urgin mwalongo vs the repulic 2010 tzhc 222 15 september 2010

IN THE HIGH COURT OF TANZANIA AT IRINGA (DC) CRIMINAL APPEAL NO. 7 OF 2009 (ORIGINATING FROM NJOMBE DISTRICT COURT CRIMINAL CASE NO. 128/2007 URGIN S/O MWALONGO................................................. APPELLANT .VERSUS THE REPUBLIC....................... ................................. RESPONDENT JUDGMENT MKUYE. J This is an appeal originating from a conviction on a charge of causing grievous harm contrary to section 225 of the Penal Code R.E. 2002. It was alleged in the particulars of offence that Urgin Mwalongo had on 13th of April 2007 at about 7.40hrs at Luponde area within Njombe District and the Region of Iringa did unlawfully cause grievous harm to one Alex Nyagawa by stabbing his chest by using a knife. Upon conviction the appellant was sentenced to 5 years imprisonment. Aggrieved by the conviction and sentence, he has lodged an appeal to this court. The appellant had lodged 6 grounds of appeal and indicated that he did not wish to be present at the hearing of the appeal. The respondent Republic was represented by Mr. Mwandalarria learned state attorney who sought to support both conviction and sentence. The facts leading to this appeal can conveniently be summarised as follows: On 13/4/2007 at about 07.40hrs Alex Nyagawa (PW1) was driving a motorvehicle, make Fuso from Njombe to Ludewa. He reached at Luponde area where the road was rough and some vehicles were there. The passengers decided to repair the road and one vehicle managed to pass through. PW1 decided to pass but the appellant also forced to pass, the act which led to blocking PW l's vehicle. This act annoyed the passengers so they decided to beat him. PW1 stopped them and they cooled down. In the process the appellant allegedly stabbed PW l's chest with a knife. He sustained a dangerous harm as per PF3 (Exh PI). The appellant was arrested on the same day and later was arraigned before the court. The appellant in his defence admitted to have been at Luponde area where the road was rough due to rains and some vehicles were stuck. He testified further that as a certain vehicle was about to pass, he drove his motorvehicle then the passengers attacked and beat him with stones and clubs. He claimed, a certain truck driver pushed them. He further testified that they undressed his clothes and tied him against the tree where he stayed until the police came and took him. He denied to have stabbed PW1 with a knife. With regard to the 3rd ground of appeal, the appellant complained that PW l's evidence was very short and was not corroborated by any independent witness. Mr. Mwandalama conceded. He however while relying on section 143 of Evidence Act, Cap 6, R.E. 2002 and the case of Yohanis Msiqwa V R (1990^ TLR 148 argued that no specific number of witnesses is required to prove a fact in issue. He further argued that there is no law which requires evidence of a single witness to be corroborated. What was required, he stressed, was the credibility of witnesses. After having carefully gone though the court record, I am of the settled view that this claim has no merits. I wish to associate by Mr. Mwandalama's regarding the position of the law as to the number of witnesses who can prove the fact in issue. Admittedly, there is no specific number to that effect. The fact in issue may be proved by a single witness provided he/she is a credible witness. Section 143 of the Evidence Act is clear on this. It provides: 143. Subject to the provisions of any other written law no particular number of witnesses shall in any case be required for the proof of any fact" But again in Yohanis Msiqwa's case (supra) it was held: As provided under section 143 of Evidence Act, no particular number of witnesses is required for the proof of any fact. What is important is the witness's opportunity to see what he/she claimed to have seen and his/her credibility." In the instant case, clearly, there was only one witness. He was the one who with his naked eyes saw what transpired. It was at 07.40 hours, which was during a broad day light. After being stabbed with a knife, the people who were there started beating the assailant (appellant) to the extend that PW1 pleaded with them not to punish him as he did not know what he did. On top of that the appellant himself did not deny to be at that area at that particular time. Only that he claims that he was beaten by the passengers and that he was arrested by the police at that area. He did not, however, mention another person to be responsible. On the other hand, PW1 did not have any grudge with him so as to frame a case against him. PW1 was a credible and reliable witness. His evidence need not be corroborated by an independent witness. Coming to the 4th ground of appeal the appellant complained in that the trial magistrate was wrong to say that the appellant ought to have shown whether the said injury occurred as a result of self defence and not intentional in the absence of proof that the appellant had a knife and that he real used it to stab the complainant. The learned state attorney conceded and quite rightly in my view, but on a different reason. He stated that the appellant did not testify to the effect that he stabbed the victim in self defence. Indeed, the trial magistrate on page 3 of the judgment stated: "In observing the whole (saga) scenario or story no doubt that the accused was attacked and beaten as for PWl(sic) shows that the accused was beaten by passengers and I think (I am not sure) the accused in self defence removed a knife and stubbed (sic) the victim accidentally..." The trial magistrate in evaluating evidence seemed to speculate that perhaps the appellant stabbed PW1 with a knife in self defence. There was no evidence from both sides to that effect. I wonder where the trial magistrate got that proposition. On the appellants claim that there was no evidence that he had a knife and used it to stab PW1, I do not agree with him. To the contrary, I find there was sufficient evidence that proved