page 20; 23rd October 2024 at page 24; and 24th October 2024 at page 20. Despite such service the Respondents had not entered appearance. She therefore 3 prayed to proceed exparte under section 383(2) of the CPA. With leave of this Court the prayer was duly granted. Mr. Magonza while submitting in support of the appeal, he opted to start arguing the 1st and 3rd grounds collectively. He contended that the trial Magistrate was wrong to acquit the Respondents by a ruling of no case to answer, the Court needed to evaluate evidence to check if the prosecution had established a prima facie case. As to what constitutes a prima facie case, he referred this Court to the case of R vs Misigu Msobi@ Singu Crim Session No. 97 of 2019 HCT, Mwanza at page 2. Mr. Magonza went on to submit that the prosecution had eight witnesses who testified to have identified the Respondents on the fateful night. The 8 witnesses include PW1, PW2, PW3, PW6, PW10, PW11 PW14 and PW15 identified the Respondents via Motor vehicle light. In their testimony, the witnesses stated that it was their second time to meet the Respondents, although they did not know their names, they were well acquainted with their physical appearance. They also mentioned the distance between the witnesses and the Respondents during the incident. In this the distance mentioned by the witnesses is between 3 to 5 meters. As to the time spent in commission of the offence, they alleged the incident took approximately 7 minutes. It was his view that, the prosecution managed to establish a prima facie case against all Respondents except the 10th, 11th, 12th, 16th and 18th. On the 4th ground of appeal, the attorney faulted the ruling of the trial court which acquitted the 3rd Respondent on the ground that he is not fluent in 4 Kiswahili language. He stated that PW12 testified that he was the one who recorded cautioned statement of the 3rd Respondent. He stated further that cautioned statement is recorded from narration given by the accused, it is not required to be in exactly words that the accused speaks. Also, court record does not indicate that the 3rd Respondent was not fluent in Kiswahili. Thus, the reason for his acquittal was meritless. On the 2nd ground of appeal, he argued that for the prosecution to be considered to have proved the offence of grievous bodily harm, two elements need to be proved, this is according to the case of Joseph Mlawa vs R Crim. Appeal No. 24 of 2010 HCT at Mwanza. First, whether it was the Appellant who cause grievous harm to the victim and second is whether the said grievous harm was caused unlawful. He went on to assert that in the case at hand PW1, PW2, PW3, PW6, PW10, PW11, PW14, PW15 witnessed the accused persons while committing the offence. PW8 also stated that he treated the victims and PF3 filled in respect of each victim were admitted without objection. Therefore, the grievous harm caused by the Respondents was unlawful because it resulted from an ambush. He finally prayed the appeal be allowed and the matter be returned before the trial court for the Respondent to defend themselves before a different Magistrate. I have passionately considered the arguments from the prosecution, now I will determine whether this appeal has merit. First of all, it should be noted that, it is not only the number of witnesses and exhibits which establishes 5 the case rather, it is the substance of the said evidence which subjects the accused person to a case to answer. The trial court was keen to receive evidence from prosecution witnesses, unfortunately the evidence produced was not directly connected to the respondents as the key culprits. The evidence only showed that the victims were attacked, but failed to link the Respondents with the incident on the said date. Also the PF3 as expert opinions would not help in a situation where the substance of a case is not well established. Thus, large number of prosecution witnesses do not necessarily establish a prima facie case rather it is the quality of evidence in connection with the offence(s) charged. In the case of Lengume Lenemas Lesei vs Republic (Criminal Appeal No.420 of 2020) [2023] TZCA 17565 (30 August 2023) "It is also not necessary for a party, to call a large number of witnesses for purposes ofproving a fact which may be proved by one credible witness or fewer witnesses. What matters in law is the weight and credibility of the evidence and not the number of witnesses who adduced it. We must also observe that, a materia/ witness is not a witness who would come to narrate a similar story as other witnesses who have already testified. A material witness, as was held in the case of Aziz Abdallah, is a witness who is in a better position to explain a particular aspect or point in a party's case, which without such witness, the point would not be adduced as part of the evidence" Thus, the 1st and 3rd grounds of appeal lack merit. 6 In relation to the 2nd ground of appeal, the victims claimed to have identified the Respondents at the crime scene during midnight, they alleged to have met them on the previous day when the respondents came to identify their cattle, but they did not know their names. It is not in dispute that the complainants PW6, PW10, PW11, and PW14 were assaulted and sustained grievous harm. The extent of injures to the victim’s health was confirmed by Peter Songolo, a doctor who testified as PW8, what is disputed is whether the prosecution evidence managed to establish a prima facie case to allow the Respondents to be availed opportunity to answer. The Respondents were non familiar to the victims; thus, it was necessary for the prosecution to conduct an identification parade. In the case of Francis Majaliwa Deus and 2 Others v. Republic, Criminal Appeal No. 139 of 2005 (unreported), the Court of Appeal explained the importance of conducting identification parade as provide under Rule 232 of PGO. It also went on citing with approval the case of Amitsingh Bhikamsing Thakur v State of Maharashtra [2007] INSC 10 (5th January 2007) which explained the rationale of holding an identification parade in the following terms;- "The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses who can claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main objective of holding an identification parade, during the investigation stage, is to test the 7 memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses to the crime...... It is desirable that a test identification parade should be conducted as soon after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade." In the case at hand no identification parade was conducted. Thus, what the victims did was dock identification of the accused persons which is completely unreliable. In the case of Francis Majaliwa(supra), the Court of Appeal cited with approval a Kenyan case of Gabriel Kamau Njoroge versus Republic [ 1982-88] 1 KAR 1134,1136 in which the Court had this to say on the status of dock identification which is not preceded by identification parade; "Dock identification is worthless (the Court should not rely on a dock identification) unless it has been preceded by a properly conducted identification parade..." In this regard, I refrain from relying on the prosecution assertion that the Respondents were all properly identified. In respect to the complaint by the prosecution that the DW1 was acquitted on the ground that he was not fluent in Kiswahili language as a result he could not be cautioned without a translator, with due respect, this was not among the basis of the acquittal of the Respondents. At page 10 of the trial 8 court's ruling, the trial Magistrate observed that credibility and identification of the Respondents was at issue hence the prosecution failed to establish a prima facie case against them, in the event the Respondents were acquitted. Therefore, the 4th ground also fails. Lastly, from the above explanation I hasten to hold that the prima facie case was not well established against the Respondents for the offences of grievous bodily harm and malicious damage to property. In the event, this appeal is dismissed for lack of merit. Dated at Tabora this 6th day of March 2025 JUDGE 9