20110826 TZHC Dodoma

IN THE HIGH COUT OF TANZANIA ATDODOMA (EXTENDED JURISDICTION) PRM. CRIMINAL APPEAL NO. 13 OF 2011 (DC) CRIMINAL APPEAL NO. 105 OF 2010 ORIGINAL CRIMINAL CASE NO.87 OF 2009 OF THE DISTRICT COURT OF KONDOA DISTRICT AT KONDOA RAMADHANI HUSSEIN ........ ..................................... APPELLANT (Original Accused) Versus THE REPBULIC ............... ................. ......................... RESPONDENT (Original Prosecutor) 9/8/2011 & 26/8/2011 JUDGEMENT R.I. RUTrA, PRM, EXt JURISDICTION. The appellant one RAMADHAN HUSSEIN was escorted and stood before the fountain of justice of Kondoa District Court, and charged with counts of GRIEVOUS HARM C/S 225 of the Penal Code Cap. 16'VoI. 1 R.E. 2002. The appellant at the end of 1 / - full trial was convicted and jailed for 6 years. He was aggrieved; hence the instant appeal. The back ground which culminated to the end result of the matter was that on 5th April, 2009 at about 21/30 hrs at Kelema village in Kondoa PW1, JAMILA d/o KIBERENGE and ASHURA d/o RAMADHANI (PW3) were in the house and studying. Then a thug who was identified as the appellant broken the door and entered. That thug was armed with a "sime" bush knife . He cut PW1 and PW2 . The two sustained injuries . The matter was reported to police station. The victims were referred to Hospital. The appellant lodged the appeal which contains a number of six grounds. The said grounds look like a submission. For purposes of convenience I have summarized them as follows:- - That the appellant was not properly identified. - That the confession was not voluntary. - That the evidence adduced by the appellant in his defence was not considered. - That the appellant was not explained of his right under section 240(3) of CPA -Cap . 20 R.E 2002. - That the conviction did not base on the provision of the law as provided under section 3 12(2) of the CPA Cap. 20 R.E. 2002. The appellant opted to be present to argue his appeal. He appeared and submitted, but emerged with a new story quite different from the grounds of appeal. One may wish to refer to the said submission as additional grounds. 2 In my decision I shall refer to them when the need will arise so to do. The Respondent was fully represented by Ms. Nsana, learned state Attorney. She was not ready to side with the appellant. She supported the, conviction and the sentence imposed. On the first ground for identification Ms. Nsana submitted that the appellant was' clearly seen and identified by PW1 and PW3. That the victims were studying using the lamp. That if they could read the letters in the books by the influence of light shed by lamp, that the light was enough to influence the identification of the appellant. She said that to show that the light was enough to favour the identification PW1 was able to see the appellant cutting PW3 on the back near the shoulder. That PW1, PW3 and the appellant knew each other before the incident. The appellant was married to the aunt of the victims. Ms. Nsana, 'referred to the case of Juma Shaban )uma Vs. R. Cr. App. No. 168 of 2004 CA (Unreported). That in that case it was said that the description is not important when the witness knew the accused/appellant before. On the 1 st grounds the appellant said that there was a need to describe the size in which the victims were taking their studies. He meant that the light shed by the lamp could, not be bright enough for proper identification. That the witnesses failed 3 even to describe the clothes he had at the scene. He cited the case of Waziri Amani V.R. (1980) TLR. 250 and the case of Hassan Said and Selemani Ally V.R Cr. App No. 44 of 2002 (Unreported) and Dorica Kagusa V.R. Cr. App. No. 174 of 2004 and the case of Issa Mgara © Shuka V.R. Cr. App. No. 37 of 2005 (unreported). Unfortunately I could not lay my hand the cited cases which one met reported. Only the state attorney supplied me with the copy of the case which she cited. It was not disputed that PW1, PW3 and the appellant knew each other before the incident. The question for consideration and decision is whether or not the trial court made proper finding of identification. When considering the issue of identification the trial court said and I quote: "It is a matter of no dispute that the accused did break the door and enter into the dwelling room and he found the complainants being studying with enough light by hurricane lamp and immediately after entering therein, he was identified by the complainants with helper of li'ht by hurricane lamp which was supporting them for their study and at the sanietime, it was easy for complainants to identify the accused at the scene as the accused is village and street mate with PW2, PWJ and PW3 and also there 4 is family relationship hence identification was easier and simple" I have soberly considered the submission by the state attorney and the decision of the trial court on the question of identification. I am not at a position to fault the finding of the trial court. As it was said the witnesses and the appellant new each other. That facts puts away the need for description about the appellant. There was an argument about the source of light. In the case of Kuiwa Makwajape and two others Vs. R. Cr. App. NO. 35 of 2005 CA (Unreported). It was said that the intensity and illumination of the lamp is important so that a clear picture is given of the condition in which the appellants were identified. In the instant case it was said and not challenged that PW1 and PW3 were found studying. I side with Ms. Nsana that since the victims were studying the light'they were using was enough for identification. After having considered the intensity and illumination of the lamp and the fact that the appellant and the victims were no stranger to each other I am of the firm view that the appellant was clearly and properly identified. The second ground was is about confession. It was the argument of the appellant that the trial court did not conduct the inquiry to find out if the caution statement was voluntarily taken. He argued that while at police was threatened and was not given a chance to call his relative. 