19850712 TZHC Tabora1

32 IN THE'HIGH COURT OF TANZANIA AT TABORA ,-.• <L.1.• .. .......... . APPELLJdE JURISDICTION J.i (Tabora. egistry) (HC) CRIMINAL APPEAL NO-. 17 OF 1985 ORIGINAL CRIMINAL CASE NO. 428 OF 1984 OF THE DISTRICT COURT OF SHINYANGA DISTRICT AT· SHINYANGA BEFORE: RWAKIBARILA, ESQ. 9 RESIDENT MAGISTRATE - SHOZI D/0 ANDREW ,0 fl ~ • • O •• C • • • i' ·., e O • .. • O • O c C • '1 c, • _. • • • APPELLANT 10 v e r s u s THE REPUBLIC RES Po:· DENT -~u;BA_M_A_,._ l• z . SHOZI D/0 ANDREW was charged with and convicted of wounding c/s 228(1) of the Penal Code and sentenced to eight months il!lpriaonment. She has appealed to this court against both the conviction and sentence. IDDI AMADI testifying as the first ~3!0secution witness stated that he had On-the evening of 16/5/84 been beaten up by the 2C e,p:pella.nt while on a visit to one Shirima. on the instruction of his sister, MWAJOMA HAMADI (P.W.2). The said Shirima. who had been called a.a a court witness was renting a. room in the sa.ma house as .the appellant and her son, ,N'.ELSON DANKAN (D.W.2). Iddi Amadi (D,W.l) testified that he ha.d been abused by Nelson Dankan who later.ran inside his mother's room to hide. Not amused, he laid. in wait for him (D. W. 2) • D. W. 2 eventually -came out of his -:uother' s room. P.w·.1 caught him and warned him (D.W.2) not to abuse people. He stat~~ he had not hit D.W.2 who soon after and before he had left Shir,i.:ma's hous9 had returned 30 accompanied by his mother, the appellant. The appellant enquired from him (P.W.1) why he (P.W .. 1) had beaten her son. But before he could reply, the appellant start~d beating him all over ihe body. P.W.l took to his heels to be escorted by missiles that were ·::,being thrown at him by the appellant.. He got home and re:ported about the beating to his sister (P.W.2). The two (P.W, l and P.1-1. 2) we,1t to t:1e police. The Police gave P.W.l a PF. 3 Form and directed him to go·to ths Hospital for medical e:x:amina tion and no doubt treatment should there b~ the need. P. w.• l produced a report a aid to have been made by the hospital (exhibit 'A') which details the injury that he (P.W.1) had sufferede 33 Iddi Amadi (P.W.1) further testified that Shirima had witnessed the beatings. But Shirima who had been summoned as a· Cou.rt witness contradicted him saying that he had not witnessed· the beating as he had been to the market place at the time the appellant is alleged to have beaten P.W.l. SHOZI AND1IB'l in her defence stated that she had not beaten Ul) Idd Amadi (P.W.1). She said that. on 16th May, 1984 at about 5 p.,m. she had ret J:rned. to her home to find her son Nelson,· crying 1 1 On questioning her son D.W.2 told her that he ha.d been beaten. up by a, boy. The boy was pointed out to her by n.w.2. The pointed. 10 out boy was at the time cleaning ground using a b:t-oom. She went to question this boy about the incident but the boy beat her with the broom he was using and ran away. The appellant let the matter rest. The boy became more imp~dent; returned to the appellant's home, pointed a finger at her and warned her to expect more t].tfubles from his quarters. She found this impudence intolerable a.nd reported the case to her Ten cell leader. The Ten Ceil Leader cautioned patience on her part and there the matter rested until she got summoned by the police on 19.,5.,84 and questioned about · what had taken place on 16th l'1. ty 9 1984 .. 0 20 The appellant testsfied Iurther that she had suffered a •finger injury follo\tling her being be~ten by P.W.l. She had tolerated the pain up to 19th Mayj 1984 when she decided to go to the hospital for treatment. She had her finger X-rayed on 21st Me.y, 1984. The learned trial magistrate after analysing the evidence ,.,.. accepted as truth the evidence of P.W.l. I see merit in this finding. P.W.l's testimony gets support from P.W.2, D.W.l a.n d D.W.2 at several material points. I acBept that P.W.l had been to the house .of Andrew Shirima (Court Witpess 1) on 16.5.84 a.t about 6 _p.m. on an errand i.e. to collec_t money i,.nd that he (Andrew Shirima) had been at his home and had