20110907 TZHC Dodoma 1

INTHE HIGH COURT OF TANZANIA AT DODOMA. (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 63 OF 2011 (Original Criminal Case No. 54 of 2008 of Kongwa District Court at Kongwa) JACKSON MJENDA ............ APPELLANT VERSUS THE REPUBLIC ... RESPONDENT JUDGMENT 261812011 & 071912011. KWARIKO,J: The appellant herein was formerly charged with the öffénce of causing Grievous Bodily Harm contrà' to setiori 225 Of th Penal Code Cap. 16 Revised Edi€i5ft 2OO2I. It was aireged by the Prosecution -tfia-f-ffieã5elltThäd OñthI2 t daVofMay 2007 -- - _---- ataböut 21 .00hours at_Mautya_village_ ithJn giiçJn -- -Dodoma--Region unlawfully caused grievous bodily harm to One - CHISTINAD7OMGANGAbystabbingheninTher -stomaeh--and -left--- buttock and caused her to suffer gñevous bodily harm Thern 1 appellant denied the charge hence his full triaL The facts of the case as revealed by the prosecution evidence can be summarized as hereunder. On the material night the complainant CHRISTINA D/O MGANGA (PW1) was selling cooked meat in a local brew shop in her village while her husband the appellant herein was selling fresh meat. Then the two left the shop towards their home and on the way the appellant tried to fell PW1 down by kicking her legs but only the bucket she was carrying dropped. When PW1 was lifting the bucket the appellant stabbed her by a knife in the abdomen and then her buttocks. They struggled overthe knife and the appellant ran away. PW1 raised alarms while going to the village chairman one DISOILE S/O BUARAHINDI, PW4. When PW1 reached at PW4's she fell down and lost consciousness and by then other people had gathered there. PW4 covered PW1's abdomen bleeding wound with a piece of Khanga and took her to the village Executive Officer's and to Police Station where PF3 (Exhibit P1) was issued for her to go to hospital. PW1 was admitted until on 29/6/2007. The appellant escaped from the village after this incident In his defence the appellant denied the allegations and said that he had separated with the complainant in March, 2007 and only used to visit her for their children's sake. That PW1 summoned him in 2008 on account of their child's sickness and that is when he was arrested. He further heard the allegations in court and that the complainant had cut wounds even before he married her. He disputed that he was ever in the local brew shop on the material night. At the end of the trial the court found that the prosecution case was proved to the standard required in law against the appellant, was found guilty and accordingly convicted and sentenced to eight (8) years imprisonment with corporal punishment of twelve strokes of a cane. The appellant was aggrieved with the trial court's decision hence filed this appeal against conviction and sentence. In his memorandum of appeal the appellant through his lay hand raised about seven grounds of appeal but he is essentially complaining that the prosecution case against him was not proved beyond reasonable doubts. He raised six points of complaints against the prosecution evidence. 3, Through Mr. Nchimbi learned State Attorney the respondent Republic opposed this appeal against conviction and gave reasons for the same. Firstly, the appellant complained that the trial court erred to convict him on insufficient prosecution evidence. This court agrees with Mr. Nchimbi learned State Attorney that the prosecution proved the case against the appellant beyond reasonable doubts. Firstly, PW1's evidence as to her relationship with the appellant was corroborated by PW2, her father, PW3, CHARLES MKUNDA and PW4, DISOILE BUARAHINDI who testified that the two parties were neither separated nor divorced at the time of this incident. That, the fact that the two did business in the local brew shop at the material night was corroborated by PW3 and PW4. That, the two left the local brew shop together towards their home and there is no evidence to show that PW1 lied that it was the appellant who assaulted and injured her. Thus, it is an afterthought that this case was framed against the appellant since he did not show this concern during the trial (See FADHILI RAMADHAN TEMBO yR1 criminal Appeal No. 304 of 2007, Court of Appeal of Tanzan ía at Arusha (Unreported)). In the second complaint the appellant is up in arms that his dfncewasnotconsideredbythe -trial–cou rt—Aga i n–th is-cou rt---- 4 agrees with the Republic that the defence was considered along with the prosecution evidence and it was found that the same did not raise any doubt on the evidence by the prosecution. Thus, this complaint is baseless and it is rejected. As for the complaint that the trial court erred to consider and convict on the evidence of family members this court is in agreement with Mr. Nchimbi learned State Attorney that there is no known law which bar family members to testify on a particular issue. What matters in the witnesses' evidence is their credibility and truthfulness (See EDWARD NZABUGA VR, Criminal Appeal No. 136 of 2008,. Court of Appeal of Tanzania at Mbeya, (Unreported)). Therefore, this complaint is baseless and it is hereby dismissed. The complaint that the prosecution failed to account on the delay to arrest the appellant is baseless since PW1, PW2, PW3 and PW4 testified that the appellant disappeared from the village soon after this incident. This incident was reported first to the village chairman PW4, then the Village Executive Officer and to police where a PF3 was issued for PW1 to go to hospital for ........... treatment. .. Also, this court agrees with the Republic that the corn-. plaint ....... 5. sobecause, PW3 and PW4 answered PW1's alarms and were the one who had knowledge of the incident hence eligible witnesses. And it is to the prosecution's discretion to call witnesses whom they find can prove the allegations against the accused and not what the accused feels. The witnesses in this case were found sufficient to prove the charge (See also FADHILI RAMADHAN TEMBO VR) Supra. As to the complaint in relation to the PF3, the court agrees with both parties that the same was illegally admitted in court. This was contrary to section 240 (3) of the Criminal Procedure Act, Cap. 20 Revised Edition 2002 since the trial Magistrate did not inform the appellant of his right to have the Medical Officer who authored the PF3 to be summoned for cross-examination. Thus, the PF3 was not good evidence and it is hereby expunged from the record. Even though the PF3 is expunged from the record but the available evidence did prove PW1's injuries. As rightly submitted by Mr. Nchimbi the appellant himself said PW1 showed old scars in court. Whereas PW4 said PW1 came to his home oozingblood from her abdomen and buttc.cks.PW2 testified that he found PW1 bleeding and had lost consciousness and PW3 was the appellant who inflicted Them. This complaint is equally dismissed. I also agree with both parties that the sentence against the appellant is manifestly on the higher side and illegal. The maximum punishment provided for the charged offence is seven years imprisonment. However, interms of section 170 (1) (a) and (2) (a) (ii) of the Criminal Procedure Act Cap. 20 Revised 2002 the trial Magistrate could only have sentenced the appellant to imprisonment of not more than twelve months. More than that he ought to have sent the record to this court for confirmation of the sentence by a Judge. Failure to adhere to this law, this sentence against the appellant of eight years imprisonment with corporal punishment of twelve strokes of the cane if illegal and it is hereby set aside. In the event therefore, the period the appellant has been in custody since conviction will meet the ends of justice as to the circumstances of this case where the complainant was severely injured for no apparent reasons. Therefore, the appellant is ordered to be released •frorP • . (M.. A. K ARIKO) JUDGE 07/9/2011 Court: - Right.: of Appeal fully explained. (M.AUK ARIKO) JUDGE 07/9/2011 ATDODOMA 07/9/2011.