19961206 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA AT MWANZl. ....,. see llPPELLATE JURISDICTION (Mwanza Registry) HIGH COURT CRIMINAL APPEAL ID. 42 OF 1994 Original Criminal Case No. 1+69 of 1993 of the District Court of Tarime District at Tarime - Before E. P. Magula, Esq., District Magistrate THE DIRECTOR 0F PUBLIC PROSECUTIONS Jll'PELL/1.NT versus: MUGINI MARIBA RESPOIDENT JUDGEMENT MREM£l, J. This is an appeal by the Director of Public Prosecutions 8 The respondent Mugini Mariba was an accused in the Original Criminal Case No. 469/93, In the District Court of Tarime,. at TarimEl. On 30/6/1993 the respondent appeared before that court charged with two counts: the 1st alleging grievous harm c/s 225 of the P.C; and the 2nd one, also grievous harm c/s 225 of the Code. On the 1st count he was accused·of assaulting and causing unalwful grievous harm to one.John Kihungeri, and, on the 2nd count, that he assaulted one Nyamhanga s/o Chibungeri, causing him to suffer a fracture on his left arm. Then on 28/9/1993 the former charge was altered and replaced by another charge, this time containing only one count, that is "robbery with violence c/s 285 and 186 of the Penal Code. The substance of_'.'ithe charge was to the effect that on the 24th of March, 1993, at about ~.00 hours, at Mangucha village in Tarime District the appellant did steal one radio casset, 4 band TV valued at sh$. 30,00C:V-;-, one watch seiko-make and 5 TV cassetes veJ.ued at shs 20,000/~, the property of one John K:.bungeti. But to accomplish the theft violence was used immediately before or after the theft, to wit, the appellant cut the 2 ~ complainant John Kibenget-i ·'\4i th a marchet on his right arm in order to obtain the said property. The Learned trial magistrate, Mr. Magula, after hearing . both the , pposecution and defence came to the following conclusion, w~ich I {ind it desirable to append hereunder for ease of reference in this judgement,:..~ · HTh~ ;:x:hihit tendered by the defence has increased the doubt which hanged in the pr~secution case. No ,j' radio cassette w.as recovered nor the wrist watch. It was not clearly depicted what sort of radio ':c·assette it was; National or pernasonic, sony or Artec_h or what. Well the case wa(3 not proved beyond reasonable doubt by the prosecution. The_:defence has created a big doubt in the whole iss~e. I find ' 7 • ~ •" the acc~ed person not f!Uiity 6f the offence charged and acquit him of the s911Je ••• ~ •• -~.; ••••••• ~, Following that decision the Di~ector of Public -Pros'ecutions, hereinafter to be referred to as the, DfP,.: was ,not· happy with that de'cision, hence the ;-· ,'i present. appeal. . . . ; ~ .. ;-Mr •. Kaponde, Learned; State Attorney-, appeared. alld argued the appeal 1 ;· on. be halt, qf the appellant, whereas the r~spondent Mug'lini appeared in person and.resisted the grounds of appeal~ The ,1st ground of appeal apne3rs to be quite gene:z:-a;l, as :~t m~re]q; that ' ','' ' averii the &i.cqui ttal was against the weight of the direct evidence adduced . • {:' ~. C I ,. _: •, ,' , • • • • ' • .• • • by the prosefoution wi tness·es. The other grounds are as follows: ! ,·. !.. . }. i 2; That the trial magi~trat~ grossl~ erred in Law and ra:bt' in not finding that the defence version ·. w~- nothing but a :fabrication ·and it was not supported. by any relevant .fact/i~ • :·,.. ... 1· 3, . That. ·t'fr~ trial court omitted its duty to seek clarifi9ation from the prosec{iti~n wi tnes~es; on_ the issu~ of type or model of the-: radio -if ' ' ·it found that to be a material factor to the '' out('-ii'ne of the case, 3 J.i:. That w:ith6ut prejudice 'to 'paragraphs l - 3 above, the trial magistrate was entitled'to· convict the respondent for unlawfully doipg ' I, ; ., griev:ous harm: to. PWl and PW2 contrary to . sections 225 qf. .. tlle -Penal Coaei •'.