benedict erick kayembe vs republic 2012 tzhc 174 21 march 2012

IN THE HIGH COURT OF TANZANIA AT IRINGA APPELLATE JURISDICTION (Iringa Registry) (DC) CRIMINAL APPEAL NO. 40 OF 2011 (Originating from Criminal Case No. 128 of 2009 of the District Court of Iringa District at Iringa Before C.P. Singano - R.M.) BENEDICT ERICK KAYEM BE..... APPELLANT VERSUS THE REPUBLIC.........................RESPONDENT (Date of last Order 29.2.2012 Date of Judgement 21.3.2012) JUDGMENT KIHIO, J . The appellant, Benedict Erick Kayembe, was convicted of grievous harm contrary to Section 225 of the Penal Code, Cap. 16 R.E. 2002 and sentenced to five years imprisonment plus six strokes. Dissatisfied with both the conviction and sentence, he lodged this appeal. The facts of the case against the appellant as established in the evidence in the trial court were that on 19.3.2009 at 19.30 hours Noel Kigodi (PW.2), the appellant’s co-tenant, took water to the bathroom and before he took bath the appellant strangled him (PW.2) and beat him alleging that he (PW.2) had spread romours against him (appellant). He (PW.2) reported the matter to their Land Lord, one Idd Luhwago who went to the appellant’s room but the appellant refused to open the door and instead he (appellant) threatened that he would slash some one’s head. He (PW.2) and Susan Mgonukulima (PW. 1), Idd Luhwago’s sister, reported the incident at the Police Station and as a result, on the same day, at 21.00 hours, the Policemen, No. D 6496 - Detective Corporal Rashid (PW.3), Assistant Inspector Teddy Timbuka (PW.4), No. G.1144 - Detective Gaudence (PW.5) and other Policemen accompanied them (PW. 1 and PW.2) to the house where the appellant and PW.2 were tenants. PW. 1 required the appellant to open the door at his (appellant’s) room but he (appellant) refused. Thereafter the Police introduced themselves to him (appellant) and ordered him to surrender himself to them but he (appellant) also refused to surrender himself to them and instead he (appellant) insulted them and threatened that he (appellant) would kill a person. PW.4 pushed the window at the appellant’s room and when the said window was open he (PW.4), PW .l, PW.2 and PW.3 looked in the said room through the open window and with the aid of the light from the Kerosene lamp which was in that room they saw the appellant who was holding a machete. Thereafter, PW. 1, PW.3, PW.4 and PW.5 entered into the house’s sitting room and as they (PW. 1, PW.3, PW.4, PW.5 and other people) broke the appellant’s room the appellant suddenly came out from his room and cut PW.3’s hand with the machete he was holding. After cutting PW.3’s hand, the appellant managed to escape through the roof at his (appellant’s) room. It was in the evidence of PW. 1 that he knew the appellant for two years before the incident because he (appellant) was her (PW. l ’s) tenant’s son. It was in the evidence of PW.2 that he was at the window when the door at the appellant’s room was broken and with the aid of the light from the kerosene lamp in the said room he saw the appellant cutting PW.3 on the hand with a machete. The testimony of PW.3 in the trial court showed that after he was cut by the appellant on his hand using a machete, PF.3 was issued to him and he was admitted in Iringa Government hospital for three weeks and thereafter went to Tumbi hospital where he stayed for one week. It was in the evidence of Dr. Yahaya Msigwa (PW.6) that the PF.3 (Exhibit “P. 1”) was in respect of Corporal Rashidi (PW.3) who had an irregular cut wound on his (PW.3’s) left hand and the said cut wound was caused by a sharp object. It was also in his (PW.6’s) evidence that the cut wound led to loss of blood to a large extent and it was grievous harm. According to the evidence of PW.5 in the trial court, on 20.3.2009 they (PW.5 and other Policemen) found the appellant at the Village Executive Officer’s area and arrested him. The appellant denied any involvement in the commission of causing grievous harm. He told the trial court that his co-tenants in the house where he was staying were drinking Bamboo juice and quarrelled with his uncle. He further told the trial court that he became angry and slapped the youngman who caused trouble and made noises twice. He explained in the trial court that after the Youngman he had slapped called his relatives who came with weapons and stones and opened his (appellant’s) window he (appellant) closed it. He further explained in the trial court that the said youngman’s relatives broke his (appellant’s) room’s window and door. He stated in the trial court that after one of those people alleged that he was hurt he (appellant) left the room as advised by his uncle. The evidence of Simoni Kayombo (DW.2) supported the evidence of the appellant to the effect that after the appellant slapped one of the people who were drinking alcohol and the relatives of the slapped person threw stones and broke the window at their room he advised the appellant to leave the room to avoid troubles as there was noise that one of the people was hurt. The appellant filed a Petition of Appeal containing seven grounds of appeal. However, in essence his (appellant’s) grounds of appeal are four, namely: - 1. That the trial Magistrate erred in law in convicting him relying on improper identification. 2. That the trial Magistrate erred in law in convicting him basing on weak circumstantial evidence. 3. That the trial Magistrate erred in law in convicting him relying on the evidence of PW .l and PF.3 (Exhibit P. 1) which were not listed in the Preliminary Hearing (P.H.). 