given Shs.100/= to take to Mwajuma Hamadi (P.Wo2). The testimonies of D.W.l and D.W.2 alsQ place P.W.1 in the vicinity of the appelle,nt•s house where Andrew Shirima also lived. I see no reason why P.W.l a young boy e.nd whose sister was a concubine of Shirima should tell lies against him (Shirima). Accordingly I put no weight to the 'J)P•lle.nt•s groun·d of appeal that the evidence of'P.W.l ha.d been o,nt~adicted by a court witness. Shirima had no respect or fear ,r the oath he had ta.R:en to speak the truth. ·He had lied,. ·10 ' also accept P.W,1 1.s evidence tha.t he had been provoked into the action that he to(k &&!.inst D~W.2. He had been abused by D.W.2 and he beat him (D.W.2) for ito This was done outside 34 - the appellant's room. I do ~~i accept PoW.l testimony that he· had laid in wait outside the appellant's room just to administer a caution. He must ,have been annoyed by the abuse; he wa~ young - . and saw no cause for it yet he now wants the court to see him - mature and possibly reasonable.· I further accept the testimony .of bDth appeliant and her son (D.W.2) that the appellant had found D.W.2 crying, had enquired as to the cause and was informed by D.W.2 pointing out P.W.l to her that P.W.l had beaten him. I accept P.W.1 1 s evidence supported by that of the appella.nt that the appellant had approached and asked him as to why he had 10 beaten up D.w.2. I accept -P.W.l version of the story that before he (P.W.1) ·r.ould, respond to the appellant's quer.r, he was jumped upon by the appellant and beaten up. I reject the appellant's attry that she had approached P.w.1:who had been cleaning a. yard with a broom and that P.W.l had beat the appellant with it when questioned about the afl.~ged bea. ting of D. W. 2 by him and had then :tt.n away with the appellant deciding to forpear everyt1:ing, Mere qy of her son had made her go after P. W.1. She had accepted her GS'1l's version as the correct one judging by the way P.W.l stated the appellant had phrased her question "why did you beat my child". 2C lhe lu.guage fonrn.:ilation of the question to P.W. l also shows she was in a combatant mood. In this mood abe would -iot have do--eL"'tml.w ta.ken a beating and h~:ili.ation by a boy (P,W.1). I further reject the appellant's story that she had found P.W,l cleaning ground when pointed out to her by her son (P.W.2), Cleaning the ground? By the testimony of P. W. 2 which I ac~. 9pt, P.W.1 lives s~me distance away from the appellant's house, P.W. 1 was a,school boy and same, not a Shinyanga Town Council dtreet sweeper. At any rate, the time was about 6 p.m.; even the Town Council sweepers with all their well known enthusiasm would not ha.ve been sweeping stree¢ts or public grounds at such a time! .... _., ••• i , ' . ' ~ · ~...~ . - I further dismiss as a lie the appellant's testimony that ·~07 Iddi Amadi (PqW.1) had later returned to taunt her a.t her home by . pointing a !tnger at her .and say ·0 'NA NI BADO" 9 an act that ma.de 1'~ go to complain to her Ten Cell Leader who had !1dvised her to be patient and to ~s;;µ..ss the matter. I/ this werr truet her evidence on the matter wo.uld have been more detail"'.d, it was not. The appellant• s testimony here is not so det_a.iled as to enable 4ne too say ~hether the appellant had complain~d t6 her Ten Cell Leader about either the beating or the taunting or bot!i incidents. .,. Nonetheless, I talce i t,d't] >-::·.L1c by the nator• .. of _things that the appellant must have included poth misbehaviours of P.W.l in her complaint to her Ten Cell Leader. Yet I find it difficult to 35 accept that the appellant was possessed of this extreme patience. Further the content of the appellant's complaint to her Ten Cell Leader as _told by the Ten Cell Leader; JACKSON OUMA (D.W.4), contradicts the appellant's story. She had complained to D.W.4 abo·... t the beating o.f her son' and not about the two humiliating i~oidents that she had detailed in court i.e. the boating with a broom· and the taunting. She certainly would not have forgotten. these especially if one were to consider th€! injury to her finger that the appellant