republic vs erasmus so marekani 2005 tzhc 275 27 october 2005

IN THE HIGH COURT OF TANZANIA AT MOSHI DC CRIMINAL APPEAL NO. 127 OF 2002 ORIGINAL DC MOSHI CR. CASE NO. 543/2001 THE REPUBLIC.........................................APPELLANT VERSUS ERASMUS S/O MAREKANI................RESPONDENT JUDGMENT HON. JUNDU. J. In the trial court, the Respondent was charged with the offence of threatening with violence c/s 89 (2) (b) of the Penal Code, Cap. 16, Vol. 1 of the laws. The particulars of the offence were that the Respondent on the 30th day of May, 2001 at about 11.30 hours at Soko Kuu area within the Municipality and District of Moshi, Kilimanjaro Region, with intent to intimidate or annoy did threaten to kill one Costantino s/o Temba with a knife. Having heard the evidence of the prosecution witnesses and that of the defence, the trial magistrate acquitted the Respondent because in his considered view the prosecution had not discharged its duty to prove the Respondent’s guilty beyond all reasonable doubts. Being aggrieved by the said decision of the lower court, the Appellant, that is the Director of Public Prosecutions has appealed to this court listing two (2) grounds of appeal in its Petition of Appeal as follows:- 1. That the trial magistrate erred in law and fact in acquitting the respondent despite of watertight evidence adduced in court by PW.l and PW.2. 2 .That the trial magistrate misdirected himself in acquitting the respondent on the ground that PW. 1 did not take the matter to the market authority without regarding the evidence adduced by prosecution. In the said Petition of Appeal, the Appellant prays that the appeal be allowed and the Respondent be convicted as charged in the lower court and punished according to law. In the first ground of appeal, Mr. Juma, the learned State Attorney, vehemently contends that the evidence of PW.l and PW.2 adduced in the trial court was watertight such that the prosecution had proved its case beyond reasonable doubt against the Respondent. On the other hand, the Respondent before this court strongly urged this court to uphold the Judgment of the trial magistrate that the prosecution did not prove its case beyond reasonable doubt as one could not rule out the possibility that the case was framed up on grudges against the Respondent. Therefore, in my considered view, the issue is whether the prosecution side at the trial court had proved its case beyond reasonable doubt or was the case framed on grudges against the Respondent. In his submission before this court, Mr. Juma contended that PW. 1 had testified in the lower court that on 30/5/2001 at 11.30 hours the Respondent, a trader in the central market had placed stoves he were selling in the entrance gate of the said market such that the motor vehicle of PW. 1 could not pass. Upon PW. 1 requesting the Respondent to remove the said stoves to allow the motor vehicle to pass, the Respondent while holding a knife in his hand uttered the following words to PW. 1 “unaringa na gari, mpumbavu huna akili, nitakufanya Kitu mbaya, nitakuchinja” Mr. Juma contended further that PW. 1 in his evidence before the trial court had stated further that upon the refusal of the Respondent to remove his stoves, P W. 1 contacted PW.3 Abel Francis allegedly one of the market leaders who came to the scene and requested the Respondent to remove his stoves but again the Respondent refused to do and still holding a knife in his hand continued to utter his threatening words hence PW. 1 reported the matter to the Police whereby PW.4 E 9212 PC Hussein arrested the Respondent. Mr. Juma contended in his submission that PW. 1 in his evidence before the trial court stated that he had no business grudges against the Respondent. Mr. Juma in his submission contended that PW.2 Bias Joachim had testified in the lower court that on 30/5/2001 at 11.30 hours he was present on the scene of the incident and had seen PW.l having difficult of passing with his car at the central market because the Respondent had placed stoves along the entrance gate and when PW. 1 requested the Respondent to remove the said stoves to let PW .l’s car pass at the said entrance gate, the Respondent refused and uttered threatening words to PW. 1 while holding a knife in his hand. Mr. Juma contended further that PW.2 had testified further in the said court that PW. 1 Abel Francis who also requested the Respondent to remove his stones but the Respondent refused to do and continued to utter threatening words while still holding a knife in his hand hence PW. 1 reported the incident to the Police and the Respondent was accordingly arrested. He further contended that PW.2 had testified that there was no any business grudge between PW .l and the Respondent. Mr. Juma further contended that even PW.3 who was Katibu Kata in the area had also testified that his intervention for reconciliation was not accepted by the Respondent instead the latter continued to utter threatening words as follows “mimi siongei na wapumbavu, kwanza anaringa na gari na akisogea hapa nitamchinja.” On the other hand, as I have stated, the Respondent, in his submission urged this court to accord weight and uphold the judgment of the trial court as the said court had direct opportunity to hear and evaluate the evidence of the witnesses and that what Mr. Juma contended in his submission before this court does not differ with what the prosecution had advanced