• It is the Appellant's prayer therefore that this court makes an order .• . l . - setting aside the acquittal of the respondent and substituter:;; therefore a conviction and at the same t:i.m.e sentence the respondent according to law and circumstances of the: case. There is also a prayer that the respondent should also be ord.ered td restore to the complainant the robbed articles, and to pay oompensation in respect of permanent injuries suffered by PWl and PWi. It is ..,,portant, however• before dealing with these issue, to state albeit briefly th~ facts constituting the allegations against the appellant. It is in eviden_ce, as found· at the trial, that on 2.9/3/93 the complainant Kibo~ele (PWl) was,being esd6rt~d,by his br~ther Nyamhanga (PW2) to the foz:me;r'·s. home. 1 ::Ori the way they met the appella11~ who was armed with a mat?het (sime). -~As the app~llant ~as about to hack the nec~ .. of PWl the· •·. ·,!. latter intercepted that blow by his right hand though, however, _th~, blow ..;-- , .r ~\-C· . \ . of the matchet ~truck PWl's wrist (right hand). As the result of that.blow :- PWl's :~watch .. fell .. d~w:n, " ..' including his. radio ca~sette he was carrying_. It. . . ' was'·hso the evidence of PWl at the trial that . · . his property - the watch and radio cassette, were taken away by the appellant. In the meantime ' •, ..... ) PWl ahd:-.PW2 raised alarm -~d the villagers rushed to the scene. rt was also found as a fact that PW2' s la.st two fingers of the le}t arm suffered a cut from the blow of the respondent• s ma.tchet. Two prosecution witnesses, PW3 and PW4; who ai,iswered the alarm, testif'ied before the trial court that they saw the respondent carrying a radio and crossed the Tanzanian border into ' Kenya. Both the witnesses gave first aid to the victims after which they assisted them to re~eh police station to report the illcide~t~. PW1 1 s PF3 (exhibit Pl) contains the do~tor•s · report as follows·: •1Jeraha alilopata ..._,....... ! . limesababisha kukatwa mishipa hivyo kutokwa na cl.~\l.: nyingi liata k:uzimia11 e . .~ : ., ,.: l . He further described the injury as t 7Hatari sana :(Dangerous Harm) - Jeraha 4 li tadumu kwa muda" • The de!)th of the wound was .9hown to be 2 cm deep and 6 cm long. As for Nyamhanga Gibunge (PW2) his PF3 (exh.B) 1 the doctor's remarks are:. 11Majeraha aliyopata yarnesababisha kukatika kwa kidole cha nneP., · The report further reveals that the victim• hacf 5 wounds on his left arm apparentl,y,.caused by a sharp object, 1.-{:h;i.Oh wou,nds:' or injuries were . .... . ! ·,,. :. . . . ..... ,'.'' 1 • : • .•• •• :- .. , d~scribed as adangerous harm: 1 •. From the ~viden.ce on.record Jt was therefore •. . • •; : . ' ' ,., ' '. ·1- .~stablished_ that PWl and PW2 suffere~ serious inju;ries from the hand ,of the respondent., . . ·.: . In defence the :re!:>pondent admitted knowing the two ~ctims (p~ & PW2). .He ~d they:. live in the same village. Howe-ver,, he denied. mee.ting_,,PWl, .&1: .....W2 ' " .'I.. . Ol'l a road path or side, but rather, Nl and PW2 met him at his sha11fb~.. Then ·the. two· me_n (PWl and PW2) starteo. attacking him with spears • ..:.The respond~nt ' ' . _; • •.. . . \; . .i.. (DWl) ran ·away, so were the two complainants who left their radio be~nq)r- ·.• · · .1!a National Radio l band ya M~a0 .. DWl later, re turned to. the . shamba and picked.. up the radio . . . . ' •. which . he to,ok; . ,it .to his t~~ ' : .. cell leader,. Magigi police ," ~ ' .. (DW7) • .