said .she had suffered .fallowing with a brQQlll 10 by P.W.l. Further still D.W.4 said that he had advised the appellant to take up the matter with the appropriate authorities· should think that her son had suffered anything B!2d n_<~J.that he (D.W 4) had counselled patience as testified to by the appelle.nt D.W.4 was certainly an independent witness in this case and had no cause to· lie against 7 any party to the case. Added to this, I accept the evidence of P •. W.l that he had just one encounter· with the app€llant on the evening of 16.5.84. Follqwing this -.mcounterf he ran home 9 inju·red, and was taken to the hospital by P.. Wol• I further accept P.W.2's story 9 that P.W.l hai not been 20 accepted at the hospital the rirst time when they went there direct:~y without passing via the police and that she a.nd P.W.l were first told to go to the Police and report the injury. It was from the police that P.W.l was .,issued w:r.th PF.3 . which he took to the hdspital. Accepting this then, it is clear from the movements of P.W.l and P.W.2 that Iddi Amadi (?.W.1) never made two trips to the· house of the appellant as the appellant had testified,, The appellant's story that P.W.l had first been to her room to beat up her son (D.W.2/2 and later beat her with a broom he (P.W.1) had been using to clean the ground only to run away to some place end then return to taunt her is a lie; as was her story that P.Wcl had_ been cleanin.g the ground with a broom. The appellant·: story was made up to avail herself of a protective cover. She had beaten P.W.1 after she had seen her son (D.W.2) cry and after D.W.2 had pointed out P.W.l to her as the villain who had bea'ten him (D. W. 2). Mr. Nyabiri, the learned State Attorney had not supported the conviction of the appellant for two main rr;asons. He had. submitted that the evidence had not sufficiently established that the appellant had wounded P.W.l anl £:ccondly that the medical report on P.W.l (exhibit 'A') looked dubious a.sit bore no offici_al·\ 40 hospital stamp. I have above at length showed that sufficient evidence exists that shows the appellant had beaten Id~i Amad (P.W.1). She had no legal basis for doing soc She had not by the testimony·or P.W.l and 36 also by appellant own admission seen P.W.l beat D.W.2. I p.o. not accept ;Tr. Nyabiri submission that ei:hi bit I A' appears dubious ju·st b~cause it bears no official hosp :tal stamp. ·There is nothing sinister about the absence; not many of the type bear the hospi ta.1 . · stamps as the authorities there are not bothered by the forma.lity. Further verification of this is that even the PF.3 that had been given to the appellant on 19/5/84 (exhibit 1 C1 ) or indeed her other two medical chits (exhibit iD') are riot stamped by the hospital. I am therefore satisfied- that exhibit 1 A1 shows that P.W.l had been subjected to some injuries. These certainly amount in law, tr· wounding~ Exhibit 'A' does not dea.l with the ear injury that P.W.l and P.W.2 testified to·and to which the learned trial magistrate ha.d made notes in the record accepting that P~W.l had difficulties hearing questions put to him. The learned trial magistrate had defi~.tely not found the hearing incapacity faked~ That P.W.l may have been suffering ear ailment before the beating as testifieu'bo by KAFRAT MA:TATIZO (D.W.3) does,not by itself 9 be;t.iev-e the a.sser.tions of P.W.l and P.w.·2 that P.W.l had been on 16.5.84 evening bleeding from the ears; it is possible that the beating by the accused had 2:i since then worsened an already poor hearing of P.W.l. These facts n<>twi th:->tanding 9 I am reluctant, as was the learned trial magist~nte, to put weight on the ear injury as having been one of the injur.i:eS caus'8d on P.W.l by the _appeliant' on 16.5 .. 84 simply because exhibit. 'A' is silent on this fact. But P.W.l had suffered several othe:c injuries on the hand .