NA TZHC DODOMA

IN THE HIGH COUT OF TANZANIA AT DODOMA (EXTENDED JURISDICTION) PRM. CRIMINA.L APPEAL NO. 13 OF 2011 (DC) CRIMINAL APPEAL NO. 105 OF 2010 ORIGINAL CRIMINAL CASE NO. 87 OF 2009 OF THE DISTRICT COURT OF KONDOA DISTRICT AT KONDOA . RAMADHANI HUSSEIN ....................................... ...... APPELLANT (Original Accused) Versus THE REPBULIC .................•..........•..........·••11••··············RESPONDENT. (Original Prosecutor) 918/2011 & 26/8/2011 JUDGEMENT R.I. RUTTA, PRM, EXT. JURISDICTION .. . . The appellant one RAMADHAN HUSSEIN was escorted and sto9d__before the. -- . . fountain of justice of Kondoa District Court, and charged with counts of GRIEVOUS HARM C/S 225 of the Penal Code Cap. 16 Vol. 1 R.E. 2002. The appellant at the end of 1 full trial was convicted and jailed for 6 years. He was aggrieved; hence the instant . 1~pet1t. ·.. .,_The-back ground which culminated to the end result of the matter was that on 5th A~;il, 2009 at about 21/30 hrs at Kelema village in Kondoa PWl, JAMILA d/o . KIBERENGE and ASHURA d/o RAMADHANI · (PW3) were in the house and studying. Then a thug who was identified as the appellant broken the door and entered. That thug was armed with a "sime" bush knife . He cut PWl and PW2 . The two sustained injuries . The matter was reported to police station. The victims were referred to Hospital. The appellant lodged the appeal which contains a number of six grounds. The said grounds look like a submission. For purposes of convenience I have summarized them as follows:- - That the appellant was not properly identified. - That the confession was not voluntary. That the evidence adduced by the appellant in his. defence was not considered. - That the appellant was not explained of his right under section 240(3) of CPA -Cap . 20 R.E 2002. - That the conviction did not base on the p·rovi~ion of the law.. as provided under section 312(2) of the CPA Cap. 20 R.E. 2002. ,· ,. . ~.:-.,.~, ::. ~.~. -~~·.:' The appellant opted to be present to argue his appeal · He appeared- ~nd submitted, but emerged with -a new story quite: different from the grounds of appeal. One may wish to refer to the said submission as additional grounds. 2 In my deci~ion I shall refer to them when the need will arise so to do. The Respondent was fully represented by Ms. Nsana, learned state Attorney. She was not ready to side with the appellant. She supported the conviction and the _sentence imposed. On the first ground for identification Ms. Nsana submitted that the appellant was · clearly seen and identified by PW1 and PW3. That the victims were studying using the lamp. That if they could read the letters in the books by the influence of light shed by lamp, that the light was enough to influence the identification of the appellant. She said that to show that the light was enough to favour the identification PWl was able to see the appellant cutting PW3 on the back near the shoulder. That PW1, PW3 and the appellant knew each other before the incident. The appellant was married to the aunt of the victims. Ms. Nsana, referred to the case of Juma Shaban Juma Vs. R. Cr. App. No. 168 of 2004 CA (Unreported). That in that case it was said that the description is not im.portant when the Witness knew the accused/appellant befo~e. •·· ... st On the 1 grounds the appellant said that there was a need to describe the size in which the victims were taking their studies. He meant that the light shed by the lamp could not be bright enough for proper identification. that the witnesses failed 3 < even to describe the clothes he had at the scene. He cited the case of Waziri Amani . V.R. (1980) TLR. 250 and the case of Hassan Said and Selemani Ally V.R Cr. App No. 44 of 2002 (Unreported) and Dorica Kagusa V.R. Cr. App. No. 174 of 2004 and the case of Issa Mgara @ Shuka V.R. Cr. App. No~ 37 9f 2005 .( unreported). Unfortunately I could not lay my hand the cited cases which one met reported. Only the state attorney supplied me with the copy of the case which she cited. It was not disputed that PWl, PW3 and the appellant knew each other before the incident. The question for consideration and decision is whether or not the trial court made proper finding of identification. When considering the issue of identification the trial court said and I quote: ''It is a matter of no dispute that the accused did break the door and enter into the dwelling room a(ld he found the _complc1irzao_t;s _being. _studying with enough light by hurricane lamp and immediately after entering therein, he was identified by the complainants with helper of light by . hurricane lamp which was supporting them for their study and at the sametime, it was easy for complainants to identify the accused at the scene as the accused is village and street mate with PW2, PWl and PW3 and also there 4 is family relationship hence identification was easier and ' simple" I have soberly considered the submission by the state attorney and the decision of the trial court on the question of identification. I am not at a position to fault the finding of the trial court. As it was said the witnesses and the appellant new each other. That facts puts away the need for description about the appellant. There was an argument about the source of light. In. the case of Kulwa