in the trial court through its witnesses which the said court found not to be credible. As far as the first ground of appeal is concerned, the Respondent denied to have both uttered threatening words and held a knife in the manner described by Mr. Juma. He contended that the case was framed up by PW. 1 based on grudges he had against him as there existed business conflict between them that was properly described by DW.2 Paul Thomas in his evidence in the trial court. DW.2 held alleged to be chairman o f the businessmen association in the said central market and that at one time there was a conflict between PW. 1 and the Respondent and DW. 1 was held to be the source of the conflict but was not happy with that holding. The Respondent in his submission contended that it was not true that he had prevented P W .l’s car to pass at the entrance gate of the said market because in his firm view there were many other cars that had passed through the said entrance gate on the said day and that PW.2 and PW.3 who testified in support of PW .l (prosecution’s) case were relatives of PW. 1 and collaborating with him in framing up the case against him (Respondent) and in no way were they bordering him in his market place. He contended that had it been true that he had threatened PW.l then the latter should have reported to the police directly rather than seeking conciliation vide PW.3. I have carefully considered the submission of the parties on the first ground of appeal. As I have said the issue is whether the prosecution had proved its case beyond reasonable doubt or was the case framed up on grudges of the complainant against the Respondent. As we have seen Mr. Juma the learned State Attorney reviewed the evidence of PW. 1 and PW.2 in the trial court and submitted that their evidence was watertight in their trial court and based on the said evidence he contended that the prosecution had proved its case beyond reasonable doubt. He contended that the evidence of PW.l and PW.2 as far as section 61 of the Evidence Act, 1967 was concerned was admissible and sufficient to prove the guilty of the Respondent as was of the witnesses who heard and saw what transpired on the material date. Indeed in my considered view, it may be said as submitted by Mr. Juma that the evidence of PW. 1 and PW.2 had established that the Respondent had uttered words as well as holding a knife and threatened PW .l, the Complainant. But was the said evidence watertight as contended by Mr. Juma? In law, the Respondent was only required to raise some doubt in the prosecution’s case to entitle him to an acquittal. The Respondent as we have seen had contended that the case was framed up against him due to grudges by PW .l, the complainant. Indeed, the trial magistrate held in view o f the evidence of the Respondent and his witnesses that possibility could not be ruled out. j Mr. Juma in his submission contended that PW.l and PW.2 had testified that there was no business conflict between PW. 1 and the Respondent and that the said witnesses had no interest whatsoever to serve and had no grudges with the Respondent. However, there was ample evidence of the Respondent in the trial court that P W. 1 had constructed a shelf that blocked the Respondents business kiosk and he complained to the market authority and PW.l had been ordered to remove the said shelf but did not do so and that PW. 1 had framed the case after the Respondent insisted that PW. 1 to remove the said case and that PW. 1 had opened cases against the Respondent to humiliate him and that PW.l grudges started since 1999. Likewise, DW.2 Paul Thomas who in his evidence in the trial court testified that he was the chairman of the businessmen at the said market and that it was true that PW.l and the Respondent had a conflict whereby PW.l had fitted shelves at the wall of the Respondent kiosk placed his goods over the Respondent’s kiosk and a meeting of businessmen was convened whereby PW.l was found the one who had wronged the Respondent hence he was required to remove his goods but he did not comply and was not pleased with the said decision. This evidence of the Respondent and his witness was not shaken up or discredited by the prosecution during cross - examination and in my considered view the trial magistrate was correct to hold that one could not rule out the possibility that the case against the Respondent was framed up under grudges. It followed therefore that the Respondent had successfully raised a doubt in the prosecution’s case and as always is the case should be expressed in the benefit of an accused. In other words, I quite agree with the trial magistrate that the prosecution did not discharge its duty to prove the guilty of the Respondent who was the accused in the trial court beyond reasonable doubt. The above finding is sufficient to dispose this appeal. I need not labour on the second ground o f appeal. In the final result, I hereby dismiss this appeal. I uphold the decision of the trial magistrate. It is so ordered. F.A.R. JUNDU, JUDGE, 27.10.2005 Right of Appeal explained. F.A.R. JUNDU, JUDGE, 27.10.2005 27/10/2005 Coram:- F.A.R. Jundu, J. For the Appellant - Mr. Juma, State Attorney. For the Respondent - present in person. C/C:- Kimario Court:- Judgment delivered in the presence of Mr. Juma, learned State Attorney for the Republic and in the presence of the Respondent. A F.A.R. JUNDU, *\ 27/10/2005 '■ Vi AT MOSHI. ft’