-~of the· appellant; appellant finger injury- which had led to her being X-rayed 6n 21.5084 ~N.. have been suffered while she was in the process of landing blows on P.W.l. This. fact ~~Y.. again have made her not report the injury- to D. W.4 - the Ten Cell Le~der 9 the police and hospital till on 19.5.84 when she felt she needed on explanation to her brutalities. I may here be speculating though I think the a'bove ar·e inferable from my fi~gings of fact. It suffices I think to state that the appellant had ~ot suffered the finger injury in the manner she had narrated in oourt ;md that the prosecu1;ion was not duty bound to go further s.nd show how the appella...~t had suffered the injury-before establishing the case against the appellar.t. The prosecution has sufficiently shown that the appellant had not been injured by P-.Wol. The appellant has submitted in her memorandum of appeal that Exhibit 'A' w~s improperly admitted in evidence on the authoritie~ ·of ,S2._u_t.1J_~p_qi:,_a._ _99_r;p_o_r_a_t_i_C?_I?:__ .(J.r_av_e_c,?,.r.~). __P_~i_v~-~~---L.i~}.te.<:1.. -~~-•-H~~.J., -~J~J~.Y....8.!ll.<!_S_o_ns .1-.~_i_t_ed (1967) HCD n. 168 and _9:~_!h_~-~.,.&,~.J1).~~ v. H (1954) 21 EACA 324. I d.o ;".!v: :'":"':~:; L ·-;;h,:;.t t.1~:h.i.l.;j_t 'A' 1 oi- for '· 1 that matter appellant's own medical reports chits (exhibits C' and 'D' were wrongly admitted in evidenceo I find that the medical documents were properly admitted in evidence to establish the injury suffered. It would have been ~eater, no doubt, to have had the medical man testify on the matter yet its admission, was in order. One has to bear in mind the acute shortage of medical personnel in our Republic 9 the overcrowding of our hospitals and the number of police cases that also re::quirc these alroa::ly over worked medical personnel to deal with 9 to appreciato that it cannot really be necessary to have~ doctor testify on minor injuries like cuts. otherwise proper adrainistra tion of justice and r-proper running of medical faci U ties would 1)e bogged. ,}owh. And their admission in no way prejudiced the defence. The evidence on the record then sufficiently established tbe guilt of the appellant. But on quick reading of the judgment, it appears the le·arned trial magistrate had shifted the burden of pl'Qof to the appellant. He writes~ "I have addressed myself throughly to evidence by prosecution and the defence. And in the final analysis, I have found the crux being whether accused's defence which was backed by three defenc.e witnesses and three documents suffice to r~but the prosecution's str~; on that accused injured P.W.l duvim:g::,ma.teitio.l tioEi and. at •ria.terial plaoe ·by _.bea.tiug bin:; (P.W.l)u. Again he writesi "Having discussed that defence version by the accused, D. W• 2 , :U. \·.: • 3 an a. found out such evidenced~ not suffice to rebut P.W.l's stPry on that he was beaten up by a.coused after he (P.W.1) quarrelled with D.w.2.u The two paragraphs seem to show that the learned trial magistrate had handled the evidence for the prosecution separately from that for the defence. He seems to have compartmentalised the two versions instead of dealing with the two together to determine whether the prosecution h~d established its case beyond ~~asonable doubt. This approach invariably inflicts a fatal blow to a conviction: See O!_eth.L_Okale_ v.R •.. (1965) EA 555. But in the present case, the l&arned trial magistrate precedes the two above quoted paragraphs which are again proceeded with language formulations that show he he,d not lost sight of the need to examine the evidence for the ~rosecution and defence j~-~~~~ before reaching a conclusion whether. or not the prosecution m-::,:i discharged its duty to ·establish tlie guilt of the appellant beyond reasonable doubt 0 I am. ~~f--j.:{1$,.~ed '.tho.