~e then reported the incident to the CCM Office. Later the police ' "' ' ' ;him ' ' and chargedlw.i ~h the present o.ffence. DW2 .told .the t,X:ial court at;:. how. D\'fl ~eported the i:p,cide;nt, to him and handed to him the radi.o exhibit Dl which .the respondent <::,l.aiined t.o hav~ picked up ,at the ,.scene. .In cros~ •· .· ' e}!:aminc1-tion DW2 insi$ted .that .the radio is the property of PWl and PW2 !,, •,: ,•.• .• because. he. ~d . seen them_ in possession of the radio in the ~ . ' past. . ' · •. · At the hearll.1g o:f this appeal Mr. Ka'bonc;ie for the: respon!:lent · (Republic). criticized the trial magistrate's ·-decision,, in that he capitalized , on the want of suffioient details concerning ·the radio and ~oak it as a loop h~le , to ao4ui t th.e respondent,. It is the Lear:q.ed counsel's content~_on that the main issue before the trial court was not whether the radio bel,onged .-to · the respondent or the. victims (PWl and PW2), but., rather whether t}:le respondent · was r~sponsible ·for the ,serious. injuries inflicted on th~, two .prosecution witnesses., Further, he said, even then, PWl and PW2 mantai~d .that .the radio tliat was s·:natched away from them was radio cassette as qpposed to,-~ sim,ple ~ . radio (without cassette .impact) ~d tn effect, as Sl.lch, 1 he _s.~d, it was wrong -.5 on the part of . the m§lgistrate tp infex:: such · a re~ote :._prop_osJ:_t'ibn~ :; - ' Anoth'er ¥r:i.tJ?i.sm leveUe,dr)by· Mr,.• Kab.onde agai.nst' {he:·triar :) ·.. :- ~ ' I)lagis tr at~ i~ t".tla:t he ,,( ±p.e . mag:bst_:r ate). ·te'nded {o' ·. iiccept .. tlie ;~spoiiden t' s evidence· .. '·· •', ·. when inf-act it lacked credibi·li:t~.:· Th~t,, while i-f i~;'tr~~ that ;" an. . accused ' . ' ~ ne~ds no.t; prpve::'his· case beyond re.is~m d~ubt, the duty being ·' shouldered on .th~; pros.ecution, howeve;f that. do~~. not mean :t~t, his' evidence . . . for rebuttal sho-q,l<;t_ not be.'·incapaJble · of b~irig. true or prob~bly tru~". That ,. . . . it was not enough for the respondent in this case to allege that he· was l confronted and attackedby_ \·:.-· the pr,osecui:;ion ... witnesses PWl and PW2; for if it was t;~e that he was ~ttacked ... ' : these by - witnesses with spears . he should have ,. : r ·.: . ·: - gone f~ther to. prove the injuries he sustained: during· that confrontation. 1 I am inclined·to agree:with the learned state attorney because even the story, narrated by the respondent's witness (DW2) contai~:, nothing . 0f that allegation. In other words lie never told the trial court that the · re~pondent reported to him about the att~ck by PWl and PW2i nor did he say . . : . . ~ that he_ saw DWl_with ~6U:nds or injured marks •. · Like Mr. Kabonde, I tend to disbelieve the respond~nt' s story that after all of them (including himself) ' had ran away from the scene to avert the imminent danger ( of life) he ( the respondent) returned to the scene and found the victims' radio there. If we go by the respondent's evidence, his assailants were two and were armed with spefu-s, while on his side he was alone, and had only a jembe as per the respondent's statement before me. I find the respondent's story to ''be a concoction as it is not consistent ·with the natural course of. things.; .. He never raised alarm if it was true that he was being attacked, nor did he run to a neighbour 1 s house to seek as'sistance., ·, ~P-, accordirig, to him, he ·went to 1 DW2 after he had returned to the shamba 'and' ;picked up 'the' radio ;1. the· victims() · J:f this evidence were to be .accepted common :5?.!].9e appi1.~s~ .tha-£ the .-~~rs~ns attacked are the owners' of . the . radio· : . ).u . . . and_: . thait >, • was why the respondent managed '· to have full .possession and 9ontl;'ol. of the ,rqdio. Las_tly, Mr. Kabonde submitted, ;and:,cotrt~-ndJd .as" he. d:i'dll'that the trial ')magistrate having ~owed the··substitu:tion ,of. tlie·,6ff~rice .