20090522 TZHC Mwanza

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY ATMWANZA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 154 OF 2007 (Original Criminal Case No. 251 of 2006 of Magu District at Magu) KUSEKWA s/o KABUSHI .................... APPLICANT Versus THE REPUBLIC .................................. RESPONDENT JUDGEMENT 25/03 & 22/05/2009 SUMARI, l. The appellant, Kusekwa Kabushi was charged with Grievous Harm contrary to section 225 of the Penal code, Cap.16 of the Laws. The District Court of Magu convicted and sentenced the appellant to serve a term of three years imprisonment. Appellant was aggrieved hence this appeal . ... The case for the prosecution as established at the trial was that . on ~the 14th April, 2006 at about 20.00hrs at Sayaka village Magu . district, the appellant did unlawfully and willfully caused grievous harm to one Juliana Gervas, the complainant. That on the material date and time while Juliana was at her home having her dinner together with her Telatives, appellant arrived and found her at he( table eating. He questioned her why she has not invited him for dinner. It was at that time the appellant is allegedly pushed the table and the. food got poured. Juliana then asked the appellant for the 0 compensation of the destroyed food. It is at that stage appellant assaulted Juliana and caused her injuries. Prosecution side called three witnesses who happened to be in the house eating together with the complainant, Pwl. Pwl reported . the matter to police and upon investigation she was issued a P.F3 which was tenderep and admitted in court as Exh. Pl. Appellant did 0 not object to its tendering. In other words there was no dispute that Pwl sustained injuries as stated in the P.F3, which injuries were termed dangerous harm. Pw2 and Pw3 supported fully the evidence of Pwl. In his grounds of appeal, appellant raised four grounds of appeal .• :- 1. That the trial magistrate erred in law and fact by not • considering that the appellant raised a defence of alibi and that on the material day he was on safari at Nyangu9e village. • 2. That the defence witness one Luganda. Mayala corroborated the evidence of the appellant that he was on safari at Nyanguge village but the trial magistrate denied the defence without assigning sufficient reasons in his judgement. 3. That the evidence on the prosecution side failed to .. explain as to how the appellant was not arrested at the scene when assaulting the victim/complainant. The prosecution witnesses are relatives of the complainant and no independent witness such as ... . I .. I 0 • I !/ 1/ kitongoji or ten cell leader was give evidence in the // ~. //,J trial court. ~· :-. '• // /; 4. Without prejudice to the above stated grounds the 1 i1/ ~ /' prosecution evidence was not enough to sustain a r conviction on the appellant. .,,, • At the hearing appellant was not present as he indicated his· wishes not to be present. The respondent/republic was represented by Mr. Kennedy, learned State Attorney who in reply responded in respect of the 1st and 2nd grounds of appeal, that S. 194 (4), (5) and .. (6) of CPA, Cap.· 20 of the Laws (R.E.2002) which requires the accused person to give notice to the court and prosecution side, that he will rely upon the defence of alibi, before the case ends. According to the learned State Attorney the appellant's failure to give that notice, before the closure of the prosecution's case the trial court was right under the court's discretion to accord no weight on the defence evidence as provided by the law. In support he cited · the case of Masudi Amlima v Rep (1989) TLR 25. ·So he strongly contended that the appellant's defence was done in contrary to sections cited (supra). • • The learned State Attorney further contended that though . proceedings shows that appellant called as his witness one Lugaila Mayala(Dw2), in support of his alibi, that he was at Nyanguge village. but this witness told the court that the appellant went to Nyanguge on 2/4/2006 while the offence was committed on 14/4/2006. There is no where shown that appellant was with this witness on 14/4/2006 . 3 when offence committed. It is his contention that from the evidence of Dw2, it is quite clear that he (Dw2) does not know the where abouts of Owl, appellant on 14/4/2006. Pwl and Pw2 who were present while the offence was committed, testified that appellant ran away immediately after stubbing the victim, Pwl Juliana Gervas and before people came at the scene of crime, that is why he was not arrested at locus in quo. .. According to Mr. Kennedy, it is not a law requirement that accused person must be arrested in locus in quo, so 3rd ground of appeal is unfounded. As for identification of the appellant he submitted that the identification was properly done considering the following factors :- First, that the appellant attacked Pwl when Pwl and others were eating on the table and it is quite clear. that no one can eat at the dark, so there was enough light. ... Second, that it was shown in the proceedings that before Pwl been attacked they talked and he asked for food and Pwl responded that appellant shoyld pay for the fooq destroyed. This being the case, it means therefore there was enough time for identification. ♦ Third, there was evidence to show that Pwl and Pw2 knew the appellant very well before the commission of the offence as their co- villager . .. 