+QJL~9 that the learned trial magistrate may ·have been drawn back .. t .. " - .... .. . ,. ·, J or hamstrung to some extent by the language formulation but that there is no doubt that he had not lost sight of the side the duty to prove the case beyond reasonable doubt lay or that the appellant ... _ had JO obligation to prove her innocence or indeed that she could not be found ~Jilty of the offence charged simply because of the weakness of her defence. The learned trial magistrate's application of s. 127(5) of the Evidence Ac "c 9 ;..96'7 in respect of P. W. 1 was in all respects correct. The s~~e cannot however 1 be said regarding the application - f s. 127(5) Evidence Act 1967 in respect of the 10 child was properly done except that after he had established that the witness did not know the nature of an oath but possessed of- sufficient i~telligence and had consequently decided that the boy make a stateoentj the learned trial magistrate should have allowed cross~examination of the witness. The prosecution witness in this case D.W.2 is still subjected t0 cross-examination even when, as to this case~ the court had made a finding that the witness make a statement. The treatment of the witness here is not the same I as in the case of the accused. who elects to exercise his statutory right to make a statement when callnd upon by the trial court in terms of s. 206 of the Cfilmjnal procedure Code. But the oversi~ht is relatively minor and it certainly did not 9 in this case 9 cause any miscarriage of justice or in anyway prejudice the defence. All it had amounted to was that a defence witness has not be.en cross-examined. The learned trial magistrate had not at any rate negatively handled his evidence on this score f-6r that VeTJr reason. The error is curable under s. 346 of ·the· Criminal Procedure Code which I hereby invoke to cure the said error. I have taken the step of pointing it to the lea.med trial magistrate to guide him in case he has to handle the same type of case in future. There is a.nother factor that I find it necessary to point out again for the future guid~nce of the learned trial magistrate. ,-,-- The record shows that he had cross-exa.minec. Iddi Amadi (P.W.l) after the prosecution had re-!-examined him. This is not the proper sequence hearing in mind the purpo::.es of crpsa-exa.mination and re-examination in a trial. If the trial magistrate finds it necessary to cross-examine, then he should do so after the party entitled tc" cross-exarainc has done so, in this case the co-urt should have cross~examined P.W,l soon after the appellant had done so and before the prosecution had re-examined P.W.l .. To have proceeded the way the learned trial magistrate did, deprived the prosecution the benefits of re-examining the witness ·:b.Jl matters raised out of the court's cross-examination. · The -error nonetheless occasioned no miscarriage of justice or in anyway prejudiced the defence. I accordingly appiy s. 346 of the Criminal Procedure Code to cure it. In the light of what I have ou.tlined above, tha appellant was properly convicted. I dismiss her appeal against conviction. The appellant had been sentenced to eight months imprisonment. The learned trial ma3istrate had properly addressed himself to the relevant factors before passing sentence. Much as I would have preferred imposition of a fine on the appellant, she having been a first offender, young and with a child to take care of, I cannot 1:- with axi.y justification say that the learned trial magistrate was, in law, in error to have imposed a custodial sentence. The appellant severely beat P.W.l, himself just .a few years older than D.W.2 i.e. about equally young as D.W.2 and certainly a dear one to another mother. If she ho..:1 to interyene in the children's quarrels and fights 9 she should have )ined as a restraining fact~r and not as a combantant on the side of one party for nei~her of the parties to the fight really knew what was best for them or their pa.rents. I In the light of ·;this thereflo ;;:~e I refrain from ;.-'-t t.,;(•Cti. ?i':l;§; with the 0 sentence. As this Court had invoked s. 32(1) of the Magistrate's 'Y Court Act, 1984 9 I now order that the appellant be arrested a.nd taken back to prison to finish her term of imprisonment. In line with the proviso to s. 32(1) of the f'Iagistrate's Court Act, 1984 the time the appellant had been or,t of prison on bail pending be excluded in computing the YAffYA RUBAMA . JUDGE 12th July, 1985. Coram: Rubama 9 Judge Parties absent. Judgment delivered. Sgd: YAffYA RUBAMA JUDGE 12th July, 1985. I CER'fIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL. nr~¥~~al .._,