20120706 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA DC CRIMINAL APPEAL NO. 59 OF 2010 (ORIGINAL CRIMINAL CASE NO. 21 OF 2008 - KONGWA DISTRICT COURT AT KONGWA BEFORE: E.E. MWAMTEMI, SENIOR DISTRICT MAGISTRATE) SAID S/0 CHIJOJE VERSUS THE REPUBLIC 18.04.2012 & 06/07/2012 JUDGEMENT The appellant, Saidi s/o Chijoje was charged and convicted of the offence of Grievous harm contrary to the provisions of section 225 of the Penal Code, as revised in 2002 by the District Court of Kongwa at Kongwa and sentenced to 8 years of imprisonment. ThEFcfp"f)elldnt did nof enter appe_ar6n·ce when the matter was scheduled for trial on 15/10/2008, 30/10/2008, and 18/12/2008 as a resultJhe. tri.al proceeded in absentia in terms of section 226 of the Ct:iminal Procedure Act [Cap 20 R.E. 2002] hereinafter "The 1 The background to the matter was that, on 14th day of March, 2008 at about 20.00 hours at Maloti Village within Kongwa District in Dodoma R.egion, the appellant is alleged to have caused grievous harm to one, Mathayo s/o Chityaunge by Stabbing him with a knife in the stomach, to his left shoulder and in his left hand. However, the appellant pleaded not guilty to the charge. PWl, Mathayo s/o Chityaunge from Moleti Village who· happens to be a father in law of the appellant told the trial Court that on 14th day of March, 2008 at about 20.00 hours he paid a visit to the appellant's place and upon arrival he found the appellant's wife Janeth d/o Magaya. PW1 stayed at the sitting. room until the arrival of the appellant. On his arrival the appellant inquired from his wife as who was in the house with her. Janeth d/o Magayo (wife) replied that she was there with the PW1. Then, all of a sudden the appellant is alleged to have assaulted PW-1 twice on the head with a stick before stabbing him as aforesaid using the knife. In efforts to rescue the situation, the appellant's wife raised an ·alarm calling for help iri which case people respondedtothe alarm 1n d1d-6f-the 1nc1de11t. ---Before -the triar--· _,_ - - - - - ~ - ~ - - - ~ - - - - - - - - - - - - - - - - - - - - - - . -------- ---- - ------------ ---- - court a PF3 evidencing the alleged grievous harm was tendered in evidence and admitted as Exhibit P1. 2 PW2 D9706 D/Coplo Asipwe recorded the appellant's caution statement on the incident and testified of it before the trial court to the effect that the appellant did actually confess before him to have committed the offence. The appellant's statement was received and marked as Exhibit P2. The story as stood before the trial court the appellant is alleged to have jumped bail and escaped with the prosecution's witness who happened to be Janet Magayo (the appellant's wife). It is at this juncture the trial court proceeded under the provisions of section 226 of the Act. On the strength of the evidence above the appellant was convicted and sentenced to imprisonment of eight years. Dissatisfied by the decision of the trial court the appellant has appealed to this· court by assigning about 8 reasons of appeal but the same appear to be four (4) in substance as follows:- --~~- -· -- --· · ·-•-l:·Tncrr·~n,e·evicreTic·e· ··was-~rnsr····sufficielif to··· convicr-·tne - ----~·~--·-· ··-- -··--· ··--- -·--. . appellanlgiven fhallne prosecution Is case did-·nor·s-fafe______________ the source of the incident. 3 2. That the appellant was only trying to defend himself after PW 1 started to fight him with a stick. 3. T he appellant was not afforded an opportunity to cross- examine the maker of the PF3 which was admitted in evidence against him. 4. The appellant did not absent himself deliberately from the hearing of the case but he was indisposed and he made some efforts to see to it that his sureties send the message to that effect. At the hearing of this appeal, the learned State Attorney Ms. Shio did support the appeal and in expounding the appellant's complaints, she assigned the following reasons thereon; It was wrong for the trial court to proceed with the hearing of the matter in the absence of the appellant without giving him the opportunity to assign reasons for his failure to appear. The learned State Attorney cited the provisions of section 226 (2) of the Act to ________ convicJio_o __oLJt)_e__appelLanL flod it-beer=i--tRG1t--tl:1e--Qppell0n-t-w0s- - ----- - ---- given an opportunity to assign reasons for his absence. 4 This has been provided under section 226 (2) of the Act, I wish to reproduce the same as herein under. "If the court convicts the accused' person in his absence, it may set aside the conviction, upon being satisfied that his absence was from caused over which he had no control and that he had a probable defence on the merit." It is on the same basis I am of the settled opinion that the trial court ought to have afforded the appellant the right to assign the reasons for his absence when he entered appearance on 12/02/2007 it would probably have come to the conclusion as provided under the provisions of section 226 (2) of the Act. At any rate the trial court's records do not show any efforts made by the same to find the sureties of the appellant who were better placed to tell the