·o:f•rob:bery' ~ith 6 .. .. violence to the one of 11 causing harm c/s 225 of the P.c, he proceeded on trying the respondent as if the offence of robbery with violence had not been withdrawn and replaced with a dif"ferent one (as stated above). The result thereof, he said, was the acquittal" of the respondent, the error that prompted the DPP:to appeal from that findirig ·of the district court. With:respect, I differ with the Learned State attorney; I have . already shown.at the beginning-of this judgement that the Original charge was c~using"grie;ou.s harm c/s 225. This charge was withdrawn and repla,ced • .: 1 •• : · with another ·charge ·alleging robbery with violence, and this wa,s on 28/9/tj3. :. . • :. 1.' . .·l·, : . .. Jt was this charge upon which the prosecution called. witnesses. and. tel:l_tified .. _,., •.:>· t ·., . . in support of the allegation~ The 1e·a.rned trial magi~trate was right .t<> • consider and determine the offence in the light of the new charge substitured • \ .. I, t . on 28/<Jl:)3•. The only question in this court is whether the rnagistrat~ w~. · right t9 ·acquit the appellant in v:iew of the -evidence on re_co~d~ It is no lon~r' in doubt that PWl and PW2 were attacked c:µid_ :badl~ ,._ ... ;- injured by the respondent, •··The prosecution witnesses gaye- evidence ·to convince the trial court that th~ respondent (DWl) attacked PWl and RW2, · not for anything else but to rob them o.f their radio cassette and PWl's watch,. . From the evidence the· meeting c,f the t\.J'o witnesse_s with the· respondent · (DWl) was sudden. Althbugh:·1w1 claimed .that ., .. . PWl.. .&' .PW2 " -~ were ' . armed with spears'. ; ~' there is no i~ta: of evidence that.shows or purports.to ,,, ,,. __ showthat DWl was . . . . . ···: - f injured. The injuries o~ PWl and PW2 were he8:vy . . and .c~ot . be .:over-emphasised,. ~ There is therefore every reason to believe that they w~re not arm~d:and that . -~ ' . explains: why they were unable to fight back ae;ainst the . . ~ed. ·,respondent. - .- ,,,., Both raised alarm and PW3 and PW4 ·came to the scene and both _of tpem saw the respondent fleeing away from the scene towards . Kenya . . •. There was not a single witness who. w~ cwecl t,Q. testify to .the e£fect that .PWl & -PW2 attacked ,DWl. f • .. • • • The latter ·defence witness (resp.ondent) did admit ;• that . . . PWl and PW2 had a · .. radio which he picked ~p at the scene. But, as already scene.. above, ·the ., . . property allegedly stolen from PWl and PW2 were a radio cassette and a wrist watch,.. the latter: ~aving been worn by .Pill' 012.,-his. right . hand-~ the part . . . . ., ~ .•. ., ... ,, 7 of the b0dy· that suffered a serious ...cut from the blow of matchet in the possession of the respondent. The two victims and DW1 are residents of the same village and _th~y all know_ each _o_ther. ·No doubt, in m_y view, after . . . . . · the· respondent had inflict~d. those serious blows on the two viqJims, while knowing.that PWl and PW2 had identified him, he.had no alternat:f_ve but to find ways of lying the court to save himself from being implicated. It is quite probable that the respondent brought. a ra~io to_ DWl under the guise -" of'. having picked it up at the .ice~e~ a f_act_ that was not true... From the -· s. beginn;i-ng··PWl and PW2 had. t"ld f:W3 and PW4 who tl1rneci. at the scene that the respondent' at'tacked them and robbe~ them' of their radio cassette. and wrist watch. By then PWl, PW2,, PW3 ·,& PW4 had not ,known, of the 91 :radioa story and therefore it was not possible- for· Pwl· and Fw_2 to chartge the story_ and _tell PW3 a:ad PW4 that the respondent robbed them of the:i.r.