that the appellant had a sharp object, a knife being inclusive which he stabbed PW1 with. This is revealed firstly, on PW1 response when re-examined by the Public Prosecutor where he stated that the accused (appellant) had no any right to "stab" him as he (PW1) was not part of the fight. I think he used the term "stab" to show that a sharp object, like a knife, was used to inflict injury on him. If it was a mere beating, I think, he would have definitely said so. But PW l's further evidence is as hereunder: "...But as I approached the accused I got surprised to see that I had been beaten on the chest and the accused started running and fell down... I saw my passengers beating him" Admittedly, this was a circumstantial evidence. From the evidence, PW1 was hit on the chest. The stabbing was severe to the extend that he fell down immediately. The appellant took to his heels immediately thereafter. I think the appellant had to run due to injury caused by him and his guilty consciousness. If it was not a serious injury, he would not have run away. Of course, he knew he was to be punished severely. Further to that, the evidence that PW1 was injured on his chest was corroborated by the PF 3. The PF 3 revealed that PW1 sustained injury on his chest, which was categorized as a dangerous harm. The injury was a stab wound which measured 4 to 5 cm deep. The nature of the wound/injury shows that a sharp instrument, a knife inclusive, was used. The totality of all these facts, in my view, indicate that whatever instrument was used to stab PW1 was a sharp one, knife being inclusive. With these observation, I find the appellant's claim to have no basis. On the 5th and 6th grounds of appeal, the appellant argued that the time when PW1 was stabbed was not explained and that the evidence on record which was wholly circumstantial failed to prove the offence against him. The learned state attorney on his part submitted in relation to the time that the charge sheet and the facts read over during the preliminary hearing indicated . the offence to have committed at 07.40 hrs, which was during the day. The appellant, he added, did not deny to be there at that particular time. He further argued that the identification was watertight despite the fact that there were many people. As to the kind of evidence he contented that PWl's evidence was not circumstantial as suggested by the appellant, but was a direct evidence and it proved the offence beyond reasonable doubt. He lastly prayed for the appeal to be dismissed. The appellants complaint regarding time has taxed my mind. It was not clear to me as to what exactly he meant. Even after probing him, it did not assist. Be it as it may, after my auxions perusal of the court record I am, with respect, in agreement with the learned state attorney that the charge clearly indicates the time when the offence was committed. It was at about 07.40 hrs, which was morning hours but during broad day light. There cannot be speculations that it was dark so as to infer a mistaken identity. Incidentally, even the facts read over to the accused during preliminary hearing conducted on 26/11/2007 indicate so. It is not known why the appellant came up with this complaint. Moreover, the question of the time was not featured when PW1 testified in court. He was not cross examined in that respect. I find this to be basiless and at most it is a mere afterthought. But again I do not see how PW l's evidence can be taken as circumstantial evidence. As correctly submitted by the learned state attorney PW1 was the sole eye witness. He was a victim of the offence that occurred at 07.40 hrs which was a broad daylight to enable his clear vision. Part of his evidence was as hereunder: "... Before I pass (sic) Mr. Urgin Mwalongo come with a car and left on the 2 cars ad blocked me, my passengers and others who were in another cars(sic) decided to beat him as to why he blocked them. As a driver and I did not know I decided to go and interfere but all the passengers decided to cool down. But as I approached the accused I got surprised to see that I had been beaten on the chest and the accused started # running and I fell down and in twenty minutes I saw my passengers beating the accused and when fell down I was already stubbed (sic) on my chest with a knife and I told my passengers to leave him as he did not know what he had done..." Certainly, this is a story from a person who not only observed the sequence of events but also perceived its outcome. When the passengers started punishing the appellant for blocking them, PW1 cooled them down. As he approached the appellant who had been beaten, he found himself stabbed on his chest. The appellant ran away but as other people saw him, they caught him and started beating him again until PW1 again asked them leave him. From PW l's evidence, it was the appellant and no body else who stabbed him with a knife. This cannot be said to be circumstantial evidence as the appellant tries to suggest. It was a direct evidence which was sufficient to mount conviction. At the end of the day, in view of the aforegoing I am satisfied that the conviction was sound in law. With regard to the sentence of five years imprisonment, I find it to per proper under section 225 of the Penal Code, Cap 16, R.E. 2002. The offence with which the appellant was charged is punishable by imprisonment of a term of up to seven years. The punishment of five years imprisonment in the circumstances of this case was proper. I find no reason to fault it. Finally, the appeal is dismissed in its entirety. R.K.MKUYE JUDGE 15/9/2010 Right of appeal is explained. R.K.MKUYE JUDGE 15/9/2010. Date: 15/9/2010 Coram: Hon. R.K.Mkuye, J Appellant: Absent For Respondent: Mr. Mwandalama State Attorney for Republic. C/C. Nuru Abdallah. Mr. Mwandalama: The appellant did indicate that he does not wish to be present at the hearing judgment. Delivered on 15th day of September, 2010 in the presence of Mr. Mwandalama learned State Attorney for the Republic and in the absence of the appellant.