trial court on the appellant's absence. In Olonyo Lumena and Lekitoni Lemuna v. R 1994 TLR 54 (CA) Criminal Appeal No. 123 ofl993, the Court -of Appeal had thi-s to say~- 11 (i) Section 226 (2) of the Criminal Procedure Act 1983 -----,convic-tion-entered-in-the~ abseffce-if-it-is--sutisliec:J~- that the absence was due to causes beyond the control of the accused; This accords to the 5 accused an opportunity to be heard. (ii) Section 227 of the Criminal Act 1985, which allows the conviction of an accused person in absentia, can only be invoked when an accused person being tried by a subordinate court fails to appear in court for hearing after the close of the prosecution case." The cited case above accommodates the appellant in the instant appeal for his absence in the trial court was before the • close of the prosecution case and not after and the court in the case of Olonyo (supra) says section 226 of the Act is only applicable prior to the close of the prosecution case. I sincerely believe the trial court owed the appellant the opportunity to be heard when he entered appearance on 12/02/2009 and try to assign reasons for his none appearance during trial and not to ignore him completely like it did. I am of the view that failure by the trial court to afford the appellant the opportunity to be heard as aforesaid has occasioned failure of justice. On the second reason the learned State Attorney Ms. Shio submits_ thot. tb.e,_sJp}ement.whicb~impJL~_ated Jb~~-appellor::1.tJo.. -~ha.v.e_com mi1te.d--tb.ec_Q.ftenc;;;:e,-t-r-1Q.t--is-t-G--SQ3/~GGI uti GFl--steteITT e Af-------- -·--- was wrongly admitted contrary to section 57 (3) of the Act. There is no evidence to show that the statement was read over by 6 the Police Officer to the maker (accused) to verify its accuracy nor properly endorsed at the end by the person who recorded it. Indeed, section 57 (3) of the Act compels the Police officer (recorder) to make available the statement to the suspect (accused) to verify on its correctness and accuracy. I therefore agree that the caution statement which was highly relied by the trial District Court was taken in contravention of section 57 (3) of the Act. Submitting her last reason as to why the conviction against the appellant should n·ot have stood before the trial court, the learned State Attorney contends that the PF3 which was tendered in evidence against the appellant did not abide to the procedure as provided under section 240 (3) of the Act. Section 240 (3) of the Act affords a person accused of an offence the right to have the maker of a PF3 summoned and subject the same to cross-examination if he so wishes. Now this was not done by the trial court and the learned State Attorney is of the considered opinion that the failure occasioned miscarriage of justice. I incline to the learned State Attorney's argument that the trial court ought to have inforrned the appellant of his right l'O .. - ~-~ncive-f11e~ maKef·or-fne-·Pr3 sLimm611-ecJ~for 'cYoss=exan1lnatior1 If he,--~ -· -,----,- -- so- wished. It was so important because at times an accused person may wish to find out if the offence was committed at all 7 irrespective of the fact that the same was not committed by him and put to task the maker of the PF3, alleging the commission of an offence in order to comply with the principle of burden of proof by subjecting the prosecution to questions. The right provided under section 240 (3) of the Act has been lamented by various decisions of the Court of Appeal to mention a few Arabi Abu Hassan v Republic (CA) Criminal Appeal No. 187 of 2005; Saidi Shabani v Republic, Criminal Appeal No. 88 of 2009 Dodoma {unreported) 2011 Vol. 1 (8). I am also of the view that it was wrong for the statement of Janet Magayo, the wife of the accused/appellant to be produced under the provisions of section 34 B of the Evidence Act. According to the provision of section 130 of the Evidence Act, Janet Magayo, the wife of the appellant is a competent witness but not a compellable -witness on behalf of the prosecution. T_herefore the admissibility of her testimony was subject to her views or rights as stipulated under section 130 of the Evidence Act. I would also like to point out that the sentence for grievous harn1 is seven (7) years as per section 225 of the Penal Code, [Cap ... ~--- ·-- ~-77;·rr.E~2002rar1a--nof-eight (8) years cisTmp-osec:I by the triarcourt. ------~-~------·. The trial District Magistrate was wrong to inflict that illegal sentence of eight (8) years. 8 • In the event, I allow this appeal quash the conviction and sentence of the appellant and order immediate release of the same unless lawful held on any other matter. M.S. SH1!J'4ALI J JUDG~ I 6/07/2012 Judgement delivered to-date 06/07/2012 in the presence of Ms. Luwongo, Learned State Attorney, representing the respondent/Republic and in the presence of the appellant in person. Right of Appeal Explained. M.S. SH' I ~LI -------¥,.-,,--·-·',-'f•C::sox."~".t·,c.7'--'···"-,,'"'"''-,~•-2'x-1,~'"--'·~ ~·--·-· - - ---- ... _. -- ·---------/'-'-"'·-·~~~ JUDGE --~---- - - - - - - - - - - - - - · -----~--- ---··--·--- ____________ __:. - 06/07/2012 9