· radio.. . The . evidence :. ' ~ of . . ' .. PW1 1 PW2, PW3 and PW4 appears coherent ·and truthful. The' respondent' .:•.a ·. E;l.vidence _; •,•· is .. :~apable to inject reasoi;i.able doubt ::ln the, f:itory giv~ri b; the 4 prosecution wi tnesse·s, I can find !lQthing in the· evident reco_rd that justffies me t<;> doubt the story, given by PWl, PW2, PW~ and PW4. This brings me to ·a conclusion that . the tri4. magistrate E:;rred i_n not .evaluating the e"\Tl.deµce before him carefully and meticulously and consequently arrived at a wro~. conclusi'on, the way he did, if not a deliberate undetpkil'Jg'- .The __ evidence clearly proves ·the offence of._ robbery with violence· Ei!ld, in my tlew·, had the trial magistrate analysed the evidence before him properly he would have found that_ tl:).e responde~t had committed the offence under section 285 and 286 of the Penal legislation. If there was any fight over a shamba between the two sides.as claimed by the respondent I would have expected to find such evidence from the mouth of the ;~spondent1 s ten cell leader. It would also seem to me that PWl and PW2 were not given opportunity to know the kind of exhibit (the radio) nw·2 was going ·te: 1-"!'-ot:i~ in cupport ·9f DWl' s case. And if IWl and PW2 ha~. _left one meter . ·.,. . .. _ band radio at the scene I am unable to ~ee-why"'Pr/3 and PW4, who were- l(ot. connected with the violence, did not ?ee · the alleged radio •. Moreover, I find . ' ' . nothingin the evidence to,~how that_PW.3 and PW4 had their own interest to serve when giving the evidence they gave. 8 \\; For the foregoing reasons I run satisfied that the order of the 'trial court acquitting the respondent was bad in law and therefore I quash it. Having quashed the order for acquittal, I convict the respondent ·- of the offence of robbery with violence e/s 285 and 286 of the Penal Code. A. C. .MREMJl JUDGE 6/12/96 - Mr. }fuago - I have no record to show that the respondent is a past convict. - -Respondent . I have another cnse in Tarime District Court. brought under a police escort. I nm sick and have contracted I h~ve been : ......... • _. .. , • ~ I TB. I pray for this court's liniency. Further, since I am to answer that criminal charge at Tarime, 8:11-d the t~~~:that .·i'.. I:••~ • •~:~'!_ - :;..:•:·•.=-.:~~. ..,,.-"'-> • .. l . ; . --~ _:;: ·-: •; .r I need thorough treatment to cure this horrible dis,~~e 1 ,J; ... . . ,: .t - f ..:.:.:~:· ;, -~·:...-~ - . prey that this court make::i" an order to cause me be returned to Te.rime. This will enable my relatives to pay close _aivtention t0 my health. .•.. . Sentence , The Mi:runwn Sentence provided by the Law is fifteen (15) years as per section 285 and 286 of the P.c. read together with Act No. 10 of 1989. I have no alternative but to sentence the respondent to 15 (fifteen) years imprisonment. I further order that the respondent be escorted to Tarime to continue to answer another Criminal charge facing him there. "It is also apparent that the respondent is sick and I note that his chest is not good as he has claimed before me. He would like to be near his relatives for close attention to his alleged TB d:i.seas:e. I thillk this is a genuine request and I allew- the application. For that reason I order that he should in the meantime serve his prison sentence in Tarime Prison. .. 9 The Prison Authority should 1::ie notified.· j -., .\ V \:\j"- . ' Delivered at Mwru;\i~ ·A.·_ C. : MREMA 6/12/9§ ·JUDGE -· ' · l ,:•;· Right· of appeal_ explained •. ... ' ..... ' -"./ . .,. .. - ... •- r ... < JUDGE Appell81:,t - , Mr~ Mbago for_ the I;>PP,: Pre:Sent · Present in person. .t . ... . -- Ji. c.. MREMi'i JUDGE- ' : ' . 6/12/96. ....... . ...,.. - .. ,- . -" ~ ' ..... .- ; _ . _ ... .. . . ·, ,- .