Makwajape and two others Vs. R. Cr. App. NO. 35 of 2005 CA (Unreported). It was said that the intensity and illumination of the lamp is important so that a clear picture is given of the condition in which the appellants were identified. In the instant case it was said and not challenged that PWl and PW3 were found studying. I side with Ms. Nsana that since the victims were studying the light they were . using was enough for identification. After having considered the intensity and illumination of the lamp and the fact that the appellant and the victims were no stranger to each·, other I am of the firm view that the appellant was clearly and properly identified. The second ground was is about confession. It was the argument. · of the~ . ·~ . · ·ta;J?p2l~nt that the trial court did not conduct the inquiry to find out if the q:rution ,,. : . -~tement was voluntarily taken. He argued that while at police was threatened and . was not given a chance to call his relative. 5 • Ms. Nsana, said that the trial court performed the obliged duty. That when· the appellant 9enied the admission of the caution statement as exhibit the inquiry was conducted. I have combed the proceeding of the trial court. It is recorded that on 19/1/2010 the trial court (Y. Wilson - RM) conducted trial within trial. He heard the PP and D. 992 D/Cpl Simon then called the accused /appellant to explain what transpired at police station. After that the ruling was composed and delivered then the caution statement was admitted as exh. P2. The position of the. law is that the trial within tri~I is conducted at the High Court and the subordinate court when the cautioned statement is countered conducts an inquiry. Though the procedure is the same (see. Seleman Abdallah and others VS. R Cr. App. No. 384 of 2008 CA (unreported. Although the trial court conducted trial within trial instead of an inquiry I am of the considered view that what was done serves the purpose. The finding that the :, confession was vol~ntary can not be faulted at this stage. Another ground was that the defence side was not considered. Ms. Nsana, argued that the defence was considered by the trial magistrat~ in his· · . ......: ~, Judgement. ... On page 3 of the typed copy of judgement especially on the last but one paragraph the evidence of the appellant and of his witness, Halima Masawe (DW2) his 6 mother was considered and the trial court arrived at the view .that on the fateful date and time the appellant was in Kelema Balai village and he was notat his home. That shows clearly that the defence side was considered by the trfal magistrate. The appellant ·was complaining that his righty under section 240(3) of CPA Cap 20 RE 2002 was infringed. In his ground of appeal he argued that he was not explained of his right to call the doctor who examined the victims and filled the PF3. In reply Ms. Nsana submitted that the record of the trial court was silent if the accused was explained, of his right or not. What we can inter in that gap is that the right was not accorded to the appellant. The learned state attorney contended that even if the PF3was not tendered by the doctor the adduced evidence still was strong enough to warrant the conviction. That the behavior of the appellant after the commission of the offence show that he was the one who c;ommitted the offence. That the appellant after the incident he was not seen at his home stead and was hiding from being caught. ,. The proceedings shows that the appellant denied the contents of the charge sheet. I did not see it said that Jamila Kiberenge (PWl) and Ashura Ramadhani (PW3) · were not cut and injured. The tendered PF3 did not read that the appellant was the one who committed the offence. The PF3 read the nature ·of injuries, inflicted to the body of PWl and PW3. 7 When faced .the same situation in the case of Shabani Daudi Vs. R. Criminal aps,eal No. 28 of 2000 the justice of the court of appeal said. " Admittedly, an accused person has the right under s. 240(3) of the criminal Procedure Act to cross-examine· the author of a medical report which has been received in evidence and that the magistrate is duty bound to inform the accused person of this right The record of appeal does not show that that was done in this case. So, undoubtedly the appellant was denied that right and that was contrary to the provision cited above. However, we do not think that the appellant was prejudiced by that admission. Exh. P.1 merely showed that PWl had probably ·been raped because of the bruises in her pril(ate parts. That exhibit, however, does not say that the rape was committed by the appellant Thus, it does not contradict the appellant's denial that he is not the one who raped PWl. Incidentally, it.has never been the case of the appellant that PWl was never raped at all, because, had that been so, then Exh. P.1 would have contradicted him~ So we dismiss this ground too" In the present case the medical doctor was not called and the appellant was not explained of his right;as provided under section 240(3) of Cap. 20. R.E 2002. I said here above that PW1. .and PW3 were cut and injured. The PF.3 were tende!red and read about the nature of injuries. The appellant denied the charge but the fact that PWl and PW3 were injured was not challenged. 8