4 ~ Basing on these three factors, the learned State Attorney, stressed that, there is no doubt over the appellant's identification. He then called upon this court to dismiss the appeal as it lacks merit. I have carefully scrutinized the evidence available on record, r. and I am satisfied that conviction of the appellant was well foundea by the trial court, as well argued by the learned State Attorney. .. From the record of the trial court it is apparent that appellant did not follow the conditions of defence of alibi specifically underlined in Section 194 (4), (5) and (6) of CPA, Cap. 20 of the Laws (R.E.2002). The provisions provides :- "{4) Where an accused person intends to rely upon an alibi in his defence, he shall give to the court and the . . prosecution notice of his intention to rely on such defence before the hearing of the case. (5) Where an accused person does not give notice of his intention to rely on the defence of alibi before the hearing of the case, he shall furnish the prosecution with the particulars of the alibi at any time before the case for the prosecution is closed. (6) If the accused rais~s a defence of alibi without having first furnished the prosecution pursuant to this section, the court • may in its discretion, accord no weight of any kind to the defence'~ As well argued by the learned State Attorney, failure of the appellant to give the said notice before the closure of prosecution's case rendered the appellant's defence weightless. The trial court was 5 therefore very right in according no weight to the appellant's defence 0 • of alibi. I have also considered the appellant's complaint that trial .Ii i i / / magistrate did not assign sufficient reasons for not considering Dw2's t ' i\ evidence which according to appellant this evidence corroborated his defence. As well argued by the learned State Attorney, the evidence of Dw2 is to the effect that on 2/4/2006 appellant told him he was to l~ave . for Nyanguge but this witness could not ascertain to the trial court as to where was the appellant on 14/4/2006 when he is alleged to commit the offence. The evidence of Dw2 in law was not reliable even if, appellant could have given the said notice as required by the law. • Now as for the evidence against the appellant we have on record Pwl's evidence which is supported by that of Pw2 and Pw3. These two witnesses were eating together with Pwl when appellant assaulted Pwl. We are told that appellant was not a stranger to Pwl and Pw2, a fact which is not disputed. The two witnesses could even identify . the man accompanied the appellant by his name. Also this was not disputed. Likewise Pw3 told the court that she saw appellant entering the house of Pwl together with another man and it was her first time to see appellant. Appellant had a prior conversation with Pwl as to why she did not invite him for dinner. Again, the evidence • 0 shows that appellant bite Pwl by her mouth before kicking her down. ... · So they had enough time to see each other, likewise for Pw2 and Pw3 it was easy for them to identify appellant as the scenario took some time. So I quite agree with Mr. Kennedy, learned State 6 .,.. Attorney that identification was properly done. I have no doubt at pll • that Pwl and the other two witnesses identified the appellant very well. As for the question of the prosecution witnesses being relatives and so might had an interest to save, the evidence is very clear that Pw3 was not blood related to Pwl and she did not know appellant and the man accompanied him. Her evidence is straight forward, she talls what happened at the scene and nothing more. I have no doubt of her evidence and at any rate if any grudges the appellant could have cross examined on that when availed time to cross examine these witnesses . I • I • As to why appellant was not arrested at the locus in quo, the evidence is clear that appellant ran away immediately after commission of the offence, so could not be traced and arrested instantly .and villagers who turned up did so after the incident. It should be born in mind also that there is no rule of law that the culprit must be arraigned at the scene of crime so as. to establish the commission of a crime. What matters is whether the evidence ... available is sufficient to implicate the accused. In the case at hand appellant is sufficiently implicated by the evidence available in the trial court's record. For the foregoing reasons the appeal of the appellant is lacking merits and therefore I dismiss it in its entirety. ~ .91..9{iM. Suman J'll'lJg'E . 7 ... /~·.;. ; 1· l I I I Delivered in presence of Miss Mbuya, learned <: .. i/ State Attorney for the respondent/ republic / / and in absence of the appellant as he wished. The copy of the judgement to be transmitted .... to the appellant immediately to enable him • -<;f / ·, r,....~~rcise\his right of appeal, if he wish .. ' ,~'!.--'.'.i"'"° '"'"·•-,,, i' ' . ' ,/ Atfj,~~J~a \ ~'l~['s 009 ' .... \ \L)' ~- >,_ . ., ,I : \, ;--,. JiJ}.:;;,,ici-~',.< / '··~'&. ... ,' / -::~ .,. • .... 0 8