20120217 TZHC Moshi

IN THE HIGH COURT OF TANZANIA ATMOSHI DC CRIMINAL APPEAL NO 21 OF 2009 C/F Criminal Case No; 34 of 2008 IN THE DISTRICT COURT OF MOSHI AT MOSHI YUSUPH MOHAMED .....................................APPELLANT VERSUS THE REPUBLIC ........... ,,., ....................... RESPONDENT JUDGMENT MZUNA, J. Yusuph Mohamed has lodged this appeal against the conviction and sentence of three years imprisonment imposed. against him by the District Court of Moshi. He was alleged to have caused grievous harm c/s 225 of the Penal Code Cap.16 (R.E.2002) to one Maulid Athuman. The offence is said to have been committed on 4th day of November, 2007 at about 20.00 hours at Njoro area within the Municipality and District of Moshi in Kilimanjaro Region. The available evidence as rightly stated by the trial Magistrate point to the following effect: 1 . On the material date and time PW. l Maulid Athuman was heading to his neighbour to watch the T.V. On the way he met the appellant and Abdallah s/o Hassan (who was charged as the 2nd accused but was acquitted). Then Abdallah Hassan asked as to why he was publishing that he had borrowed some shoes and clothes from him (i.e. PW. l) and this he said did humiliate him. This was followed by Abdallah Hassan kicking him and then the appellant stabbed him with a bis bis/screw driver on his head which caused him to become unconscious. They ran away. He was found lying helplessly by PW.3 Onester Kasian. He was referred to K.C.M.C. where he gained his sences on the 3rd day and did disclose to PW.3 and PW.l's brother lbrahimu Athuman (PW.2) that it was the appellant who stabbed him with a screw driver on his head. It was also found that during the attack the appellant was in a company of other three people. That the appellant was staying with the 2nd accused but when PW.2 went to their home the 2nd accused refused to open the door. The PF.3 was tendered by PW. l as Exhibit P. l. The trial magistrate basing on the above evidence found that the charge was proved to the required standard of proof against the appellant. Mr. Semali the learned State Attorney, did not support this appeal. 2 In this appeal, seven grounds of appeal have been advanced by the appellant. Read as a whole they bold to one that .is whether the charge was proved to the required standard of proof as against the appellant. It is an undisputed fact that this offence was committed during night time at about 8.00 p.m. The evidence does not disclose the source of light apart from showing that the attacking was done on the way. The trial magistrate with due respect went astray when she said at page 3 of the typed judgment that: "........... He also identified the 1st accused because there was electricity light which allow (sic) him to identified (sic) him they even exchanged a words (sic) with 1st accused and 2nd accused before been injured (sic) ... ✓- The contention that there was electricity light does not feature in the evidence. It is the innovation or conjecture of the trial magistrate. This anomaly was pointed out by the I appellant in his second ground of appeal. The learned State Attorney never addressed his minds to this unpleasant conduct of the magistrate to concoct the evidence on the issue of the presence of electricity. He only said that PW. l said knew the appellant and to him that was sufficient evidence to found a conviction. 3 If I can revisit the evidence when PW. l was under examination in chief he said never knew the appellant before. It is only during cross examination when he said that he knows him as he used to see him in the street. The court never resorved such contradiction which are not minor. It was held in the case of Said Cha/y Scanio vs. R. Criminal Appeal No.69 of 2005 (C.A.T.) (unreported) at Page 7 that: ". Where a witness is testifying about identifying another person in unfavourable circumstances, like during the night, he must give clear evidence which leaves no doubt that the identification is correct and reliable. To do so, he will need to mention all the aids to unmistaken identification like proximity to the person being identified, the source of light and its intensity, the length. of time the person being identified was within view and also whether the person is familiar or a stranger.... ,, (The case of Waziri Amani v. R ( 7980) TLR 250 at Page 252 was followed and applied). If we can apply the above principles, it is clear that there was no source of light for an accurate and unmistaken identification. If the victim (PW. l) alleges he used to see him in the street we are also cautioned that: 4 "Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused?,, See: Shamir s/o John v. R. Criminal Appeal No.166 of 2004 C.A.T. (unreported) at Page 11. The said PW. l never said how often did he see the appellant and if occasionally had he any special reason for remembering him? Furthermore, the allegation that there was exchange of words is unfounded because it was the second accused who exchanged words with him about the contention that he was publishing that he had borrowed his shoes and clothes not the appellant. I would not have found some difficulty if he is the one who was convicted because they were well known friends. In any case, the issue of source of light was central. To my surprise, the court employed double standards by acquitting him and instead convicted the appellant. The evidence further show they were four people who attacked him by kicking him. How then did he specifically see that it was the appellant who stabbed him with a screw driver, while it was dark or no any disclosed source of light? None of other Prosecution witnesses did witness during the alleged stabbing. His brother (PW.2 Mr. lbrahimu Athuman) was only told by PW. l on a 3rd day about the attackers 5 because PW. l was unconscious. He also admitted .that he was told that the said victim was attacked by unknown people. This shows that after the incident it was not reported to the local authority about who the responsible person were When I was composing the judgment I never saw the PF .3 thought it is said was admitted in court. The procedure adopted to admit it was proper and the appellant who dispensed with the requirement to summon the Doctor who filled it can not complain at the appeal stage. For the reasons above stated based on the weaknesses of prosecution evidence not on procedural aspect, this appeal has merits. The learned State Attorney who did not support it with due respect, did not comb through all the available evidence on record. The appeal is allowed. I proceed to set aside both the conviction and sentence. The appellant YUSUPH MOHAMED is to be released from prison· forthwith unless legally detained for other offence known to law. ~ M.G. MZUNA, JUDGE 17/2/2012 6 Date: 17/2/2012 Appellant: Present in person Respondent: Mr. Nkya, State Attorney Court: Judgment delivered this 17th day of February, 2012 in · the presence of Mr. Nkya learned State Attorney for the Respondent. The appellant is present in person. ~ M.G. MZUNA, JUDGE 17/2/2012 7