4. That his guilt was not proved beyond reasonable doubt. The appellant appears in person while the respondent, Republic is represented by Mr. Mgavilenzi, learned State Attorney. The appellant submitted that the incident occurred during night time and there were many people at the Scene of crime. He further submitted that the possibility of mistaken identification was greater. He contended that the evidence adduced in the trial court was weak and so the trial Magistrate erred in convicting him on a weak evidence. He further contended that PW. 1 and the PF.3 (Exhibit P. 1) were not listed in the Preliminary hearing and so the trial Magistrate erred in convicting him relying on the evidence of PW .l and the PF.3 (Exhibit “P. 1”) which were not listed in the Preliminary hearing. He argued that the trial Magistrate did not take into consideration his defence evidence. He further argued that the prosecution side failed to prove it’s case beyond reasonable doubt. Mr. Mgavilenzi supports both the conviction and the sentence of five years imprisonment but does not support the corporal punishment sentence. He submitted that there was sufficient light in the appellant’s room on that material date and the appellant and DW.2 were in that room. He further submitted that the appellant was sufficiently identified by the prosecution side witnesses. He further submitted that there was kerosene lamp light in his (appellant’s) room when he was identified. He contended that PW .l and the PF.3 (Exhibit “P. 1”) were not listed in the Preliminary hearing. He further contended that it is not law that a witness who was not listed in the Preliminary hearing cannot testify in court or that an exhibit which was not listed in Preliminary hearing cannot be tendered in the court as an exhibit. He argued that the trial Magistrate did not convict the appellant relying on the evidence of PW. 1 and the PF.3 (Exhibit “P. 1”) alone. He further argued that the appellant was not convicted relying on weak circumstantial evidence because there was strong evidence that the appellant was identified when he was in the room and when he was holding a “Panga” as there was kerosene lamp light in his (appellant’s) room. He was of the view that the prosecution side proved it’s case beyond reasonable doubt and so the conviction against the appellant was correct. As regards the sentence he submitted that the sentence of five years imprisonment against the appellant was proper under the law. He further submitted that he does not support the corporal punishment sentence because the law does not provide so. The first issue for determination in this appeal is whether there was sufficient identification against the appellant or not. According to the evidence of PW .l, as above shown, she (PW.l) knew the appellant for a period of two years before the incident as he (appellant) was her (PW. 1’s) tenant’s son and on the day of the commission of the causing grievous harm offence there was light from kerosene lamp in the appellant’s room and she saw him (appellant) through the open window at the said room and at that time he was holding a machete. The evidence of Noel Kigodi (PW.2), appellant’s co-tenant, was to the effect that he (PW.2) was standing outside the open window at the appellant’s room when the door at the said room was broken and with the aid of the light from the kerosene lamp which was in that room he (PW.2) saw the appellant cutting Corporal Rashid (PW.3) on the hand with a machete he (appellant) was holding. From the evidence of PW .l and PW.2, I find and hold that the appellant was properly and sufficiently identified at the Scene of crime as the person who cut PW.3’s hand. The second issue is whether the appellant was correctly convicted or otherwise. It was in the evidence of PW.3, that the appellant cut his (PW.3’s) hand with a machete and he was admitted in Iringa Government for three weeks and thereafter went to Tumbi hospital where he stayed for one week. The evidence of PW. 1, PW.2, PW.4 and PW.5 supported the evidence of PW.3 that his (PW.3’s) hand was cut with a “Panga” by the appellant. The defence case did not raise any doubt on the prosecution side’s case. According to the evidence of Dr. Yahaya Msigwa (PW.6), the injury on PW.3’s hand led to loss of blood to a large extent and the injury was grievous harm. The Medical Report in the PF.3 (Exhibit “P. 1”) supports the evidence of PW.6 that the injury on PW.3’s hand was grievous harm. In view of the evidence available in the trial court I am satisfied that the guilt of the appellant was proved beyond reasonable doubt. Indeed, the appellant was correctly convicted. I, therefore, agree with Mr. Mgavilenzi that the prosecution side proved it’s case beyond reasonable doubt and so the conviction against the appellant was correct. Having found that the appellant was correctly convicted I find that it is not necessary to discuss the remaining issues. As regards the sentence, I find that the sentence of five years imprisonment imposed on the appellant was proper under the law. I agree with Mr. Mgavilenzi that the sentence of six strokes imposed on the appellant was not proper as it is not provided for under the law. For the foregoing reasons, I dismiss appellant’s appeal on conviction and imprisonment sentence. The appeal on corporal punishment succeeds and is allowed. The corporal punishment of six strokes is set aside. It is so ordered. . —•c; S.S.S. KIHIO JUDGE 21.3.2012 Court:- Judgement delivered in the presence of Mr. Matitu, learned State Attorney and the appellant. Further Right of appeal explained. S.S.S. KIHIO JUDGE 21.3.2012