20121206 TZHC DODOMA

IN THE HIGH COURT OF TANZANIA.· AT DODOMA (APP~LATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 1 OF 2011 (Original Criminal Case No. 84 of 2009 of the District Court of Singida District at Singida) I SE LEMAN JUMA@ KARAN I ••••• •••••••••••••••••• APPELLANT ' VERSUS • ..,.}1. THE REPUBLIC ........................................ RESPONDENT JUDGMENT, · . 19/11/2012 &~10/12/2012 ' ; ~ KWARIKO, J. The evidence by the prosecution at the trial reveals that the complainant FATUMA 0/0 ALLY, PW2 was home on the material day with her mother -in-law who married the app~llant' s uncle. While there the appellant herein charged there armed with an bow, five arrows and a stone. The said mother-in-law was picking vegetable and the appellant attacked her, pierced and hammered her with an arrow. He also hit her with the stone. On seeing that PW2 ran away to look for help but could not find the hamlet chairman hence took her way to the Police. On the way she met KASSIM S/O SHABAN!, PWl who was collecting pebbles and also JOSEPH S/O DANIEL PW3 a student who was on a bicycle. When she went ahead the appellant appeared and grabbed her by the neck and · fell her down. He produced an arrow and pierced her with it in the neck. PW2 rais·ed alarms where PWl and PW3 came to her rescue. The appellant ran away upon seeing the people coming. PWl and PW3 said had identified PW2' s assailant to be the appellant herein. PW 1, PW3 and other people who responded to the scene including a village· leader Omary Said took PW2 to hospital after th~y had failed to uproot the fateful arrow from her neck. At the hospit9I PW2 vomited poison from the arrow and a lot of blood. '" Upon the foregoing the appellant herein was arraigned before the trial .court with the offence of Grievous Harm c/s- 225 of the Penal ,. Code Cap. 16 Vol. 1 of the Laws RE. 2002. It was alleged that the appellant had on the 10th day of February, 2009 at about 14.00hours at lghuka village within the District and Region of Singida willfully and unlawfully caused grievous harm to FATUMA D/O ALLY by stabbing her with an arrow in the neck and suffered serious injuries. : ' When it c:ame to his defence the app'ellant relied on his alibi he • had registereo in court on 30/4/2009 during the preliminary hearing session. He testified that he had left his horr1e on the material day at 5.00am to go to Makiungu Mission hospital and spent the day there where he returned at 3.00pm. He was arrested on 26/2/2009 by the Police who was looking for one ATHUMAN JUMA. Hence the police were not sure who they were looking for. In the end the trial court found that the charge had been sufficiently proved against the appellant, he was found guilty and accordingly convicted and sentenced to seven (7) years imprisonment. The appellant was oggrieved by the_ trial court's decision nence filed this appeal essentially on two major complaints. These are; that his identification at the scene was not proved. and _that_ the offence of grievous harm was not proved. When the appeal was called for hearing the appellant reiterated his grounds of appeal. Whereas, the Respondent Republic who was represented by Ms. Magesa learned State Attorney did ·support the appellant's appeal. I will refer to Ms. Magesa_'._s submission ir the course of this judgment. "' On the part of this court after going through the evidence on record is of the opinion that this appeal is meritorious. There are two issues for consideration. The first one is whether the appellant was · identified at the scene. Secondly,whether the offence. of grievous ·harm was proved. As for the· 1;st issue, the court is in agreement with both parties that PW l and P'(v3 did not prove that they sufficiently identifial the appellant at th~ scene. This is so· because, they did not explain whether they kmew the appellant before and how they were familiar with him. In lihe with this, these witnesses. did not describe the appearance of the assailant who they said was the appellant. Most importantly these witnesses did not explain what was the distance between them and the assailant for them to be able to identify him. And the duration of the incident was not mention~d. These two witnesses, PW l and PW3 could have corroborated PW2's evidence had they been believable. Otherwise PW2 ought to have been supported by the evidence of the people who were at home when the alleged quarrel with the appellant had started. The people at home thus could have circumstantially supported PW2's evidence. No one was called to support the evidence that the • appellant had started the madness at home and hod threatened to : harm PW2. That. evidence could have gone further to show that infact the appellant had s.tarteo to ~ssault PW2's mother-in-law before he followed PW2 and waylaid her. Either no any local area• leader or the Police came to testify on what PW2 said soon after the. alfeged attack and whether she mentioned the appellant as her assailant. As for t_he appellant's arrest the court believes the appellant's account that he was arrested on 26/2/2009 since r;io anyone testified to the contrary. Hence, if it took more than two weeks· fo~ the appellant to be arrested, could it be said that he was identified at the scene? I am certain that this scenario is inconsistent ' with retlHty. Therefore, there is only a single witness as to the appellant's · identify. The law requires that evidence of a single witness should be treated with great caution in ·order to ground conviction. In the case at hand I have found that PW2' s evidence needed corroboration as I have explained above. Thus, the appellant's identification did not meet the standard set out in law which I · explained earlier"" Thus, the first ground of appeal succeeds. .' ~ f The fore~oing brings me to the second issue whether the offence of grievous harm was proved at the trial. Apart from PW2's mention that she had a scar caused by 'an arrow no any other evidence which was tendered to prove that PW2 had suffered any injuries. No any medical report was tendered to prove the kind of injuries the complainant had or if she had any injuries at all. No any medical personnel was called to testify if they saw PW2 with any kind of injuries. The court itself did not note during the trial what it saw as alleged injuries on the complainant's neck. Consequent to the foregoing it is clear that not only that the prosecution failed to prove that the appellant was the complainant's assailant but also it failed to prove that the ,_.. complainant suffered any injuries. Thus the prosecution case_ was not proved beyond reasonable doubt against the _appellant. Therefore, the appeal is hereby allowed, conviction quashed and sentence is set aside. The court thus· orders that the appellant be set at liberty L!nless otherwise lawfully held. Order accordingly. ' . ~i) > {M. A. ,RIKO] JUDGE 06/12/2012 DELIVERED AT DODOMA 10/12/2012 '. ..-::-.::· (M.A. K IKQ) JUDGE 06/12/2012 Appellant:- Present For Respondent:- Ms. Shio Senior State Attorney CIC: Ms. Komba t:~f}J:. . ir ,.,.. : · · A·~··. ~RIKO) ~; ·. }~Uocie \<~'-- ·•· in L I '1A /lln 1 ') i 11 I . i's' -- 1 • ·1'-.:· ,- . !".; . - ~. r -1'. ., ':' .