5 Ms. Nsana, said that the trial court performed the obliged duty. That when the appellant denied the admission of the caution statement as exhibit the inquiry was conducted. I have combed the proceeding of the trial court. It is recorded that on 19/1/2010 the trial court (Y. Wilson - RM) conducted trial within trial. He heard the PP and D. 992 D/Cpl Simon then called the accused /appellant to explain what transpired at police station. After that the ruling was composed and delivered then the caution statement was admitted as exh. P2. The position of the law is that the trial within trial is conducted at the High Court and the subordinate court when the cautioned statement is countered conducts- an inquiry. Though the procedure is the same (see. Seleman Abdallah and others VS. R Cr. App. No. 384 of 2008 CA (unreported. Although the trial court conducted trial within trial instead of an inquiry I am of the considered view that what was done serves the purpose. The finding that the confession was voluntary can not be faulted at this stage. Another ground was, that the defence side was not considered. Ms. Nsana, argued that the defence was considered by the trial magistrate in his judgement. On page 3 of the typed copy of judgement especially on the last but one paragraph the evidence of the appellant and of his witness, Halima Masawe (DW2) his 11 - mother was considered and the trial court arrived at the view that on the fateful date and time the appellant was in Kelema Balal village and he was not at his home. That shows clearly that the defence side was considered by the trial magistrate. The appellant was complaining that his right-f under section 240(3) of CPA Cap 20 RE 2002 was infringed. In his ground of appeal he arguedthat he was not explained of his right to call the doctor who examined the victims and filled the PF3. In reply Ms. Nsana submitted that the record of the trial court was silent if the accused was explained of his right or not. What we can inter in that gap is that the right was not accorded to the appellant. The learned state attorney contended that even if the PF3was not tendered by the doctor the adduced evidence still was strong enough to warrant the conviction. That the behavior of the appellant after the commission of the offence show that he was the one who committed the offence. That the appellant after the incident he was not seen at his home stead and was hiding from being caught. The proceedings shows that the appellant denied the contents of the charge sheet. I did not see it said that Jamila Kiberenge (PW1) and Ashura Ramadhani (PW3) were not cut and injured. The tendered PF3 did not read that the appellant was the one who committed the offence. The PF3 read the nature of injuries inflicted to the body of PWI. and PW3. 7 / 4 - When faced the same situation in the case of Shabani Daudi Vs. R. Criminal appeal No. 28 of 2000 the justice of the court of appeal said. Admittedly, an accused person has the r,'ht under £ 240(3) of the criminal Procedure Act to cross - examine the author of a medical report which has been received in evidence and that the magistrate is duty bound to inform the accused person of this right. The record of appeal does not show that that was done in this case. So, undoubtedly the appellant was denied that r,ht and that was contraly to the provision cited above. However, we do not think that the appellant was prejudiced by that admission. Exh. Pd merely showed that PWJ had probably been raped because of the bruises in her private parts. That exhibit, however, does not say that the rape was committed by the appellant. Thus, it does not contradict the appellant's denial that he is not the one who raped PW1. Incidentally, it has never been the case of the appellant that PW1 was never raped at a/I, because, had that been so, then Exh. P.1 would have contradicted him. So we dismiss this ground too" In the present case the medical doctor was not called and the appellant was not explained of his right as provided under section 240(3) of Cap. 20. R.E 2002. I said here above that PW1 and PW3 were cut and injured. The PF.3 were tendered and read about the nature of injuries. The appellant denied the charge but the fact that PW1 and PW3 were injured was not challenged. 8 It is my view that the omission for not explaining right to the appellant did prejudiced him. That said the ground of appeal is dismissed. The last ground raised by the appellant was that the conviction did not base on the provision of the law as provided under section 3 12(2) of CPA Cap. 20 R.E.2002. Ms. Nsana, argued that the law was not breached. That on page 4 of the typed Judgment that the trial magistrate said that the accused was convicted as charged. That those words indicates that the law was adhered to. When concluding his judgment the, trial magistrate said the following words. I quote: - "--- all elements of an offence of grievous bodily harm under section 225 of the Penal Code Cap. 16 R.E. 2002 were sufficiently proved against the accused as was charged herewith and I hereby proceed with finding that, the accused he committed it maliciously and evidence against the accused has been proved beyond reasonable doubt in terms of section 110 of TEA Cap.6 R.E.2002 and the accused is hereby convicted / accordingly with causing grievous harm c/s 225 of the Penal Code Cap. 16 R. E. 2002 as he was charged herewith." For ahy one who has happened to read the contents of the said judgement can side with me as well join Ms. Nsana and say that the conviction did base on the provision of the law. The law was not breached. The said ground of appeal is dismissed. The charge sheet faced by the appellant contained two counts of grievous harm. The trial magistrate when passing the sentence of six years did not specify the said sentence was for which count. That was not proper. The trial magistrate had to pass sentence to each count and then say if the sentence was to run concurrently or consecutively. Applying the revision powers under section 45(3) of Cab. 11 R.E. 2002 the omnibus sentence of six years is hereby set aside and substitute with the sentence of three years to each count, i.e. the 1 st and 2d count. The sentence to run concurrently. The sentence to run from 31/5/2010 when the appellant was convicted. It is so ordered. (R.L RUTA) PRM. EXTENDED JURISthCTION 26/8/2011 Delivered in the presence of the appellant and Ms. Luwongo, State Attorney. Right of appeal explained. 10 0 R.I. RU1TA) PRM. EXTENDED JURISDICTION 26/8/2011 06TRATE (ETE DODOMA C.)U SESLYENT 1AG 11